dnrttFll ICam ^rlyool ICibtatg Cornell University Library KEO 1051823a Reports of cases decided in the Court ^^ 3 1924 016 966 339 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016966339 REPORTS OF CASES DECIDED IN THE COUKT OF KIN&S BENCH, OF UPPEE CANADA. BY THOMAS TAYLOR ESQ., OF THE MIDDLE TEMPLE, BAKRISTER AT LAW. CONTAINING THE CASES DETERMINED FROM TRINITY TERM 4 GEO. IT., TO TRINITY TERM 8 GEO. IV. j WITH A TABLE OP THE NAMES OF CASES ARGUED, AND DIGEST OF THE PRINCIPAL MATTERS. SECOND EDITION. TORONTO: HENRY ROWSELL. 1862, BOWSELL 4 ELLIS, PRINTEES, BUNG STREET, TORONTO. JUDGES THE COURT CF KING'S BENCH, DUKING THE PEEIOD OF THESE EEFOETS : The Honotjeablb Chief Justice Powell. Mb. Justice Boulton. Mr. Justice Campbell. Attorney-Qeneral : John Beverley Kobinson, Esq. Solicitor- Creneral : Henry John Boulton, Esq. A TABLE CASES REPORTED IE THIS YOLUME. PASE A. Allan T. Brown 335 Andrus V. Page 348 7. Burwell , 382 Applegrath v. Bhymal 427 Armour and Davis v. Jackson 116 B. Bardon T. Cawdell 486 Bastable and another v. Mowat 492 Bayard v. Partridge 406 Bayman t. Struther 39 Beasley V. Stegman 498 Bedstead v. Wyllie 60 Beardsleyv. Clench - 309 Beebe T. Secord 409 BidwcUjRexv 487 V. Stanton 366 Binkley v. Deejardins 177 BleekerT. Myers 281 Blacklock V. McMartin 320 Boulton r. Kandal 127 -^ T. 145 Briggs T. Spilsbury 440 Brown T. Hudson 272 -V. 346 - — — T. 390 V.Stuart 144 - ^ V. Smith 187 "^ — =^ V. Waldron..., 494 Brookfield v. Sigur 200 Brock V. McLean 285 7ASE B. Brock V. McLean 310 V. 398 Brooke v.Aruold. 25 Burger doe ex dem. v. Roe 269 Butler V. Dunn 416 Byard V. Read .., 413 C. Cameron and wife v. McLean 298 ■ V. 381 Campbell V. Berri, one, &c 381 Carfrae, In re 472 Garruthers v. , one, &c 243 Ghoate V. Stevens 449 Clarke doe ex dem. v. Roe 247 Clench v. Hendricks 403 Cramer v. Nelles 36 Crawford V. Ritchie 84 Crooks V. Stockings 409 Cross and Fisher v. Oronther 186 Culver V. Moore... '. 451 Cumming v. Allen < 205 D. Daltonv.Botts 281 Dascomb V. Heacocks 438 Davidson doe ex dem. v. Roei 491 Davy V. Executors of Myers 89 De Riviere v. Grant..... 473 Dorman V. Rawson , 263 V 278 Dunlap V. MoDougal 464 1 VI. TABLE OP CASES. PAGE D. Dunlop doe ex dem. t. Roe 350 E. Elrod, Rex v. 120 Emery V. Miller 336 Everingham T. Robinett 380 F. Ferguson v. Murphy , 206 Flint V. Spafford 435 Fortune T. McCoy 435 G- Gardner V. Burwell 54 T. 189 Gavan v. Lyon 434 V. 452 Gee V. Atwood 119 Goodfame doe ex dem, r. Carfrae 211 Grant et al. T. Fanning 342 Grey V. Holme 393 Griffin doe ex dem. t. Roe 203 V.Lee 235 H. Hagermanv. Smith 123 Harris, Rex v. 10 Karen V. Lyon 370 Hasleton v. Brundige 84 Hathaway V. Malcolm 182 Hawley V.Ham 385 Henderson v. MeCormick 412 Hinnerley V. Gould 143 Hogle V. Ham 248 Hohne v. Allan and Gray 348 J. Johnson V. Smadis 138 — ^ V. Eastman 243 Jones V. Seofield 441 — -■ — V. Steward 453 — — V. 461 K. Keefer V. Merrill et al 490 Einnerley V. Gould 143 King V.Robins 299 Kirk V. Tannahill , ., 448 Laing v. Harvey and Powell 414 PAOB L. Lang V.Hall 215 Large v. Perkins 62 Link V. Ausman 227 Logan V. Secord 173 Lossing V. Horned.. 83 V. 219 hyous ex parte 171 M. Madillv. Small 186 Malcolm v. Rapelje 361 Mattioe V. Farr 218 Marklaud et al. v. Bartlett 146 etal. y. Dalton 125 Mead v. Bacon , 180 Miklejohn V. Holmes 39 Mitchell V. Tenbroek, one, &e 126 Moffatt et al. v. Loucks 305 doe ex dem. v. Hall 510 Moore V.Malcolm 273 Morris v. Randal 299 Morau V. Maloy 408 Myers V. Rathburn ; 202 V. 127 Mo. McBride, Rex. v. the Justices of the District of Niagara ,,. 394 McColium V.Jones 442 McDonnell, Rex V. ' 299 MoDougal V. Camp 87 McGregor V. Scott 56 McGilveray V. McDonnell 139 McGuire v. Donaldson 247 McGill V. McKay 88 Mcintosh V. White 57 Mclntyre et al.. Rex v i 22 V 70 Molver et al. v. McFarlane 113 McKenzie et al. Rex v 70 McKoane V. Fothergill 350 McLean V. Gumming , 184 — V. Hall 491 McLeod V. Bellars , 273 MoLoughlin v. McDougal 199 McNally V. Stevens 263 MoNair v. Sheldon 433 TABLE OP CASES. VIU FA(]£ Mc. McNair v. Sheldon 451 McPherson v. Sutherland 422 N. Nagler. Kilts 269 Nash, RexT 197 Nevils T. Wilcox 265 Niohall v. Crawford 277 . T. Cartwright 464 . et al. V. Williams 21 0. Orser v. Stickler 42 V. MoMichael et al 356 P. Patersoa v. McKay 43 Payne v. McLean 325 Perkins v. Scott 405 Phelps, Rex V 47 Priorv. Nelson 176 Priestman T. McDougal 451 Purdy V.Ryder 236 R. Eadcliffev. Small 308 Radenhurst, ex parte 188 Ransom et al. v. Bonaghue 493 Read V. Johnson 489 Richardson V. Northrope 331 Roberts V. Hasleton 32 Robertson doe ex dem. v. Metoalf..... 377 Robinson V. Hall 453 V. 482 Roy et al. V. De Lay 9 Ruggles doe ex dem. v. Carfrae 211 S. Saunders v. Playter 37 T. 40 Sewell v. Richmond 423 PAQS S. Sawyer T. Manahan 315 Scott v. Macgregor 88 Secord V, Horner 215 Shankland V. Soantlebury 231 Sheldon doe ex dem. v. Armstrong... 352 Sherwood v. Johns 232 Shuter and Wilkins t. Marsh and wife 172 Shuck V. Cranston 370 V. 437 Smith V. Kennett 463 V. Rolph, one, &c 272 v. Sullivan 493 V. Sumner and Nevils 308 Stansfield doe ex dem. V. Whitney 130 Stocking V. Crooks 492 Stewart V. Crawford ... 409 Stuart doe ex dem. v. Radish 494 T. Taylor V. Rawson 421 V. 481 Terry V. Starkweather 57 Throopv.Colo 214 Truesdale V. McDonald 121 Tully V.Graham 41 W. Ward V. Stocking 216 Walbridge v. Lunt 462 Welland Canal Company, Rex. v 30O Welby V. Beard 304 Wentworth V. Hughes 178 Whelan v. Stevens 245 V. 439 White V. Hutchinson 305 Whitehead and Ward, Rex. v 476 Williams V. Crosby , 10 V. 18 Winkworth v. Hughes 278 Woodv. Leeming 463; Wrightv. Landal „,.• 3Q4 UPPER CANADA REPORTS IN THE KING'S BENCH CASES DETERMINED IN TRINITY TERM, 4 GEO. IV. Present : The Honourable Chief Justice Powell. Mb. Justice BouLTOjsr. (a) James Eot and Julia Duval v. Joseph Delat. Where a rule to shew cause why an attachment should not issue against an attorney for non-payment of moneys recovered for his client, had lapsed ; the court refused to grant a new rule without a fresh affidavit, stating that the money was still unpaid. Washburn obtained a rule last term to shew cause why an attachment should not issue against one, &c., upon an affidavit, stating the receipt, non-payment, and refusal to pay, certain moneys received by him from the defendant in this action, to the use of the plaintiffs ; and now he stated to the court, that the former rule had lapsed, and moved for another rule, nisi, upon the former affidavit; sed per Cur. It appears, prima facie, from the rule not having been served, that the demand may have been satis- (a) MA Justice Campbeil was absent during the whole of this Term, from indisposition. 2 10 TEINITY TEEM, 4 GEO. IV., 1823. fied : a rule to shew cause cannot issue without a fresh affidavit, stating that the money sought to be recovered is still unpaid. Rule granted upon affidavit nwiide. Williams v. Crosbt. The court will not grant a peremptory rule for the discharge of an Insolvent prisoner without an afBdavit that no interrogatories had been filed by the plaintiff. Macaulay applied for an order to discharge the defendant out of custody, upon an affidavit, stating that the order of court obtained under the provincial statute {a) for payment of five shillings, currency, per week, to the defendant, a prisoner in execution, had not been complied with, BouLTON, J., {absente Powell, C. J.) — ^There must be an affidavit that no interrogatories have been filed by the plaintiff, or the application must be for a rule nisi, (b) Rule nisi granted. The King v. Harris. ^aajrc-r-'Whether the court will award a mandamus to the treasurer of a dis- trict in this province. Ralph obtained a rule last term to shew cause why a mandamus should not issue to the treasurer of the district of London, directing him to pay several sums of money to the gaoler of the district, under the orders of the justices in sessions. The affidavit in (a) Prov. Stat. 45 Geo. III. (i) Prov. Stat. 2 Geo. IV., c. 8. TEINITY TBEM, 4 QEQi IV., 1823. H. supportof the application stated the issuing of several orders by the justices in sessions to John Harris the trea^surer, requiring him to pay several sums: to Bteaupre, the gaoler j^ the presenting of those orders to Harris, his refusal to pay them, on the ground of there not being any money in the treasury, and the: payment; of several orders of a data posterior to, and which were presented after, those: of Eeaupre. Boulton, Solicitor-General, now shewed cause. He. cQjitendedi that the only grounds upon which a mandamus can issue are, that the. party has no other legal o.r appropriate remedy, or that there is: no court, except the superior court, competent to correct the acts complained of : that in this case, the legal and proper remedy was by indictment, or by applir (ption to the magistrates in sessions, to whom the treasurer was amenable for his conduct, and who had ample means of correcting him by removal: his ac- counts were audited and allowed by them, and it- would be unreasonable that he should be proceeded against by mandamus, in a matter respecting thosa accounts, by any other court; he is the officer of the sessions, having the custody of moneys which are sub- ject to their disposal only: that these positions are borne out by all the cases, none of which are con- trary to, many bearing a strong analogy to, and several directly in point with, the present. In Doc- tor Walker's case, Lord Hardwicke says, (a) " Can it be said that ever a mandamus went to an officer of an inferior court to compel him to do his office ? No, sure, for if the inferior officer will not do his duty, the judge of the inferior court must turn him out." (a) Cases temp. Hardwjclce, 218. 12 TRINITY TERM, 4 (JEO. IV., lS23. In the King against Bristow, (a) Lord Kenyan says, "This court have no difficulty, upon a' proper case laid before them, in granting a mandamus to justices to make an order, when they refuse to do their duty; but it would be descending too low to grant a man- damus to inferior officers to obey that order: we might as well issue such a writ to a constable, or other ministerial officer, to compel him to execute a warrant directed to him, a^ to grant this application to the treasurer, to obey the order in question. It was once, indeed, made a question, whether the dis- obedience of an order of justice was an indictable offence; but since the case of the King v. Eobinson, that point has not been doubted: the prosecutors must pursue the ordinary remedy in this case by indictment:" and my Lord Bacon says, " But, though these kind of writs are daily awarded to judges of courts to give judgment, or to proceed in the execu- tion of their authority, yet are they never granted in aid of a jurisdiction, but only to enfore the execution of it; nor are they ever granted where there is another proper remedy; and therefore will not lie to an officer of an inferior court, as to a serjeant at mace, an apparitor, &c., to compel them to execute their duty, for these are servants to the respective courts, and punishable by the judges of them; and for the superior court to interfere in obliging such in- ferior officers, would be to usurp their authority." (&) That supposing this treasurer to be an officer to whom a mandamus could issue, the affidavit to ground the application was defective, inasmuch as it is not sworn that the treasurer had money in his hands (a) 6 T. R. 168. (6) Bac. Albr. Tit. Maudamus, 310. TRINITY TERM, 4 GEb. IV., l823. 13 when the orders were presented, and that the orders themselves should have been annexed, and not a schedule ; and the treasurer has sworn that he had no money. BouLTON, J. — The affidavits are certainly too confined; in a similar application to the present, in England, I recollect that fact was expressly sworn to. The magistrates, if necessary, can coerce this trea- surer: no neglect is shewn upon his part. It is merely sworn that an order was issued, and that he did not pay it. He has produced his accounts, which shew he has no money in his hands, and they are supported by affidavit. The court will not therefore grant a mandamus to compel him to do what is physi- cally impossible; nor will they order him to pay de bonis propriis. Macaulay, contra. — The object of this application is not duly considered by the arguments on the other side: if the treasurer had no money in his hands, he should return that fact, upon which issue might be taken, and that issue might be tried by a jury. If the treasurer does not make such a return to the mandamus as will satisfy the court, he will be at- tached, and the object of the attachment will be, not to do that which is physically impossible, but to punish him for contempt of the process of this court. The treasurer is upon a different footing here to that which he is upon in England : he is here appointed under the sanction of an act of the legislature; his duties are chalked out by statute. When orders for payment of money are brought to him, it is his 14 TRINITY TERM, 4 GEO, IV., 1828. duty to pay them out of the first moneys which come to his hands: he is not to pay subsequent orders be- fore prior ones. In the affidavits in support of this motion it is distinctly stated, that he has made seve^ ral payments upon orders issued after those of the gaoler. If the magistrates have neglected to exert their authority, in compelling the, treasurer to per- form his duty, this court will interfere. The. case of the King against Bristow is very distinguishable from the present: that was an application from the sessions from a mandamus to the treasurer of a divi- sion quarter sessions, from parties who had the means of enforcing their own orders. It is expressly laid down in Kj.dd, that this court will visit all officers, and here the court will not hesitate to grant a mandamus; issuable facts may be returned upo» it, traversed, and tried by a jury. Rolph, same side. — The case of the King against Dean Ihclosure {a) is in point. That was an applica- tion for a mandamus to commissioner of highways appointed by statute, and notwithstanding the quarter sessions had authority, the Court of King's Bench interfered, and it was laid down that an indictment against .commissioners of an inclosure act, for not obeying an order of sessions, directing them to set out a road, as a public road, would not be such a remedy to the party as would induce the court to refuse an interference by mandamus. In the present case, an indictment or removal of the treasurer wopld be no remedy to the party; and when the law mentions a legal and specific remedy, ' ' (a) 2 M. & S. 80. TRINITY TERM, 4 CfEO. IV., X«26. 1$ it must contemplate one which would assist the party in the recovery of his rights. Bmlton, Sol.-G-en. in reply. — The case in Maule and Selwyn is very different to the present ; the commissioners there were not inferior officers, but superior in their own court ; an appeal lay to the quarter sessions, but as the titoe had elapsed for that appeal, the Court of King's Bench interfered, on the ground that the party would otherwise be without remedy. There is no reason for considering a treasurer in this country as bearing a different character to that which he does in England, (o) It is not necessary that the niode of his appointment should be the same ; he is amenable to his own court here as well as there. If the superior court saw it necessary to interfere with the treasurer, it would be by attach- ment, a process which the quarter sessions are not empowered to issue for disobedience to their orders. Is there any instance of this writ issuing, to order the performance of an impossibility, and of incar- cerating a man for not obeying it ? Suppose there may have been orders paid subsequent to the pre- sentment of the gaoler's, they were not left with the treasurer, and he is not bound to keep a tablet in his memory of all orders that are issued. The point of law appears from all cases to be clear against thus issuing a mandamus in this case, and no grounds have been shewn why the court should interfere contrary to former determinations. (ffl) As to the office and duties of a treasurer of a county in England, vide i; G. III., c. 20; 12 G. II„ c. 29, & 6, 7, 8, 9, 12, cited in Burns, J. 16 TEINITY TERM, 4 GEO. IV., 1823. Chief Justice.— This is a beneficial writ prayed by Beaupre the gaoler, to supply the want of any other remedy adequate to his relief; the treasurer is a public officer, declared by statute so to be ; he is to receive the public money to pay the orders of sessions for its disbursement, and to account to the sessions: when the gaoler presented his order, he was told that there were no means ; other orders .have been made upon the treasurer since that of the gaoler, which have been paid ; but Beaupre has always been told that there was no money in the treasury. Upon principle the treasurer is bound to charge the orders as they occur ; it would be mon- strous that he should be permitted to prefer one person to another at his own caprice ; if it is not the law at present, I should hope the legislature would make a statute for the payment of these orders in rotation ; under the circumstances of this case, a mandamus appears to me to be the only remedy. I cannot consider the treasurer as an inferior officer ; though he is appointed by the sessions, his duties are set forth by an act of the legislature,: if the treasurer had no money upon the presentment of Beaupre's order, he should have been paid out of the first moneys , which came into the treasury, and the affidavits state that the deponents verily believe there was money. The true principle of refusing a mandamus in the King's Bench, is not merely that there may be some other mode of seeking redress, but that it should be a means competent to the party. It has been contended that this gaoler should proceed by indictment, but that would not be an adequate remedy to him : the treasurer may be removed, and his securities may be resorted to. TRINITY TEEM, 4 GEO. IV., 1823. 17 by the justices, but still this would not relieve the applicant ; his demand upon the treasury remains as long as there is money in the treasury, or money due to the treasury. The affidavit of the treasurer passes by any direct assertion, that he had not the means of payment at the time of presenting the order, or that he has not had the means since ; it admits, that subsequent to the presentment of Beau- pre's order a more recent order has been presented and paid. The opinion which I formed upon the former argument of this case is not altered, but rather strengthened : an indictment is not an ade- quate remedy here, and I think the mandamus should issue. BouLTON, J. — ^There are two points to be con- sidered in this application : first, whether the trea- surer of a district is an officer to whom a manda- mus may issue : and, secondly, if he is so, whether the affidavits in this case are sufficient to warrant the extraordinary interference of this court. As to the first point, the cases say that a mandamus is always refused where there is a specific remedy; this is laid down in Douglas as well as the term reports : in the cases there reported the subject of the application was a treasurer, here it is the same — I can see no difference in the law, no difi"erence in the applica- tion ; every authority satisfies me that the writ can- not issue ; the only pretence for a different decision, is the case in Maule and Selwyn, but it does not ap- ply; that was respecting an original appointment ; the commissioners were not inferior officers. As to the second point, it is not sworn in the affidavits in support of this application, that the treasurer has 3 .18 TRINITY TEBMi 4 GEO. It., 1»23. money in his hands. It appears to me that it wobM be a hardship upon him to issue this writ, unless it was positively sworn that he had funds. In a simi- lar application to the present, to the Court of King's Bench, in England, where that fact was sworn to, the writ was granted without opposition ; that case, therefore, furnished but little authority. My first impression on this application was, that the writ might issue, but upon considering the law, and look- ing; into the affidavits, I am satisfied that a mandamus should not be awarded. The court being divided, Eolph took nothing by his motion. Williams v. Crosby. It is not sufficient that an affidavit to ground the detention of a ptisoner who has applied for his discharge for non-payment of his weekly allow- ance, states his being possessed Of property, but it must shew that he has secreted it, or fraudulently parted with it, and after such allowance has been paid, if the plaintiff discontinues it, he must have affidavits to pro- duce in court, to justify such discontinuance at the time the defendant moves for his discharge. Riduiit shewed cause against the rule nisi obtained this term, for (he discharge of the defendant, an in- solvent debtor, upon affidavit, stating that the de- fendant was possessed of land in the township of King, which he became entitled to, subsequent to his imprisonment at the suit of the plaintiff. This affi- davit had been sworn above a year ago and had not 'hitherto been made use of by the plaintiff, who had ^aid tlie defendant the weekly allowance ordered by ihe court, for about seventy weeks, and then discon- tinue it. This prisoner cannot be discharged under the TRINITY TERM, 4 GEO, lY., 1823. IQ statute, (a) until he answers tlie interrogatories to be filed by the plaintiff. The words of the statute are, " That when and so often as any prisoner or prison- ers in custody, and charged in execution, for debt, in any civil suit, shall apply to the court whence such process or execution issued, either to be discharged or allowed a weekly maintenance, by reason of any alleged insolvency, it shall and may be lawful for the plaintiff or plaintiffs, at whose suit such prisoner is detained, his, her, or their attorney, to file such in- terrogatories as he, she, or they shall be advised or think expedient, touching or concerning, or for the purpose of discovering any property or credits which the prisoner may be possessed of, or which he or she may be suspected of having secreted, or fraudulently parted with, which interrogatories the prisoner is required to answer upon oath. TLat after such in- terrogatories shall have been filed, and a copy thereof delivered to said prisoner, his or her attor- ney, said prisoner shall not receive any further be- nefit from his or her application ; and the orders or other proceedings thereon shall be stayed until the prisoner shall have fully answered the same." &c. It is immaterial, according to the words of this statute, at what time he came into the property. He is possessed of land, and not being the insolvent person whom the statute contemplates, the plaintiff is entitled to examine him upon interrogatories, and it is contrary to the intention of the statute tb^t he should be discharged until he has an opportunity of doing so ; the principle of this statute is the same with that of the Lord's act. (a) FroTincial Statute, 2 Geo. IV., ch. 8. 20 TRINITY TERM, 4 GEO. IV., 1823. MacauJay and Washburn, contra.— It is not suf- ficient now that it is sworn that the prisoner has property; it must also be sworn that he has secreted it, or fraudulently parted with it. Plaintiffs cannot be permitted to pocket up affidavits for a length of time, and then produce them to prevent the dis- charge of a prisoner. Chief Justice.— It appears that the weekly allowance has been paid for a length of time, and is now discontinued. The plaintiff cannot cease this payment without shewing that the defendant has, subsequent to the order for the allowance, " con- cealed, fraudulently parted with, or made away with, his property." If this prisoner should be released the debt is not discharged : the plaintiff may resort to the property. Before he discontinued the payment, he should have had his affidavits of these facts ready. The affidavits you have may shew property to have come to him since his im- prisonment, but shews no secretion of it, or that it has procured him a loaf of bread. A man is put into gaol, who swears he is worth nothing ; after laying in gaol for some time, he procures an order for five shillings per week, which is paid for more than a year, and is then discontinued : he applies for his discharge, and then the plaintiff produces affidavits to shew that property has come to him. The prisoner must be discharged. Per Curiam.— BxiXq absolute. TRINITY TERM, 4 GEO. IV., 1823. 21 NiCHALL ET AL., SURVIVING EXECUTORS, V, WlLLIAMS. Where one of these executors is deceased, and the survivor? bring an action in right of their testator, the declaration must state that payment has not been made to the deceased executor. The declaration in this case was for goods sold, and upon the common money counts; the breach stated that the defendant, not regarding his pro- mises, &c., but contriving, &c., to defraud the tes- tator in his life time, and the said William Wichall and Allan McPherson, since his death, in this respect, had not paid the several sums of money, &c., to testator in his life time, or to said James Nichall and Allan McPherson, executors as afore- said, or to any of them, (without any averment of non-payment to the deceased executor.) To this declaration the defendant demurred generally. Macaulay, in support of the demurrer. — No notice is taken in this declaration of the deceased executor ; he is not even named. There should have been an averment according to the forms laid down, that no payment was made to the deceased executor during his life. Baldwin and Washburn, contra. — This is not like the case of a deceased partner. In law, a negation of payment to one executor is a negation as to all. Chief Justice. — Each of the executors may receive money. To shew that the defendant is still indebted, you should aver that the third ex- ecutor has not been paid. Per Curiam. — Leave to amend upon payment of costs. 22 TRINITY TERM, 4 GEO. IV;, 1828. TaB, King v. John MoInttbe and Albxandbe Mackenzie, Esquires. An attachment will issue against commissioners of a court of requests, -who try a cause in which they are interested. BouUon, Solicitor-General, had obtained a rule in Hilary Term last, calling upon Alexander Fraser, Alexander McMartin, John Mclntyre, and Alex- ander McKenzie, Esquires, Commissioners of His Majesty's Court of Requests, held at Williamstown, in and for the county of Glengary, to shew cause why an attachment should not be issued against them for having illegally and corruptly given judg- ment in the said court against Alexander "W' ood, at the suit of the elders and committee of the church of Williamstown, and issuing execution thereon. The facts upon which the rule was granted, as stated upon affidavit were, that Alexander Wood having, with several others, signed a subscription paper or agreement for the allowance of six dollars each, per annum, for the support of a presbyterian minister, who was to have come from Scotland, and having refused to pay the same, in consequence of no minister having arrived agreeable to the terms, as he conqeived, of the agreement ; he, said Wood, was proceeded against to judgment and execution, before said Commissioners of the Court of Requests, for the sum of one pound, and costs amounting to seven shillings and six pence: that John Mclntyre and Alexander McKenzie, who gave judgment against said Wood, were interested in the event of the said suit ; the former being one of the elders, to whom the promise, if any in the said agreement or subscription paper was made, and the latter being personally bound to pay the salary of the minister then officiating. It was further stated upon affida- TBHIITY TEfiM, 4 (PCh ly., 1823. '23 vit, tbat goods and chattels of "Wpod of thfi value of twenty-two pounds were sold to satisfy the amount of the execution, being one pound seven shillings only. It was also sworn that the church was indif- ferently designated Williamstown or Lancaster. Macaulay now shewed cause. — An attachment cannot issue against magistrates acting judicially, unless actual corruption is shewn. In this case., the parties are respectable persons, who could have no corrupt motive in what they had done. In the judgment of the court of requests, the plaintiffs are entitled the Committee of the Church of Lancaster ; and in the rule nisi granted by this court, they are styled the Committee and Elders of the Church of Williamstown, a variance which will prevent the issuing of the attachment. In a strict legal proceed- ing, as the present is, the names of parties must be correctly stated, and though it is sworn that the elders and committee are indiscriminately desig- nated as of Williamstown or Lancaster, that is not sufficient to cure the defect ; as to the value of the property taken by the constable, to satisfy the exe- cution, he has sworn that Wood told him he had no property, except a mare and two stacks of oats. —[Chief Justice,— That is immaterial, the complaint against the justices cannot go further than issuing the execution.] — McMartin has sworn that several parties were sued upon the same agreement or sub- scription paper, and that they had a full opportunity of anaking their defence ;. and if Wood did not choose to do so, upon a mere surmise that his defence would not be attended to, it was his own fault. There is no evidence of corruption in this case j 24 IRINITY TERM, 4 GEO. IV., 1823. the parties were mere agents, and not bound for the contracts of others. They may have erred, but certainly not from corrupt motives. Boulton, Solicitor-General, contra.— In the affi- davit to ground this application it is positively sworn that one of the magistrates (Mclntyre) was one of the elders, plaintiff on the action upon which he sat and gave judgment; and that another (McKenzie) was personally bound to pay the salary to the pre- sent officiating minister. Wood was well entitled to refuse payment of the subscription, as the terms were not complied with, and the refusal of a copy of the judgment by the magistrates, upon the first ap- plication, was highly improper. They are certainly amenable to the common law as for corruption. In the case reported in 1st Lord Raymond, an attach- ment issued against a magistrate for giving judgment in favour of his own lessee. Chief Justice. — Wood seems to have had grounds for refusing his subscription, as no clergyman came from Scotland to officiate under the agreement. One of the magistrates who was concerned in this matter very properly withdrew from the bench. A man must have no conscience at all who could sit in a cause in which he was concerned. There may not have been actual corruption, but the case comes un- der the law which is anxious to prevent it. Per Curiam. — An attachment must issue against John Mclntyre and Alexander McKenzie, Esqrs. TRtNITY T£«M, 4 GEO. IV., 1828. ' 25 Brooke v. Arnold. WJtere itgteJlrtflSjitiff, endorsee of a prolnissoi'y note payable upon demand, had iaken it two years after its date, and was cognisant of an agreement Watered into -between the holder from whom he took it, and the defendant (tbe ^aker) that the same should be, set off agp.iust a bond of whioh the defendant was obligee, and the then holder the obligor ; the court Tteld that a plea stating these facts was good upon general demurrer. The plaintiff declared in assumpsit, as endorsee of a promissory note made by the defendant, and upon the common money counts, and laid his damages at £^ . The defendant pleaded to the first count: 1st, that John Arnold, in the first count mentioned, after ^e making of the note by Thomas, the defend- ant, and before the same came to the hands and pos- session of the plaintiff, to wit on the 6th day of Sep- tember, 1819, endorsed the note in blank, and de- livered the same to one Allan Napier McNabb, and authorised the said Allan to demand and have of and from ihe defendant the said sum of money in the said note specified, according, &c.; of which said en- dorsement and delivery, the defendant afterwards, to wit, on the day and year, &c., had notice : that after the making of said note, and before the same came to the hands and possession of the said McNabb, so endorsed as aforesaid, to wit, on the 4th day of aeptember, 1817, said McNabb executed a bond to the defendant in the penal sum of £450 conditioned for the payment of £265 6s, Od. by three instal- ments, &c. That at the time when said note, so en- dorsed and delivered to McNabb by John Arnold, and became the property of McNabb for the purposes aforesaid, to wit, on the 6th day of September, 1819, at Ymk, l&c, there was, and still is due and owing upon !th:e said writing obligatory by the condition thereof for the second instalment in the said condi- tion mentioned, the sum Of £100, Which said last men- 4 26 TRINITY TERM, 4 GEO. IV., 1828. tioned sum of money so due and owing from McNabb to the defendant, greatly exceeds the amount of principal and interest due on said note, &c. That afterwards, and while the said note, so endorsed as aforesaid, remained and continued in the hands, and was the property of McNabb, to wit, on the day, &c., the defendant, at the special instance and re- quest of McNabb in that behalf, consented and agreed that the sum of money in the said note speci- fied (said note so endorsed as aforesaid, being still held and owned by McNabb as aforesaid) should be set off and allowed to McNabb for and on account of, and in satisfaction of, so much money so due and owing by McNabb to the defendant upon the said writing obligatory, by the condition thereof as afore- said, of all which premises the plaintiff afterwards, and before the said note so endorsed as aforesaid, came to his hands as in the plea thereinafter men- tioned, to wit, at York, &c., had notice : that after- wards, and before said sum of money so due and owing from McNabb to the defendant, upon said writing obligatory, by the condition thereof, or any part thereof had been in any other way paid, dis- charged, or satisfied, and whilst the same remained in arrear and wholly due and unsatisfied, and long after the said note became due and payable; to wit, on the day, &c., McNabb and the plaintiff, well know- ing the premises, but wickedly contriving, &c., and to force the defendant unjustly again to pay said sum of money in said note specified, and to defraud him of his right to set off the same against the afore- said sum of money so due and owing from McNabb to the defendant on the aforesaid writing obligatory by the condition thereof, did agree together that T)Rij«TY TERM, 4 GEO. IV., 1823. 27 McNabb should deliver the said note so endorsed in blank to the plaintiff, for the purpose of enabling him to sue and prosecute the defendant for the said sum of money in said note specified, by virtue of said endorsement thereon aforesaid, and the plaintiff did then and there accept the said note so endorsed from McNabb, for the purposes aforesaid, then and there well Snowing, &c., by which means, and by no other, the plaintiff became and was the holder of the said note. Traverses that John Arnold, by the said en- dorsement of the said note, ordered and appointed the said sum of money in the said note specified, to be paid to the plaintiff, or delivered the said note so endorsed to the plaintiff. 2ndly. That the promis- sory note so endorsed in blank, came to the hands and possession of the plaintiff, by the delivery of McNabb, after and not before the agreement that the same should be set off against the bond of McNabb, and out of which said sum of money so due and ow- ing from McNabb to the defendant, the defendant is ready and willing, and offers to set off and allow to the plaintiff the said sum of money so due and owing from the defendant in the said promissory note, ac- cording, &c. Traversing as in the first plea. And, 3rdly, general issue as to the second count in the declaration. To this plea the plaintiff demurred generally. Baldwin, in support of the demurrer. — This plea is an attempt to set off a bond debt due to the defen- dant by a third person, against a note due by the defendant to the plaintiff in this action; if this coald be done, the plaintiff would be unjustly deprived of 28 TEINITY TERM, 4 GEO. IV., 1828. tafeiag %se exceptions to, this bofld which the qWa- gor might take in an action agaiajst him by th^^obh- gee ^McNabb should have delivered this note up to Thomas Arnold, the defendant, th^ obligee in the bond, and have had the amount endorsed, or he^rsigh* have brought his action; but this attempt, to Mnd^the pla,intiff by an agreement to which he was aot acces- sory or privy, cannot be supported. This plea charges the plaintiff with an intenitipn; to deprive the defendant of a right of set-off, a charge so vague and uncertain that the plaintiff cannot be called, upoft to answer it. The defendant, by his plea, ackoowledps every circumstance necessary for the plaintiiff to sup- port his action: the making of the note, by the defeur dant, the endorsement in blank by the payee, aad the subsequent delivery to the plaintiff; If the coust should support this plea they would deprive negotia- ble instruments of their credit, if not entirely destroy their negotiability, for who would take them if they were made subject to agreements entered into pre- vious to their transfer; would the bajak here be con- cluf^ed by agreements, such as is here attempted to be set up, after a note had passed, through: a dozen hands ? A note endorsed in blank stands upon the same footing as one payable to bearer, is transfera- ble by mere delivery, and can be recovered upon, though it may have been stolen by a prior holder, as laid down in Douglas's Eeports. (a) Supposing even that the plaintiff may have come to this note unfairly, it might be a consideration for a court of eqnity, but a plea in bar must contain, matter of law, as lai^ down in Chitty. (6) It would be idle and absurd to contend: that the plaintiff's demand in this au^m, {a} PeacpokT. Rlioctes, Doug. 611, 68?. (J) CM«y on Pieadtog, c. 7. - TEINITT TERM, 4 GEO. lY., 1823. 29 GimM. Ite destroiyedtby an agreeimeiit for a set-off, of wMch he had no knowledge. The. second plea offeFS to set off this note agaiast a bond due to the defend- ant by a third person, aad it appears to m& can only be intended to puzzle with new matter, for it is cjearly established and well known, that to: entitlei a di^iendant to a set-off, the debts must be mutual, but iathis plea he offers in fact to give credit to Mcr Nabb, a stranger to. the action. An executor or ad- ministrator cannot set off, nor cana trustee.— (Chief JpsTiart oif the father, and the jury found a verdict for the plaintiff with ^£200 damages, the court granted a new trial. This was an action brought to recover damages for loss of service by the seduction of the plaintiff's daughter, and tried before the Chief Justice at the assizes for , and a verdict for the plaintiff for £200. The &cts of service and criminal intercourse were proved, and that the plaintiff's daughter had borne a child to the defendant. On the part of the defendant it was proved, that the witness (the son-in- law of plaintiff) had, previous to his marriage, slept with another young man in one bed, and the two daughters of the plaintiff in another bed in the same room, (a two bedded room.) That he had kin in bed with both the daughters previous to his mar- riage; that the indecencies which took place between plaintiff's daughter and defendant, were notorious to the family; that they were laying in every corner of the house to be stumbled over. That the mother had been informed of the indecencies which took place between her daughter and the defendant, but did not discountenance them; that the plaintiff had also been informed of them, and though he repro- bated the defendant's conduct greatly, he took no means to prevent it. MICHAELMAS TERM, 4 GEO. IV., 1823. 61 The Chief Justice observed at the trial, that this was a state of manners which could not, at least in England, be considered as affording a ground for this action, although it had been admitted that the plaintiff was a decent orderly man, and had family prayers in his house every day. Boulton, Solicitor-Greneral, had in a former part of the term, obtained a rule nisi to set aside the ver- dict and grant a new trial; and now Robinson, Attor- ney-Grcneral, shewed cause. This is a question alto- gether for the consideration of juries; it is amoral and not a legal one. The damages in this case can by no means be considered as outrageous or exces- sive, which alone would warrant the interference of the court, as laid down in all the authorities. In a case of crim. con., (between which and the present there is no essential difference,) though the real in- jury was merely nominal, a jury gave £5,000 dam- ages, and the court refused to interfere, (a) This vice, which is so mischieyous to the morals of a country, has become too prevalent; and though parents should guard the conduct of their daughters, how great an opening may be made for inroads on the other side, by courts interfering with the verdicts of juries? In this case there is nothing to entitle the defendant to consideration; he lived in the house of the parent; was a man of forty or perhaps older; was guilty of daily indecencies in the presence of the family, to which the father was not privy: these cir- cumstances have all been considered by the jury, and I cannot conceive they were wrong in their de- termination. ' ^^^^mng^tm, I ill! II » n I III I 11 I ■ i II J L I .1 I i ij - I I.- I II- I.I ■■— .a nn ^_„__^ (a) Duberly v. Gunning. 62 MICHAELMAS TEEM, 4 GEO. IV., 1823. Boulton, Solicitor-aeneral, and Jones, contra.— Actions of this nature are supported on the ground of injury to the parent's feelings; but where such transactions take place under his own eye, his conduct is much worse than weak or silly if he does not pre- vent them. If a father opens a door for misbehavi- our he cannot say where it is to stop, and he shall not afterwards come and say to a jury, I have by my own folly brought this inconvenience on myself, and now I come to you for damages. If this jury have not acted upon vicious, they have acted upon erroneous feelings ; they must have supposed they were to punish the error of the defendant, whether the father had received any injury to his feelings or not. In the case of Smith and Book in this court, a new trial was granted because the plaintiff had per- mitted her daughter to lay upon a bed with the de- fendant, a case in its general circumstances by no means so strongly calling for a new trial as the present. Per Curiam. — Eule made absolute upon payment of costs. Lakge v. Pbrkiks. In an action for goods sold, and upon an account stated, wliere the plaintiff's demand had heen of several years' standing, and the jury gave a verdict for £18, the court upon a motion for a new trial considered, that evidence of an acknowledgment by letter of an account being due, and of an account having been read over to the defendant to which he made no objection, coupled with evidence that an item of two pounds which was contained in the bill of particulars produced in court, was the same with that contained in the account so read over to the defendant, and with the witness' belief that the accounts were the same, was sufficient to support the verdict, though one principal ground of the witness' belief of the accotmts being correspondent arose from his knowledge of the plaintiff's character. This was an action of assumpsit for goods sold and upon an account stated, tried at the assizes for the MICHAELMAS TERM, 4 GEO. IV., 1823. 63 Home District, and a verdict for the plaintiff for £18. The material part of the evidence, as it appeared upon the judge's notes, was, that there were dealings between the plaintiff and defendant, commencing in the year 1817, and continued until the year 1819. That the defendant had written to the plaintiff acknowledging an account and apologising for the neglect of payment ; that the defendant being near the plaintiff's store, requested his account, upon which the plaintiff called him in, and read over an account to him in the presence of the witness (Kel- lar) ; that he listened attentively to it, and made no objection ; that after the commencement of the suit, the same witness copied an account out of the plain- tiff 's book, which account being produced in court, he swore he believed to correspond with that read over in the presence of the defendant; he also recol- lected one item for two pounds as composing a part of the account read over to the defendant. Upon his cross-examination he said, that he believed the account which he copied from the plaintiff's book and produced in court, corresponded with that read over to the defendant, because the plaintiff had told him so, and he believed him to be an honest man. Boulton, Solicitor-G-eneral, had in the former part of the term, obtained a rule nisi to set aside the ver- dict and to enter a nonsuit, or to have a new trial, upon the ground that improper evidence had been received at the trial, or, if the evidence was admissi- ble, it was insufficient to support the issue; and now Baldwin shewed cause : he contended that the evi- 64 MICHAELMAS TEEM, 4 GEO. IV., 1823. dence appearing upon the judge's notes was properly received and sufficient to support the verdict, a letter acknowledging an account, an account read over and no objection taken, a long tacit acknowledgment, the account produced in court, sworn to be the same as that read over to the defendant, to the best of a witness' belief. Boulton, Solicitor-Greneral, contra. The first question is whether Kellar, the witness, should have been allowed to produce this account; I contend that he should not; an account or memoran- dum can only be produced to assist the memory of a witness, but he cannot be permitted to produce an account, that he may swear he believes it to be true, because another person told him so, more particularly the plaintiff in the action; it would be receiving proof in fact upon the plaintiff 's own ipse dixit; the witness could only remember an item of two pounds, which does not at all prove the tru^h of any of the other items; he should have been able to identify the account read over with the one proved, or should have sworn to the particular items. The admission of evidence of this sort, which is mere hearsay, and that from the plaintiff, would subject every person in the country to the greatest frauds and impositions. In this case the plaintiff might have added new items or altered the sums after the account was read over. Upon this evidence, which I contend should not have been admitted, the plaintiff has obtained a verdict which he could not have obtained without. The account should have been taken from his hand, unless he used it merely to refresh his memory; but he was allowed MICHAELMAS TERM, 4 GEO. IV., 1823. ^5 to read it, merely upon the plaintiff's assertion that it was correct, his opinion of whose honesty can be no evidence at all. The inconvenience, difficulties and hardships of proving accounts by persons who have no clerks, have been urged, but they have it in their power to take notes or memorandums, and it would be a much greater hardship upon the country and more productive of fraud, if accounts were allowed to be proved by this sort of evidence. BouLTON, J. — There is no positive proof in this case of the delivery of the goods except to the value of two pounds. I should be sorry that merely being present at the hearing of an account, without acquiescence, should be considered as proof of the items contained in it. I dare say we all consider the plaintiff as an honest man, but it appears to me, that in this case the necessary evidence is wanting, that there is not the slightest testimony of the delivery of the goods, and that the verdict cannot be supported. Campbell, J. — This is an action for goods sold and delivered, the sum sought to be recovered is small, but nevertheless the verdict ought to be sup- ported by proper evidence, if not, a new trial should be granted. As to hearsay evidence no one would be less inclined to receive it than myself, and if I thought this verdict depended upon such, I should not consider that it ought to stand, but I conceive that it depends in no degree upon it; what has been considered as such is not so ; if it were it would be of the very worst kind as coming from the plaintiff himself, but I attribute to it a different character. There is evidence uncontroverted of a subsisting ac- 9 66 MICHAELMAS TERM, 4 GEO. IV., 1828. count, of a subsisting debt, no less than a letter acknowledging it, and an apology for delay of pay- ment; this is followed by the evidence of Keliar, that about two years ago he heard the defendant ask the plaintiff for his account; that plaintiff took him into his house and read over his account, to which the defendant listened attentively and made no objection, nor did it appear that he did make any afterwards, until the action was brought. I do not consider that silence is always a mark of consent, but I think that in this case, under these circumstances, it was. The more objectionable part of the evidence is that which connects this account with the bill of particu- lars; the witness is asked if it is the same as the account in the plaintiff 's book ; he says he has no doubt but it is, and his ground of belief isj among other grounds, that the plaintiff told him so, and that he believes him to be an honest man; this, which has been called hearsay, I consider no more than a persou accounting for his ground of belief, he was so con- vinced from the plaintiff's character that the account was the same with that read to the defendant, that he did not hesitate to give it as his belief upon oath; there was also an item for two pounds which he iden- tified as being in the account read over to the defen" dant, as well as in that produced in court. This evidence was left to the jury, and I consider that justice has been done between the parties. Chief Justice, — In this case there was full evi- dence of transactions between the parties ; upon application for payment, apologies were maide for delay, the defendant went into plaintiff's house and Mi(i!H4?I.M4a TEBMi, 4 QUO. JV- 1823. 67 heard the account read over, and I think his silence, in sonie sort, admitted the acceunt; ^ long time after- wards the action is brought, and the same witness in whose presence the account was read, copies an ac- count out of the plaintiff's book, which he verily believes to be the satoe. I think, under all the cir- cumstances, that the evidence was fairly left to the jury, and as the judge who tried the cause is satisfied, I am of opinion that the verdict should stand. Per Curiam. — Rule discharged. GENERAL RULES PUBLISHED THIS TERM. Many of the. rules of this court, having become unneces- sary in consequence of legislative provisions, and others inconvenient, the following are 'published as standing orders of this court, all others bei?ig rescinded: 1st. In future the practice of this court, as well as the quantum of costs to be allowed in all proceedings, are to be governed (where not otherwise provided for) by the established practice of the Court of King's Bench in England. 2nd. When the attorney in any cause depending in this court, resides without the district where the action is brought, all notices, demands, and other papers and pleadings, to be served on such attorney, shall be deemed regular by being put up in the Crown office, in the district, wherein such action is brought, unless such attorney have a known agent within 'the said district, in which ,c^se, service on the a;gent shall be required. 68 MICHAELMAS TERM, 4 GEO. IV., 1823. 3rd. As soon as may be after filing any inquisition taken under authority of the statute, passed in the fifty-fourth year of G-eorge III., the clerk of the Crown shall cause an extract therefrom containing the name of the person found to be an alien, and de- scribing the land found to have been in his posses- sion, or to which he had a title subject to forfeiture, in order that any person having claim may traverse the said inquisition, and he shall expose such extract in his office from the date thereof to the end of the year from the date of the inquisition. 4th. Some person competent to the duties of the office of the clerk of the Crown and Pleas, is to attend there in vacation, from nine in the morning until three in the afternoon, and in term from nine till three, and from six to eight in the evening. 5th. Neither the clerk of the Crown and Pleas, or any of his deputies are to file any affidavit, declara- tion, plea, roll, record, or other paper or proceeding in any cause, which shall be printed in part, or in the whole, except the ordinary writs and process of the court. 6th. All rules, which by the English practice may be had as a matter of course upon signature of coun- sel at side bar, or are given by the master clerk of the papers, or clerk of the rules in England, are to be given by the clerk of the Crown and Pleas, or his deputies in this province, in the same manner, and the same may issue either in term or vacation. 7th. No judgment is to be entered up on any war- rant of attorney to confess judgment, or upon any MICHAELMAS TERM, 4 GEO. IV., 1823. 69 cognovit actionem, unless the same has been obtained through the intervention of some practising attorney, whose name shall be endorsed on the warrant or cog- novit at the time of taking thereof, and such endorse- ment stated in the affidavit of the execution of such warrant or cognovit to have been made thereon, at the time of taking thereof. 8th. No less than eight days inclusive shall inter- vene between the teste and return of all mesne pro- cess hereafter to be sued out in any personal action, to be henceforth instituted in this court. 9 th. The sheriff to whom any execution, or process in the nature of an execution, shall be directed, shall include in the returns of such execution or process, the amount of his fees levied by virtue thereof, and shall specify in the margin the particular items of the same. 10th. In all causes pending, or hereafter to be brought in this court, defendants shall plead within eight days after common bail and declaration shall have been filed and the plea demanded. 11th. Every attorney not resident in the Home District, shall enter in alphabetical order, in a book to be kept for that purpose by the clerk of the Crown, his name and place of abode, and also in an opposite column, the name of some practising attorney, resi- dent in the town of York, as his agent, who may be served with notices, summonses, and all other papers (not required to be personal); and if any attorney shall neglect so to enter his name, with that of his agent as before mentioned, fixing up the notice, sum- mons, or other paper in the Crown office, shall be deemed good service. [70} HILARY TERM, 4 & 6 GEO. IT., 1824. Present: TMB HoNOtTEABLB ChIIP JuSTICB PoWELL. Mr. Justice Boulton. Mr. Justice Campbell. The King v. McKenzie and MoIntyeb, Esquires. Where defendants had been brought into court upon an attachment, although they cleared themselves upon interrogatories of the imputed contempt, the court refused to allow costs against the prosecutor, although he had omitted a fact in his affidavit wliioh might have affected their decision upon the granting the attachment, and although one of the affidavits upon which the attachment was moved for, was not filed early enough for them to answer it by a counter affidavit. Robinson, Attorney-Greneral, stated that these magistrates were in court in the custody of the sheriff of the -— — — district under an attachment issued against them in Trinity Term last for a supposed con- tempt committed by them, as commissioners of the Court of Requests. That one of the affidavits upon which the attachment was grounded was only sworn in July, and was produced in court for the first time on the day upon which the attachment was awarded, by which means they had no opportunity of procur- ing a counter afiftdavit ; that the court had probably proceeded, in a gteat measure, upon this affidavit, ahd that if the defendants had had an opportunity of answering it, the court would not have granted the attachment. That if any objection should be made by the counsel for the prosecution, that the appMca- titun which he was about to make for the discharge df the attachment, was too late, he contended that if HILABT TERM, 4 & 5 GEO. IV., 1824. 71 the court skould consider that it ought not to have issued, they would not permit such an objection to militate against justice. That the court upon being more fully acquainted with the circumstances of this case, would discharge the attachment, (and that with coats,) as having issued upon an afl&davit, which the parties accused had no opportunity of answering. Boulton, SoI^citor-G-eneral. — The counsel seems to think, that McK.'s was the sole affidavit upon which the attachment was granted ; in that supposition he is mistaken ; the matter was argued for two or three terms, and there is no pretence for surprise ; all the affidavits were read, and now, a second term after the attachment has issued, it is moved to discharge it with costs, the application is too late, and, at any rate, it should be made for a supersedeas. Mackenzie, the magistrate who kept the records, refiised the prosecutor a copy of the judgment which had been pronounced against him, which is a strong feet; his name was signed to the copy after he gave it, and it appeared upon affidavit that he was inter^ ested in the cause. [Chief Justice. — The impres- sion of the court was, that if there had liot been actual corruption, there had been a gross misprison.] They have had every opportunity of answering the matters alleged against them, but in this stage of the proceedings, affidavits will not do: the proper course is for them to answer to interrogatories. The con- duct of these magistrates has been incorrect, and if the prosecutor has been injured by their proceedings, 72 HILARY TEEM, 4 & 5 GEO. IV., 1824. whether arising from their ignorance or error, there can be no pretence to saddle him with costs. As to the contempt, they must purge themselves of it (if they can) by interrogatories before the master. Attorney-General— ThesQ magistrates would give the public a very unfavourable opinion of their con- duct if they should consent to pay costs; if this at- tachment has been issued erroneously can they be decently called upon so to do ? To pay them with- out a struggle would admit every imputation which has been cast upon them. [Chief Justice. — It appeared that one of the gentlemen felt an impro- priety in presiding at the cause, which has been the origin of these proceedings, and withdrew from the bench. And had not Mackenzie and the others bound themselves to pay a certain annual sum?] They were not bound to stand between the clergyman and the subscribers. [Chief Justice. — It appears to me that a wild party spirit is the origin of this affair.] Per Curiam. — Let the ordinary rule issue to ad- minister interrogatories in four days, and let the defendants, in the meantime, enter into recogni- zances. The King v. McKenzie and McInttkb, Esqrs. The master having reported to the court, that the defendants had by their answers to the interrogato- ries, filed by the prosecutor, purged themselves of the imputed contempt, the court were proceeding to order their discharge, when, HILABY TERM, 4 & 5 GEO. IV., 1824. 73 BouUon, Solicitor-General, objected, that the ans- wer to the interrogatories, not having been commu- nicated to the counsel for the prosecution, the dis- charge would be premature, the court thereupon deferred the order until a future day, Mr. Justice Campbell observing, "the question as to contempt being first decided, that as to costs will become a subsequent consideration." The King- v. McKbnzib and McIntyrb, Esqrs. The defendants being again in court, the Chief Justice observed, that they having purged them- selves of the imputed contempt the coiirt would dis- charge them upon the application being made, which he found, upon looking into the anthorities, it was usual to make in these cases. RoUnson, Attorney-G-eneral. — These magistrates are not only entitled to their discharge, but being fully acquitted as they have been of the accusation upon which they were brought here, they are also entitled to be indemnified for their expenses. This evidently appears from the case in 3 Burrow of The King V. Plunket. {a) In that case the court were induced to order costs to the party accused because the prosecutor knew that he was not guilty of the alleged contempt; these gentlemen are in the same situation: their prosecutor had not tbe slightest pre- tence for this accusation. It originates in a trifling suit in the court of re- quests, wherein he chose to let judgment go by (a) 8 Burr. 1329. 10 74 HILAKT TERM, 4 & 5 GEO. IV., 1824. default; in his affidavit facts are stated, which are wholly false, and of the falsity of which he might easily have satisfied himself; he might have known whether they were committee men or not, and that, as elders, they had nothing to do with the manage- ment of the temporal concerns of the church: it is true, when this cause was called on, Mr. Mclntyre said, that he, as being an elder, would have nothing to do with it, and desired those present to take no- tice that he gave no judgment; all these facts the prosecutor might have known, and if he did not choose to make a defence, he acknowledged the jus- tice of the judgment. What has happened in conse- quence of this wilful ignorance ? These magistrates are dragged three hundred miles without the slightest ground, and that there was no such~ ground, the pro- secutor must have known. It is the duty of this court to protect magistrates, even had they (which I do not admit) committed an error in judgment, and particularly so in this so penal a mode of procedure. Where an information is filed against them they are tried by a jury of the country, and are much protected by the laws. Supposing even what has been stated against these magistrates to be true, and that they have been mistaken from beginning to end, shall a prosecutor be allowed with impunity to drag them three hundred miles for giv- ing judgment by default in a one pound cause, which he as defendant did not think proper to attend? There are two substantial reasons for giving costs, namely, to protect magistrates where there is no proof of intentional misconduct, and to discourage vexatious attacks upon them, and upon this principle HILARY TERM, 4 & 5 GEO. IV., 1824. 75 in the case of The King v. Young and Pitts, (a) and The King v. Cox (b) in Burrow, informations were discharged with costs. If the country supposed that magistrates could be harressed in this manner by payment of heavy costs, it would be impossible to find persons of respectability to undertake their duties. Boulion, Solicitor-G-eneral, contra. — No person can feel more strongly than I do the propriety of protect- ing magistrates; but when you look at this case, it is impossible to consider that these gentlemen have acted properly, nor does it at all appear that the prosecutor has been actuated by malice. If magis- 1;rates will go beyond their duty, and proceed in cases where they have no jurisdiction, an attachment lies against them as laid down in Hawkins, and, though looking at the situation of this country, if magistrates are not fairly protected, respectable per- sons could not be procured to fill the office ; yet, on the other hand, how many poor persons may be day after day harrassed by their oppression if they are so ignorant as to exercise jurisdiction in cases where they have no pretence to do it as too often happens ? In the case before the court there is great doubt whether they were not interested ; a clergyman was called from Scotland at a stipend of £200, and the names of both these magistrates were appended to the instrument, and although their names are signed as elders only, as approving it, yet any common per- son reading it would suppose they were much more bound to see the promises contained in it complied with, than Wood, a common subscriber, was. I do (a) 1 Burr. 656. (5) 2 Burr. 787. 76 HILAEY TERM, 4 & 5 GEO. IV., 1824. not gay that they considered themselves as so bound, nor that they were actually so, but I do think that it might be a fair ground of litigation; the words are " We concur and approve of the above;" and if per- sons of information can hesitate as to the effect of this subscription, how natural is it for ignorant persons, such as the prosecutor, to consider that they were actually bound ? The subscription paper, which is dated in 1815, is bottomed upon matter which could only be the ground of a special action, even if it had been brought a week after it had been signed, and mofe especially at this distance of time, only one ac- tion could be bi-ought upon this instrument, the par- ties could not be harrassed by several actions. [Chief Justice. — "We ai'e not trying ignorance in law.] These magistrates have acted very errone- ously and that knowingly. By the process of attach- ment alone. Wood could have restitution, (the court being competent to make that the condition of dis- charging it, that is upon restoring to the presectitor what he has lost by the execution being so impro- perly issued against him. and paying hiis costs,) an indictment or information would have been of no use to hinl; if he has been ill treated, he is not to be sad- dled with costs. No person can say he has com- menced this prosecution without grounds. These magistrates have subscribed a paper promising a minister a salary of £200 a year, which sum was to be made up by the subscriptions of "Wood and others. It was very reasonable to suppose they had guaran* teed this subscription, ^nd if they had produced it as they ought to have done upon the several motions which have taken place, the court might have formed that opinion as to the defendants being bound as fifLARY TERM, 4 & 5 GEO. IV., 1824. 77 gterahtees oir otiierwise, which might have affected their decision; as to issuing the attachment, their not having done so is their own fault, and they milst take the consequences; however, at all events, the essence of the accusation against th6ta is made Out, namely, sitting in a case where they were implicated; one of them, Mclntyre, has sworn that he gave no judgment in the cause, but how was Wood to know that ? He Gotild only- form his opinion by the copy of the judg- ment, and can 'Hr. Mclntyre after it has been certi- fied, and after all these proceedings had upon it, come in and say that he was no party to it, and shall these tiiagistrates call upon the prosecutor to pay costs in consequence of their OWn errors ? The learned coun- sel says tiiat Wood's conduct has been wilful against thesis gentlemen ; but it clearly appears from the whole proceediilgs that he had good reason to suppose he was acting rightly, f Cbibf JCtsticb.— In the case of the King v. PlUnket, which is, I believe, the only Case where costs have beeU given against a prosecu- tor alter an attachmient haS issued, the truth Was, that in takiUg the answers to thfe interrogatories it was found that nothing had been sworn by the prosecutor in his affidavit which was not true, although the accu- sation against the defendant was unfair and unwar- ranted, and the court dismissed the attachmeUt with (Josts against the prosecutor, because he could not be piinished in any Other way ; but in the case before Us, if costs should be given against the prosecutor, what is to prevent his being punished a second time by indicttoent ?] AttWr^y-^tnetid in reply, --- Wood had not a shadow of ground to make this complaint, as appears 78 HILAEY TEEM, 4 & 5 GEO. IV., 1824. by the answers to the interrogatories. As to the copy of the judgment about which so much has been said, Mr. McKenzie gave him a copy of it upon his first application, although he refused to give him a second after he had moved for an attachment against him, until he took advice from his attorney. The omission of this fact (so very important a feature in the case) in Wood's affidavit, was an imposition upon the court, and was a matter which, if it had been fairly disclosed, would no doubt have influenced them ma- terially. Mr. Mclntyre, as an officer of the church, refused to give judgment against Wood, but this was no ad- mission of interest, in fact neither of the magistrates were at all liable, except as individual subscribers, a fact which Wood might have well known if he had read the call ; as to the illegality of this transaction I will not say that in a court of law their proceed- ings and judgment would be considered regular, pro- bably the minister should have sued upon this paper; but according to the statute (a) which gives them juris- diction, courts of request are to proceed according to equity and good conscience, in which particulars I cannot think these magistrates have failed. Were I a magistrate to-morrow it is probable I might in a similar case do as they have' done, substituting the clergyman perhaps as plaintiff. Wood, at any rate, can have no pretence to consider himself as injured after putting his name to the subscription paper. As to the distinction which has been attempted to be made between the two churches of Williamstown and Lancaster, it appears that they composed but one (o) Provincial 56, 9, 3, c. 6, s. 2. HILARY TEEM, 4 & 5 GEO. IV., 1824. 79 congregation; and whatever difference their being committee-men for managing the temporalities of the congregation would have made, is of no consequence, for neither of these magistrates held that situation, and even supposing that an elder was more interested than others in the payment of this subscription, yet Mclntyre cannot be criminated as having sat in judg- ment in Wood's case, merely from the circumstance of his name being set to the judgment paper; he gave no opinion, and called the persons present to take notice, that he had nothing to do with giving the judgment ; if there had been an hundred causes tried at the court of requests that day, it is most probable that the names of all the magistrates would have been mentioned, though some of them might not have been present at the hearing or decision of half of them ; therefore to criminate Mclntyre by McKenzie's copy of the judgment, would be the height of injustice : McKay's affidavits, which state the facts of these mag- istrates having signed the subscription paper, and the refusal by one of them of a copy of the judgment, (facts which no doubt weighed much with the court,) were not filed until the 13th day of July, only five days before the pronouncing the judgment for the attachment, a space of time within which it was im- possible to procure counter affidavits. The prosecu- tor has not the least pretence to say he has been unjustly dealt with, in a cause which he did not think it worth while to attend. Chief Justice. — The only question with me is as to punishing the supposed perjured person. If we should award costs to the magistrates we should be in fact prejudging the prosecutor. If, indeed, it 80 HILARY TERM, 4 & 8 GEO. IV„ 1824. clearly appeared that there were no other means of punishing him (supposing him to have behaved ill) I should think it fair to consider the propriety of giving costs to the magistrates. The court deferred pronouncing judgment until to- morrow. The King v. McKinzie and McIntteb, Esqrs. The court proceeded to give judgment in this case, Campbell, J. — Upon the return of the rule nisi obtained against these magistrates, the court were of opinion that the affidavits filed on their part, did not sufficiently answer those that were filed against them, and therefore granted the attachment, upon which they are brought up from the extremity of the pro- vince, a distance of several hundred miles. They have now upon interrogatories fully purged themselves of the alleged contempt, and are therefore ordered to be discharged; and the question now under consideration is, whether or not they are to be allowed their costs. Upon hearing counsel, and full consideration of all the affidavits, we are all of opinion, that there was some probable ground for the complaint exhibited against them, inasmuch as it appears they interfered in some degree as magistrates in a matter, strictly considered, in which they should have refrained from acting at all ; but we also seem to be all of opinion, that in so far as they did act, it was in pursuance of HILARY TERM, 4 & 5 GEO. IV., 1824. 81 what they considered their public duty, and for a good and beneficial purpose to the community, and that their conduct therein was honest, conscientious and candid, and without malice, oppression, revenge, or any ill intention whatever, such, at least, is my own opinion of their conduct, and therefore upon the authority of several cases, particularly that of Palmer and Baine, and others (a) I should be disposed to allow them costs; but when it is farther considered as now appears, that the complainant has practised a decep- tion on the court, by withholding the disclosure of a material fact within his knowledge, at the time of making his affidavit, and also that another material affidavit had not been communicated to the magis- trates in sufficient time to be answered by them, at the time of shewing cause, I have no doubt of their being entitled to their costs. BouLTOisr, J. — There is not an instance of allowing costs after an attachment has issued except the soli- tary one of the King v. Plunket, mentioned by the counsel for the defendants and the Chief Justice. In the case before the court it appears to me that the prosecutor has made his charge upon probable grounds, and that it is not for the court in this stage of the proceedings to conclude that he has sworn falsely. To make it reasonable that he should be charged with costs, it should appear that he knew he was acting wrong, but it appears that he proceeded upon an opinion which he had formed, as to the effect of the subscription paper or call produced in court ; and if he acted fairly, according to the best of his opinion, that discharges him from corrupt motives. (a) 2 Burr. 1122. See also, Rex v. Cox, Esq., 2 Burr. 786. 11 82 BILAEY TERM, 4 & 5 GEO. IV., 1824. My learnea brother has perhaps, in some measure, relied upon the cases cited by counsel where costs iave been given to magistrates in cases of informa- tions, but these differ both in law and practice from that of a party being brought up upon attachment. Probably there is no blame to be attached to Wood. Whether he has sworn the truth or not in his affi- davit, is not for us to determine, it would be to say whether he was foresworn or not. Many persons looking at these papers would form the same opinion upon them which he appears tto have done. If, indeed, he had stated in his affidavit some facts which he has omitted, it might have had some effect upon the opinion of the court when the attachment was granted, but these affidavits are com- monly drawn up by the attorney, who does not usually insert any thing which may make against his client ; "I "however think that there was a sufficient propor- tion of facts set forth to lead the court to their d-eci- sion, and, as it is altogether without precedent, I am of opinion that costs should not be given to the defen- dants. Chief Justice. — The decision of the court in awarding the attachment, was founded upon the affi- davits of the prosecutor, and the facts stated in those affidavits have now been answered by the oaths of the adverse party, the court contents itself by the prosecutor's affidavits being contradicted by positive testimony to the contrary, by the parties accused swearing that they are not guilty. Where ther^ is oath against oath, there must be perjury some where, HILARY TERM, 4 & 5 GEO. IV., 1824. 83 but it is not tke practice oi the court by its determi- natioQ to say wkere it lies, wMcli it wouild in effect do if it gave costs to the defendant*. In the singular instance before referred to (a) of costs being allowed to a defendant brought in upon attachment, the affidavit of the prosecutor was not controverted ; the accused was unable to swear that the facts were not true, but it appeared by the answer to the interrogatories that there had been a practice upon the court of a concealment, which, if disclosed, must necessarily have altered their decision upon the motion for the attachment; upon this ground and from the great injustice evinced by the prosecutor in that case, the court gave costs to the defendant, but i-n the case before this court there is oath against oath. I cannot undertake to determine the question of perjury between the parties, nor do I consider it my duty to prejudge it. I am therefore of opinion that the court should not give costs to these defendants. Per Curiam. — Let the defendants be discharged. LOSSING V. HOKNBD. This was an action upon bond conditioned for the performance of an award. Baldwin moved for a rule to shew cause why the venue should not be changed from the Home District to the District of London, upon an affidavit stating, "that the plaintiff's cause of action (if any) arose in the said District of London, and not in the Home District or elsewhere, and that all the material witnesses of the defendant were resi- dent in said District of London." (o) King T. Plunket. * 84 HILARY TERM, 4 & 5 GEO. IV., 1824. Macauhy, contra.— This venue cannot be changed without special grounds, it is laid down in Tidd and all the authorities, that in actions of debt upon bond or other specialty the court will not without such special grounds change the venue. In this case the only issue must be non est factum or performance. Per Curiam. — Application refused. Crawfoed v. Eitohie. Macaulay moved to set aside the proceedings in this case for irregularity, the writ having been issued in the deputy clerk of the Crown's office, in the Dis- trict of Grore, and the venue being laid in the Home District. He contended that the statute allowing proceedings to be instituted and carried on in the outer districts, was always understood to be confined to cases where the venue was laid in those districts. That a judge of assize of the Home District, would not recognise the signature of the deputy clerk of the Crown of an outer district to the nisi prius record. Per Curiam. — The plaintiff may have leave to amend upon payment of costs. Haslbton v. BrUjSTDICJE. Where the defendant, one of the sheriff's bail, had from misapprehension given the plaintiff in the original action a cognovit, and had moved for and obtained an order to stay proceedings upon it until the action against the principal could be tried, -which order was conditional upon payment of " all costs incurred by proceedings against the sheriff's bail," the court determined that the costs of the proceedings upon the cognovit should be considered as such costs. An application had been made in a former term in the case of Hasleton v. Eoberts, to stay proceedings HILAKY TERM, 4 & 5 GEO. IV., 1824. 85 upon a cognovit given by Brundige, the present de- fendant, who had become Robert's bail to the sheriff. It had been given under an apprehension that Eoberts, who had left the province, would not return to defend the action ; it was given in the name of Brundige, the defendant, without any reference in it to his situation as bail ; an execution had been issued against the present defendant, according to the terms of the cognovit, but the court, upon an affidavit that there were merits in the suit against Roberts, had stayed the execution until a trial might be had in the original action. The terms of the rule were, "that all costs incurred by proceedings against the sheriff's bail should be paid, leaving the judgment by confes- sion as a security." The costs of entering up judgment and issuing execution upon the cognovit, not having been paid, Macaulay had last Michaelmas Term obtained a rule to shew cause why the plaintiff should not issue exe- cution against Brundige, the present defendant, for the amount of the sum secured by 'the cognovit and costs, and now, Washburn shewed cause. — He contended, that as the rule only required the costs to be paid upon any proceedings that had taken place upon the bail bond, (but which remained still in the sheriff's office unas- signed,) the defendant was not by the terms of the rule called upon to pay any costs, as none had been incurred. That although it might have been the in- tention of the court, that the costs upon the cognovit should have been paid, yet, that as the defendant had omitted to do so under a misapprehension, the court 86 HILARY TERM, 4 & 5 GEO. IV., 1824. would again stay the execution against Brundige, the defendant, upon these costs of the cognovit being now Mac(mh,y; contra.— Contended that the defendant in this action, by the former application to stay the proceedings upon this cognovit, had himself con- sidered the proceedings upon it as proceedings against bail, and that it was upon that principle that he obtained the relief granted by the court, and that he could not after his own neglect by non-payment of these costs, come forward and say that they were not piroceedings against the bail ; that it was his duty to have got these costs taxed and paid them, that it was a condition precedent to going to trial in the original action, and that it was now too late for this application. Chief Justice. — The former application mrade to this court for staying the proceedings and allowing the merits to be tried, was made in favour of Brun- dige quoad a bail, and as such entitled to the equita- ble relief which the court is empowered to give under the statute, — the plain intention of the rule was, that he should pay the costs of the proceedings upon the cognovit, which security was contended by his coun- sel to be within the equity of the statute. Fer CMnam.— Rule made absolute. HILAEY TEEM, 4 & 5 GEO. IV., 1824. 87 MoDouGALL V. Camp. Where the plaintiff's attarney had attended a m^etij^g of arbitrators and they had made their award, the court refused to set aside the same upon the ground that the plaintiff had not attended to give his'evidence agreea- ble to the provision in the rule of reference, from the miscarriage of a notice sent to him by his attorney for that purpose, and although the de- cision of the arbitrators proceeded principally upon the evidence of the defendant. Macaulay moved for a rule nisi to set aside the award, on the ground that the arbitrators who had been appointed by a rule of reference made at nisi prius, had not full evidence upon the subject matter submitted to them, the plaintiff not knowing of or being able to attend the said arbitration. The rule of reference upon which the award was made, ordered " that the parties and their respective witnesses might be examined before the arbitrators." The affidavit upon which the motion was grounded, stated the plaintiff's residence at York — the arbitra- tion taking place at Niagara — ^the non-receipt of a letter which had been sent to apprise him of the time and place of meeting, and that the award principally proceeded upon the affidavit of the defendant, which the plaintiff, if present, could have rebutted. Boulton, Solicitor-G-eneral, contra. — Contended, that as the attorney for the plaintiff attended the arbitration; as the same had been postponed in con- sequence of the absence of a witness on the part of the plaintiff, who afterwards attended and was ex- amined, and the arbitration gone into in the attor- ney's presence, the award could not' be set aside. That it was a pure case of negligence on the part of the plaintiff, or his attorney, in which the court would not interfere. That the application was analogous to 88 HILARY TEEM, 4 & 5 GEO. IV., 1824. that for a new trial, which was never granted in con- sequence of a party's neglect to produce his witnesses. Per Curiam. — Eule refused. MoGriLL V. McKay. Semble, that where a plaintiff has taken a fieri facias against lands and tenements belonging to a defendant in several districts, the court would interfere to prevent more of those lands being sold than would satisfy the plaintiff's demand. Dixon moved for a rule upon the sheriffs of several districts to suspend the sale of the lands of the defen- dant, taken by them in execution at the suit of the plaintiff in this action, until it could be ascertained whether the proceeds of the sale of the lands in one district would not be sufiBcient to satisfy the plain- tiff's debt. The court inclined to grant a rule nisi, but Dixon withdrew his application upon the counsel for the plaintiff {Macaula-y) undertaking that the sales should take place in succession. Scott v. McGI-ebgoii. There is no occasion for the seal of the court to be affixed to a record of nisi prius in an outer district where the suit has been instituted and cause tried there. This was a case of demurrer in which judgment was given for the plaintiff. In the course of the argument the defendant's counsel had objected to the want of a seal to the nisi prius record. It was asserted by the plaintiff's counsel, BouUon, Solicitor-General, and assented to by the court, that there was no necessity for a seal to be HILARY TERM, 4 & 5 GEO. IV., 1824. 89 affixed thereto in the outer districts, as there would be but one seal of the court, which remained in York at the principal office, and consequently as the deputy- clerk of the Crown, in each district, was authorised to issue the writ or record of nisi prim, his signature alone must be sufficient. The counsel referred to a former case of Lancaster v. Curtis, where this point had been determined. Davy v. Myers, (Executors op). Where the plaintiff had recovered a verdict against executors for a breach of promise of marriage made by their testator, this court would not (on the ground that such an action could not lie against personal representa- tives) arrest the judgment. This was an action brought against the defendants as executors of Myers for a breach of a promise of marriage, and upon which the plaintiff had ob- tained a verdict against them for five hundred pounds. The cause Was tried before the Chief Justice. Robinson, Attorney-General, had, in a former part of the term, obtained a rule to shew cause why the judgment should not be arrested upon the ground that this action did not survive against executors, and now Boulton, Solicitor-G-eneral, shewed cause. This is an action of assumpsit brought by the plain- tiff, Miss Davy, against the executors of William Myers, for a breach of promise of marriage in the life time of the defendant's testator, and a verdict having been found for the plaintiff, a motion is made in arrest of judgment, upon the ground that no such action can be maintained against executors. The 12 90 HILARY TERM, 4 & 5 GEO. IV., 1824. Attorney-General contends that this is a personal action, and therefore dies with the person. That it is an action of the first impression, and that no precedent can be found of such a one having been maintained. That as the personal estate of the testator gained nothing by the contract, (so far as appears by the record,) the executors cannot be called upon to pay any damages for a breach of it. That the damages being in pcenam, and therefore for a quasi tort, cannot be recovered against an exe- cutor, and finally he argues ab inconvenienti, that it would be impolitic to sustain such an action, because there must have been many circumstances in the knowledge of the testator from the nature of the cause of action which might materially lessen daraages, which the executors can know nothing of. With regard to the first objection, the rule " actio persomUs moritur cum persona," so far from being universal, is not even general, as by far the greater nupaber of personal actions survive, and lay as well by as against executors. All actions are either real, personal or mixed, and as to personal actions it is laid dowu in Hambly v. Trott, (a) that where the cause of action is for money due or a contract to be fulfilled, gain or acquisition, by the labour or pro- perty of another, or a promise by the testator, ex- press or implied, the action survives against the executors, secus if it be tort or arise ex delicto, sup- (a) 1st Oowper. HILARY TERM, 4 & 5 GEO. IV., 1824. 91 posed to be by force or against the peace. Here it is expressly decided that if the cause of action is a- promise to the testator either express or implied, or a contract to be fulfilled, the action survives against the executor, which is the case here ; the testaitor promised and contracted with plaintiff to marry her, and broke that promise and contract in his life time, as appears by the recoi^d; therefore, this action comes within the plain terms of this authority, consequently unless the defendants' counsel can shew, that the par- ticular species of contract or promise is an exception to this rule, the plaintiff is entitled to judgment. When a general rule is applied in argument to answer an a,dverse proposition, we must look at the reason of the rule, because if the reason of the rule is not applicable, the rule itself fails. Now the reason why some (because we have shewn the rule is not general) personal actions, viz., for torts, will not lie against executors is this, that the judgment in those cases is guilty and quod defendem capiatur, which is in the nature of a conviction for a crime, and no man can be put to answer criminally for the fault of another. This objection arises purely from the form of the action. The remaining personal actions which will not lie against executors, are actions of debt upon simple contract, and the reason of the rule as applied to these actions, is, that' the testator, if living, could wage his law, and as the executors could not do so for him, compelling the executors to answer would deprive them of a mode of defence which the common law gave. Th^se observations apply when' th6 action is 92 HILARY TERM, 4 & 5 GEO. IV., 1824. brought against an executor, but when the action is by an executor, the reason of the rule is quite dif- ferent. The reason why an action for a tort or for any other cause, in which the damages to be recovered are in pamm and for an injury to the person, cha- racter, feelings, &c., of the plaintiff's testator, will not. lie, is, that the executor is the representative of the personal estate and not of the person or personal wrongs of the testator. — Williamson v. Chamberlayne. This latter case was for a breach of promise of marriage by the defendant to plaintiff's testator, and the reason given by Lord Ellenhorough why the ac- tion could not be supported, was, " that the plaintiffs were not the representatives of those injuries, a com- pensation for which was sought to be recovered; that they were the representatives of the personal estate of the testatrix and not of her person or personal wrongs, from whence it appears that the reason of the rule ' actio personalis moritur cum persona,' is different as applied to actions brought by and against executors, in the first case being for want of repre- sentation, and in the last on account of the judgment being guilty, or that defendants are deprived of their wager of law." « Secondly. — An action being of the first impression is no objection, it is only a reason (if true) why can- tion should be used to see that it comes within the general principle by which it is endeavoured to be supported ; but it is highly probable that the reason why the Attorney-G-eneral can find no case of this HILARY TERM, 4 & 6 GEO. IV., 1824. 93 kind reported in the books is, because it was never before questioned. The third objection is, that the testator's personal estate gained nothing by the contract, this is the case in many actions which were never questioned, and notoriously do lie against executors, such for instance as actions of covenant, for title, and for further assur- ance entered into by testator, {a) It has also been urged that an action will not lie against an executor for the non-performance by the testator of a personal act, which the executor cannot perform in his stead ; and my learned friend taunt- ingly says, which of the executors would you have marry this good woman ? In this remark there is more wit than argument; for there are many actions in which the contracting party (much less his repre- sentatives) will not be permitted to perform the act contracted to have been done, when a breach has ensued. In actions of debt on bond, payment after the day named in the condition, could not, at common law, have been pleaded in bar of an action for the penalty; and in actions on special assumpsits, per- formance after a breach will not bar an action lor damages arising from that breach ; and in the case just cited of King v. Jones and others, the executors could not have performed the contract for a breach of which the action was brought; and although it has been asserted, that no action will lie against execu- tors that will not lie for them, the proposition is in- correct, for in King v. Jones and others, it was not objected that such an action could not be sustained (ffl) King T. ^ones «* '''^ 5 Taunt. 418, Burrow, 1199. 94 HILARY TEEM, 4 & 5 GEO. IV., 1824. against the execnior, yet iii a similar case m Maull V. Selwyn, brought by an executor, it was decided that the action could not be supported. BoUnson^ Attorney-General, contra).— This is an action brought by the plaintiff against the defendants, executors of J. W. Myers, for a breach of promise of marriage, alleged to have been made by their testa- tor. Except the singularity of its being brought against executors, (which seems never to have been attempted before,) it is in the ordinary form of such actions — there is no special averment or allegation of any kind on the record, nothing to distinguish this case from any other of breach of promise of marriage, in which one of the contracting parties has died, and consequently the single question for the court to de- termine is, whether in every case an action can be sustained against the personal representatives for breach of promise of marriage; if it can in this, it can in every other, because there is no particular aver- ment on the record to support this action, no state- ments but those which are ordinary and indispensable in all actions of this description. The general prin- ciple is therefore alone to be considered. I contend tiiat, on general principles, this cause of action does not survive but dies with the party; and, on that ground, I move in arrest of judgment. In the first place I venture to state, that no in- stance can be pointed out of any attempt having been made before the present, to maintain an action for breach of promise of marriage against the executors of a contracting party; not a dictum can be found in any book, in any treatise on any one branch of the HILARY TERM, 4 &' 5 GEO. IV., 1824. 9g I^F, to authorise sijch an action ; no report can be produced of any decision to support it, none in whicji a question or pretence of the Ijind has been discussed; ill no book of precedents can any form be found of any declaration, pleading or jiidgment, in an action of this kind. There being then iio express and par- ticular authority or precedent to support it, it remains to be enquired, whether, according to general princi- ples of law, it can be sustained. The maxim every where repeated is " actio per- sonalis moritur cum persona;" but, though in very ancient times this maxim was construed much more strictly than was reasonable, and than the law now is, yet, I admit, it was never taken to mean that all actions that are technically called personal actions, die with the person; for that, as is remarked even in the oldest authorities, would exclude the ordinary matters of debt and contract. It rather meant that actions for personal injuries, or .wrongs for causes that affect the person, rather than the property, do not survive. A distinction was early taken, that an action could not be brought against executors for breach of contract, which the executors could not perform, or such rather as could only be performed by the testator in person. On this principle, the case in Levinz was decided ; and though there have been coutradictory decisions with respect to that particular case, of breach of covenant for not instructing an ap- prentice, the latest seems to overrule the contrary decision, and to decide that such an action would not lie against executors, by reason that it was covenant for a personal thing to be performed only by the testajtor, and the executors might not be of the trade. 96 HILARY TERM, 4 & 5 GEO. IV., 1824. and therefore not capable of performing it. The maxim may in this case have been advanced too far, because the executors might cause the apprentice to be instructed by one who was competent ; but, as it is certain the executors in this case could not be compelled to marry the plaintiff, (if indeed they had not already* wives of their own,) and as they could not easily find her another husband, or compel her to accept one of their offering, the principles which were applied in the case in Levinz apply with more force in this. The old authorities state most compre- hensively, what actions in their nature survive, and what die with the party ; and no one can read that case or any of the early decisions in Dyer, Croke, and Levinz, without feeling satisfied from the very doubts raised as to other causes of action. That in the judgment of the learned men who decided those cases, the very idea of attempting such an action as this, against the personal representatives, would have appeared altogether absurd. In later times the case of Hambly v. Trott was decided; and if the case, arguments and judgment of the court are read atten- tively, (and not in detached sentences to make them appear to give countenance to doctrines evidently not supported by them,) it will be found to militate against rather than to support the present action. These, however, are only cases that can supply reasons from analogy, not one of them relates ex- pressly to this cause of action, nor can any such be found, at least none in which the question is raised whether such an action can be brought against the personal representatives. Fortunately, however, there is among the decisions HILARY TEEM, 4 & 5 GEO. IV., 1824. 97 of very modern times, one case that appears com- pletely to determine the general principle that it does not survive, althodgh that Case is one of an action brought by atid not against the personal representa- tives. In Chamberlayne v. Williamson, (a) an action was brought by administrators for a breach of pro- mise of marriage to their intestate. It struck the judge who tried it at nisi prius, as an extraordinary actioii, but he suffered a vefdict to be taken, and saved the point. The Court of King's Bench declared that it was the first instance of such an attempt, and, though they admitted that was not conclusive, they deckred it to be a sti-oug presumption at least against the action^ because it proved that the general sense of mankind was against it. To the same extent only, is the total absence of precedent or authority urged in this case. After solemn argument and great deliberation as the case expresses, the court decided clearly and without a doubt against the plaintiffs, and every reason on which they decided that executors cannot maintain this action, apply a fortiori to prove that it cannot be maintained against them. Lord EUenhorough says, " it is an action sounding altogether in dama- ges,, that it is for an injury — for a wrong to the person ; that the damages are vindictive and inposnam." Now nothing is more eleair than that actions for wrongs, for injuries, do not survive against executors, that they are not liable for damages in pcsnam. And when it is once admitted that this action is to be so regarrded, the reason of " actio personalis moritur cum {a) 2 M. & P. 40a, M. S. 13 98 HILARY TERM, 4 & 5 GEO. IV., 1824. persona," applies beyond a question. There is no case in which, by the common law, an action can be brought against executors, which cannot be brought for them ; and since it has now been decided in the only case that appears ever to have occurred, that such an action will not survive to the executors, and decided on grounds that must apply with equal force, and do apply with greater when the parties are reversed, it must be taken to be clearly established by that decision that this action cannot be sustained. There the action was against the original contract- ing party, who ought, undoubtedly, to perform all his promises, and has the means of making a full de- fence; and the only question is, can he be sued upon a cause of action so completely personal, the other contracting party being dead. The court say— generally we think not, the action is quasi ex delicto, and does not survive ; but if you could prove special damage to the estate, perhaps it might. Why ? Because the estate should then be made good against this injury to the benefit of credi- tors, and others entitled. But reverse this— the same objection as to the personal nature of the action remains— the liability of the executors must turn upon that objection, and if they are liable, the estate is subject to be reduced to nothing by a vindictive verdict in an action sound- ing wholly, as the court say, in poRuam, for loss of personal advancement, mortified feelings, and con- siderations wholly personal, and out of the limits of calculation ; and creditors for bona fide debts would thus be left without assets to answer their demands. HILARY TEEM, 4 & 5 GEO. IV., 1824. 99 It is evident too, that in such actions, of all others, the executors could not make a proper defence; they could not know the objections which may have justi- fied the breach, but which honour and delicacy may have induced their testator never to reveal. Indeed, it is probable were this action sanctioned, that artful persons would wait, in some cases, until the death of a party put it in their power to proceed against those who could make no defence. The whole reasoning of the case lately decided must apply to this, but not the exception, which, it is said, might possibly, in a particular case, sustain the action. The doubt thete was — the plaintiff does not repre- sent the original contracting party as to contracts of this nature, but he does represent the estate, and, therefore, if it were specially alleged and proved, that the estate has been damnified by the breach, perhaps he may sustain this action against the origi- nal contracting party. Here, on the general principles recognised in that case, the defendants do not represent the contracting party in an action of a nature so purely personal : on what particular ground then could it be sustained? Not because the plaintiff, one of the original con- tracting parties, has been damnified, for that is the case in every trespass, in slander, and in all actions which it is not pretended can survive. Perhaps the corresponding condition might be, if the plaintiff had alleged specialty, that gain had accrued to the estate of the testator by his non-performance, he might sus^ 100 HILARY TERM, 4 & 5 GEO. IV., 1824. tain this action; but there is no such allegation, nor can it be inferred. It might have been far otherwise; the testator might have married less advantageously and left a widow fully entitled to dower. The record, at all events, authorises no inference one way or the other, and we can intend nothing to support it. That it has never been conceived such an action can survive, is clearly seen from the observations of the court upon the first and last experiment that has ever been made in England; if it had been attempted, we must have been able to find some trace or men- tion of it. The statute of William, which allows plaintiffs to proceed by scire facias against executors of a defen- dant dying after interlocutory judgment, in all cases in which the action could have originally been main- tained against executors, would of course apply in this cause of action, if it survives as is contended. Many instances must have happened in which plain- tiffs having proceeded to that stage in such an action, have been stopped by the death of the defendant; yet, none of them ever appear to have made the attempt of reviving it by set. fa. against the executors. No case can be found which leads us to think so; no book says it can be done; no form is given of the proceed- ings that would be required. It is evident unless such an action -^ould lie in England, it does not lie here; nothing has been or can be brought to shew that it has been attempted in England; whatever principles and cases bear upon the subject are against it; and it appears repugnant HILARY TERM, 4 & 5 GEO. IV., 1824. 101 to reason as well as experience, that it should be maintainable. The court will therefore, it is pre- sumed, not now sanction so entire an innovation, which would lead the way to many similar actions, unsupported as they would be by any other prece- dent. The arguments employed by the learned counsel for the defendant, are ingeniously built upon cases not bearing on the question. The cases cited by him are of actions upon covenants and other specialties, (where the question was not and could not be, whether the action survived or not, but whether it survived against the e?:ecutor or the heir,) against the repre- sentative of the real, or the personal estate; a»d if the positions which have b^en called from them, are tajseji with reference only to the point in the respec^ tive cases, however gi^nerally they maybe expressed, they will be found not to apply in any degree to the question here before the court. Qhiep Justice. — This is an action against execu- tors for breach of contract by the testator. At the trial the contract by the testator to marry the plaintiff, and by the plaintiff to marry the testa- tor, were proved and admitted. TSiat in conformity to the contract they did inter- marry, and cohabited as man and wife in the face of the world and their families, until the death of the testator, who, in consideration of such marriage, left by will his wife to her lawful claims on his estate. It appeared' in evidence-^ that they were married 102 HILAEY TEEM, 4 & 5 GEO. IV., 1824. by a Lutheran minister, whose authority was supposed by the plaintiff to be questionable, but overruled by the testator, as being legally authorised to solemnise the marriage. It was in evidence, that subsequently doubts as to the validity of the marriage arising in the mind of the testator, he proposed to have the ceremony re- newed by Mr. Stuart, the church minister ; that the plaintiff declined this offer; and it did not appear, that in any other way she had required the testator to fulfil his contract, or that he had refused so to do. The judge was of opinion, that the action lay for damages for breach of the testator's contract, but that the breach on his part was evidently the refusal on the part of the plaintiff, and that the verdict must be for defendant ; but the jury found for plaintiff and £500 damages. The present motion is in arrest of judgment with- out reference to a new trial. It has been fully argued, and, although a question which must have frequently occurred, it appears doubtful if the action lies at all, without an averment of special damage in the life of the testator. The cases on the survival of actions for and against executors, are still confused, and appear to be decided rather on particular circumstances, than on general principles. Supposing in the present case that the plaintiff had proved an express demand on her part, and refusal HILARY TERM, 4 & 6 GEO. IV., 1824. 103 of the testator to fulfil their contract, and that the testator had then married another woman and died, is it contended that the action did not survive to plaintiff against the executors for the breg,ch of the contract without the averment of special damages, which, as against them, would have been one-third of the value of the moveables ? Then, if it would lie in such case, the proof of the facts failing is no ground for arrest of judgment but for a new trial. A new trial is never granted after failure in arrest of judgment, (unless the case in Douglas (a) is to be considered as authority,) and, in so just a case as this is, it is fortunate that the ver- dict can stand. Campbell, J. — This is an action on the case in assumpsit brought by the plaintiff, a single woman, against the defendants as executors, to recover dama- ges for breach of promise of marriage by the testator, and in which she has recovered a verdict for a con- siderable amount, and now the defendants move in arrest of judgment on the following grounds, viz. : First. — That such action is not maintainable against executors, the cause of action being in the nature of a personal tort, within the maxim " actio personalis moritur cum persona." Secondly. — That the declaration does not state any allegation of special damage, and Thirdly. — That no precedent being found for such (a) Vide Doug. 745. 104 HILARY TERM, 4 & 5 GEO, IV., 1824. actioiij affords a presumption that it cannot be main- tained. "With respect to the precise application of the common law maxim, there has been some difference of opinion both before and since the statute de bonis asportatis in vita testatorii^ {a) but a variety of mo- dern decisions seem to have removed all difficulty on that point, and the distinction, as now I think clearly established, is, that where the cause of action is a mere personal tort, or is founded upolt any malfeas- ance or misfeasance, or arises ex delicto, and geder- ally where the declaration states the injury in such manner, that defendant must necessarily plead not guilty, the rule "actio personalis moritur cum per- sona," will apply; that rule, however, has never been extended to actions founded on nonfeasance or arising ex contractu whether special or simple, as debt, cove- nant, promise, &c- In such cases the action gener- ally survives, and assumpsit or other appropriate action will lie against executors or administrators. This doctrine is, I think, sufficiently established in a variety of cases, of which I need only mention those of Hambly v. Trott, Kingdon v. Nottle, Chamber- layne v. Williamson,, and the note on Wheatly v. Lane in Saunders ; if therefore the decision of the present question depended on the general principle stated as the first ground of this motion, I should have no hesitation in saying, that the rule nisi ought to be discharged;, but the same authorities and several others recognise, I think, with equal certainty a dis- tinction which I apprehend must have an important bearing on the second ground of thie miotion, viz.: the {a) 4, Ed. III., c. 7. ~~~ HILARY TERM, 4 & 5 GEO. IV., 1824. 105 want of any allegation of special damage on the re- cord. In the case of Hambly v. Trott already cited, Mr. Buller, in shewing cause against a motion similar to the present, observes, that actions to recover specific property, or the value thereof, will lie against executors or administrators; but where the damages are in their nature vindictive, or in pcsnam, or un- certain, no action will lie against such representa- tives. I would not cite the opinion of counsel, how- ever eminent, were it not recognised and confirmed by judicial authority. Lord Mansfield, in delivering the unanimous opinion of the court in that case, cites and adopts the doctrine laid down by Mr. Justice Manwood in Sir Henry Sherrington's case, as re- ported by Sir T. Eaymond, "that in every case where any price or value is set upon the thing in which the offence is committed, if the offender dies, his executor shall be chargeable; but where the ac- tion is for damages only in satisfaction for the injury done, the executor shall not be liable." This his lordship calls a fundamental distinction, and is, I imagine, the same distinction to which Mr. Justice Bayley alludes by what he terms a pre-existing proveable debt, in contradistinction to vindictive or uncertain demands of damages, for injury to the per- son, or personal feelings, or at most to the personal comfort, unaccompanied by any specific pecuniary loss, and therefore inadmissible against the represen- tatives of a person deceased, or against the assignees of a bankrupt, as being incapable of any other mode or means of estimation than the capricious or acci- dental feelings and discretion of a jury. But a special damage alleged on the record, such as loss of mar- riage to another person, the relinquishment or loss 14 106 HIMBY TERM, 4 & 5 GEO. IV., 1824. of certain pecuniary advantages, or the giving up a profitable trade or employment, in consequence of the promise of marriage, are in the nature of pre- existing proveable debts, as being as capable of spe- cific proof, and precise estimation, as any other debt, and in which the jury in estimating the amount of damage, must be governed entirely by the evidence in support of such special allegation of loss. In the case of Ohamberlayne v. Williamson it was expressly decided, that administrators cannot have actions for breach of promise of marriage made to intestate, without an allegation of special damage. But it is contended that that decision does not apply to the present case, that being an action by the per- sonal representatives, and this against such represen- tatives — I cannot see the distinction. The doctrine there laid down appears to me to be general. Lord Elknboroiigh, in giving the unanimous opinion of the court, expresses himself to this effect: the gen- eral rule of law is actio personalis moritur cum per- sona, under which rule are included all actions merely personal. Executors and administrators are the re- presentatives of the personal property of the deceased, but not of his wrongs, except where those wrongs operate to the temporal injury of the personal estate, but in that case the special damage ought to be stated on the record, otherwise the court will not intend it. Where damage can be stated on the record, that in- volves a different question. Although marriage may be regarded as a temporal advantage to the party, as far as respects personal comfort, still it cannot be considered as an increase of the transmissible per- HILARY TERM, 4 & 5 GEO. IV., 1824. 107 sonal estate. Loss of marriage may, under circum- stances, occasion a strict pecuniary loss to a woman, but it does not necessarily do so, aiid unless it be expressly stated on the record by allegation, the court cannot intend it; and his lordship concludes his remarks by saying, "on the ground therefore that the present allegation imports only a personal injury, to which the administrator is not by law, nor is he in fact, shewn to be privy, the action cannot be main- tained." All this perfectly agrees with the principles laid down in the other authorities. Were it other- wise, the parties to a suit like the present could not be upon equal footing with respect to the prosecution and defence of the suit, as in the present case the executors may not have had the same advantage of pleading specially to the action, as the testator would have had, if the action had been brought in his life time, such as that ho was always ready and was then ready and willing to perform his promise, but was prevented by the plaintiff, &c. For aught that ap- pears on this record, it may have been the case that testator really was willing and desirous to perform his promise, but that plaintiff on her part delayed or declined performance, or relinquished her claim by consenting to cohabit with him unmarried, to the time of his death, in which case her right of action would have been destroyed, not by his default, but by the act of Grod. I am of opinion that without an allega- tion of special damage this action is not maintainable against executors, and I consider the third ground of the present motion as strongly corroborative of this opinion, and therefore that judgment ought to be arrested. BouLTON, J. — This is a motion in arrest of judg- 108 HILARY TERM, 4 & 5 GEO. IV., 1824. ment in an action brought by the plaintiff for a breach of promise of marriage made to the plaintiff, by de- fendant's testator. Mr. Attorney-General Yi?,^ moved in arrest of judg- ment on the following gounds : First. — That upon the old maxim of law, which SQ.JS," actio personalis moritur cum persona" the action does not lie. Secondly. — That should this maxim not apply in this case, the plaintiff could not recover on the ground, that the declaration did not contain any allegation of special damage, which it ought to do, under the au- thority of Chamberlayne v. Williamson, (o) Thirdly. — That this being an action novel in its kind, and not any instance cited or suggested of its , having been maintained, (although frequent occasions must have occurred for bringing such an action,) it cannot be supported. I have perused most of the cases cited on each side, and many others, the result of my own research. Although I have many older authorities, (Coke, G-ro. Rolle, &c.,) I shall begin with the case of Ham- bly V. Trott, 16 G-eo. III. This was an action of trover, where the plaintiff, on the principle of the maxim, failed, but in that case various rules of law on the subject are laid down. Mr. Justice Aston says, " the rule is quod oritur ex delicto, non ex con- (a) 2 M. & S. 408. HILARY TERM, 4 & 5 GEO. IV., 1824. 109 tractu shall not charge an executor, and cites 2 Bac. 444, tit. executors. Lord Mansfield observes, thai the maxim actio per- sonalis, &c., upon which the objection is founded, not being generally true, and much less universally so, leaves the law undefined as to the kind of actions which die with the person, or survive against the executor. He remarks, " where the cause of action is money due, or a contract to be performed, or a promise of the testator, express or implied; where these are the causes of action, the action survives against the exe- cutor; but where the cause of action is a tort, or arises ex delicto, there the action dies, as battery, false imprisonment, &c." No action where, in form, the declaration must be quare vi et armis et contra pacern, and where the plea must be that testator was not guilty, can lie against executors. Upon the face of this record, the cause of action does not arise ex delicto but ex contractu; the verdict therefore, I think, cannot be disturbed. It is now agreed that executors are answerable in all personal actions, which arise ex contractu, and not ex maleficio, {a) for every contract implies a promise to perform it, in which the testator could not wage his law, because he could not make oath that he had discharged a duty before the quantum had been ascer- tained by the jury. (ffl) 3 Bao. tit. executors and administrators; 9 Coke 87, 10 Co. 77, 6 ; Croke Tas. 293, Vaughan, 101. 110 HILAUT TEEM, 4 & 5 GEO. IV., 1824. And it hath been resolved, that there is no differ- ence between a promise to pay a debt certain, and a promise to do a collateral act, which is uncertain and rests only in damages, as to give a fortune to his daughter, to deliver up a bond, &c., and that where- ever in those cases the testator himself was liable to an action, his executor shall also be liable, (a) An action lies against an executor upon every contract, debt, or covenant, made by a testator, or intestate, which appears by any record or specialty, so upon any debt or contract without specialty, where the defendant could not have waged his law, so where the cause of action is money due on a contract, or a contract to be performed, or a promise by the testa- tor expressed or implied, the action survives against the executor, secus if it be a tort, or arise ex delicto supposed to be by force and against the peace. As to the second point, that should this maxim not apply, the plaintiff could not recover, on the ground that the declaration did not contain any allegation of special damage, which it ought to do under the autho- rity of Chamberlayne v. Williamson. This leads us to a minute investigation of that case. In Michael- mas Term, 1814, a rule nisi was obtained for arrest- ing the judgment on the ground that this action was not maintainable by the personal representatives, or for a new trial on the ground of misdirection. Upon the first point the statute de bonis asportatis in vita testatoris, and 31st Edward III., were cited • (ffi) Cro. Tas. 405, 417, 471; Cro. Tas. 662; BoUe, 266, 3 Bac, tit. executors and administrators. HILAKT TERM, 4 & 5 GEO. IV., 1824. HI and also Com. Dig. tit. administrator B, 13, It was said that by the equity of these statutes, an executor or administrator shall have every action for a wrong done to the personal estate of his testator ; but this, it was contended, was not a wrong to the personal estate; and in Mordant v. Thorold, 1 Salk. 252, it was resolved, that the administrator was not entitled to a sci.fa. upon a judgment in dower obtained by the intestate, where she died before the damages had been ascertained on a writ of enquiry, because the writ of enquiry being in the nature of a personal ac- tion for the damages, it died with the person; and as to the misdirection it was objected, that the criterion of damages could not be the same, as if the action had been brought by the intestate herself, by reason that she would have been entitled to damages for the loss of personal comfort, and advancement in life, and also for personal feelings; whereas, the administrator could only be entitled in respect of the damage or deterioration of the personal estate. Upon this point Lord Ellenborough observes "that the declaration did not contain any allegation of special damage, and the question was, whether the action was maintaina- ble by the personal representative." That the general rule of law is " actio personalis moriiur cum persona,^^ under which rule are included all actions or injuries merely personal. Executors and administrators are the representatives of the personal property, that is, the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of the personal estate; but in that case, the special damage ought to be stated on the record, otherwise the court 112 HILAKY TERM, 4 & 5 GEO. IV., 1824. cannot intend it. That where the damages done to the personal estate can be stated upon the record, that involves a different question; that although mar- riage may be regarded as a temporal advantage to the party, as far as respects personal comfort, still it could not be considered in that case, as an increase of the individual transmissable personal estate ; that loss of marriage may, under circumstances, occasion a strictly pecuniary loss to a woman, but it does not necessarily do so; and unless it be expressly stated on the record by allegation, the court cannot intend it. On the ground, therefore, that the allegation in that case imported only a personal injury, to which the administrator is not by law, nor is he in fact shewn to be privy, the court were of opinion that in the absence of any authorities, the administrator could not maintain the action. Lord EUenborough plainly shews, that in an action by an executor or administrator, special damages must be stated on the record, for the court cannot see that the personal estate is injured — consequently cannot see that the executor is qualified to bring the action. As to the third point, " its being a case of novelty," I think it no ground for arresting the judgment; the not finding any precedent for such an action, ren- dered it highly proper that the court should pause in order to look at the cases. On reason and principle, I think the action main- tainable. Its being novel in its kind, is not a decisive ground of objection. I am therefore of opinion that the rule should be discharged. Rule discharged. ; HILARY TERM, 4 & 5 GEO. IV., 1824. 113 McIVBR BT AJj. V. McFaRLANB. Where a note was made payable at a particular place although no averment of its being presented there for payment appeared upon the record, this court after a verdict for the plaintiff, and proof at the trial of a subsequent promise, refused a nonsuit. This was an action upon a promissory note made payable at a house at Grlasgow, in Scotland. It was tried before the Chief Justice at the assizes for Corn- wall, where the defendant's counsel had moved for a nonsuit upon the ground, that the declaration con- tained no averment that presentment had been made at the house appointed in the note. A subsequent promise had been made. The Chief Justice, considering the recent enactment of the British legislature, which makes the averment necessary only where it is expressed on the note, that it is to be payable at a particular place and not elsewhere, overruled the objection and directed a verdict for the plaintiffs. Jones had last Easter Term obtained a rule nisi, to set aside the verdict and enter a nonsuit, or grant a new trial. Robinson, Attorney-General, now shewed cause. He contended that the want of averment should have been taken advantage of upon special demurrer, and that, at any rate, the proof of a subsequent pro- mise and a verdict cured the defect; that the courts have determined in a variety of instances, that after a verdict it shall be presumed that all has been proved which is necessary; that an express promise, in the cases upon notes and bills of exchange, will relieve from notices which would otherwise be re- quired; that this doctrine as against an acceptor, has 15 114 HILARY TEEM, 4 & 5 GEO. IV., 1824. never .been disputed, and the drawer of a promissory note is in the same situation. That the court are fully entitled, if indeed they are not bound, to notice the new act of the British legislature ; that there were many decisions before its passing which determined that it was not neces- sary to aver upon the record the presentment at a particular place ; that there were indeed conflicting decisions ; that even if the late act had not passed, which set the matter at rest, the court would have been fully at liberty to adopt that decision which appeared to them best founded in reason and prin- ciple ; but, that now, the court could not hesitate ; for that the British statute may be fairly considered as declaratory of what class of decisions are the most correct and beneficial to the public. Boulton, Solicitor-G-eneral, contra, contended, that although proof of a subsequent promise would be evidence to go to a jury that the averment of pre- sentation had been complied with, yet that such proof could not dispense with its appearing upon the record ; that the plaintiff had in fact gone down to trial without any cause of action to try ; that as to the British statute it is not in force here, and the passing it shews that the former decisions were good law ; that we are guided in this country by the law as it stood in 1792 ; that the determination he con- tended for, had been the law of England ever since bills of exchange were known ; that there is no cause of action stated upon the record, dehors which you can prove nothing. Other facts offered to be given in evidence, would be irrelevant ; that the court can HILARY TERM, 4 & 5 GEO. IV., 1824. 115 neither look at impertinent evidence, nor can they presume that this note was presented according to its exigency ; that should the court determine against a nonsuit, undoubtedly the judgment must be arrested. If the cause of action is alleged faultily, the judge at nisi prius should direct a nonsuit ; that for want of form you must demur specially ; but for want of substance you may either demur or arrest the judg- ment ; that if the plaintiff had meant to rely upon the subsequent promise he should have set it forth upon the record. Per Curiam. — Rule discharged. Akmour and Davis v. Jackson. A writ of venditioni exponas against lands and tenements haying but a few days between the teste and return, is irregular, although the exigencies required by the provincial statutes respecting the teste, delivery, and return of the fieri facias upon which it was grounded, may have been complied with. Boulton, Solicitor-Greneral, had on a former day in this term obtained a rule to shew cause, why the writ of venditioni exponas issued against the lands of the defendant should not be set aside, there not be- ing a sufficient period between the issuing and the return of the same. Th.Qji.Ja. against the lands and tenements of the defendant, was issued on the 23rd day of August, 1821, and was returnable on the first return of Michaelmas Term, 1822, comprising between its issue and return, the full period required by the pro- vincial statute, {a) (ffl) 43 Geo. HI., oh. 1, s. 2. 116 HILAET TERM, 4 & 5 GEO. rV., 1824. The sheriff upon this writ returned, that he had taken the defendant's lands in execution, but that they remained in his hands for want of buyers. On the 9th of November, in Michaelmas Term, 1823, twelve months afterwards, the plaintiff issued the venditioni exponas, and made the same returna- ble on the last return of the same term, there being only a few days between the teste and return. He had contended that the period of twelve months required by the provincial statute, extended to a writ of venditioni exponas against lands as well as to the Ji. fa. upon which it was grounded, the language of the statute being sufficiently general to embrace it, the words being " that the writ against the lands and tenements should not be made returnable in less than twelve months from the teste thereof. Baldwin now shewed cause.— He contended that the venditioni exponas was only a continuation of the Ji. fa. which it recites ; that the exigency of the statute had been complied with, by the period of twelve months having elapsed between the delivery and return of that writ. That the ven. ex. was issued according to the determination of the court, in Boulton v. Small, where eight days were laid down as a sufficient time between the teste and the return of an execution. That the present application was made by the sheriff, who can have no right to do so, the parties themselves being satisfied. HILARY TEEM, 4 & 5 GEO. IV., 1824. 117 Boulton, Solicitor-GeiQeral, contra, contended, that the sheriff was perfectly correct in this appli- cation to the court. If he should sell under this writ wrongfully, he would subject himself to an action of trespass ; and, on the other hand, if he should refuse to sell, and the court were against him, he would be liable to an attachment. He may always apply to the court for its decision in these cases. That the late decision of the court respecting the period between the teste and return of an execution, related to those against goods only. That those against lands were sui generis and regulated by legislative provisions. That by the last judicature act, the sheriff is not to sell lands without advertising the sale several months before it takes place. That the object of the statute is, that sufficient notice may be given, that purchasers may assemble ; but that in the case before the court the formed advertisement is nugatory, the day appointed by it for the sale being long since past. That it is impossible that the sheriff can execute this writ, he could not give any notice that could answer the intention of the statute. That it may be an inconvenience to wait so long, but that must be remedied by the legislature, or 118 HILARY TERM, 4 & 5 GEO. IV., 1824. perhaps by sum rule of court to meet the intentions of the statute. Campbell, J.— I cannot consider that the inten- tions of the statute are complied with by the adver- tisements under the fieri facias; if there were not purchasers at the time appointed for the sale by those notices, it is not probable there will be any at the return of the venditioni exponas. These returns and notices required by law are not fictitious proceedings. If the law says nothing in precise terms respect- ing the time required between the delivery or teste and return of this writ, we must refer to some prin- ciple for direction, but it is clearly quite contrary to the spirit of the statutes that such a proceeding should take place instanter. Powell, 0. J. — Common sense tells us, that the intentions of the statute are not complied with in this case. The lands are not sold for a year after the return of the writ under which the notices required by law were given ; at the expiration of those notices, the sale was put off indefinitely, after lying by for twelve months the plaintiff issues a peremptory writ with only a few days between the teste and return. Can it be supposed for "a moment that, relying upon a former notice, these lands can be sold under this proceeding ? HILAKT TERM, 4 & 5 GEO. IV., 1824. HQ It is the custom in the lower province to issue an alias, and after a certain lapse of time, a venditioni exponas, under which the same course as to notifica- tion takes place as under the former writ. The court declared the writ to be irregular, but gave leave to alter the return. Gee v. Atwood. This court refused to set an award aside on the ground that the arbitrators had desired it not to be delivered until the costs for making it were paid. Rolph had in a former term obtained a rule nisi to set aside the award in this case upon an affidavit stating that the arbitrators were to meet on the 2d day of September next ensuing the date of the arbi- tration bond, and that the award was to be ready to be delivered to the parties in ten days after said meet- ing ; that the award was accordingly made on the fourth day of September, 1822, and left with a per- son with instructions not to deliver it until the costs of the arbitration were paid or security given for the payment ; that the awards consisting of two copies remained in his hands until the 9th day of September, when they were given to the plaintiff upon his giving the security required. He contended that this con- dition being attached to the award, rendered it void, as it could not, when so conditioned, be said to be ready for delivery. Macauley now shewed cause. — He contended that the condition did not vitiate the award, if there was no award it would be an answer to the action upon the bond, that the condition of the bond* had been 120 HILARY TERM, 4 & 5 GEO. IV., 1824. complied with by the award being signed and ready for delivery, there was no occasion for its being actually delivered, (a) That having signed the award the arbitrators -werefuncti officio, and if they had no right to annex a condition of payment to the delivery, the party interested might recover it by action ; that requiring payment of the expenses was a matter extrinsic to the award, and which could not destroy it. (b) Rule discharged. The King v. Elkod. A writ of exigi facias will be award€d by this court upon the application of a prosecutor, without its beiug applied for by the Attorney-General. Baldwin on a former day had moved for an exi- gent against the defendant, against whom an indict- ment for bigamy had been found at the assizes. The Attorney-G-eneral had suggested a doubt whether as the forfeiture of the goods of the party outlawed, went to the Crown, the proceedings under the provincial statute (c) should not take place under the sanction of the Crown officers, who in this pro- vince conducted all prosecutions in capital cases. On this day the court observing that there were no words in the statute restraining the proceedings under it to the superintendence of the Crown oflBcers. Ordered the exigent to issue. (ffl) CaldweB on arbitrations, 168. (6) 6 E. K. 309, and see Grove v. Cox, 1 Taunt. 165; 8 Taunt. 461, 4 E. R. 584. (c) 55 Geo. III., ch. 3. HILARY TERM, 4 & 5 GEO. IV., 1824. 121 Trubsdale V. McDonald. A defendant who takes upon himself to abate a nuisance, viz., a mill-dam, may be called upon to pay damages for any injury done to the plaintiff's property beyond what was necessary for the purpose of removing the public inconvenience. This was an action of trespass for pulling down the plaintiff's mill-dam ; and was tried before the Chief Justice at the last assizes. The defence set up at the trial was that the dam was a nuisance, inasmuch as though it did not itself stand upon the highway, yet it caused the water to overflow a neighbouring public road. It appeared in evidence satisfactory to the jury that the defend- ants had pulled down more of the dam than was necessary to remove the inconvenience, and they, under the direction of the judge, recommending them only to consider such damages as the plaintiff had sustained beyond what were necessary to abate the nuisance, found a verdict for the plaintiff for £50. Robinson, Attorney Greneral, had on a former day obtained a rule nisi to set aside the verdict, and grant a new trial on the grounds of excessive dam- ages and the discovery of new evidence. Macaulay now shewed cause.' — 'He contended that this being a case in tort the damages were peculi- arly for the consideration of the jury ; that the defendants had undertaken to abate this nuisance at their peril, and by doing more damage to the dam than was necessary for that purpose, they had sub- jected themselves to an action ; that the damages given by the jury, instead of being excessive, were very moderate, and to obtain a new trial on the 122 HILARY TERM, 4 & 5 GEO. IV., 1824. ground of excess in an action of tort, it should appear that they were vindictive; that it was of much more consequence to the public that mills should be protected than that the wetting of a person's foot should be visited by the destruction of a species of property so valuable and useful ; that as to the discovery of new evidence which consisted merely of admeasurements taken after the verdict, they should have been taken j^efore, as it was the plain- tiff's duty to come prepared with his evidence. Per Curiam. — Rule discharged. [123] EASTER TERM, 4 & 5 G-BO. IV., 1824. Present : The Honourable Chief Justice Powell. Mr. Justice Boulton. Mr. Justice Campbell. Hagerman v. Smith. Where a debtor is indebted upon two accounts and makes a payment with- out directing to which account it is to be placed, the creditor has his elec- tion to place it to which he pleases, unless there is a specific direction for its application or circumstances in the case tantamount to one. Bouhon, Solicitor-G-eneral, had obtained a rule to shew cause why two several sums of £75 and £19 18s. should not be deducted from the amount required to be levied under the writs oi fieri facias issued in this cause. The ground of the application, as stated upon affi- davit, was, that the defendant had paid the plaintiff the said sums in part satisfaction of the judgment obtained against him, under the authority of which the fi. fas. had issued. That at the time of defen- dant's paying the same, the plaintiff did not object to receive the said sums in part satisfaction of the said judgment, or express any wish to apply the same to any other account or demand. At the time of making these payments, the defen- dant was indebted to the plaintiff in other sums upon promissory notes, to account of which the plaintiff had placed these payments, except a small balance 124 EASTEE TERM, 4 & 5 GEO. IV., 1824. which he had placed to the account of the judgment. The plaintiff stated upon affidavit, that when the de- fendant made these payments, he had not given him any instructions as to what account they should be placed. Eobinson, Attorney-General, shewed cause. — He contended, that no instructions having been given to the plaintiff, or any arrangement made as to the ac- count to which the moneys paid should be placed, that he was entitled to place the same to what ac- count he pleased; and relied upon Newmarsh v. Clay (a) and others, and the authorities there referred to. In that case certain acts had taken place which clearly evinced the intention of both parties; but here there was nothing of the kind. The general rule, as laid down in the. cases, was clear that a creditor might place money paid to him by his debtor to any account he pleased, unless there was an express stipu- lation to the contrary, either by words or acts suffi- ciently denoting the intention of both parties. Chief Justice. — By the French law a creditor who receives a payment from a person indebted to him upon two accounts must apply it in satisfaction of the most onerous debt; but by the law of England the creditor may make his election, unless the debtor specifically declares at the time of payment to which account it shall be applied. In this case, if the de- fendant had intended that these payments should have gone in discharge of the judgment, he should have made them to the sheriff, or taken a special re- ceipt from the plaintiff. Per Curiam. — Rule discharged. "~" (a) 14 East. 243. ""^ EASTEB TERM, 4 & 5 GEO. IV., 1824. 125 The Hon. Gr. H. Maekland et al. {Commissioners Jar settling the affairs of the pretended Bank of Upper Canada,) v. Daxton. The declaration, at the suit of a corporation, named the individuals compos- ing it, and also described them in their corporate capacities. The breach was in their names as individuals only. The court held that a non pros migit be signed and execution issue against them in their private capa- cities. Washhurn, on a former day, had obtained a rule to shew cause why the judgment of non pros for not going to trial, signed in this cause, and the fi. fa. issued thereon against the plaintiffs, should not be set aside for irregularity, on the ground that the suit having been commenced by them as commissioners and trustees under the act of the provincial parlia- ment, a nonsuit could not be entered, and execution issued against them, in their private capacities, and he instanced the cases of bankrupt's assignees, and of executors. Boulton, Solicitor-General, contra, contended that the plaintiffs were authorised by the statute to bring actions as a corporation only, not in their names as individuals, as they have done in this case, which being erroneous they had not chosen to go to trial ; that their situation as a corporation was not analo- gous to that of executors or assignees of bankrupts, who, notwithstanding their situations as such, must be sued as A. B. and CD., &c. That the plaintiffs having concluded their declaration without adding the description which they had used in the com- mencement, was conclusive as to the correctness of the plaintiffs taking out execution in their names as individuals. Washhurn, contra, contended that these plaintiffs had not sued as individuals, and therefore were not 126 EASTER TERM, 4 & 5 GEO. IV., 1824. liable to be nonsuited as such ; that their names pre- ceding their description, (which was in the very words of the statute appointing them commissioners,) could not alter their character as plaintiffs; and though their description was omitted in the conclu- sion of the declaration, its having been used in the commencement and throughout, was sufficient to couple it with their names in the conclusion. Fer Curiam.' — Rule discharged. Mitchell v. Tbnbroek, one, &c. Where a bill had been filed against an attorney in the office of an outer dis- trict and proceedings had thereupon to verdict and judgment, the court refused to set them aside for irregularity. The defendant in this case was an attorney of this court, had been sued by bill and proceeded against to judgment. The bill had been filed in the office of the clerk of the Crown in the London District, and the subsequent proceedings and verdict had in that district. Macaulay had obtained a rule nisi to set these pro- ceedings aside, as being altogether irregular and de- fective, on the ground that the bill should have been filed in the principal office at York. Boulton, Solicitor-G-eneral, and Rolph, shewed cause. — They contended, that the words of the statute were sufficiently general to admit of proceedings being filed against an attorney in the district office. That an attorney may waive his privilege altogether, and if the proceeding was incorrect, he has waived it. It is a mere matter of practice. If the defendant EASTER TEEM, 4 & 5 GEO. IV., 1824. 127 had applied at a proper stage of the proceedings to have had the bill filed at York with a view to a trial at bar, or in the Home District, his application might have been attended to ; but that after verdict and judgment, it was clearly too late. Per Curiam.-T-'Rvle discharged. Myers v. Eathburn. The court permitted an amendment to be made in the address. Cause of action and teste of a writ of capias. Upon the application of Macaulay. — The court (upon the authority in 8 T. E., where a writ was amended which had by mistake been made returna- ble in C. B. instead of K. B.) allowed the writ of capias ad respondendum issued in this cause, to be amended by striking out the direction " To "William Brown, Constable," and inserting "to the sheriff of the," by striking out "in a plea of debt of eighty pounds," and inserting " in a plea of trespass on the case upon promises," and by striking out " before us this 2ord day of February, 1824, in the fourth year of our reign" in the teste, and inserting in lieu thereof "thirty-first day of January in the fifth year of our reign." BOULTON V. EaNDALL. This court fully recognises the rule of HUary Term, 3 James I., which orders that no cause once argued and determined, shall again be brought before the court. In this case, Bolph applied for a rule to shew cause why the proceedings and judgment should not be set aside for irregularity, and why the writ oi fieri facias. 128 EASTEE TERM, 4 & 5 GEO. IV., 1824. issued upon the said judgment against the lands and tenements of the defendant, should not be superseded with costs, and restitution made to the defendant. A judgment by default had been signed in this case, and execution issued and the lands sold under it several years ago, and an application similar to the present had been made by Stewart, counsel for the defendant, who, in Michaelmas Term, 1821, had ob- tained a rule nisi, but which, upon argument, had been discharged. Various irregularities were upon the present application pointed out by Mr. Rolph, some of which had probably not been insisted upon by Mr. Stewart upon the former motion. The counsel now went considerably at length into all the supposed irregularities, and also read an affidavit (which was filed) containing a statement of those irregularities and of the facts and merits of the applicant's case, adverting also to the partial want of consideration for the debt upon which the judgment was obtained. He also cited many cases of new trials at law and re- hearings in equity which' he considered as analogous. Robinson, Attorney-Greneral, contra, read an affi- davit rebutting those facts and circumstances, but relied upon the universal practice of courts of law (to which no one exception could be found) which does not permit a cause once determined upon mo- tion and argument to be again brought forward either upon the ground of the same or other irregu- larities not before insisted upon. He cited and read the rule of Hilary Term, 3 James I., by which it is ordered, " That if any cause shall first be moved m court in the presence of the counsel of both par- EASTEB TEEM, 5 GEO. IV., 1824. 129 ties, and the court shall then thereupon order between those parties, if the same cause shall again be moved contrary to that rule so given by the court, then an attachment shall go against him who shall procure that motion to be made contrary to the rule of court so first made, and that the counsel who so moves, having notice of the said former rule, shall not be heard here in court in any cause in that term in which that cause shall be so moved contrary to the rule of court in form aforesaid." The counsel also cited authorities to shew that no motion can be made upon the ground of irregulari- ties not noticed upon a first motion. Campbell, J. — Upon the opening of this matter I thought it strange and was indignant that the irre- gula,rities pointed out by the defendant's counsel should have taken place. Whatever were the grounds, it now appears those irregularities have been discussed and decided upon for many terms back. The counsel has referred to a nupaber of authori- ties which it was to be supposed he referred to as upon a first application and discussion, but it appears that was not the case. If they are to be considered as furnishing authority for opening and re-consider- ing matters already discussed and decided upon, ■ they do not apply. Upon reference to the order in Hilary Term, 3 James I., it appears such second discussions cannot be permitted. Were it not for this salutary rule, IT 130 EASTER TERM, 5 GEO. IV., 1824. nothing could be more uncertain than the proceed- ings and decisions of courts of justice. There is also a penalty attached to the breach of the rule, which, as this is the first time it has been attempted to be infringed in this court, I should not wish to see enforced ; but upon any future attempt of the kind I should. Chief Justice. — I concur with my brother Camp- hell, and for the reason given by him, I also consider that the penalty may be dispensed with. Per Curiam. — Application refused. Dob on the demise op Stanspibld v. Whitnbt. Though a probability exists that a defendant in ejectment may have merits, the court will not necessarily grant a new trial, the verdict in ejectment not being conclusive upon the parties. This was an ejectment tried at the assizes for the Midland District. The facts on the part of the lessor of the plaintiff were, that Daniel Washburn, under whom he claimed, being in possession of the premises, left this country and went in 18 — to the United States, where he died, leaving one Short in the possession and charge of the premises ; that Simeon Washburn was his brother and heir at law ; that Daniel Washburn be- ing at the time of his death indebted to the lessors of the plaintiff in a considerable sum, his heir at law, Simeon, by the advice of counsel, by bargain and sale, transferred the property to them in satisfaction of the debt. This deed, it appeared, had not been EASTER TERM, 5 GEO. IV., 1824. 131 registered until after the commencement of the suit. It further appeared in evidence, that Whitney, the defendant, became the tenant in possession by break- ing into the premises after the death of Dan. Wash- burn, and before any entry had been made by his heir, Simeon Washburn, but after the bargain and sale made by him to the lessors of the plaintiff; the defendant's claim to the premises was under a mort- gage made by Daniel Washburn to him, and which had become forfeited. The defendant's attorney, under an impression that it was necessary to make out his title by proving the original grant from the Crown, and which, as well as subsequent conveyances to Daniel Washburn, he presumed would have been proved by the plaintiff's lessor, to support his own title, had not given the deed of mortgage in evidence, and the jury had in consequence found for the plaintiff. Macaulay had, in a former term, obtained a rule nisi to set aside the verdict, and to grant a new trial on the ground, first, that the lessor of the plaintiff should have commenced the proof of his title by producing the original grant from the Crown ; se- condly, that the bargain and sale made by Simeon Washburn to the plaintiff 's lessors was void, first, as being without consideration and nudum pactum, it being made upon a general presumption that the lands in the hands of the heir were liable to the ancestor's simple contract debts, which was not true as a general proposition, but only sul modo; se- condly, the consideration not being expressed in the deed to be pecuniary ; thirdly, as not being registered before action brought ; fourthly, for uncertainty, as 132 EASTEE TEEM, 5 GEO. IV., 1824. not being descriptive of any particular lands ; fifthly, because the heir, Simeon Washburn, could not make a title before entry upon the lands, his estate being abated by the entry of Whitney. Thirdly, on the ground of mistake in the defend- ant's counsel, which originated in a surprise, the plaintiff's attorney having given notice to produce title deeds which he did not afterwards call for, on a presumption of his doing which the defendant did not come prepared to prove them. Fourthly, on the ground ol merits, the defendant having a clear title under his mortgage. Robinson, Attorney-G-eneral, now shewed cause. — If justice has been done the court will not grant a new trial upon antiquated technical points of law, as abatement, disseisin, &c., especially when they were not moved or reserved at the trial, (a) The only reservations were whether the plaintiff's lessors should not have gone back with his title to the King's deed, and whether the bargain and sale to him from the heir, was not void for want of consideration. As to the first, it is clearly laid down, as well by Mr. J. BuUer, {b) as in Phillips' evidence, that it is sufficient to commence the proof of a title by the de9,th and seisin of the ancestor ; as to the second objection, the want of consideration, I consider that it was good and valuable — a debt due from the ancestor to the plaintiff's lessor, the bargainee, and which debt the lands of Simeon Washburn, the heir (a) 2 Taunt. 217 ; 2 T. E. 4 Edmonson v. Machell ; 1 Bos. and Pal. 338 Cox ' V. Kitchen. (J) BuU N. P. 103. EASTER TEEM, 5 GEO. IV., 1824. 133 of the bargainor, were chargeable with under the 5 G-eo. II. The advantages the plaintiff has obtained by this verdict are no other than he should have had without it, namely, being a defendant instead of a plaintiff, for the defendant, if entitled, should have brought his action and not have forced Stansfield to become plaintiff by a forcible entry. The reasons for refusing new trials upon technical objections apply more strongly to cases of ejectment than to any others, as the judgment is not conclusive, as laid down in 10 Mod. 202. Macaulay contra.— The cases urged by the Attor- ney-G-eneral would apply in this, if, as in those, a fair trial had been had ; but the defendant, in fact, has had no trial at all. His attorney received notice from the plaintiff's attorney to produce the original title deeds, from which he presumed they would be called for by the plaintiff's counsel, and did not therefore bring wit- nesses to prove them; but the plaintiff, instead of beginning his title with these deeds, commenced by the death and seisin of Daniel Washburn, the counsel for the defendant erroneously supposing, that it was necessary for the plaintiff to commence his title by proving these original deeds, and being unprepared with such proof gave up his case, and the defendant was thereby, in fact, deprived of a trial. The entry of "Whitriey has also been urged as an objection; if it was an independent fact, it might make against him; but coupled as it was with a good title and the possession of deeds, it was a fair assertion of his right. If the several objections to the plaintiff's title 134 EASTER TEKM, 5 GEO. IV., 1824. had been stated in a case, or upon a special verdict, I might without doubt have gone into them all ; and I conceive I may do so if they appear upon the judge's notes. There are many cases of new trials being granted upon grounds not moved at the trial, where the ends of justice required it. In Sutton V. Mitchell (a) a new trial was granted the defendant upon grounds which, by the mistake of his counsel, were not noticed at the trial ; and in D'Aguilar v. Tobin {b) the court granted a new trial on account of the mistake even of a witness. In the cases of Cox v. Kitchen, Edmonson v. Ma- chell, and other authorities cited, the court refused to grant new trials upon points not reserved at the trial, because they considered that justice had been done, or that the proposed defences were not consci- entious; but the merits here are with the defendant; he holds a mortgage for which he paid his money long before the plaintiff took his deed, the very taking which, under such circumstances, subjects to the charge of buying up a pretended title. I conceive that the lessor of the plaintiff should have commenced his title with the original grant from the Crown. The titles here are not upon the same footing with those in England; there a tenant is pre- sumed to be in, with the consent of the lord of the fee, but here all the lands having been in the Crown within sixty years, that presumption fails, and a (a) 1 T. K. 18. (i) 2 Marsh, 265. EASTER TEEM, 5 GEO. IV., 1824. 135 grant from the Crown should be proved. On this ground the plaintiff, I conceive, should have been nonsuited. Short's possession, too, was not such as to be that of D. Washburn's; he should have been a tenant paying rent, whereas he was a mere casual occupant not recognised by the law. To make the consideration for the bargain and sale to plaintiff good and valuable, it shoald have been shewn that the lands in possession of Daniel "Wash- burn's heir, were, in fact, liable to his debts, and fur- ther, that the consideration was a pecuniary one, as laid down in Cruise's Digest, vol. 4, and also, in the 8th report. [BouLTON, J. — You may shew a pecuniary con- sideration, satisfied in oxen or other valuable.] This instrument is void, too, I contend, for uncer- tainty; it describes no land in particular, but all the land Daniel Washburn died possessed of. I conceive it was void too for want of registry. The English statutes appoint a time within which deeds must be enrolled, and after registry the title is retrospective; but here no time is appointed, from whence it may be fairly concluded that the title is not complete until the deed is registered. This instrument indeed could not be properly registered, for it mentions no county in which the lands lie. Upon these grounds of objection to the title of the lessor of the plaintiff; upon that of merits, which is clearly with the defendant, and upon the broad principle laid down by Mr. Justice Buller in Estwick V. Cailland, "that upon the application for a new 136 EASTER TERM, 5 GEO. IV., 1824. trial the only question is, whether under all the circumstances of the case, the verdict be or be not according to the justice of the case," (a) I conceive that the defendant is entitled to a new trial. Robinson, Attorney-G-eneral, in reply, — It is im- portant to the real justice of this case that the defendant should not have an opportunity of bring- ing forward the antiquated doctrine of abatement, disseisin, &c., and therefore I contend that these points not having been moved at the trial should not now be taken into consideration. Were this a case in which justice could not be done without considering them, I might not perhaps object to their consideration ; but it is not so. Injustice would take place by allowing the defend- ant to take advantage of his own wrong in making a forcible entry. Justice is not his object, but he wishes to meet us with defects in our title. The seisin of D. Washburn is sufficiently substantiated. It is not necessary for a person to be confined to his house to continue the possession of it ; if he has fifty houses he may move from the one to the other, and continue his possession by having an agent or servant, or even by keeping a key. There is no occasion for a person claiming title to go back farther than to the death or seisin of the ancestor here, more than in England. He is not obliged by commencing his proof beyond that, to subject himself to make slips or breaches in the chain of title. (a) 5 T. R. 425. EASTER TERM, 6 GEO. IV., 1824. 137 The ancestor dying seised makes the heir's title prima facie good, and it is for the defendant to shew a better title. The objection to want of registering has been taken from a supposed analogy between our registry acts, and the English statutes for the enrolment of deeds of bargain and sale ; no suoh analogy in fact exists ; there are registry acts in England as well as here, upon the same principle and for the same purposes, namely, that of giving notice to subse- quent purchasers, but not to substantiate or confirm the title. The consideration for the plaintiff's deed was the best possible ; there was a just debt due by the ancestor, to which the lands were liable under the 5 Geo. II. The consideration may be money or moneys worth, as laid down by my Lord Cohe, who says, that a bargainee may aver money or other valuables as the consideration. If the defendant has merits, he, in his turn, may bring an ejectment, which he ought to have done at first. Chief Justice. — The points urged by the counsel for the defendant appear to be worthy of considera- tion ; but the trial had, not being conclusive, as the defendant has an opportunity of bringing forward any merits he may have, upon an ejectment to be brought by himself, the court are of opinion that the rule msi should be discharged. Per Curiam. — E,ule discharged. 18 138 eastee teem, 5 geo. iv., 1824. Johnson v. Smadis. A defendant may upon the affidavit required for the ai-rest of the persons of debtors issue an execution against the body of a plaintiff who has suf- fered a judgment of non. pros. In this case the defendant had obtained a judg- ment of non. pros, and had issued a ca. sa. upon it. Boulton, Solicitor-General, moved to set the same aside, on the grpund, that this writ did not lie for a defendant, the words of the statute authorising it being confined to plaintiffs, and not sufficiently general to embrace defendants. They only point out the affidavit to be made by plaintiffs. Chief Justice. — The costs in this case have be- come a debt, and I consider a defendant entitled to the same remedy a plaintiff might have had if he had recovered. Campbell, J. — The case here too turns upon a fraud, which must have been stated in the affidavit. Per Curiam. — Application refused. Ex parte Eadenhurst. a person may be admitted an attorney of this court upon his own affidavit of service where the attorney to whom he was articled is absent from the province. Mr. Thomas Radenhurst applied this term to be admitted an attorney. Mr. Ridout, with whom he had been articled, being absent from the province, the court admitted Mr. Radenhurst upon his own affidavit of service for five years without the usual certificate. [139] TRINITY TERM, 5 GEO. IV., 1824. Present : The Honourable Chief Justice Powell. Mr. Justice BouLTOiSr. Mr. Justice Campbell. McGrlLVRAT AND WIPE V. McDONNBLL. Where to a declaration in debt upon bond, the plea stated that the plaintiffs had not made a conveyance according to agreement. The plea held bad upon special demurrer for want of shewing what the agreement was, although the agreement was referred to and its contents might be collected from the condition of the bond as set out upon oyer. Declaration in debt upon bond for £900. Oyer prayed of bond and condition. Bond set out in common form. Condition as fol- lows : whereas the above John and Jane McGrilvray have by agreement bearing equal date with these presents, and for and in consideration of £850 bar- gained, sold, aliened, and transferred unto the said Allan Ban McDonnell, and unto his heirs and assigns for ever, aU that certain parcel or tract of land, situ- ate, &c., and have entered into a bond with the said Allan Ban McDonnell, the condition whereof is, that the said John and Jane McG-ilvray shall and will execute and deliver a good and perfect deed of con- veyance and title in the law of the said premises, unto the said Allan Ban McDonnell, his heirs and assigns for ever. And, whereas the said Allan Ban McDonnell, hath paid unto the said John and Jane McGrilvray the sum of £400, part of the above men- 140 TRINIiy TEEM, 6 GEO. IV., 1824. tioned consideration, and the further sum of £450, the rest thereof still remains to be paid; now the condition of the above obligation is such, that if the above bounden Allan Ban McDonnell, shall and will well and truly pay, or cause to be paid, unto the said John and Jane McGilvray, or either of them, their heirs, &c., the aforesaid sum of £450, which remains still due to them, for the said lands by the instalments, and at the periods following, that is to say, £100, part thereof, when and as soon as a deed of conveyance, according to agreement, shall be exe- cuted and delivered by the said John and Jane Mc- Grilvray for the above mentioned lands unto the above named Allan Ban McDonnell, one hundred pounds more, another part thereof, at the end of one year, one hundred pounds, another part thereof, at the end of two years, and one hundred, pounds, another part thereof, at the end of three years, and the fifty pounds, the rest part thereof, at the end of four years, all which terms of years are to commence from the day that the above mentioned deed of con- veyance shall be delivered according to the true in- tent and meaning of the agreement entered into, con- cerning the premises, and in case the said payments shall be well and truly made according to the true intent and meaning of the agreement entered into concerning the premises, and in case the said: pay- ments shall be well and truly made agreeable to the above arrangement, then this obligation to be null and void, but otherwise shall remain and be in full force, virtue and effect. Plea, that the said John and Jane McGilvray, or either of them, have npt; at any time heretofore exe- TEINIXY TEEM, 5 GEO. IV., 1824. 141 cttted and delivered to him, the said Allan Ban Mc- Donnellf a good and perfect deed of conveyance and title in and to th& said before mentioned premises according to their agreement, &e. Demurrer assigning for cause that it is stated in the said plea that the said John McGrilvray and Jane McGrilvray, or either of them, have not at any time heretofore, executed and delivered, or caused to be executed and delivered, to him the said Allan Ban McDonnell, a good and sufficient deed of conveyance and title in the law in and to the premises in the said plea- mentioned, according to their agreement; and yet it does not appear in and by the said plea what the said agreement was, joinder. BouUon, Solicitor-G*eneral, in iavour of the de- murrer, contended, that defendant to be relieved from his bond, must shew that he has performed the condition or an excuse for the non-performance. This excuse is that the plaintififs have not made a deed ac- cording to their agreement. But in order to shew that they have not done it accordimg to agreement, the defendant must shew the agreement, which must necessarily be in his own pos- session, and the agreement appears to be in writing by the recital; in. the bond. — 4 East. 346. And as the bond gives a prima facie demand to plaintiff, de- fendant must discharge himself by shewing that he has done all be could. Now the agreement may be that the plaintiffs were to make a deed at a given place, on a given day, in which ease it would be necessary for defendant to say he was at the place 142 TKINITY TEKM, 5 GEO. IV., 1824. on the day with the money, ready to receive the deed, but that no deed was tendered; and the coun- sel cited 4 East. 340; Douglas, 688; Com. Dig. Pleader, 640, 1; Croke, James, 360. Robinson, Attorney-Greneral, contra, considered the arguments and authorities produced not as quite in point. They applied to cases where the party pleading them was to perform them; in the present case the defendant pleads a non-performance by the plaintiff. The agreement to be performed by the plaintiff in this case, was clearly set out in the condition of the bond, and it was unnecessary that the court should intend any other agreement. That referred to was a mere minute and subsidiary to that set out in the bond. The reference to it may be considered as sur- plusage, which does not vitiate a plea in bar. The plea states, that they have not made a title accordiug to agreement, viz., according to the agree- ment recited and set out in the condition of the bond. That the courts have relaxed in requiring the common averment of readiness to perform. .At any rate, to take advantage of its absence, the want of it must be set down as a cause of demurrer, it beino- only matter of form. Boulton, Solicitor-G-eneral, in reply. — That it was impossible to take issue upon a recital ; that the de- fendant, by erroneous pleading, had prevented the plaintiff from taking those objections to the agree- TRINITY TERM, 5 GEO. IV., 1824. 143 ment referred to, whicli a more authorised course of pleading would have enabled him to do. If the whole agreement had been set out he might have pleaded non est factum— forgery, &c. ; that its construction might have been different; that it might have em- braced matters of defence for its non-performance; that the plaintiff might have had oyer as it was not for him to set out a deed in the possession of the ad- verse party; that the plea being bad for uncertainty and one upon which it was impossible to take issue, the plaintiff was entitled to judgment. The court gave their opinion in favour of the de- murrer, but allowed the defendant to amend. HlNNBRLBT V. GoULD. Where with a yiew to give a defendant time, the plaintiff had upon the mis- information of the deputy sheriff given a receipt for the debt, as the only proper mode of staying the execution, and which receipt the sheriff had stated in a return to the writ of ^. fa., the court ordered an alias to issue. Robinson, Attorney-G-eneral, applied for leave to ' take out an alias writ oi fieri facias against the goods and chattels of the defendant, to levy the residue of the debt and costs in this action, notwithstanding the return of the sheriff to the last writ of fieri facias upon matters disclosed to the court on affidavit, sug- gesting that the same is yet unsatisfied. The sheriff's return stated, that by virtue of the writ he had the plaintiff's receipt for £675 10s. Id., and had levied of the goods and chattels of the within named Seth B. Grould, £17 10s., and his fees. The affidavit of the plaintiff stated the issue of the execution. 144 TEINITY TEEM, 6 GEO. IV., 1824. That be the plaintiff was applied to by the defen- dant to delay proceedings thereon for a certain speci- fied time ; that plaintiff being willing to do so, wrote to the sheriff to that effect ; that he was informed by the deputy sheriff that proceedings could not be de- layed beyond the return thereof, unless plaintiff would execute a receipt written by the said deputy, which he accordingly signed, supposing that the same was intended merely as a stay of proceedings ; that deponent had not received any money under said execution except the casts paid to his attorney. The deputy sheriff's letter, requiring the receipt as a means of staying proceedings, was annexed to the afiidavit, and sworn to be written by him. Application granted. Brown v. Stuart. Held, that the entry of the incipitur upon the roll, is a silfficieat entry to enable the defendant to move for judgment as in caee of a nonsuit. Boulton, Solicitor-G-eneral, had obtained a rule nisi in this cause for judgment, as in case of a non- suit for not going to trial pursuant to notice. Macauhy shewed cause, and contended that the issue should be entered at length upon the roll be- fore this motion could be made and cited. — 1 Arch- bold, 130; 2 Tidd, 801. The defendant's counsel contra, contended that the incipitur being entered upon the roll, was sufficient, as may be collected from Tidd, who lays down that TRINITY TERM, 5 GEO. FV., 1824. 145 the record is a transcript of the issue roll, and that the record cannot be passed until the issue is entered, but that the incipitur answers to the issue. Chief Justice. — With regard to trial, an incipitur is sufficient; but when an application is made to the court above, the issue should be entered and the roll completed. Per Curiam. — {Diss. 0. J.) — Rule discharged upon plaintiff's paying costs and undertaking peremptorily to go to trial at next assizes. BouLTON V. Randall. The proper style of this court is " before his Majesty's justices " not before the King himself, coram vobis, not coram nobis. Washburn moved for the allowance of a writ of error, coram nobis. Boulton, Solicitoi-Greneral, objected that the writ should have been coram vobis — that all writs here should be returnable before his Majesty's justices. In England, the Court of King's Bench is ambulatory, following the person of the King, but here it is sta- tionary. In England the parliament may sit in Westminster, and the Court of King's Bench where the King himself is ; but in this country, the court must sit where the parliament sits. The Attorney-General observed, that if the writ was defective it might be quashed in this court or in the Chancery. 19 1415 TEINITY TEKivl, 5 (JEO. IV., 1*24. fo this observation the Chief JuBTiciS iassented, observing, (with the court) that the stylie of the court hitherto adopted in writs was iflipk'oper, biit that they would not interfere with a practice which had obtained for such a length of time. Per Cmam.—'Vfiit allowfed. Hon. G:. H. Markland bt al. {Co?nmissioners for settling the affairs of the pretended Sank of Upper Canada) r. Bartlet. The statute vesting the property of a particular bank in the hands of com- missioners with power to hear and determine claims made upon the bank by creditors — though stated in the preamble to be made "on behalf of a great portion of the inhabitants of the province," was not considered by this court as a public statute. Robinson, Attorney-G-eneral, had, in last Easter Term, obtaified a rule to shew cause why, a nonsuit shotild not be entered upon several pblhts stated and insisted upon at the trial; the first grbund for the ap- plication, was, that the provincial statute (a) under which the plaihtiffs acted, was a private ahd liot a public statut'6, and therefore shotild have been set out in the declai'ali'Oti, and proved at the trial. Bmlton, Solicitot-Creneral, shewed Cause. — f he first point reserved fot- the decision of the coutt iS, whether the proViteial statute which vests ih the haM6 of the Jilaintiffe as commissioiiers all the stock of the pretended Bank of Upper Canada, lately estab- lished at Kingston, is a public or private statute. The intention of the legislature, I conteiid tb be the grotind which should decide this question, la&'d "~ (o) 4 Geo. IV., c. 22. 'XmW '^W' 5 <3;E0. ly., 1824. 147 that, if it appears ffom % statute itself, that the leg- i^la,t\i;:^ iutendied it tQ H^e a public s.tatnte, tlie qoiirt will give it that construction. This act states in its preamlple, "that the Vank association li,ad stopped paynient, wherebj a great portion of the inhabitants of this province, holding thei?- bills or notes, and ^ho had taken fiieir stock, as veil as others, are defrauded of the sanie, and are likely to be without redress, nnless some legislative remedy should be provided for their relief." For whose jelief ? For that qf a great portion of the inhabitants of this proyince, as well as others. These words are so general, that I am surprised it could ever have been doubted whethef a statute having gnel^ a pyeanible was public or private. It is the practice and law of parliament not to niake private acts, except upon petition ; it is evident that this statute could not have been so made; it purports to be fQy tJfie beneftt of % great portion qf the inhabi- tants o| the province, and others, and no individu£i|s are, or indeed cpnld be pointed out or designated, for whose benefit, or upon who^e petition, it conW have been fj-ajned. This apt i^ not at all confined, either in its language or its objects, as many ^British s,ta,tntes are, who^e provisions affect a great many individuals, such as ihos^ relating to particular as^opiatiojjs of different trades, as butchers, chandlers, &c., vhich are con- sidered as private acts, becaws^ their operation is confined to cer4:ain designated persons, pointed out, 148 TRINITY TERM, 5 GEO. IV., 1824. if nof by their names, as individuals, by that of their profession or mystery, but this statute applies to the public CO nomine. The board established by it is a court of record, with power to hear and determine, open to all the King's subjects, not restricted, either as to amount or persons possessing an authority as to its generality equal to that of the King's Bench, inasmuch as every member of the public body may become a suitor in it. It is laid down in Bacon's abridgment {a) that al- though the words of a statute may be particular, its general application may make it a public statute. The act before the court is particular as applied to the bank, but general as it affects the public at large, in the same manner as a statute, regarding a partic- ular trade, if made expressly for the benefit of the country in general, is a public act. Again, what inconveniences would arise by consid- ering this as a private act ? No person could take advantage of it, except by pleading it specially — it would be a nuisance, instead of a benefit ; its object is to afford an expeditious and easy remedy for the holders of bills, bank paper, or securities, to enable them in person to go before the board constituted by it, and to obtain a quasi judgment at a trifling expense ; its intention is not to take away any rem- edy which may be had under the 14th Geo. II., ch. 37, but to furnish an additional one, the proceedings under that statute, being expensive and inconvenient; (o) Tit. Statutes, 374. TRINTY TERM, 5 GEO. IV., 1824. 149 but should it be construed to be a private statute, it would furnish no additional remedy whatsoever. The act authorises the board to issue subpoenas, an authority incidental to it indeed, as a court of record ; but if the act is to be considered as a pri- vate one, a witness might refuse to attend unless the suitor obtains a subpoena or exemplification of the statute under the great seal, and this is not an ideal inconvenience, but one which would frequently arise. The same observation applies to commissioners in the King's Bench, who are authorised to take affida- vaits touching matters before the board, who need not recognise this act (if it is a private one) without a similar authority. The King is interested in the proceedings under this statute, which as laid down in Skinner (o) makes it a public act. The board constituted by it, is authorised to take recognisances, the forfeitures of which go to the Crown. The act creates the public offence of perjury, the fine upon a conviction upon which, would also go to the King. The ancient doctrine which affected to confine every thing to genera and species is now exploded, and many statutes, which would, by Lord Coke and other lawyers, have been considered as private, are now considered as public. The statute regarding all sheriffs, (5) would have (o) King T. Bags, Skinner, 428. (6) 23 Hen. VI., ch. 9. IQO TBINITy TEBM, 5 GEO. lY., 18^4. been considered as a private one, because, say these ancieAt lawyers, all officers are a genus, but all sheriffs are only a species. But this exposition is now changed to one more rational as appears in Lord Raymond, {a) who lays down that the act for the discharge of poor debtors, is a public act, because all the people of England may be concerned as creditors to these poor debtors, and so may all the people of Canada, or of the United States, be creditors to this poor bank. Another very important ground of the decision in Lord R^- mond, and which applies most forcibly to the act before the court, was that the expense of pleading the poor debtor act specially, would put the insol- vents to so great an expense as to disable them from taking advantage of it. The sheriff's act would now be considered as a public statute, and that does not affect the interest of every member of the public body, for there are many large divisions of it, as peers, lawyers, and others, who are not subject to be arrested. On these grounds, namely, that the act it made expressly for the benefit of a great portion of the public, without petition, the very general jurisdiction which it establishes, that the King is interested in its provisions, and the great inconvenience which would arise from a contrary construction, I contend that the act of legislature before the cpurt should be considered as a public statute. Robinson, Attorney-G-eneral, contra. — Immediately (c) Jones y. Axed, 120. TftlNtTY TEftM, 5 GteO. IV., Mi. l5l after the tritA of this cailse I insisted upon the dis- tinction which takfes place between public and private statutes, in the proceedings which are had upon them in courts 6f justice, viz., thM the former are recbg- nis'6d, bttt that t^e latter hiilst be set forth !ahd pl'oved. To lead to the decision of the question before the cotttt, viz., Whether the statute under consideration is public or private, I will first refer to Bacon's abridgment, where We find the following summary: That a statute which relates to all the subjects of the realm, is a public statute. That a statute which concerns the King, is a public statute. That a statute which concerns the public revennei is a public statute* That a statute which concerns trade in general, is a public statute. Ati'd Whicli is to be observed as applicable h61*e ; it is thete laid d6Wh tkt the Statilte of ttenry VI., hy which "dH corporations and licenses glinted by that prince a!re 'declai-ed to bC roid is a priWte Statute. The act Uhder consideration does not concern all hanks, for if a similar institution Were to arise to- mortioSiv", it would Uot be effected by it. It islMpCs- siblte that an aCt SO confiued in its operation, cau be entitled to the privileges of a public statute, without 152 TRINITY TEEM, 5 GEO. IV., 1824. the clause so frequently inserted, with a view to entitle private acts to be considered as public. If acts relating to such bodies as the universities, are to be considered as private, is it at all reasonable to suppose that one relating to a single obscure bank should be treated as a public one ? It concerns only certain creditors of the Kingston Bank. It is not a general law of the land, but made to relieve certain individuals, and cannot, upon any principle, be considered other than a private act. An act relating to all trades, would be considered as a public statute, but one relating to a company of grocers, butchers, or other specific trade, would be private acts, although in their operation, such acts might materially affect the public, but this statute does not even relate to banking associations in gen- eral, and did it relate to all banks in Kingston, it would still be private. The British statutes relating to the chartered char- itable corporations of London [a) were regarded upon general principles as private statutes ; the first, similar in its provisions to the act in question, was made a public act by an express clause, the second is printed in the statutes as a private act. [0. J., that statute was made public by the clause, because it was brought into the house upon petition.] If your lordship means to infer that where statutes are not brought in upon petition, they are public statutes, I should conceive such inference as not founded upon (a) 6 Geo. II., o. 36. TRINITY TERM, 5 GEO. IV., 1824. 153 authority, for if that were the case, we should never hear of long arguments to shew whether a statute was public or private, but the court would direct the rolls to be searched. In the discussion which is stated in the term re- ports {a) respecting a particular trading company, Mr. Justice Biiller does not hint at a distinction ol that sort. Among our own provincial statutes there are many of a private nature which have not been brought in upon petition, as the acts for erecting gaols and court-houses, giving sums of money to par- ticular individuals or districts. And on the other hand, if the great body of the province were to petition for the redress of some public grievance, could it be said that a statute redressing it was pri- vate? So that I should infer that the circumstance of an act being brought in, either upon or without petition, does not furnish sufficient ground to make it public or private, but that the distinction must evidently be drawn from the statute itself, and not from the manner in which it originated. Many British statutes have given very extensive and general remedies and powers, fully equal to those in the act under consideration, but which are evi- dently, upon general principles, considered as private statutes, as a clause has been added to give them the advantages of public acts — as the charitable corpora- tion act before referred to, and our own back acts. [0. J. that clause was necessary to prevent their being considered as private acts because they arose upon petition.] Your lordship will never find that (o) 6 Geo. II., ch. 36 ; 7 Geo. II., ch. 11. 20 154' TRINItr TEBM, 5 GEO. IV., 1824. petition or no petition, has been the ground of deci- sion; surely A. B. or 0. petitioning for a public bill could not make it private, as for instance for an act of habeas corpus or a reform in parliament • the object of it, and not the manner of bringing it in, must de- cide its character. I will refer to a number of British statutes acknow- ledged to be private, and I am convinced that the court upon comparing them with the one under con- sideration, will not hesitate to declare it to be a pri- vate act. The 55 Geo. III., c. 3, is for the establishment of the London Dock Company, and gives very large powers of fining. The same statute, c. 9, for building a court house, &c., for the county of Hereford, gives very large powers, and yet both these acts have the clause. There is not one argument the counsel has ad- duced to shew this a public act, and which he has drawn from the powers given to the commissioners under it, but which might be applied to these two statutes, which are acknowledged to be private. The same statute, c. 45, for preserving the public records of the county of Surrey, and which gives fees to the clerk of the peace, which all persons may be interested in the payment of, is considered as private. The same statute, c. 91, for enlarging Cheapside and establishing the new post-ofBce, establishes a TRINITY TERM, 5 GEO. IV., 1824. 155 court of record, authorises imprisoainent, fines, the summoning juries, &e. This statute, I take it for granted, did not arise upon petition, yet it has the clause. The same statute, c. 99, regulating the assize of bread within the bills of mortality, and within ten miles of the Royal Exchange, general as it is, has the clause. These clauses are added to prevent inconvenience; but if the argument which the counsel attempts to draw from inconvenience were applicable, the clause in these statutes would be quite unnecessary. The 46 Geo. III., establishing the Philanthropic Society, arose probably upon petition from the long string of facts ; and from the purport of the act now before the court, it might reasonably be inferred that it also arose upon petition, yet neither in the one case or the other should I conceive that as a ground of decision. This last statute uses the word "public," as ours does "a great portion of the public," from which I infer that the use of either of those terms as desig- nating the object of a statute would not constitute it a public act. The 46 G-eo. III., c. 32, for preventing frauds in the admeasurement of coals in several parishes in Surrey, an act giving great and very general pow- ers, has the clause. In the 2nd and 3rd of Anne, establishing a regis- try in the county of York, there are clauses that 156 TRINITY TERM, 5 GEO. IV., 1824. would overturn all arguments which attempt to shew that the act before the court must be a public statute, merely on account of the powers vested in the board or the proceedings to take place under it ; yet it was thought necessary to declare this to be a public statute by the special clause. I consider that this act has no more title to be considered as a public act, than one which would for the benefit of creditors make a person subject to the bankrupt laws, who was not so before. Every one might, by possibility, be a creditor to the bankrupt, but that would not make it a pub- lic act. The counsel's argument as to the number of per- sons who might be interested as creditors to this self-constituted bank, applies much more strongly to ferries and highways, all acts relating to which arc nevertheless private, unless aided by the clause. I agree that many acts which would formerly have been considered as private, would now be con- sidered as public. They have been pointed out by the counsel on the other side, but there is no autho- rity to shew that an act relating to a particular com- pany of trading men, is to be considered as a public act, however numerous their creditors may be. The act respecting weavers is in Levinz (o) deter- mined to be a private statute, and yet that, as well as similar acts, contain certain rules for the govern- ment of different trades, which are highly beneficial to the public, but as their immediate objects are cer- (a) 1 Levinz 294. TRINITY TERM, 5 GEO. IV., 1824. 157 tain trades only, and not trade in general, they are private statutes, unless made otherwise by the spe- cial clause. The same distinction is laid down in Grilbert's evidence by Loft, and the doctrine laid down in Colce is referred to in those authorities. In none of the arguments respecting the nature of a statute, can I find any question made as to whether it arose upon petition or not. [Chief Justice. — It is the modern practice of parliament not to entertain private acts without petition.] I should doubt whether the rule is so general as to determine that a private act could not be enter- tained without petition ; I should conceive it possible that a member in his place asserting a grievance would be attended to, though it might be of a private nature. When a counsel rises at nisi prius, and asserts for the first time that an act is private, I should not expect that the court would enquire how it origin- ated, or require that the counsel should have searched the rolls of parliament before his circuit. If the act before the court even extended to all banks set up since a certain period, it would be pri- vate upon the same principle that the statute declar- ing all charters made in the reign of Henry YI. is construed to be so. Any restriction as to time or place makes a sta- tute private. 158 TRINITT TEEM, 5 GEO. IV., 1824. A Statute affecting a single bank in Kingston, is certainly more particular than one which takes in a whole king's reign, and much more so, if confined to individuals, even though its enactments might be beneficial to the province at large. [Chief Justice. — Modern times do not sustain private acts, unless upon petition, and it is acknow- ledged in Comyns that such a proceeding makes them private.] Blackstone does not recognise the distinction, and even were it so, your lordship may infer more from it than the fact would warrant ; it is not a British statute which is under consideration, therefore nothing could be drawn from that practice, unless it was also a rule of this legislature. [Campbell, J. — The legislature may make arrange- ments for convenience to the house.] Can a court be bound by a rule of the houses of legislature ? A statute must be construed as a will must, from itself looking at itself only. An inference drawn from its being brought in by petition or other- wise would go too far. It would follow that all acts brought in upon petition, however general, would be private, and one upon the most trifling matter, if brought in without petition, must be declared a public statute by the judges; but there is nothing in Comyn or Dyer, to lead to a supposition that petition or not was ever considered in adjudging an act to be public or private. If this act gave an authority to try all causes that TRINITY TERM, 5 GEO. IV., 1824. 159 might arise in the proviQce, it would be public, but it must neither be confined to place or persons. The act for the relief of all friendly societies (a) did not arise upon petition, yet it has the clause. It is upon principle quite impossible to consider that act as private and ours as public. The same may be said of the act in favour of the G-lobe Insurance Company. My learned friend says, look at the intention. I say so too, but that we are not to go out of the act. If he means to say that we are to consider the pro- bable intention of the legislature collected otherwise than from the act itself, he goes too far. The legislature may have supposed they knew the distinction between a public and a private act, and have been mistaken. What says the preamble to this statute ? " That certain persons set on foot an association." What is the title ? "An act vesting in the hands of certain commissioners all the stock and property of the pre- tended Bank of Upper Canada." In every member there is a particularity. It does not, in its provisions, establish a general court of record, but one to wind up the bank con- cerns. If the parliament were to make an act to settle any one man's affairs, it might equally claim to be a public statute if his creditors happened to be numerous. (fl) 33 Geo. ni., ch. 34. 160 TB.INITY TERM, 6 GEO. IV., 1824. Look, the counsel says, at the inconvenience of its being construed a private act. The legislature should have remedied that as they have done in our own bank act by a clause. As to the King being interested, he is equally so in most of the acts I have cited. In fact, all my learned friend's arguments I con- sider as answered upon principle, strengthened as it is by the numerous British acts avowedly private, but possessing infinitely more claim to the privilege claimed for this statute than it possibly can. BouUon, Solicitor-Greneral, in reply. — From the well known practice of parliament to frame private acts upon petition, and the fact that the act under consideration was brought into the house without petition, I argued it to be a public statute, but this was only one of several grounds of argument. The learned Attorney-General has referred to the Registry Act and many British statutes, and wishes it to be inferred that if statutes of so great importance as to the objects they embrace, and of so general an influence in their operation, are to be considered as private statutes, that it is quite unreasonable to sup- pose the act before the court can be deemed a public one ; but the evident distinction is, that the acts he has referred to are necessarily confined in their operation to certain individuals, as the Yorkshire Registry act to persons holding lands in that county; the act respecting friendly societies, to the mem- bers of each particular society; as if an act was* TRINITY TERM, 5 GEO. IV., 1824. 161 made to establisli a bank in each district of this pro- vince, it would be a private act. The acts respecting ferries and highroads have been referred to as of great public concern, yet pri- vate acts. They are of public concern inasmuch as all trav- ellers may be interested in them, but the provisions in the acts relating to them have for their objects the persons concerned in their management, and those acts are therefore private. The same may be said of acts relating to the management or fund of thea- tres. It is the pecuniary benefit to individuals, and not the pleasure or convenience which spectators or travellers may derive from them, which the law con- siders. The relief proposed by the statute is not confined to the holders of bills, but is intended for many others, as for persons who may have deposited money, plate, title deeds, or other valuables in the bank. It is true, as urged by the Attorney-G-eneral, that courts of pretty extensive jurisdiction have their origin from private statutes, but however extensive, they are local ; whereas the jurisdiction given by this act is not confined to Amherstburgh or Cornwall, but extends over the whole province. The act respecting poor prisoners is very similar to this, and the principle upon which Lord Raymond decided upon that act, fully applies to this, " that 21 162 TRINITY TERM, 5 GEO. IV,, 1824; every person in the country might be a creditor under it," and "that without considering it as a public statute, it would be useless." The counsel on the other side has in argument assumed, that all the statutes which he has referred to would have been considered as private, if the clause had not been added to themj but as applying to several of them, the inference is not warranted ; it may have been inserted ex abimdanti cautela, to prevent a possibility of doubt. The post-office act which has been remarked upon, though an act very beneficial to the public, immedi- ately affects the property of individuals. That respecting the admeasurement of coals, how- ever important, is nevertheless local. Acts relating to courts of justice in particular counties are private, because they cannot affect all the King's subjects, but there is a legal possibility of all the inhabitants of this province becoming suitors in the court established by this statute. The title to an act is no key to its construction, though the preamble is, as far as it goes ; there are, nevertheless, clauses and provisions in many statutes quite unconnected with the preamble. Some clauses may be public, others private ; but it would be absurd to consider the clause in this statute' respecting affidavits as public, and the rest of the statute as private. TKINITY TERM, 5 GEO. IV., 1824. 163 Our act has recognised, aud, as it were, made a part of itself, the public British statute 14 G-eo. II., which is another reason ifor its being considered a public statute. The distinctions respecting the British acts have been so various and contrardictpry that the court are left to decide upon the general broad principle, whether the act is made for the benefit of the public or for that of individuals. I consider that I have shewn this statute to be public from the great public benefits it had in view, as well as from the other grounds I previously laid before the court. Chief Justice, — On the first view of this point made for the opinion of the court in this case, I con- sidered that the act of assembly in question must be taken to be a public act, but I have endeavoured to catch the distinction as found in the books, where I find much to doubt and little to fix my opinion. It appears to me, however, that the same act may be in some parts private and particular, to be pleaded or given in evidence, and in others public and gen- eral, to be noticed by the judge as such. The enactment transferring the stock and credits of the bank to the commissioners I consider a par- ticular provision, which, as relating to the parties only, is particular and private, and therefore must be pleaded, or at least given in evidence. The terms of the reference rendering such con- 164 TBINITy TERM, 5 GEO. IV., 1824. struction fatal to the verdict, I hold it unnecessary to offer any opinion on the other points, unless the majority of the court should be against me on this. Campbell, J.— It appears that the plaintiffs have by an act of the provincial legislature been consti- stuted a board of commissioners or trustees, for the special purpose of settling the affairs of a certain insolvent, unauthorised association, called the pre- tended bank of Upper Canada, and in that capacity have brought the present action under authority of the said statute, to recover the amount of two bonds /or the benefit of the creditors of the said banking association ; and the question now under considera- tion of the court, arises on a point reserved at the trial, stating that the statute under which the action is brought is a private act, and as such ought to have been specially pleaded and set forth by the plaintiff. Similar questions have heretofore undergone much discussion in the courts at "Westminster, attended in some instances with such difficulty as to have pro- duced contradictory decisions, a circumstance which has in the present case afforded to the learned coun- sel, on both sides, an ample field for argument, and a more than usual opportunity of citing authorities in support of their respective positions, and of which they have certainly availed themselves with much ingenuity and talent. The broad distinction between public and private statutes is, that the former are general laws which regard the whole community, and of which the courts TRINITY TERM, 5 GEO. IV., 1824. 165 must ex'S>ficio take judicial notice, without being spe- cially pleaded — the latter are such only as regard either individuals or distinct parts of the community, and therefore must be specially set forth or shewn in the pleadings by those who claim remedy under them. Many, however, of the latter description are so complex in their provisions and enactments, or so extensive in their operation, as to render it extremely difficult to ascertain the precise line of distinction, and this has been the cause of the differ- ences of opinion I have alluded to, amongst judges of great eminence, such as Rolle, Glynn, Hak, Tmsden, Montague, Mansfield, and others. In or- der to avoid such serious inconveniences in the administration of justice, the legislature have in modern times been much in the habit of stamping the character of public acts on statutes of very extensive although not of general operation. This is done by adding an express clause to that effect. Such are the 2nd and 3rd of Anne, ch. 4, for the registry of deeds in the west riding of the county of York, the 33 Geo. III., ch. 3, for regulating the trade and business of pawnbrokers, and ch. 54, for the relief and encouragement of friendly societies, and many other British acts besides our own Bank act, all which the courts of law would be under a necessity of considering as private, were they not made pub- lic statutes by the addition of those special clauses. The act now under our consideration has no such clause, consequently we are left to decide its public or private character, by comparing the act itself and its avowed purposes, with the doctrine and princi- ples laid down in the best authorities on the subject. 166 TRINITY TERM, 5 GEO. IV., J824, A very great number of British statutes of much more extensive operation in regard of persons and property than the act before us, are nevertheless private acts. Mr. Justice Buller lays it down as the distinguish- ing characteristic that public acts of parliament are such as concern the whole kingdom, and must be judi- cially noticed by the courts, without being set forth, and private acts such as do not concern the whole kingdom, and therefore must be exhibited to the court. If, however, the matter be ever so special, yet if it relate equally to all, it is a general law and need not be shewn; but if it relate only to some particular county or parish, or trade, it is special and must be set forth. A law that concerns all lords is a general law, because it affects the whole property (rf the kingdom, which is holden under lords mediate or immediate ; but a law that concerns the nobility or lords spiritual is but a particular law, because it re- lates only to a particular set of persons. A law, however, that relates to all spiritual persons is a general law, inasmuch as the religion of the kingdom is the concern of the whole kingdom. Such are the acts, 21 Henry YIII., 13 Eliz., c. 10, and 18 Eliz., c. 11; but the 11 Eliz., concerning Bishops' leases, is but a private act, for it relates only to the concerns of one set of spiritual persons. An act that relates to all trades is a general law, because it relates to traffic in general ; but an act that relates to any one trade, as grocers, butchers, &c., is but a pri- vate act. TRINITY TEEM, 5 »E0. IV., 1824. 167 This principle is acted upon by the same eminent person in his judicial capacity in the case of Kirk v. Nowell, 1 T. R. If this be so as regards a whole trade or parish or county in England, many of which, we know, em- brace the interests and concerns of a much greater portion of his Majesty's subjects than the whole popu- lation and wealth of this province, how much more forcibly must the principle apply to the concerns of an obscure association of speculative adventurers, and the comparatively few individuals, who have foolishly placed confidence in their credit and stabi- lity ? Acts of parliament relating to all officers are public acts, because they concern the general admin- istration of justic^; but an act relating only to parti- cular officers is a private act. The misapplication, or rather the misapprehension of this distinction has heretofore occasioned a differ- ence of opinion respecting the 23 Henry VI., c. 9, requiring sheriffs to take bail, which has at different times, and by different judges^ been considered a public and a private act, particularly before the statute of Anne, authorising the assignment of bail bonds; but the better opinion seems to have been that it was always a general law, for although it re- lates only to officers of a certain description, yet all the King's subjects are within the benefit of it ; but without this universal effect, it undoubtedly must always have been considered a private statute. There is also another mode of rendering a private statute public, which is by some recognition of it, how- 168 TRINITY TERM, 5 GEO. IV., 1824. ever slight, by any subsequent public act, either ex- pressly or impliedly, confirmatory, or even alterna- tive of its provisions or enactments, and on that ground, amongst others, it is intimated to us that this act should be considered public; this ground however entirely fails, for there is no such recogniti(m, nor indeed any recognition at all of it by any public act of parliament. It is true the act in question contains a clause referring to or recognising a previous public act of the British parliament; but what is the nature and effect of this recognition, it is merely to this effect, that this provincial private statute shall not alter or repeal that previous public British statute. The application of that principle of law is there- fore out of the question in the present case. The statute before us is entitled " An act vesting in the hands of certain commissioners therein named, all the stock, debts, bonds and property of the pre- tended Bank of Upper Canada, lately established at Kingston, for the benefit of the creditors of that insti- tution." So far as the title explains the purpose and intention of the act, it is no more than would have been the title of an act vesting the property of A, B. in the hands of C. D. for the benefit of the creditors of A. B., and which I imagine no professional man would for a moment consider a public statute. The preamble states in substance, that certain per- sons did, in the year 1819, set on foot an association under the style and title of "The president, directors and company of the Bank of Upper Canada, and pro- cured subscriptions to a considerable amount for the TRINIiy TSBM, 6 eiSp. I.V., 1824. 1 g9 avowed purpose of iraising a joint aud tranifeEal^le stpok," upon the cr^edit pf which to ^ssjie bank bills, ^and ^rry on l^e bijsiness of ba^^ipg, which adyen- tureiss afterwards stopt payment of ithgir bijls, ,and beqauje insolvent, wljergby a ;great portion of tfee ip- habJtonts holding ?their bills ;and notes have been defrauded and are likely to be without redress ; with- out any reference at present to the truth or ifalJacy of the ilatj;er allegation, or to the legality or crimi- nality of the association itself, I gee .npthing in Ahis description essentially different from the case of any insojjveut individual or company, arid his pr their speqific creditors, except perhaps tlie very extri^or- dinary assertion that the defrauded persons are likely to be without remedy. This statement, however, whether true or false, can make ,uo difference in tjie nature. pf the, transac- tion, nor inthe parties, debtors and creditors, whose interests and affairs it concerns. Unless iperbaps it might have afforded to the legislature a pretext for conferring upon this act tb.e character pf a pjlblic statute; .this, however,4heyihave not thougjit fit toido, nor do I conceive it to be in the power of this court to supply the defect, if I am rjght in my conceptipn of the dpetrine laid down in alLthe authorities on, the subject. As t0;the specific enactments and provisions pft)ie act, they t do not appear to me to contain or embrace any matter whatever that can waiter pr eiilarge .the character given to it in its title and preaniblej t^e whole having relatioa only to the private eoncerns of,certa,iU:Speeiflc, jpsolyeut debtors, ^uditii^iri eredi- 170 TEINITY TERM, 5 GEO. IV., 1824. tors, with whose affairs the community at large have no more to do than with the object of the associated adventurers, whic*h appears to have been a matter of private gain and emolument, undertaken not only without authority, but in direct violation of a posi- tive and highly penal act of the British parliament. I am therefore of opinion that the statute in ques- tion is a private act, and as such ought to have been spiecially set forth. Boui.TON, J. — In this case there are ten points reserved, but as the determination on one in favour of the defendant will answer the end of arguing the whole, it is considered sufiBcient to argue one mate- rial point. The one selected for that purpose, is whether the act of parliament appointing the commissioners is a private or public act ? Having given this question my best consideration, I am of opinion it is a public act. Private acts are those which concern only particular things or per- sons, of which a judge will not take notice without being pleaded. Some acts are called public general acts, others public local acts, such as canals, &:c., ch. 9, a statute for the discharge of poor prisoners, the same exception was taken, viz.: — "It is a private statute and should have been pleaded." But per Cur. This shall be construed to be a public act because all the people of England may be interested as creditors of the prisoners, so in this case all the people in the province of Upper Canada may be interested as ere- TRTNITY TERM, 5 GEO. IV., 1824. 171 ditors of the pretended bank, bringing it most clearly within the decision in Lord Raymond. Trueb, C, J., says, in the case of Jones v. Axen : If the act concerning bishops were tq be determined now it would be determined a general act. The act in question having embraced the English act on the same subject, places the point beyond doubt. Ex PARTE Lyoxs. A certificate from the master, and an afSdavit of the person entitled, stating "that he had during bis clerkship done everything required of him," was held not sufficient to entitle him to be admitted an attorney of this court. Mr. John Lyons applied to be admitted an attor- ney of this court. His own affidavit and the certifi- cate of service from the attorney with whom he had been articled, stated his having entered into articles for the time of five years, and that he had always been ready during that time to perform any services that had been required of him, or to that effect. The court considered the certificate and affidavit as insufficient. Application refused. idmi^AB TERM, 5 GEO. IV., iM Present : The Honourable Chief Justice Powell. Mr. Justice Boulton. Mr. Justice Campbell. Shuter & WiLKiNS V. Marsh & Ux., Executrix. Where husband and wife, executrix, are sued, service of process upon hus- band only is sufficient as well as in other cases. in this case process had been taken out against the husbafld and wife as executrix, bdt the husbstnd only had been served in time, the process having been served upon the wife afte^ the return. Washburn moved to set the proceedings aside on the ground of irregularity. He contended that though in ordinary cases service upon the husband aione was sufficient, yet that where the wife was sued as executrix it was necessary she should be served also. That the plaintiff, having undertaken to serVe the process upon the wife, should have served it in time. Boulton, George, denied that there was any dis- tinction between a wife sued as executrix or other- wise, there being no authority to that effect, and the principle being the same in both cases, of which opinion was the court. Application refused. MICaaEEMAS' term; 5r©E0. FT., 182C X7S^ LoaAN r. SilGOREi. Tia» court win n&fe order s&tisfawtioa ta tl? entered upon aJatojsattT^eBt payment of interest. Washburn had obtained a rule last Trinity Term to shew cause why, upon payment into court of the sum of £126 13s. 8d., balance of the judgment' in this cause, satisfaction should not be entered on the roll, and why, in the meantime, all proceedings should not be stayed on the writ oi fieri facias issued therein. A judgment foT the sum of £1861 I7s. lid. had in the year 1812 been entered of record in this court by the plaintiff against the defendant. The affidavit in support of this application stated that the defendant had paid to the plaintiff u'pon this judgment the sum of £1736 14s. 3d. The affidarifs against the application stated that the deponent, who was the agent of the plaintiff, had always considered and intended that the payments made by the defendant were in satisfaction of inter- est accrued as well as the principal, until both prin- cipal and interest should be fully paid, and that one payment in particular, viz., 400 acres of land valued at £150, was by the defendant tendered to the de- ponent, and by him accepted in part satisfaction of the interest on the subsisting debt j further, that an agreement or agreements had taken place between the deponent and the defendant as to what period some particular payments should draw interest for. Thfe amount due upon a calculation bf principal and interest amounted to £821 17s. 3d. 174 MICHAELMAS TBBM, 6 GEO. IV., 1824. Robinson, Attorney-G-eneral, shewed cause.— The judgment upon which satisfaction is required to be entered by the defendant in this case is dated 1812. A number of payments have been made upon it, but the agent of the plaintiff has insisted and the defend- ant has agreed that those payments should be placed to account of the interest, and even had there been no agreement to that effect, natural justice would en- title him to it. He was entitled to interest upon the account upon which the judgment was founded, and a fortiori he must be entitled to interest upon the judgment itself. A jury would give it by way of damages in an action upon the judgment, and it would be unjust that the plaintiff should be deprived of it by an ap- plication of this sort. The right of a plaintiff to interest upon a judgment is clearly established in Saunders, (a) where it is laid down that the court itself will, with the consent of the plaintiff, tax interest by way of damages, and if, by a direct exercise of authority, they will enforce the payment of interest, they cannot, by granting an application of this sort, deprive a plaintiff of that which he would be entitled to by the verdict of a jury, or by the summary interference of the court. The late provincial statute, too, I consider, has a retrospective operation {b) not confined to judgments obtained since its enactment. The right of plaintiffs to interest upon judgments (a) Holdipp T. Otway, 2 Saund. 105. (i) Provincial Statute. MICHAELMAS TERM, 5 GEO. IV., 1824. 176 is alike laid down in the term reports, (a) in East, (b) in Maule and Selwin, (c) and in Atkins, (d) Washburn, contra. — In actions upon bonds there is no doubt but that interest may be allowed upon the judgment without the intervention of a jury, but there is no case of interest being allowed by the court upon judgments in actions of assumpsit without a verdict. The case cited from Saunders was one of debt upon bond, and in other cases interest was con- sidered as matter of consideration for a jury. The passing of the late provincial statute direct- ing sheriffs to levy interest upon judgments, clearly shews that it was not considered that a plaintiff was before entitled to it. If the plaintiff is entitled to it in this case why does he not levy it ? If the counsel on the other side could produce a report where interest has been given by the court in judgments upon assumpsit, I should not contend for an entry of satisfaction in this case, but none of the cases cited are against this application. Attorney-General, conti'a. — The counsel on the other side allows that interest would be in the dis- cretion of a jury, and yet by this application he would deprive us of that right. The new act is to facilitate the recovery of inter- est — to enable a plaintiff to recover his due at a less expense, and rather shews that he had a former right than creates a new one. (a) Blackmore v. Flemming, 7 T. R. 446. (6) M'Clure v. Dankin, 1 East 436. {c) M. and S. (d) Godfrey t. Watson, 3 Atkins 517. 176 MICHAELMAS TERM, 5 GEO. IV., 1824. The observation that the oases wMeh relate to in- terest do not apply in the present isnot warranted, for Lord Keni/on has declared in the case of M'Glure & DoifflMo, which I have before dted, that he saw no difference aai this respect between our own and fo- reign judgments, and tbe latter are k express teamis icalled assumpsits in the books. If natural justice as well as legal ideeisions^streaigth- enedas in this case by the parties' agreement^^ve us a right of interest, this applicatiaa cannot jbe, sus- tained. 'Oeief 'Justice. — It appears to me that if a party defendant applies to have satisfaction entered upon a judgment, this court may say he should pay in- terest; and I am also of opinion that the court can- not be called upon to order an entry of satisfaction where the nature or amount of payments are disputed by the parties. Per Curiam.— BtMle discharged. fBBiOK V. Nelson. An affidavit to hold to bail stating tbat the defendant is indebted to the plaintiff npon a certain bond or obligation is insufficient. The affidavit to hold the defendant to bail in this cause stated that the defendant was indebted to the plaintiff in £135, upon a certain bond or obligation. JRidoutjnoYed. to cancel ihe bail-bond and to enter common bail, the, affidavit being insufficient as not MICHAELMAS TERM, 5 GEO. IV., 1824. 177 stating that the sum sought to be recovered upon the bond was due and payable, (a) Per Curiam. — Application granted. BiNKLBY V. DeJARDINE. An application for a judge's certificate that a cause is a proper cause for a special jury, must be made immediately after the trial on the same day the cause is tried. This cause was tried by a special jury at the as- sizes for the Gore District. The jury retired at ten, o'clock at night to consider of their verdict ; some time afterwards they returned to court in the absence ol the plaintiff's counsel and gave a verdict in his favour. ' On the following morning no business having been entered into, the plaintiff's counsel at the opening of the court moved for the judge's certificate "that the cause was a proper one to be tried by special jury." The Chief Justice refused to grant the certificate, not being, as he considered, authorised by the statute so to do. (a) Robinson, Attorney-General, now applied for a certificate or an order upon the master to allow him his costs of striking the special jury. He referred to the court, whether, although the statute directs the application to be made immediately after the trial, those words might not by a liberal (ffl) 4 M. & S. 330. (i) Provincial Statute 48 Geo. Ill,, ch. 13. 23 178 MICHAELMAS TEEM, 5 GEO. IV., 1624. constructicyh be ooHsidered to intend before any other trials were gone into. The court considering the words of the act as not capable of extension, concurred with the decision of the judge at nisi prius. Application refused. V. HlTGHES. Where a plaintiff hag special counts in Ms declaration, bat abandons tbem and recovers upon counts within the competence of a district court the court will order judgment to be entered on those counts only. In this case the plaintiff had declared upon a special agreement, an account stated, and other common counts. The special count had been abandoned by the plaintiff at the trial, and he had taken a general ver- dict for £20 8s. l^d. Mr. Justice Campbell, who tried the cause, had re- fused to grant a certificate under the provincial statute (o) to enable the plaintiff to receive the costs allowed in this court. Such costs would have been taxed by the master on view of the proceedings, the verdict appearing to be in a special action above the competence of a dis- trict court; but, ^dutton, Solicitor-Greneral, had obtained a rule to show cause why the verdict should not be entered (a) 58 Geo. III., oh. 4. MICHAELMAS TERM, 5 GEO. IV., 1824. 179 upon the common counts agreeable to the judge's notes, no CTidence having been given upon the special counts. Mmaulay^ shewed cause. — He contended that the plaintiff by a ver4ict upon an account stated might recover King's Bench costs. That the district court act, which confines its juris- diction in sums above £15, to accounts liquidated, is to be considered to intend those settled by note or some express acknowledgment of the parties, as a certain price for a piece of goods. The principle does not apply to accounts stated where there may be £80 upon one side and £120 upon the other, for though parties may have stated their accounts, they may contend against and correct inaccuracies, as l^id down in the terra reports, {a) That the plaintiff having brought his action bona fide upon the agreement, should not be deprived of his costs because he had been obliged to abandon it perhaps upon some nice construction upon the Statute of Frauds. Boulton, Solicitor-Greneral, contra, contended that in this case the plaintiff having given no evidence upon, and having abandoned his special counts, the court could not give judgment upon them. That the defendant was entitled to have the ver- dict entered upon those counts to which evidence |ad been given, not as a matter of grace, but as a matter of right. (a) 1 T. B. 42. 180 MICHAELMAS TERM, 5 GEO. IV., 1824. An action upon an account stated is clearly of the competence of the district court, although it may be contested, and so may the amount of a note. Macaulay, contra.-The object of this application is to deprive the plaintiff of costs which he is equita- bly entitled to; looking at that object the court will refuse the application. As I have brought authorities to shew that ac- counts stated may be opened, I consider that it may be inferred that an account stated if above £15 need not be brought into the district court. The defendant should have insisted upon the right now applied for at the trial. As the granting it would be attended with injury to the plaintiff, it ought not to be allowed at this stage of the proceed- ings. Rule absolute. Mead v. BACoiir, A rule to plead is necessary in bailable actions. Rolph had obtained a rule nisi to set the interlo" cutory judgment signed in this cause aside for irre- gularity, the same having been signed for want of a plea — no rule to plead having been entered. Robinson, Attorney-General, shewed cause. — He contended that the late act for regulating the pro- ceedings of the court of King's Bench, had dispensed with the necessity of giving a rule to plead. * MICHAELMAS TEEM, 5 GEO. IV., 1824. 181 That statute {a) directs that in all actions or suits where the defendant had appeared, the plaintiff or his attorney should, after filing a declaration in the oflSce from which the writ issued, and service of a copy thereof on the defendant by a demand in writing, call for a plea, and that if after the expira- tion of eight days from the service of such demand no plea is filed the plaintiff may sign judgment. That though these directions of the statute were given in that part of it which more particularly ap- plies to actions not bailable, yet there was no reason to require a rule to plead more in those actions that were bailable than in others. The statute intends to take away the necessity of the rule to plead in both cases, as it could only have been taken out at the principal ofi&ce, a circum- stance very inconvenient in the outer districts. That if a rule to plead was considered as necessary, it would follow that a defendant in a bailable action would not be entitled to a demand of plea of eight days, which was a beneficial arrangement in his favour. Ralph, contra, contended that in this point of practice we must be governed by that of the King's Bench in England, it being a case not provided for by our own statute, the regulations of which respect- ing the time for pleading are expressly confined to actions not bailable. That in all cases not provided for by our own statute, we are referred to the English practice by the rule of this court. (a) ProYincial Statute, 2 Geo. 4 ch. 5. 182 MICHAELMAS TERM, 5 GEO. IV., 1824. As to the inconvenience of taking out a rule to plead from the office in York, that has been remedied by rale of this court. Rule absolute. Hathaway v. Malcolm. ETidence of a profiiissofy note, although Tarying from that set out in the declaration, Tras considered as sufficient to support the common counts. This was an action by the payee against the maker of a promissory note, and tried before the Chief Jus- tice at the assizes for the London district. There was a material variance at the trial between the note as declared upon and given in evidence. The plaintiff closed his case with the proof of the note, and insisted that such proof was sufficient to entitle him to a verdict upon the money counts, and took a verdict accordingly for the amount of the note proved, subject to the opinion of the court. Robinson, Attorney-General, now contended that a nonsuit should be entered. That the note alone was not sufficient evidence of the money counts, but that the plaintiff, after failing upon the note count; should at least have proceeded to give such evidence as would have shewn that it was given for some of the considerations stated in the declaration. He cited a case from BuUer's nisi prius (a) where Eyre, Chief Justice, after demurrer and judgment (a) Randolph t. Regendon Bull N. P. 137 MICHAELMAS TERM, 5 GEO. IV., 1824. Igg for the defendant upon the note count, refused to al- low the note to be given in evidence at the assizes to support the count for money lent. That the present case was a fortiori in favour of the defendant, as the plaintiff might set out his note properly in a fresh action, whereas in the cases cited he had no remedy ; he also cited Levinz. Rolph, contra, contended, that proof of a note being given by the defendant to the plaintiff, though varying from that set out in the declaration, was sufficient to entitle the plaintiff to a verdict upon the account stated or other money counts. That as before the statute of Anne it was oompie- tent to a plaintiff to give a note as evidence upon those counts, so it might ekarly be done now, as that statute did not take away any remedy which a plain- tiff had before its enactment, but gave a concurrent one. (a) That the principle reason for inserting the common counts in the declaration, was to enable a plaintiff to give his note as evidence upon those counts in case he should from variance or other cause fail to recover upon the note count. That it is laid down by Lord ElUnbormgh, that in an action by the payee against the maker of a note the note itself is evidence of money lent ; and in Bayley, that it is evidence of money paid by a holder to the use of a drawer, and in the same author (a) Storey t. Atkins, Strahan 719. 184 MICHAELMAS TERM, 5 GEO. IV., 1824. that it is evidence of money had and received by the drawer to the use of the holder, and that an accept- ance is evidence of money had and received by the acceptor to the use of the drawer, (a) and in the case of Israelv. Douglas (J) it is laid down that an accept- ance is evidence of an account stated. That these determinations are decisive in the pre- sent case, as it is well known that the maker of a promissory note and the acceptor of a bill of ex- change are upon the same footing. That in many of the cases it has been decided that the note was evidence without being declared upon, and the reasoning is stronger in favour of a plaintiff where his note, as in the present case, has been de- clared upon. Per Curiam. — Application refused. McLean v. Gumming. The rule of this court requiring the name of an attorney to be endorsed upon a cognovit does not apply where an attorney is plaintiff. An affidavit not considered as inefficient because the place of taking it was omitted in the jurata. Motion to stay proceedings upon a judgment en- tered upon a cognovit — actionem. Boulton, Solicitor-Gi-eneral, objected that the name of a practising attorney had not been endorsed upon the cognovit at the time of taking it, and that such endorsement was not stated in the affidavit of execu- tion, agreeable to rule seventh of this court. (a) Bayley on Bills. (5) 1 H. B. 239 ; 13 East. 100. MICHAELMAS TERM, 6 GEO. IV., 1824. 185 The court overruled this otyectiou, observing, that the plaintiff being an attorney was, sufficient ; the reason and intention of the rule being to prevent persons from taking cognovits who were not amena- ble to the court. The Counsel also objected to the reading an affida- vit because the place where the same was taken had not been inserted in thejurata, which he contended was necessary as had been clearly determined. That to dispense with this rule of practice would oiily be to perpetuate inaccuracies from year to year. On the latter point the Attorney-General con- tended that in cases where persons are called upon to perform a duty, it is to be prima facia supposed that they have performed it properly. The court here would not suppose that the commissioner had exceeded his authority, by administering an affidavit in a place where he had no right to do so. The court here knew all the commissioners, which made the case different to that of a commissioner in England. That the principle in the case of Maule and Selwyn (a) might well be applied in this. That it had not been usual in this court to examine the jurata of affidavits with that nicety which had lately taken place in England, nor were we bound to alter our own practice to make it conform to an over- strict regard to the niceties of practice there. The court overruled the objection and allowed thie affidavit to be read, considering the principle of the (o) 1 M. and S. 24 186 MICHAELMAS TERM, 5 GEO. IV., 1824. case of an affidavit sworn before a Chief Justice in Ireland where his jurisdiction had not been inserted in (hejurata, and which was allowed notwithstanding the objection to be read in England, as sufficient to warrant the decision. Per Curiam. — Application refused. Madill v. Small, one, &c. frooeedings against an attorney set aside, the rule to plead having been given before the bill served. Macaulay had obtained a rule to shew cause why the assessment of damages and interlocutory judg- ment in this cause should not be set aside for irre- gularity with costs. The defendant had been proceeded against as a privileged person. The bill had been filed on the 10th of , the copy had been served on the 13th. but the rule to plead had been entered on the lOtb before the service of the bill. The interlocutory judgment was signed upon these proceedings for want of a plea. No appearance had been entered according to the statute. The court considering these proceedings as irregu- lar, set the interlocutory judgment aside. Cross and Fisher v. Cronther. Costs allowed by this court for not proceeding to assessment of damages pursuant to notice. Smith obtained a rule to show cause why the plain- tiff should not pay costs for not proceeding to assess- ment of damages pursuant to notice. The rule was afterwards made absolute without argument. [187] HILARY TERM, 6 GEO. IV., 1825. Present : The Honourable Chief Justice Powell. Mr. Justice Boulton. Mr. Justice Campbell. Brown v. Smith. Where by the operation of proTincial enactments a plaintiff is unable to give a proper date to the notice at the foot of a ca. re., a general notice to appear on the first day of the term was held sufEoient. Macauhy moved to set aside the proceedings in this case upon the ground that the notice to the de- fendant to appear was insufficient. It required him to appear on the first day of the then next (the present) Hilary Term, without speci- fying the day of the month agreeable to the form given by the provincial statute for regulating the proceedings of the Court of King's Bench. The statute passed 6 G-eo. IV., provides for the establishment of the present Hilary Term, and for remedying defects in process by the following sec- tion: {a) "And be it further enacted, that in this present year the Term of Hilary shall commence on Monday, the 17th day of January, and end on Satur- day of the week ensuing, any law to the contrary in anywise notwithstanding, and that any writ, process, entry or proceeding, which hath been or shall be (a) 2 Geo. IV., ch. 1 & 4 ; 6 Geo. IV., ch. 1 & 3. 188 HILARY TERM, 6 GEO. IV., 1825. issued, h^d or made before the said 17th day of Janu- ary, iu which the Term of Hilary during this present year or any return day thereof is described and set forth otherwise than according to the provision in this clause contained, shall nevertheless be valid and effectual, and the commencement and end of such Term of Hilary and other return day therein men- tioned, in any such writ, &c., shall with respect to such writ, &c., and all subsequent proceedings there- on, be deemed and takeij to be as it should and ought to have been according to the periods in this clause appointed for the commencement and duration of the said Term of Hilary." The counsel submitted to the court, whether a de- feet so obviously contrary to the provision of our owp statute, as well as the English practice, could be cured by the provision in the late act ; he considered that had some date been mentioned, though an erro- neous one, it might have been cured by the words of the late statute, but that no date being stated in the notice, was a. defect neither contemplated or aided by the statute. Chief Justice. — The defect has arisen e.-e necessitate rei. The plaintiff adopted that mode of specifying the return of the writ, because he had no other course. I consider that by a fair and liberal construction of this statute, it may be considered as remedying the defect in this process. Per CMna??i.~ Application refused. HILARY TURM, 6 »EQ. IV., ia2g. 189 G-ARDNBR V. BURWELL AND JUSTIOBS. When magistrates commit a party upon a general charge of felony given upon oji.th, they will not be liq,ble to an action of trespE^^s, althoiigh t^C) facta sworn to in order to substantiate that charge, may not in point of Hw gupport it. This was an action of trespass,, in which the decla^ ration stated that the defendants, justices of the peace, on the eighth day of October, 1822, with force and arms made an assault on plaintiff, and under a false and pretended charge made before them by one James Trainer, against plaintiff, for feloniously steal- ing a saddle, and by them as such justices, &c., know- ingly and oppressively heard and received and pre- tendingly credited, caused plaintiff to be apprehended by one James Tafif, a constable, and several other men his assistants, without just or probable cause, and to be brought before defendants as justices, and that afterwards under colour of the said false chaises, defendants did unlawfully and oppressively without examining on oath any witness or accuser or prose- cutor in the presence of plaintiff, and without read- ing or causing to be read in the hearing of plaintiff any deposition or evidence taken before them upon the charge aforesaid, and without due examinatioii of the plaintiff, give and order him into the custody and charge of the said James Taff, and one James Young, as constables, to be conveyed to the common gaol for the false and pretended cause aforesaid, and then and there caused the plaintiff to be forcibly, against his will and the law of the land, carried and conducted in custody of said James Taff and James Youpg a great distance, fifty miles, to the town of Vittoria, and there to be detained two hours in custody till plain- tiff was forced and obliged for his deliverance to find and procure bail for his appearance before the next 190 HILAEY TERM, 6 GEO. IV., 1825. court of Oyer and Terminer to be held in and for the district of London, whereby plaintiff was hin- dered in his business and was put to great trouble and expense, and lay out £10, about his imprison- ment and in the procuring of bail and his discharge from the said imprisonment. Plea, not guilty. It appeared in evidence at the trial before the Chief Justice at the last assizes for the London dis- trict, that the plaintiff being liable to statute labour on the highway, had, under the authority or conniv- ance of one of the overseers, performed his statute labour on a piece of road convenient to himself ; and that moreover he had some undue pleasure or grati- fication in doing so, that he might evade the statute labour which he ought to have performed elsewhere under the direction of the defendants as magistrates. That Trainer, another overseer of highways, had or- dered the plaintiff to work upon another portion of the roads, which he had refused; and that upon com- plaint to the defendants as magistrates, plaintiff was fined five shillings under the statute, and two shil- lings and six pence costs, and execution issued to Trainer, as constable, who proceeded to plaintiff's house, (plaintiff being absent,) and seized a waggon, which, being put up to sale, the constable bought himself for six pence, and sold to a bystander for a shilling, through whom the plaintiff again received his waggon. This sale not producing the necessary sum, the constable took a saddle of plaintiff, and offered it for sale. The constable himself bought the saddle for seven shillings and six pence, and carried it to his house. HILARY TERM, 6 GEO. IV., 1825. 191 Plaintiff complained, and the defendant Burwell told Trainer, the constable, to give him back his saddle if he performed his statute labour ; and the other defendant Patterson, being in company with the plaintiff at a public house, proposed (as was al- ■ leged by one witness) that if he would call for some liquor he should have his saddle again. Another witness, however, said that there was no bargain respecting the saddle at that time. Some days afterwards the plaintiff went to Train- er's house in his absence, and notwithstanding his wife's objections took away the saddle. Trainer then went before the defendants and made oath that the plaintiff had feloniously stolen the saddle. That a warrant issued and the arrest and imprison- ment followed. It further appeared in evidence that the plaintiff when brought before the magistrates behaved in a very violent and indecent manner. The defendants' counsel objected at the trial that upon this evidence the action could not be sustained against the magistrates, they having proceeded upon a charge of felony sworn to before them. That at any rate the cause of action alleged was the subject of an action on the case and not of trespass, and the Chief Justice being of that opinion, offered a nonsuit, which was declined by his counsel. Robinson, Attorney-Greneral, having obtained a rule to shew cause why the verdict should not be set aside and a nonsuit entered — 192 HILARY TEEM, 6 GEO. IV., 1825. BoMtoin, shewed cause. — He contended that it was not the legality or illegality of the first act of the magistrates nor their design that gave character to the action whether trespass or case j but the feet of the injury being immediate to the person of the plaintiff or consequential, as laid down in Leame V. Bray, {a) That in this case the immediate injury was the arrest and imprisonment ; that it was ana- logous to seduction and crim. con., in which cases trespass lies. That had the magistrates acted under a bona fide error,- the false accusation of Trainer would have so far excused them that the plaintiff could only have had an action on the case for such portion of the Wrong as might not be excusable by the information. But that the defendants being privy to the false ac- cusation, and well knowing that no felony was com- mitted, they were wrong doers. That an accusation false within the knowledge of the magistrates is as no accusation ; and that, therefore, trespass only lay as laid down in the case of Morgan v. Hughes, (J) where Mr. Justice Buller says, that where it is stated on the record that a warrant is illegally granted, it never was doubted that trespass was the proper remedy. That although it is laid down in Windham V. Clere (c) that though the information l5e false yet the justice is excusable, in no case will it be found to say that an information false within the knowledge of the magistrate excuses him, as may be collected from the case of Lowther v. Eadnor, {d) as well as from that last cited ; from both which cases it may be inferred, that the error or ignorance of the magis- (a) 3 East. 593. (6) 2 T. E. 231. (c) Cooke, Eliz. {d) 8 East. 119. HILARY TERM, 6 GEO. IV., 1825. 193 trate must be a bona fide error, or positive ignorance of facts that can excuse him. Robinson, Attorney-General, contra, contended, that the magistrates were justified by the information on oath laid before them, although persons well ac- quainted with the nice legal distinctions between a felonious taking and trespass, might perhaps not have granted a, warrant in this case. That it was well known, that from a want of know- ledge of those distinctions persons were sometimes proceeded against and tried for larcenies where the judges did not consider that the facts adduced were sufficient to constitute a felony, and that without any imputation upon the counsel for the Crown who had not always an opportunity of investigating criminal accusations until the day of trial. That the offer to return the saddle, which had been insisted upon on the defence, did not affect the case, as it was made (if at all) before any felony had been committed. That the positive oath of Trainer was sufficient to excuse the magistrates from a charge of trespass, unless, perhaps, some collusion could have been charged and proved against them, which had not been done; and that, if any consequential injury had arisen, the action should have been case and not trespass. That it had been brought without precedent and could not be supported. That the distinction between trespass and case, is clearly laid down by Mr. Justice Ashhurst in the 25 194 HILAKY TEEM, 6 GEO. IV., 1825. case of Morgan v. Hughes, before cited; he there says, that where an immediate act of imprisonment proceeds from a defendant the action must be tres- pass ; but that where it proceeds from a person in consequence of the information of another, case is the proper remedy. That the learned judge's distinction, which was assented to by the whole court, governs the present case ; and that the law on this head is considered by Lord Ellenborough as settled accordingly in Leame V. Bray, (a) That if a complainant therefore makes a positive charge upon oath, the magistrate cannot be sued in trespass however liable the prosecutor may be to that action. That the want of examination in the presence of the accused, though irregular, could not make the supposed injury a trespass. That it is not pretended by the declaration, that the magistrates had solicited or induced Trainer, the prosecutor, to make the charge — such an allegation laid and proved might have altered the case. That persons possessed of much greater legal in- formation than justices of the peace usually are, would have been justified in acting as the defendants had, and that whether their opinion as to felony or no felony was erroneous or not, trespass could not lie. Baldwin, in reply, contended, that the counsel for (a) 8 East. 198. HILARY TERM, 6 GEO. IV., 1825. 195 the defendant had not answered his case, which was one where magistrates, defendants, knew that the facts before them did not support the accusation. That where they proceed against a person for felony in a case where they must have known from circumstances that no felony had been committed, they should be considered as trespassers. And that the scienter of the magistrates is sup- ported by the verdict. Campbell, J. — This is an action of trespass brought by the plaintiff against the defendants as magistrates for having, as he alleges, by their warrant unlawfully imprisoned him; and the present motion on the part of the defendants is for a nonsuit, on the ground that such action will not lie, they having acted in a mat- ter within their jurisdiction, and upon complaint made to them on oath. Upon reference to the evidence, it appears that the complaint was, that he, the plain- tiff, had stolen a saddle, such charge upon the face of it certainly implies a felony, of which the justices had jurisdiction, and fully justified them in issuing their warrant to apprehend the supposed felon, in order that the complaint might be farther investi- gated, and, if on such investigation the magistrates were satisfied that the charge of felony was well founded ; that is, if it appeared to them upon exami- nation, that the manner of taking this saddle was such as shewed a felonious intent of privately steal- ing, it then became their duty to commit the person so charged in order to be tried for the felony, and for so doing neither trespass nor case would lie 196 HILARY TEBM, 6 GEO. IV., \825. against them; but it is to be reeoUeeted that aaagis-. trates and not complainants, are the legal judges of the offence complained of, and if they mistake the law, they do so on their own responsibility, and how- ever excusable in a crimina,! or penal proseoi^tion, they become liable to action by the party grieved, and such action would be case and not trespass ; but if it had appeared in evidence on the trial of the pre- sent action that those magistrates at the time of the investigation of the complaint before theni were made sufficiently aware that the circumstances of the taking of this saddle were such as in law could amount only to trespass and not to felony, either as privately stealing or open robbery, by a forcible talking and putting in fear, and with such knowledge, wilfully and maliciously imprisoned the plaintiff, then this action would undoubtedly lie, and I should not feel myself justified in granting a nonsuit. I am, I be- lieve, sufficiently upheld in this opinion by the doc-^ trine laid down by Lord Ellmborough in delivering the unanimous decision of the court in the case of Lowther v. Lord Radnor, (a) stating in substance that trespass lies not against magistrates acting upon a complaint on oath in a matter within their jurisdic- tion, although the real facts of the case might not have supported such complaint, if such facts were not laid before them at the time : it had certainly been stated to this court, and impressed upon my mind, erroneously it seems, that such was the case in the present instance, but on reference to the Chief Jus- tice's notes, it does not appear that any evidence of the kind was given at the trial. I am therefore con- strained to agree to a nonsuit, as in the absence of (a) 8 East, HILAEY TEEM, 6 GEO. IV., 1825. 197 such testimony trespass will not lie against magis- trates, which otherwise would, as clearly laid down in all the authorities, of which it may be sufficient only to cite that of Morgan v. Hughes, (a) where Ashhurst and BuUer, justices, sufficiently state the distinction between trespass and case in matters of this kind, adding, " it had neyer been doubted that trespass was the proper remedy where a warrant had been illegally granted." Per Curiam. — Eule absolute for nonsuit. The King v. Nash. Where a vessel is seized as not being British built under the provisions of 7th and 8th of WiUiam III., the onus probandi lies upon the claimant, i. e., to recover it he must prove that the vessel in question was built at a British port. The vessel belonging to defendant had been seized as foreign built under the statute 7th and 8th Wm. m. A verdict had been taken for the Crown at the assizes for the district, subject to the opinion of the court upon the following point, viz.: whether the onus probandi lay upon the Crown or upon the defendant. Washhurn, for the defendant, contended that there being no provision in the statute of William to throw the onus upon the defendant, this case must rest upon the general principles of the common law, and that it was therefore incumbent upon the Crown to prove the negative, viz.: that the vessel seized was not (a) 2 T. R. 198 HILARY TERM, 6 GEO. IV., 1826. British built, which would be effected by shewing that she was built in foreign parts, e. g., in the United States. That this was agreeable to the doctrine laid down in Williams v. The Bast India Company, (a) viz.: that the law will not presume a party to have been guilty either of a criminal act or culpable neglect, but that such must be proved by evidence although that evidence must necessarily be negative ; and to that in the case in which it had been determined, that proof of a clergyman not having read the thirty-nine articles must come from a person proposing to estab- lish that negative. That as the provincial statute 4 G-eo. IV. had in case of the seizure of goods provided that the onus should lie on the defendant, that provi- sion was prima facie authority against the Crown in this case. Boulton, Solicitor-Greneral, on the part of the Crown, insisted, that there was not occasion for a statute to lay the onus upon the defendant in this case, the common law being sufficient for that pur- pose, as under the game laws a person must shew himself to be qualified. The defendant traverses the boat Fanny being foreign, it is therefore incumbent upon him to shew that she is not so, by proving her to be British built. That the defendant claiming this boat after a seizure is not sufficient to entitle him to restitution ; he must prove his right, his whole case. (o) E. R. 193. HILARY TERM, C GEO. IV., 1825. 1^9 The defendant himself is not charged with a crime; this is a proceeding in rem. The property has be- come derelict — is seized by the officers of the Crown, and the defendant to get it restored must shew that it is not a subject of seizure. The proceeding resembles that of taking lands to which there is no heir; there the lands being once vested in the Crown, any person claiming must shew his title. That this point had been determined in the case of the King v. McCartney in Michaelmas Term, 1822. Per Curiam. — Judgment for the Crown. McLauglin v. McDougal. The filing the roll with the clerk of the Crown or his deputy, is a sufficient entry of the issue upon record to enable a plaintiff to move for judgment as in case of a nonsuit. Boulton, Solicitor-G-eneral, had obtained a rule nisi in this cause for judgment as in case of a non- suit upon an affidavit, stating that the issue roll had been filed in the office of the deputy clerk of the crown and notice of trial given in the year 1822, and a second notice in 1823, but that the plaintiff had not proceeded to trial. Ridouty shewing cause, contended — 1st. That this affidavit was insufficient ; that it ought, agreeable to the forms in the books of practice, to state that issue had been joined. 2nd. That in this case the issue had not been entered agreeable to the course laid 200 HILARY 1)ERM, 6 GEO. IV., 1825. down in the books of practice, that is to say, by en- tering the whole of the proceedings on record and carrying them into the office ; and that until this was done by the plaintiff, either voluntarily or in conse- quence of his being ruled to that effect, the defendant is not in a situation to move for judgment as in case of a nonsuit, and cited 4 T. R. 196, and 1 DoHg. 197. Boulton, Solicitor-Grcneral, contra, contended that the affidavit was sufficient, that the roll being filed with the clerk of the Crown or his deputy was a suf- ficient entry of the issue, and, Of this' opinion was the court ; the rule was, how- ever, discharged upon the plaintiff's undertaking to go to trial and pay the costs. Brookfield v. Sigtje. Smallness of damages no objectioa to a new trial where a verdict la mani- festly contraiy to evidence and the judge's opinion. A nonsuit cannot be moved for in bank, unless a point has been reserved at nmprius. This was an action of trover tried at the last as- sizes for the Niagara District. It appeared in evi- dence that the defendant, a constable of the district, had exposed to sale by auction a yoke of steers which he had taken in execution under a process of the court of requests. The plaintiff bid them off, but not having the money to pay for them immedi- ately, it was agreed between him and the constable that they should be deposited in the hands of some third person for a short time until the plaintiff could procure money to pay for them. " HH^ARY 'TEEM, B GEO. 3V., ISfif). 201- . 'Plsriiatiff some time after wards offerfed a part of ..the money, whiicfe the eonstablp refused to tafce, and rersold the steers. The jury, coiiti*a.ry to the eharge of the judge, f#Und a verdict of £6 10s. No point was reserved at the trial. Washburn iMid moved that the verdict be set aside or a nonsuit entered ; but it being determined by the court that a nonsuit could not be moved for un- less a point had been reserved at the trial, he iad insisted upon and obtained a rule msiiex a new trial alone. ' Macaulay shewed cause, he contended — 1st. Ihat th© counsel on the other sid^e eould not be allowed to alter his motion, and that in the form it was origin- ally framed nothing could be granted him by the court ; that a motion to set aside a verdict was in itself nugatory without being followed by a new trial, and that the court would not grant indirectly that which ^^f would not grant directly. That setting aside a verdict agreeable to the plaintiff's motion, would in effect be granting a nonsuit which couM not be done unless a point had been reserved. Upon this point, however, the court overruled the counsel, it being suggested and allowed that the irregularity of the defendant's motion had in some measure arisen from some observations of the court. He contended, 2ndly. That the damages in this case were so very small that the court would not interfere ; that the mihim&ai as established by the English praotiee for ffafttiijg'Stew trials, which we .have adopted, was 26 202 HILARY TERM, 6 GEO. IV., 1825. £20, as laid down in Chitty's reports. Srdly. The counsel assumed that the facts appearing at the trial varied from the judge's notes, and proposed reading affidavits of jurymen and persons at the trial in ex- planation of the judge's notes ; but in this he was overruled by the court ; Campbell, J., observing, that affidavits of jurymen or other persons could not be read unless the judge had any doubt upon his mind as to the facts, which was not the case here. 4thly. That the jury having upon evidence found a verdict for the plaintiff, the court would not allow a mere point of law to be litigated, viz.: whether there was a sufficient charge of property to maintain the action, which in fact was the point attempted to be litigated. Eule absolute for a new trial. Mters v. Eathburn. Where a defendant bad neglected to put in special bail upon the represen- tation of the plaintiff that it was unnecessary, (they being about to com- promise,) proceedings upon the bail bond were staid for one month, to give defendant an opportunity to put in such bail. In this case an action had been commenced upon the bail bond in consequence of bail above not hav- ing been put in and perfected, and Robinson, Attor- ney-General, had obtained a rule to shew cause why the bail bond should not be delivered up to be can- celled upon affidavits stating a treaty for settlement of the action between the plaintiff and defendant ; and that in consequence of such treaty being on foot, plaintiff had told defendant that there was no neces- sity for entering special bail, and that plaintiff had also informed one of the bail to the sheriff that he HILARY TEEM, 6 GEO. IV., 1826. 20'3' might consider himself as no longer responsible for the appearance of the defendant, as himself had settled, and that defendant had been dissuaded from entering special bail by plaintiff frequently stating to him that there was no necessity so to do. Macaulay shewing cause, insisted that a bail bond- being a writing under seal could not be destroyed by a parol agreement. That the settlement proposed between plaintiff and defendant not having taken place, it became ne- cessary that the defendant and his bail to the sheriff should have proceeded in the cause by putting in special bail. That there was no ground for the equitable inter- ference of the court, unless merits were sworn to, and that if there were such, the proceedings might be stayed upon payment of the costs incurred in the action commenced against the bail, putting in bail above and going to trial. Per Curiam. — Proceedings to be stayed for one month, to enable defendant to put in bail above. Doe DEM. Griffin v. Eob. Plaintiff's attorney having served his declaration in ejectment with notice to appear in a term not issuable agreeable to a modern rule of the court of K. B. in England, not introduced into this country, nor appearing in Tidd's edition of 1817, the judgment was set aside. The English rule is now adopted. Agreeable to a rule of court ordered by the court of King's Bench in England, of Easter Term, 2 Geo. IV., and printed in Bamawell and Alderson's re- ^4': HpiSaYr'EEEMVA'GlilCK-Xf.VtaaR.: pej?tg, (ia) tte pJaistif^s lessor m tkJscase Isa^ sei!t#: km ^eeHairati©!! in ejeetroeat israaediately laefQm lasl Mwk^elmas Ternt^ witb notice to appear m said MicM^mas Term ; aB<3i, upon lli© mml affii*vil ¥ service, had moved for and Qbtamed his judgment nisi against the casual ejector; and the tenant in pos- sessien not havinf entered into the usual eoftsent rule, be had signed judgment and issued a writ of possession to the sheriff. Tai/lor had obtained a rule to sheAV cause why the judgment against the casual ej'ectox, signed in this cause, should not be Set aside and the tenant restored to his possession on the ground, that although hy rule of this court, the practice thereof is to be gov- erned by that ot the court of King's Bench in l^gg^ land, tl^aX rule must be construed as extending only to such rules and practice as the practitioners have an opportunity of knowing by reference to tiie aekriowledged books of practice. Macaulay, shewing cause, contended, that the Eng- lish rule in question was sufficiently old to be con- sidered as pirt Oif our practice ; that no limitation was made by our own rule as to what parts of the English practice we were ^ adopt, but that we had embraced it in toto. The 0ou.rt w«re of opinion, that as Tidd's practice w:as, that to which the. practitioners usually referred for authority in this country; and as the English rule in question had not, as appeared, been published in that work, it would be unreasonable that suitqrs- or (o) 4 B. &: A. 889. |Wai(ti^^ft^t.?hwld Ije surprised % its prQ4i«|<;i«n, and dir^eted that the edition of 1817 should ba eoa- sid)t?ed as that which regulated the ppaqtiee of tlm ■ Ruk afesfliite-. CuMMiNG V. Allen. Where there is no provision in an order of reference at nkiprut to make it arrule »^cottrt, the court will not set aside the award. In this case a verdict had been taken for £250, subject to the award of arbitrators; but the order of reference contained no provision to make it a rule of court. The arbitrators had awarded that the de- fendant should furnish the plaintiff with a suit of clothes. Washburn had obtained a rule tiisi to set the award aside on the ground of uneertaiuty, and that articles of dress were not the subject matter of the submis- sion. Boulton, Solicitor-General, shewing cause, eon- tended, that there being no provision for making the order of nisi prius a rule of court, that this court had no authority to interfere ; that the case was anaJagous to that of a submission by bond, where, if there was no such provision, it could not be summarily pro- ceeded upon in this court. That the case of Smith v. Abbot was in point, where the parties having re- ferred disputes to arbitration, applied to the court to make their submission a rule of court, but the appli- cation was refused upon the ground that there was no provision for such a proceeding in their submis- sion. 206 HILARY TEEM, 6 GEO. IV., 1825. Washburn, contra, contended, that there being a verdict in this case made a material distinction, inas- much as it was subject to the equitable interference of the court, although no provision was made for making the order of nisi prim a rule of court. That the exercise of fEe*authority of the court in this case would be analogous to that of granting a new trial. Rule discharged. ^ Ferguson v. Murphy. An affidavit to hold to bail stating, " that the defendant was indebted to the plaintiff in the sum of iC50, for the use and occupation of a certain tene- ment," held sufficient. Macaulay had in a former part of the term ob- tained a rule nisi to cancel the bail bond and file common bail in this cause for defects in the affidavit, which stated, that the defendant was indebted to the plaintiff in the sum of fifty pounds for the use and occupation of a certain tenement. He cited the case of Taylor v. Forbes {a) as in point, contending that as in that case the affidavit was adjudged to be defective for not stating that the goods were sold and delivered by the plaintiff to the defendant, so in the present case, the affidavit was equally faulty in not stating that the tenement was let by the plaintiff to tTie defendant. Bnulton, Solicitor-G-eneral, shewed cause. — He in- sisted that the affidavit was sufficient, and relied 1 (a) 11 East. 315. HILARY TERM, C GEO. IV., 1825. 207 upon a case decided in Trinity Term, 40 G-eo. HI., cited in Tidd, wherein it was determined that an affi- davit, made by a married woman, " that the defen- dant was indebted for the rent of lodgings," was sufficient, although it did not state to whom the lodg- ings were let. Macaulay, contra, contended, that the case cited from East, was in point with the present, and that the principle there laid down by Lord Ellenborough should not be departed from, viz.: that the strictness required in affidavits was intended not only to guard against perjury, but to prevent misconceptions of the law by persons making them. That the case cited from Tidd was not to govern the present, it being but loosely referred to without the name of the cause. That such a defective statement of a cause of action would be insufficient in a declaration, and a fortiori should be so in an affidavit to arrest the person. Campbell, J. — This is a rule to shew cause why an affidavit to hold to bail should not be set aside for uncertainty ; it is undoubtedly true that uncertainty in such affidavit in a part material is fatal : affidavits for holding to bail must be direct and positive as to the cause of action, and not merely argumentative or by way of inference or reference to books, accounts, notes, or bills of exchange, or as deponent verily believes, (a) The strictness, however, required in this respect must not be carried to an unreasonable extent, and must ever be governed by the nature of the transac- (a) Vide 1 T. R. 716; 8 East. 106; 7 East. 194; 8 T. R. 333. 208 HILABY TERM, 6 GfiO. tV., 1«26. tioia and the relative situation of the parties, for besides the general exception in favour of those who sue in another right, such as executors, administrators, as- signees, or trustees, who are only required to swear to their belief of the debt being still due and unpaid, it has been decided in Bradshaw v. Suddington, {a) that an affidavit of a person suing in his own right, stating the debt to be due on a certain bill of ex- change without stating in what capacity the plaintiff sued, whether as payee or endorsee, was sufficient ; an affidavit of a married woman stating merely that de- fendant was indebted for rent of lodgings without saying to whom the lodgings were let, and also for money lent by her to defendant, (although she was in- capable of lending money,) was held sufficient, for it was reasonably inferred that the lodgings were let to defendant, and that she might probably have lent the money as agent for her hustend ; in the Case of Barclay and others, assignees, v. Hunt, an affidavit stating, as appears to deponents by the last examina- tion of bankrupt, and as they verily believe, was held sufficient, this of course is within the general excep- tion already mentioned ; but Lord Mansfidd, in de- livering the unanimous opinion of the court, took oc- casion to observe that the courts ought never to lay down a rule to be so rigidly construed as to lay unreasonable difficulties upon suitors, and to render them liable to inconveniences worse than those the rules were intended to prevent ; the same liberal principle was acted upon in the case of Moutley v, Eichardson (i) by Forster and Wtlmot, justices, who admitted an affidavit stating " that the defendant was indebted to him in such a certain sum as he the '(o) 7 last, {b) 2 Bur. 8 T. K. HILARY TERM, 6 GEO: IV.," 1825. 269* plaintifif computed it," observing that the more rigid^ rule had gone a great way ; and in Copiengef/ v. Beaton, it was the unanimous opinion of the court, consisting of hord Kent/on, C. J., and Grose Lawrence^ and LeBlanc, Justices, that an affidavit stating " that defendant was indebted to plaintiff in £12,000 and upwards for money had and received on account of plaintiff," without saying received by the defendant, was sufficient, upon which occasion they observed that no precise words were required in an afiidavit to hold bail, it being sufficient to state, " defendant being indebted to plaintiff in a certain sum," and specifying the nature of the demand, and the courts ought not to entangle suitors in unnecessary niceties ; yet the same judges, with the exception of Lord Kenyan, whose place was supplied by Lord Ellenhonrugh, a few years afterwards, seem to have altered their opinion and to have laid down a much more rigid rule, as appears by their decision in Perks V. Severn, Cashrow v. Haggar, and finally, in Taylor v. Forbes, where they rejected affidavits, stating defendants being indebted to plaintiffs for goods sold and delivered — omiting to say delivered by plaintiffs to defendants. Very great deference is undoubtedly due to the opinions of those last men- tioned eminent judges, but certainly not more so than to the opinions of such men as Forster, Wilmot, Mansfield, and Kenyan, whose more liberal senti- ments I am inclined to prefer. All authorities, how- ever, agree, that affidavits for holding to bail should be sufficiently explicit and positive to sustain (if false) a prosecution for perjury, which I believe to be the only true criterion, and I am inclined to think the affidavit before us is sufficiently explicit and posi- 27 ^1^ d 3II4?tY TERM, § GEOv W... 18?5. sitive for. that purpose according to the. authorities I have cited, or at least the more lilseral pairt of them. But those authorities are not all we have to govern our decisions in cases of this kind : Willi us. the law of arrest and holding to bail turns upoi^ a very different prineiple to that of merely swelring to a debt, which, however positively sworn to, and to whatever amount, seems to be but a secondary object in the affidavit for holding to bail — the princi- ple being the apprehension of intended fraud by leaving the province without paying the debt, and without swearing to which no one in this province can be arrested or held to bail for any amount of debt. In the present case the law seems to be suffi- ciently complied with in that respect also, and there- fore I am of opinion that the rule should be dis- charged. Per Curiam. — Rule discharged. [211] EASTER TERM, 6 G-EO: IV., 1825. Present : The Honourable Chief Justice Powell. Mr. Justice Campbell.^' rugglbs groobfame, on the demise of, v. Oarfrab, Semble, that a Ji. fa. cannot issue against lands and tenements of an intes* tate deceased, as being assets in the hands of an administrator. This was an action of ejectment tried at the assizes for the Home District, and a verdict for the lessor of the plaintiff who claimed as heir at law to James Ruggles, his father, deceased, and supported his claim by the ordinary testimony of the ancestors dying in possession and his own title as heir. The defendant claimed as purchaser at a sheriff's sale, and produced the following documents in sup- port of his title : A judgment entered and docketed against James Ruggles, the ancestor, in favour of John Grey. A scire facias against the administratrix of Ruggles, deceased, Kfieti facias against the goods of the deceased, and a return of nulla bona. * Mr. Justice Boclton did not take his seat upon tha Benehsrfteir t]te*19tli . of April, until his return from England. 212 EASTER TERM, 6 GEO. IV., 1825. kfi.fa. against the lands of the deceased. The sheriff's deed to the defendant, he having been the highest bidder at the sale. Upon these lacts the judge at nisi prius directed the jury that he considered the law to be in favour of the plaintiff, it having been determined in this court that lands were not assets in the hands of ad- ministrators ; and the jury accordingly found a ver- dict for the plaintiff. Baldwin moved for a rule nisi upon the ground of misdirection in the judge who tried the cause. He submitted that there was a difference to be ta- ken between the case of Wycott v. McLean referred to by the judge who tried the cause and the one be- fore the court, the former being a case where no judgment had been obtained against the intestate, whereas, in the present, a judgment which bound his lands had been entered and docketed before his death, which clearly subjected the lands to the pro- visions of the 5 th George II, The counsel referred to the case of G-ray and Wil- cox, in which it had been decided upon appeal to the King in Council, that a Ji. fa. could issue against lands and tenements in this province. He further observed, that the latter decision of Wycott V. McLean, if it affected the present case, had been decided long after the defendant Carfrae had been in possession of the premises of which he was attempted to be dispossessed by the verdict in the present action. EASTER TERM, 6 GEO. IV., 1825. 213 Macaulay, contra, observed that there was no dis- tinction whether the judgment was obtained against the testator or intestate, or against the administrator. That in neither case did any thing appear upon the record on which to ground an execution against lands as in the possession of the personal representatives. That, in the case of G-ray and Wilcox, the lands were in possession of the party himself, against whom the execution had issued, and the refusal of the exe- cution appeared on record. [The Chief Justice observed, that on a writ of ap- peal the party could state his grounds.] The counsel considered that there was no differ- ence between a writ of error and an appeal. That they would be equally nugatory in this case, as no facts could appear upon the record upon which the superior court could adjudicate. Powell, C. J. — The law, as now ruled in ^his province, is that which was stated by Mr. Justice Boulton, who tried the cause, viz.: that an execution cannot issue against the lands and tenements which belonged to a deceased person as assets in the hands of his administrator, it having been so decided by a majority of the judges of this court, although with my own dissent. I therefore do not think that a new trial can he granted in this case, particularly as Mr, Justice Campbell concurred in that decision, (a) Per Curiam. — Application refused, {b) (a) The 5 Geo. IL, cap. 7, see. 4, enacts, "that the houses, lands, ne- groes, and other hereditaments and real estate, situate or being within any of the said plantations belonging to any person indebted, shall be liable to . 2|4 BASTEft TERM, C GEO. IV., 1826. THEOOP T; OOLE. A plaintiff cftntiot, after talcing out Wb ca. re-, in one district, file his decla- ration in another. TMe defendant had been arrested upon a mpias, issued out of the office of the deputy clerk ef the Crown, in the Newcastle District. The plaintiff ftled his declaration in the Home District. Mac^lay moved for and obtained a rule nin to set aside the declaration on the ground of irregu- larity. Per Curiam. — Application granted. and chargeable with all just debts, duties, and demands of what nature or kind soever, owing by any such person to His Majesty or any of his sub- jects ; and shall and may be assets for the satisfaction thereof in like man- ner as real estates are by the law of England, liable to the satisfaction of debts due by bond or other speciality ; and shall be subject to the like reme- diesi, proceedings, and process in any Court of law or equityj in any of the said plantations respectively, for seizing, extending, selling, or disposing of any such houses, lands, negroes, or other hereditaments, and real estate, towards the satisfaction of such debts, duties, and demands, in like manner as personal estate in any of the said plantations respectively are seized, extended, sold, or disposed of, for the satisfaction of debts. (i) It appears from the case of Gray and Wilcox, referred to by the coun- sel for the defendant, that it was doubted in the year 1808, whether a writ otfisri facias could issue against lands and ten«aents in this province, under the provisions of the statute of Geo. 11. In that case the plaintiff had signed a judgment upon a eognovit^attioneiu, and had obtained A rule in this couft to shew cause why a writ of execution should not issue against the lands and tenements of the defendant^ which rule was afterwards discharged, and the proceedings being removed to the court of appeal in this province they were affirmed. They were afterwards by the plaintiff referred to the King in Oquncil, who, by decree dated the 15th of February, 1809, reversed the decisions pf the Court of King's Bench and Court of App^, and directed that a wi^ (^ execution should be awarded to the appellant against the lands and tene- ments of the respondent. The case of Wyoott v. McLean, admr. of Robinson, referred to by tiie judge who tried this cause, was argued upon demurrer and a judgment for the; defendant. The plaintiff had brought his action against the defendant as administra- tor, who pleaded pUne adminvstramt. The plaintiff replied that the defen- dant had assets, viz.: lands, which had belonged to the intestate, to which replication the defendant demurred and bad judgment. Jf This it is presumed was the case referred to by Powell, Chief Justice, in that of Patterson V. McKay, in which case he observed, that it iaibeen detemined, that lands could not be sold in an action against an adminis- trator, and that the difBculties in carrying the provisions of tbe statute (Jeo. II. into exeoutioD, famished a strong inducement, to some legUlative pio- viaioij. %Me im. action is coauneneed ia S. f.. and art^itrnteH'^^OA MferenM • • S,*ard damages under £15,"thS "|)iaahtiff is hot deprived pf'coBts uijder tKe ■diatriot c^ort act. In tbis case the plstifitiff had brought his adtioti for' a sum which exelMed the jurisdiction of the distriiif court. The matter had been referred to arbitration, and the arbitrators had awarded the pr9.intiff a suta with costs, Which, if recovered by verdict, would, by the district court act, have deprived the plaintiff of his costs, unless the judge at the trial had certified under the statute. Bdulten, Solicitor-General, moved for an order to the master to tax the plaintiff such costs only as he would have been etititled to, if be had brought his action in the district court. Sedpet Curiam. Parties are not confined to district court costs in cases where they have had no opportunity of apply- ing to a judge at nisi prius for a certificate. Application refused. Secoed v. Horkob. Where an action was brought upon a promissory note, the, consideration for which had arisen in the district of A., and the plaiittiff brought his aetion and recovered a verdict under £15 in the (fistrict of B;, this court refused to set aside the judge's oertifieate to entitle the plaintiff to costs under the district court act. In this case the plaintiff resided in the district of Grbre, and the defendant in the district of London. The defendant had contracted a debt to the plaintiff, in the district of Gore, and bad afterwards given his. promissory note for the amount at Berford, in the district of London. 216 BASiEE TERM, 6 GEO. IV;,- 1826; The sum for which the note was given was within the jurisdiction of the district court. The plaintiff commenced his action in the Court of King's Bench, and obtained a verdict for the amount of the note at the assises for the district of London, After verdict he applied to the judge who tried the cause for a certificate under the district court act, upon the ground that the debt for which the note had been given having been contracted in the district of Gore, the plaintiff would, if called upon to prove the consideration of the note, have been obliged to resort to the district of Gore for the testi- mony of witnesses whose attendance he could not have compelled by district court process. The certificate was granted. McAulay applied to discharge it. Sedper Curiam. — Application refused. Ward v. Stocking and Daley, bail of Hosier. Where a defendant presented himself to the sheriff in discharge of his bail, before the return of the ca. sa. which had been lodged in the office merely to fix the bail, and the plaintiff nevertheless proceeded against them, this court set aside the proceedings. Macaulay had obtained a rule nisi to set aside the proceedings against the defendants in this case, upon an af&davit stating that the defendant in the original action had presented himself to the sheriff before the return of the ca. sa. which had been lodged in his office for a return of non est inventus, and had re- quired him to take him in discharge of his bail, (the defendants in this action.) EASTEE TEEM, 6 GEO. IV., 1825. 217 The plaintiff's attorney had ordered the sheriff by letter not to take the defendant in the original action. The counsel submitted that although the sheriff was not bound to hunt for the defendant, yet, as he had presented himself to him for that purpose, he should have taken him. ^ Baldwin shewed cause. — He contended that it Was npt the duty of the sheriff to take the defendant, and that it was the regular and common practice to issue a ca. sa. against a defendant for the purpose of giving notice to the bail, which was an indulgence to them. But that if it was the duty of the sheriff under the circumstances to have taken the original defendant, the sheriff shouM have done so ; and that it would be unjust to punish the plaintiff for neglect of duty in the sheriff. The counsel cited the cases below to shew that sheriffs may refuse to take defendants against whom a ca. sa. has issued as a notice merely that a plaintiff intends to proceed against the bail. Macaulay, contra, observed, that the cases cited were where parties had attempted to surrender after the return of the ca. sa., and, therefore, were not in point : that the sheriff was discharged by the plain- tiff's letter. Per Curiam. — Eule absolute. 28 218 EASTER TERM, 6 GEO. IV., 1825. Matticb V. Farr BT Ai. In trespass g. c.f. and for destroying goods, the township laid is descrip- tive and must be proved as laid, and if the trespass is proved to be In another township, the variance will not be cured, because the township laid has the same name with the county in which the true township is situate. This was an action of trespass for entering plain- tiff's house, and destroying his goods, &c., which the declaration stated to be in York, in the Home Dis- trict, and a verdict for the plaintiff. The proof, at the trial, was, that the defendants committed the trespass in Etobicoke in the Home District. The defendants' counsel had moved for a nonsuit at nisiprius, upon which Boulton had obtained a rule nisi to set aside the verdict upon the ground of vairiance between the declaration and proof. Baldwin, shewed cause. — He contended that the gist of this action being the destruction of the plain- tiff's furniture rather than the trespass upon his land, that locus in quo was not the subject of dispute; and therefore the word "York," in the declaration, was tobe considered rather as venue than description; and that York being the county in which Etobicoke is situated, the declaration was substantiated. The counsel cited the authorities below, {a) Boulton, Solicitor-General, contra. — That the name York is not venue, but was in fact the locus in quo, which was necessary to be stated and proved, which not being done the plaintiff must be nonsuited ; the language of the declaration is broke and entered his house there situate, &c., which situation must be proved as laid. The counsel cited the authorities below, {b) (a) 2 East 501; Arohbold, 103 ; Phillips, 174, (i) Salk, 452; Strange, 595, EASTER TERM, 6 GEO. IV., 1825. 219 Baldwin, in reply, contended, that York was venu^e and not local description, and that the court would give it such a meaning, viz., would consider it as the county of York, to support the verdict, and relied upon the case cited, (a) where it was contended, in a nuisance case, that the injury must be laid in the proper vill, but that opinion was overruled by Lord Elknboraugh, who said it was unnecessary, the locus not being the gist of the action. Chief Justice. — The question is, whether in spite of reason and common sense we can consider that York means the county and not the township ? Where a trespass is charged to have been com- mitted upon your close, the least you can do is to bring it into a township if not a vill. I don't see how, considering York as a county, as has been con- tended for, can mend the matter. It is clear that to enable a defendant to make his defence in an action of quare clausum fregit that a township should be laid. Per Curiam. — Eule absolute. LossiNG V. Horned. It seems to be sufficient iu an action upon bond, conditioned for the per- formance of an award upon the plea of non est factum and subsequent suggestion of breaches by the plaintiiF, to prove the bond and submission set out upon the record, And an award tallying with it. That if a defen- dant proposes to object to matter apparent upon the face of the award or to variance between it and the submission, he should pray oyer and demur. This was an action against the defendant as co- obligee upon a bond of submission, and tried at the assizes for the London District. Declaration in debt (a) 1 T. K. 479. 220 EASTER TERM, 6 GEO. IV., 1825. upon bond. Plea, non est factum. The condition, as enrolled by the plaintiff, recited that a controversy of a very important nature had arisen between Hugh Webster (the co-obligee) and the plaintiff, and they had agreed to refer it to David Curtis, James Mills and three others named, and were to abide their award. Breach, that said David Curtis, John Mills, &c., made their award, &c., by which said David Curtis, John Mills, &c., awarded that all controver- sies should cease touching the said premises, and that said Hugh Webster should, on demand, &c., pay to the plaintiff £125, with costs annexed, that is to say, £77 17s. 6d. for costs of reference, fees and expen- ses of said arbitrators. Averment of diligent search for Webster, that he could not be found' — non-pay- ment by Webster, and demand of the £125 awarded, at the house of Horned. Non-payment by him. Similar averments as to the £77 17s. 6d. costs. There was a verdict for plaintiff upon the breaches for the amount only of the sum awarded to the plaintiff. Boulton had obtained a rule to shew cause, why the assessment of damages should not be set aside on the following objections : — Firstly. — That no evidence had been given at the trial to shew that the bond produced was the same with that declared upon. Secondly. — ^That no evidence had been given to connect the award with the submission, under which the arbitrators were supposed to act. Thirdly. — That the award was void on the faoe of EASTEB TEBM, 6 GEO. IV., 1825. 221 it, the arbitrators having awarded themselves costs, which they had no right to do, and inasmuch as there was no mutuality. Fourthly.— That the demand of debt and costs was not a demand of the debt alone. Fifthly. — That the demand should have been per- sonal. Sixthly. — That the submission varied from the award, the former being in the name of James, and the latter in that of John. Macaulay shewed cause, as to the two first objec- tions he observed that there was no variance between the evidence and the record ; and that all the plain- tiff had to do was to prove the breaches suggested, which he had done by producing a bond and submis- sion, and an award tallying with it ; to this point he cited (a) the authorities below. As to the third, he contended that the defendant's objection came too late. If he had intended to insist that the award was void upon the face of it, thait should have been done by special pleading and not after verdict. That a note might as well be im- peached after assessment of damages upon it as this award. The one as well as the other is only laid before the jury for the purpose of ascertaining the plaintiff's damages. That if the defendant had meant to contend that the award was intrinsically void, he ought to have demanded oyer and demurred. {a) 2 Camp. 87 ; 7 T. K. 765. 222 EASTER TERM, 6 GEO. IV., 1826. The counsel cited Caldwell in support of this position, as also the {a) authorities below. As to the objection to the want of mutuality, he contended that the direction of the arbitrators that all controversies should cease touching the said pre- mises, constituted a sufficient mutuality, as appeared from the case of v. Grrevett, [h) and that the sum awarded the plaintiff, must be taken to be awarded in satisfaction. As to the fourth objection, he observed that as there was a doubt as to the manner in which the demand of the damages awarded and the costs had been made, that it might fairly be inferred that the bill of the arbitrators' costs having been upon a separate paper, although annexed to the award, that the demands were several, as indeed had been found by the verdict. As to the fifth, he contended that a personal de- mand was unnecessary except for the purpose of subjecting a party to attachment ; and referred to the presentment of bills of exchange and services of law proceedings, between which and the service of an award for the purpose of an ordinary suit, he contended there was no distinction, and cited 5 Taunton ; 1 Bos. and Pull. 394 : Ohitty 17, 18, and Caldwell 191, to shew that the not being able to find Webster, was a sufficient excuse for not making a personal demand, if such could be considered as a condition precedent. The counsel cited the cases of Eoper V. Hodges, and Oresswell v. Eandolph, (c) to "shew that a request was not necessary, 'and he mon (o) 1 Saundera 327, B.; 3 Veal t. Warner in notes, (b) 1 Lord Ray- ond, 961. (c) 1 Raymond, 284, 694. EASTER TERM, 6 GEO. IV., 1826. 223 relied particularly upon the case of Brandon v. Bran- don, (a) as clearly shewing that where an action is brought upon an award, no personal demand is neces- sary ; observing that in that case, although Lord Chief Justice Eyre consented with the other judges that it had been the practice to require a personal demand in cases of attachment, yet he did not think it was even in those cases required upon principle. As to the sixth, that the word '-'said," made it evident that the arbitrators in the award were the same with those in the reference. Boulton, Solicitor-Greneral, contra, contended, that it was necessary for the plaintiff to have proved the breaches assessed step by step. That for any thing that appeared in evidence, there might have been another bond on which the arbitration had proceeded. Further, that the award should have been connected with the bond by evidence, and cited African Com- pany V. Mason. It should have been shewn that, the subject matter of the recital, namely, the controversy of an important nature, was referred and no other ; whereas it appeared by the award that the arbitra- toi*s had made their award concerning "all contro- versies." To shew that the recital was important and the key to lead the arbitrators, he cited the au- thorities below, {h) Further, that it should have been shewn that the bond from Horned to Lossing was the same document as that from Horned and Webster, and that it should have been proved that the arbitrators had proceeded upon the bond upon which the action was brought, and cited Hodgkinson V. Marsden. (c) (o) 1 B. & p. 394. (6) Strange, 297 ; 2 Sanders, 414. (c) Com. Dig. 542. 224 EASTER TEEM, 6 GEO. IV., 1825. That the award was void upon the face of it, for that the arbitrators had awarded themselves costs. It was also void inasmuch as the arbitrators had awarded that all controversies should cease, whereas they only had been authorised by the condition to arbitrate on one matter, and nothing can be inferred to have been submitted to them, which does not ap- pear to have been referred by the submission. He admitted that the submission might have been ex- tended by averment, but then the averment must be proved as in Gransford v. Grriffith. The award was insufficient, inasmuch as it does not award a release to be given to the defendant. As to the fourth point, want of demand, that de- mand of the two sums awarded could not be con- sidered as a demand of one. That the instances of bills of exchange, &c., adduced on the other side, were not in point, being cases where the law raised an assumpsit, and where no demand was necessary. The award was also void for the variance between the submission and award. In support of which he cited Bos and Pull, and concluded by observing, that the plaintiff had not proved his breaches as suggested, viz., that the arbitrators had made their award under the submission. The Chief Justiob observed, that the court thought the two subjects of the demand being stated upon different papers as in evidence, (if a demand was in fact necessary,) it might be considered as such, and a demand of that which the plaintiff was entitled to receive. That the court considered the objections EASTER TERM, 6 GEO. IV., 1825. 225 Mile, except the one to the arbitrators awarding costs to themselves, which they had no right to do, and which circumstance the jury had considered in their verdict. Per Curiam. — Rule discharged. RULES OF COURT. Reqitla GtEKtbralis (English.) Michaelmas Term, 1820. Whereas by the common consent-rule in actions of ejectment, the defendant is required to confess lease, entry, and ouster, and insist upon his title only : and whereas in many instances of late years, defendants in ejectment have put the plaintiff, after the title of the lessor of the plaintiff has been estab- lished, to give evidence that such defendant was in possession (at the time the ejectment was brought) of the premises mentioned in the ejectment, and, for want of such proof have caused such plaintiffs to be nonsuited: and whereas such practice is contrary to the true intent and meaning of such consent-rule, and of the provisions therein contained for the de- fendant's insisting upon the title only ; it is there- fore ordered, that from henceforth in any action of ejectment the defendant shall specify in the consent- rule for what premises he intends to defend, and shall consent in such rule to confess upon the trial that defendant (if he defends as tenant, and in case he defends as landlord, that his tenant) was at the time of the service of the declaration in possession of such premises ; and that, if upon the trial the de- 29 226 EASTER TERM, 6 GEO. IV., 1825. fendant shall not confess such possession as well as lease, entry, and ouster whereby the plaintiff shall not be able further to prosecute his suit against the said defendant, then no costs shall be allowed for farther prosecuting the same ; but the said de- fendant shall pay costs to the plaintiff in that case to be taxed. Easter Term, 2nd Geo. /F It is ordered that in all country ejectments which hereafter shall be served before the essoin day of any Michaelmas or Easter term, the time for the ap- pearance of the tenant in possession shall be within four days after the end of such Michaelmas or Easter term, and shall not be postponed till the fourth day after the end of Hilary or Trinity terms respectively following. Provincial. It is ordered that in future where a rule to shew cause is obtained in this court to set aside an award, the several objections thereto, intended to be insisted upon at the time of making such rule absolute, shall be stated in the rule to shew cause. By the Court. [227] TRINITY TERM, 6 GEO. IV, 1825. Present : The Honourable Chief Justice Powell,. Mr. Justice Campbell. Doe on the demise of Link v. Ausman. Semble, that a will is sufficient to give an estate although not registered, provided no previous transfer of the property has been registered. This was an action of ejectment tried at the assizes for the district and a verdict for the plain- tiff. There were several points reserved at the trial, but the only one to which the court above ad- verted in its decision, was one raised upon the regis- try act, viz., whether by that statute it was necessary that a will should be registered within six months after the decease of the testator, (or at least before a transfer of lands by his heir at law,) although no previous registry of the land had ever taken place. Myers, the tenant in fee of the land in question, had included it in a residuary devise to his grand-chUd- ren. The will was not registered, and Myers the younger, his heir at law, had conveyed the premises in question to the lessor of the plaintiff. It was con- tended for the defendant, that the will was valid, there being no occasion for a registry unless some other instrument affecting the property had been previously registered. The judge who tried the cause directed the jury 228 TRINITY TERM, 6 GEO. IV., 1825. that the will was void for non-registry, and conse- quently that the conveyance to the plaintiff's lessor was valid. Baldwin, for the plaintiff 's lessor, now contended that the exposition of the statute by the defendant's counsel was by an astute and unwarrantable con- struction of its clauses entirely departing from its object. That a rigid grammatical dissection of the sentence would render it nonsense or unintelligible. That whoever reads it must necessarily infer its meaning ; that the reasonable reading seems to be, " that every deed of laiids shall be held to be void against the subsequent purchaser unless the older deed should be registered before the memorial of the subsequent deed," and to this construction it must be confined, for the preamble of the statute proposes such registration for the purpose of the more perfect know- ledge of the transfer of property devised by grant from the Crown; and the preamble of the second clause to the same statute commences the proposed operation of the law from and after the confirma- tion by grant, &c., so that unless some express ex- ception was made in favour of the first conveyance from the grantee of the Crown exempting it from the necessity of registry, the law must be applied to every conveyance from the king's deed downwards ad infinitum. According to the arguments of defendant's coun- sel, if A., the grantee of the Crown, sells to B., and B. does not registef, neither need his grantee 0. nor any of his subsequent assigns, which is defeating the object of the statute, which is to make those transfers TRINITY TERM, 6 GEO. IV., 1825. 229 known. As a farther instance under this construc- tion, if A., the grantee of the Crown, sells to B. for valuable consideration, and again sells to 0. for valua- ble consideration without B.'s knowledge and to his fraud, it being in the discretion of B. and C. to regis- ter or not, and both equally innocent of wrong, €. acts upon his discretion and does not register ; now defendant's counsel say that B.'s deed is not to be considered as fraudulent and void against C, because A.'s title to B. was not registered first ; and that in the case before the court the will cannot be deemed fraudulent against the title of Link, the plaintiff's lessor, because no previous transfer had been regis- tered, whieh is the very evil the law was meant to oppose. That plaintiff's counsel further urged, that this provincial statute seemed copied from the 2Qd and 3rd of Anne, ch. 4, s. 1, which contains the same words, "at any time," &c., but it is to be observed that a subsequent statute 7th Anne, ch. 20 s. 1, which in its general wording is borrowed from the last cited, omits those ambiguous members of the seBtesee on which the counsel relies without amy reason given for such omission. That it is fair to suppose they were omitted for their ambiguity or inutility ; that the court will not now suffer a mem- ber of a sentence, ambiguous, or equivocal, to defeat the broad, obvious, and salutary object of the law. Macaulay, for the defendant, insisted that the words of the statute were too plain to allow of any forced construction ; no will or deed is void by the statute for not being registered unless some previous regis- 230 TRINITY TERM, 6 GEO. IV., 1825. tration of the property in question has been made. The statute makes provision for registering deeds at the election of parties, and directs "that any deed and conveyance that shall at any time after any me- morial is so registered be made and executed of the lands, &c., comprised or contained in any such me- morial, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless such memorial be registered as by the act is directed, before the registering of the memorial of the deed or conveyance, under which such subsequent purchaser or mortgagee shall claim." And that every devise by will of the lands, &c., mentioned or contained in any memorial regis- tered as aforesaid, that shall be made and published after the registering of such memorial, shall be ad- judged fraudulent and void against a subsequent purchaser or mortgagee for valuable consideration, unless a memorial of such will be registered, &c. The same words being used in that part of the statute which relates to wills, shew that they were not inserted by error or oversight, but that they were intended to convey that plain and obvious meaning which they evidently do, and which is con- tended for by the defendant. Chief Justice. — As the judge who tried the cause thinks there was a misdirection, I consider that there must be a new trial. Campbell, J. — I have no doubt as to there being no necessity to have this will registered. New trial. TRINITY TERM, 6 GEO. IV., 1825. 231 ShANKLAND V. SCANTLBBURY BT AL. A plaintiff and defendant haying settled the action between themselTes without paying the attorney's costs, the court refused to make the attorney produce his warrant in an action instituted against the bail to recover those costs. Debt upon recognisance of bail. — The defendants were bail of one Baxter in an action at the suit of Shankland the plaintiff. The plaintiff and defendant in that action had settled it betweeti themselves, but without paying the attorney his costs, and Shankland gave Baxter a receipt for the debt, and a release to the action ; the release was not sealed. The plaintiff's attorney, however, proceeded in the original cause to judgment and execution, and afterr wards commenced the present suit against the bail, without taking a warrant of attorney from the plain- tiff Washburn, on the part of the bail, moved that Mr. Bidwell, the plaintiff's attorney", be ordered to pro- duce his warrant of attorney, contending that his au- thority in the original action was no sufficient warrant for his proceeding in this against the bail. He also supported his motion by an affidavit that the plaintiff was a foreigner, residing without the jurisdiction of the court, (a) Application refused. (a) Tidd, 107, 545. 232 tbinity term, 6 geo. iv., 1825. Sherwood v. Johns. A plea 8t»tiag that plaintiff enjoyed an estate 'without evietion, ^eld not a 8«ffieient answer to a count setting out a covenant that plaintiff Ahanld enjoy free ftom ineumbraucee. Declaration ia debt upon bond.— Condition as set out upon oyer stated, " that if plaintiff, his heirs, &c., should and might peaceably and quietly hold and enjoy all and singular the above mentioned premises (those mentioned in the recital) with their and every of their appurtenances, free and clear of and from all former and other bargains, sales, surrenders, forfeit- ures, judgments, charges, debts, and incumbrances whatsoever had, made, done, committed, or suffered by the said Solomon Johns, or any other person or persons whatsoever ; and also that if said defendant at the time of the execution of the aforesaid deed of bargain and sale (that set forth in recital) was the lawful and rightful owner of the whole and every part and parcel of the aforesaid premises, &c., and was at the said time lawfully and rightfully seized in his own right of a good, sure, perfect, absolute and indefeasible estate of inheritance in fee simple," of and in the whole and every part and parcel of the aforesaid premises, and had a good right and lawful authority to sell, dispose and convey the same as aforesaid to the plaintiff, then the obligation to be void, &c. Plea. — That before and at the time of the execution of the deed of bargain and sale in the con- dition of bond mentioned, the defendant was the true, lawful and rightful owner of the whole and every part and parcel of the premises in said deed men- tioned, and was lawfully and rightfully seized, &c., and had a good right and lawful authority to sell, dis- pose of, an4 convey the same to the plaintiff, and that from the execution of the said deed and writing obli- TRINITY TERM, 6 GEO. IV., 1826. £33 ptory, until the commencement of the action, the plaintiff did, under and by virtue of said deed, peacea- bly and quietly hold and enjoy all and singular the above mentioned premises, with their appurtenanoes; without any eviction thereof, by reason of any former or other bargain, &c. General demurrer— joinder. Macaulay, in support of the demurrer, contended that the statement in the plea that the plaintiff did under and by virtue of said deed peaceably and quietly hold and enjoy the premises, &c., without any eviction thereof by reason of any former or other bargain, &c., was insufficient, inasmuch as it did not fully embrace the covenant, which was that plaintiff should enjoy the premises free and clear of and from all other bargains, &c. That the statement of the performance of a covenant in a plea should be as large and ample as the covenant itself, as laid down in Bosanquet and Puller, where it is stated that the words of the plea should follow those of the covenant, (ft) That the plea was defective in form, as it should have stated how the plaintiff enjoyed the premises free from incumbrances, and that he went into pos- session as laid down by Oroke. {b) That where the covenant goes to possession only such a plea might do ; but where the covenant em- braces freedom from incumbrances, it is evidently insufficient. That if the defendant had in this case (as he ought to have done) followed the words of the cove- ' (o) 1 B. & p. 445. (4) Croke, James, 165. 30 234 TRINITY TERM, 6 GEO. IV., 1825. nant, the plaintiff would have replied and shewn in- cumbrances. That it would be unreasonable that the plaintiff should wait for actual eviction to bring his action, which might not happen until after the death or insolvency of the defendant, when the very ob- ject of taking the security by bond would be lost. Boulton, Solicitor-G-eneral, contra, contended that as it was plainly the object of the bond to protect the plaintiff from such incumbrances only as should affect the premises after its execution, that he could not resort to his bond until judgments or other in- cumbrances actually attached upon the premises, and ,that he had no right of action on account of incum- brances existing at the sale. That a contrary construction would affect most vendors in the country, it being a general practice to give such bonds without the parties having any intention that they should have a retrospective ope- ration. That if defendant can by any means satisfy judg- ments or incumbrances without their being put in execution against the premises, he has a right to do so, and the condition of the bond is answered. That the plea stating that the plaintiff did under and by virtue of the deed peaceably hold and enjoy, implies possession. That the plaintiff, moreover, holding title by bar- gain and sale is in possession by the operation of the statute of uses, and must therefore be evicted, to be divested of that possession and so have a rio-ht of action. TRINITY TERM, 6 GEO. IV., 1825. 235 That the plaintiff having enjoyed the premises agreeable to the manifest and well known intention of this and similar bonds, a plea stating such enjoy- ment, without eviction, was sufficient. The court decided in favour of the demurrer, but gave leave to amend upon payment of costs within one month. Brock y. McOlean, Sheriff. The court -will not change the venue on the ground that defendant's public duty prevents his attendance at the assizes. Action of debt for escape. Washburn moved to change the venue on the ground of the defendant's inability to attend at the assizes of the district where the venue was laid, he being obliged to attend at the assizes. for the district of which he was sheriff, and those for the district where the venue was laid being held immediately afterwards. Application refused. Doe on the demise of G-ripfin v. Lee. A landlord may be admitted to defend in ejectment, without an afiSdaTit stating that he is so. , Taylor moved (without affidavit) that Richard London, the landlord of the premises in question, should be allowed to enter into the consent rule and defend. He cited Impey, 8th edition, 643, and Tidd. 236 TRINITY TERM, 6 GEO. IV., 1825. Macaulay contended, that an affidavit was neces- sary to ground this motion, and relied upon Adams, 139, 2 Sellon, 102, and Barns, 179. Per Curiam. — Application granted. PuRDY qui tarn v. Ryder. Semble, that a grantee of the Crown never having taken possession, is sub- ject to the provisions of the statute of Henry the eighth. This was an action for purchasing real estate con- trary to the provisions of the statute 27th Henry YIII., ch. 9, s. 2; the words of the statute are, " that no person shall from henceforth bargain, buy or sell, or by any ways or means obtain, get or have any pretended right, or title, or take, promise, grant or covenant to bar any right or title of any person or persons, in, or to any manors, lands, tenements or hereditaments, except such person or persons which shall so bargain, sell, give, grant, covenant, or pro- mise the same, their antecessors or they by whom he or they claim the same, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents or profits thereof, by the space of one whole year next before the said bargain, cove- nant, grant or promise made, upon pain that he that shall make any such bargain, sale, &c., shall forfeit the whole value of the lands, &c." Declaration in debt upon the statute. Plea, nil debet. The evidence given at the trial was, that the plain- tiff was many years ago in possession of the land, for TRINITY TERM, 6 GEO. IV., 1825. 237 the purchase of which this qui tarn action was brought under a contract from one Albertson. That said Albertson (who was nominee of the Crown) did not take out the king's patent for the lands until the year 1822, and on the 3rd April, 1823, (never having had any actual possession,) assigned them by bargain and sale to the defendant in this action, who thereupon ejected the plaintiff. That Ryder, the defendant, at the time he pur- chased, knew of the previous contract between the plaintiff and Albertson. A registered copy of the old contract, between Albertson and Purdy, the plaintiff, was proved, as well as the deed from Albertson to Eyder, the defen- dant. It was also proved that the plaintiff, as nominee of Albertson, had applied to the commissioners in the year 1822, and they had, under the statute 42 G-eo. III., made a report in his favour. Upon this evidence the jury found a verdict for the plaintiff, with £400 damages. J^mlton, Solicitor'^General, had, in a former terra, obtained a rule to shew cause why a nonsuit should not be entered or a new trial had, the verdict being contrary to law, and improper evidence having been admitted at the trial. Baldwin now shewed cause. — He contended that Albertson, as grantee of the Crown, had no actual 238 TRINITY TERM, 6 GEO. IV., 1825. pQSsession; that his possession was merely construc- tive, not such as could, deloat the provisions of this statute. That there were two objects intended by the statute, the first was to punish persons buying or selling pretended titles ; the second was to prevent the sale of lands of which the vendor was not in pos- session without reference to his title. That where a king's patentee enters, the king having no right to grant, he is a disseisor. That the commissioners in this case having made a report in favour of Purdy, the plaintiff, the king had no right to grant to Albertson, and that he and his assignee were consequently disseisors, (a) « That the king being out of possession by virtue of the commissioners' report, Albertson, his assignee, was in the same situation as any other intruder. That Purdy being in by contract with Albertson, could not be considered as an intruder, for the courts in this country have always recognised the title of a nominee of the Crown, which Albertson was; that it would be most inconvenient to the country if every man or his assignee who was in possession of lands before the king's grant issued was to be so considered. That the maxim that the possession of lands to enable a Vendor to make title without incurring the penalties of the statute, must be actual and not con- structive, was unanswerable. (a) 2 Hawkins, ch. 86, s. 4 ; Co. Litt. 869 ; 1 Plowden, 88 ; Com. Dig. 265, Tit. Seizin. TRINITT TEEM, 6 GEO. IV., 1825. 239 5oM/-fo», Solicitor-General, contra.— To bring this defendant within the statute, it is necessary that three things should concur : First.— That the right of Albertson was a pre- tended right. Secondly. — That he had not been in possession or taken the profits. Thirdly.— That defendant knew these facts as to the first. Eight or title maybe pretended two manner of ways : First. — When it is merely in pretence and nothing in verity. Secondly. — When it is a good right or title in verity, and made pretended by the act of the party, (a) With regard to the first kind of pretended right, there is no ground for asserting, nor can it be pre- tended, that Albertson's title was nothing in verity, since he claimed under the king's patent, and there- fore the only question to be considered is, whether Albertson's good title has been made pretended by the act of himself and the defendant. That it had not for the following reasons : Littleton says that a right or title may be con- sidered three manner of ways : First. — As it is naked and without possession. (o) Co. Litt. 369. 240 TRINITY TERM, 6 GEO. IV., 1825. Secondly.— When absolute right cometh to wrong- ful possession, and no third TpevsotihsiS jus proprieialis or jus possessionis. Thirdly. — When there is a good right and a wrong- ful possession. I will dispose of the two last first, as such titles are most obviously not like Albertson's, as Albert- son's absolute right was coeval with his possession, or as plaintiff contends, was all he had, (as he denies his ever having been in possession.) and for the latter reason he cannot come under the third notion of title. I will now return to ,the first, which is the descrip- tion of title plaintiff contends Albertson had, namely, a mere naked right without possession, v?hich having been sold to defendant becomes, according to Little- ton, {a) a pretended right within the statute; for the statute created no new offence,, but was only in afi&rm- ance of the common law, {b) giving however an addi- tional penalty, the value of the land, and a naked right to land cannot be bargained upon the same principle, that a chose in action which is similar to it cannot be made the subject of a sale or transfer by the common law. Therefore it remains only for me to shew that Albertson had the possession, as well as the right and absolute title, to the land when he sold to defendant; and first, the king, under whom Albert- son held, cannot be disseised or ousted of his posses- sion, but by matter of record, (c) nor can there be a tenant at sufferance against the king, but he that holdeth over is an intruder, {d) and for the same reason a person cannot be indicted for a forcible entry on the king because he cannot be disseised, (e) (a) Litt. 369. (A) Plowd. Com. 88. (c) Com. Dig., Prerog. D. 71, 11 East. 448. (rf) Co. Litt. 57, Bao. Abr. Prerog. 662. (e) Bao. Ab. Prerog. 563. TRINITY TERM, 6 GEO. IV., 1825. 241 And for that the king has possession by matter of record as well as title, when a subject traverses an in- quisition vesting title in the Crown he prays judgment quod manus domini regis amoveatur de possessione, (a) which shews that the record gives actual possession to the king. 2ndly. — The king being in contemplation of law in possession of the Crown lands, transfers that ac- tual possession and seisen together with the right and absolute title by his grant. For the king's grant is equal to a feoffment with livery and clears all disseisins, abatements, intrusions, and other wrongful or defeasible estates, and the grant or deed is in lieu of livery, and the livery gives seisen in deed ; and his estates pass without livery by force of the patent, for the king's dignity will not permit him to make livery. (5) 3rdly. — As the grantee of the Crown is in posses- sion by his grant, and as any person on the land of the Crown without matter of record is an intruder, the grantee may maintain trespass against such in- truder continuing after the grant, (c) for entry does not imply disseisin, and entry without disseisin does not imply possession, (d) so that the intruder upon the king continues such upon his grantee, the pos- session in deed being in the grantee by force of the patent, (e) But a man must be in actual possession to maintain trespass. A grantee of the Crown may maintain trespass against an intruder upon the king's possession at the (o) 4 Inst. 209. (6) Co. Litt. 9 & 29 ; Plowd. 232 ; Bac. Abr.— Pre. F. 37 ; Plowd. 213, 242. (c) RoUes Abr. 659. (d) Plowd. 232. (e) Bac, Trespass, 566; 2 Rolls, 554. 31 242 TRINITY TERM, 6 GEO. IV., 1&25. time of the grant who continues to intrude after the grant. Therefore a grantee of the Crown is in actual pos- session, notwithstanding the intruder's continuance after the grant. Chief Justice. — Albertson sold, and the defendant Ryder bought a lawsuit, and, I consider, are within the intention of the statute. Per Curiam. — Rule discharged. [243] MICHAELMAS TERM, 6 GEO. IV., 1825. Present : The Honourable Chief Justice Campbell.* Mr. Justice Sherwood. CaRRUTHERS v. ONE, &C. An attorney of this court practising in the district court is liable to an at- tachment for not paying over money received for his client. Baldwin applied for a rule to shew cause why an attachment should not issue against an attorney of this court, for not paying over money recovered for the client, plaintiff in an action in the district court. The court after consideration entertained the ap- plication, observing that its interference was not to be considered as depriving the court below of juris- diction, but merely as exercising a concurrent one. Per Curiam. — Application granted. Johnson v. Eastman. In an action of slander a defendant may give facts and cirpunjstances in evidence in mitigation of damages. This was an action for slander against the plaintiff, a clergyman, tried at the assizes for the district. *The Honourable Mr. Justice Campbell this term took his seat upon the bench as Chief Jullice, in the place of the Honourable Chief Justice Powell, who retired. Levitjs p. Shbewood, Kequire, took his seat as judge, in the place of the Honourable Mr. Justice Campbell. Mr. Justice Bodi,ton was absent during this terni. 244 MICHAELMAS TERM, 6 GEO. ,IV., 1825. It appeared by the notes of the judge who tried the cause, that the defendant had, at the trial, offered to give in evidence certain facts and circumstances in mitigation of damages, and that such evidence had been rejected. Macaulay had obtained a rule nisi to set aside the verdict and for a new trial without costs, upon the ground that the, defendant was entitled to give facts and circumstances in evidence in mitigation of dama- ges upon the general issue, provided they did not amount to proof of the truth of the words spoken ; for any thing that appeared in this case, the fact at- tempted to be proved might have been a general rumour that the plaintiff had been perjured. Washburn shewed cause. — He contended that, although general rumours could be given in evidence, facts, which might amount to a justification, could not. Macaulay, contra, contended, that facts which went near to prove perjury might be given in evidence, even proof of an oath in an extrajudicial matter, [a) That upon principle, it was much more just that facts should be given in evidence than mere rumours, which might be easily fabricated or set afloat by a malicious defendant, (h) Per Curiam. — Rule absolute for a new trial with- out costs. (ffl) N. P. 289 ; Campbell, 254; M. & S. 286. (6) Starkie. MICHAELMAS TERM, 6 GEO. IV., 1825. 245 Whelan V. Stevens. Omitting to state the conTiction of a defendant in his warrant of commit- ment, will not subject a justice of the peace to an action for false impri- sonment, provided the actual conviction is proved upon his defence. This was an action of trespass and false imprison- ment, brought against defendant as a justice of the peace. He had committed the plaintiff to gaol under the 6 Geo. III., but had omitted to state in the mitti- mus the conviction of the plaintiff. The warrant and conviction were both produced and proved at the trial. A verdict had nevertheless been given for the plaintiff with £100 damages. Macaulay had obtained a rule to shew cause why the verdict should not be set aside being contrary to law and evidence, and a new trial granted on the ground, that although upon a habeas corpus a pri- soner detained under a warrant in execution will be discharged, unless such warrant states his conviction. Yet, if an action is brought upon the informality, it will be a good defence for the defendant to have the conviction at the trial, as was done in the present case. He cited the cases below, (a) Cartwright shewed cause. — He contended that the warrant of commitment being informal and not being stated to be upon conviction, gave the plaintiff a right of action which could not be taken away by its subsequent production. That if (as was admitted by the other side) the warrant of commitment was informal, and such as could not legally detain the defendant ; that if he had been detained under it, it was a false imprisonment. (a) 4 J. E. 220; 12 East. 67 ; 16 East. 21 ; 7 J. R. 631 ; 8 East. 113. 246 MICHAELMAS TERM, 6 GEO. IV., 1835. That where the liberty of the subject was con- cerned, the court would insist upon a rigid adher- ence to the formalities required by law. That magistrates must be presumed to know the law, which is clearly laid down in Burns and Wil- liams, who state that every warrant or execution must state the conviction of the defendant. He also relied upon the King v. Rhodes {a) and the King V. Cooper, {h) Macaulay, contra, insisted, that as long as a con- viction remained it operated as a justification to the magistrates. That even upon a habeas corpus, though the war- rant of commitment might be defective as in the pre- sent case ; yet, if the conviction itself accompanied the warrant, the defendant would not be discharged. That even in cases of felony, though a commit- ment may be defective, the courts upon habeas corpus will call for the depositions and re-commit a criminal. Campbell, C. J. — To some purposes the docu- ments in question are separate and independent, but in the present case, as the conviction and warrant accompanied each other, they should have been taken as one and should have been so considered at the trial. Per Curiam. — Bule absolute without costs. (i) 4 J. R. 220. (J) 6 J. E. 509. MICHj^LMAS term, 6 GEO. IV., 1825. 247 Doe ex. dem. Clajikb v. Rote. The order of this court Which authorises rules to be taken out in the de- puty's office in the country, does not include rules nisi in ejectment. In this case the declaration and notice in eject- ment had been served upon the tenant in possession in the London district. The originals had been filed and the rule nisi for judgment against the casual ejector had been taken out in the office of the deputy clerk of the Crown of the district under the rule of this court, of Michaelmas Term, 4th Geo. lY. Baldwin moved to set aside these proceedings for irregularity, submitting to the court that the rule could not be considered as extending to proceedings in ejectment. That it was a proceeding not usually contemplated or included in the ordinary rules of court. That the proceedings are to be inspected and the irregularities in them (if any) detected and reparted to the court, which could not be expected from the deputy in the country. That the deputies are not provided with an eject- ment boot, which is essential to the proceedings in ejectment. Rtile granted. MoGruiRB V. Donaldson. It is not compulsory upon a judge at nisi prius to grant a certificate under the 43rd of Elizabeth. In tshis case, which was an action of trespass and false imprisonment, a verdict had been found for i!he plaiintiff with 6d damages only. 248 MICHAELMAS TERM, 6 GEO. IV., 1825. The, defendant's counsel applied to the judge who tried the cause for a certificate under the 43rd of Elizabeth. The judge refused to give the certificate required, on the ground that the statute was not compulsory, with leave to the party to apply for the opinion of the court above. The court established the opinion and decision of the judge at nisi prius. Application refused. HoGLB V. Ham. Gross neglect on the part of the parents, is held a ground for a new trial in an action of seduction. An action brought to recover damages for loss of service by the seduction of plaintiff 's daughter, tried at the assizes for the Midland district, and a verdict for the plaintiff for £250. The facts of service and criminal intercourse were proved. That plaintiff's daughter had borne a child to defendant. That plaintiff's daughter and the de- fendant had been school-fellows. That he had paid his addresses to plaintiff's daughter as a suitor, and had been considered as such by the family and neighbours. On the part of the defendant it was proved that he had been permitted to pass whole nights with the daughter in a bed room with the father's knowledge. A witness, Impey, had also given evidence that MICHAELMAS TEEM, 6 GEO. IV., 1825. 249 plaintiff's daughter had had criminal intercourse with himself, and that she had told him that the child she had borne was probably not the child of the defendant. The judge who tried the cause had charged the jury to take into their consideration how far the in- discretion of the plaintiff might operate in diminu- tion of damages. Cariwrighi obtained a rule nisi to set aside the verdict and grant a new trial in this cause on grounds : 1st. That the verdict was contrary to law and evidence. 2nd. That it was contrary to the judge's charge. 3rd. That the damages were excessive. As to the first ground, he contended that plaintiff, by having consented to his daughter being frequently alone with defendant at a time and in the situation detailed in evidence, had become, in fact, a particeps criminis, and could not be entitled to damages, con- sent being laid down to bar an action for criminal conversation. That should the court permit damages to follow conduct of this sort, it would soon be flooded with these actions. That parents of loose morals, looking forward to the remuneration, would be careless of their daughters' virtue, and would even use means to en- trap inexperienced young^men. 32 250 MICHAELMAS TERM, 6 GEO. IV., 1825. As to the second point, that the verdict was con- trary to the judge's charge, inasmuch as the jury ' had not at all considered the great indiscretion, if not criminality, of the plaintiff as a ground of taking away his title to damages altogether, or at least of giving their verdict for a very small sum. As to the third point, that it was evident that un- der the circumstances the damages were excessive. That £250 were not so easily raised as £5000 were in England. That the evidence of Impey had not been im- peached, and should, at the least, have induced an unbiassed jury to have given very small damages. The counsel referred to the cases below, {a) Macaulay shewed cause. — He contended that this case resolved itself into one of excessive damages, f6r that there was no pretence for saying it was either contrary to evidence or the judge's charge. Tlie plaintiff had been proved to be of respectable character as well as his family (except in this in- stance ;) that the defendant Was his friehd and neigh- bour, and the school-fellow of his daughter ; that he visited the house as a suitor ; thai his own circum- stances as well as those of the young man were such as to induce a reasonable expectation in the family and among their friends and neighbours, that a mar- riaigie would take place between the defendant and his daughter, and the plaintiff in consequence 6f this (a) Peakes N. P. cases ; Jones v. Sparrow, 5 J. R. 257 : Bedstead v. Wyllie, K. B. reports V. 0. MICHAELMAS TBEM, C QEa IV., 1825. 251 expeGtattion admitted the defendant to such freedoms in his house and ffiinily as are usually perinitted un- der such circumstances. The young woman had given evidence of his courtahip, aiid when asked if she ever had dispensed her favours to others than the defendant, said she never had. The defence attempted to be set up through the means of the witness Impey, was tliat she was not so immaculate as she pretended to be ; that this man's evidence was fairly opposed to the young -v^oinan's, and the jury were drawn to its consii^eration by the plaintiff's counsel. That the jury did compare them, and either con- sidered that Impey 's evidence was not entitled to credit, or that it did not extenuate the base conduct of the defendant. That it was iindoubtedly the province of the jury to dispose of conflicting evidence, and they had done so. (o) They, too, were the proper judges of the amount of damages, as laid down throughout the books, and by Lord Camden particularly. That this verdict should also be supported on the ground of puuishing the defendant, [b) That the case of Bedstead v. Wyllie, determined in this court, could not be compared to the present, nor CQuld apy argumenit be drawn from it in favour of granting a new trial in the present case. (o) 4 M. & S. 192. (i) 3 Wils. 18. 252 MICHAELMAS TEEM, 6 GEO. IV., 1825. In that there had been a violation of all decency on the part of the mother, and the most criminal neglect. That the general principle to be extracted from the cases {b) was, that where facts were properly brought before a jury, they were the proper judges, and their decisions were not to be set aside unless the damages were outrageous and excessive. That the custom of allowing young persons to see each other in bed rooms and alone, and at late hours, though not agreeable to more refined notions, was predicated upon the confidence which the inhabitants of the country placed in each other, and the few in- stances in which that confidence had been violated shewed that it had not often been misplaced. That in this respect something must be allowed to the situation of the young yeomanry of the country, who were labouring in the field during the day, and had little opportunity of being introduced to each other but at night. That it was natural for parents to wish to see their daughters settled in marriage, and with this view the plaintifi" had allowed the defendant no other liberties than are usual; that perhaps slight indiscretion might be imputed by some persons to the plaintiff", but on the other hand the blackest ingratitude marked the conduct of the defendant. That he has abused the plaintiff's confidence and ought to suffer for it. (i) 11 East 22; 1 Burrow, 609; 2 T. R. 166. MICHAELMAS TERM, G GEO. IV., 1825. 253 That there is no pretence for considering this ver- dict as being contrary to the judge's charge; it was clear and distinct ; the indiscretion (if any) of the plaintiff was drawn to their consideration, and they were directed to consider what weight it should have in mitigation of damages; that they have done so; have considered all the facts of the case and the characters of the parties and witnesses, and have found a verdict for £250, a sum neither outrageous or excessive, or indicating passion or partiality. Cartwright, contra, contended this not to be merely a case of conflicting testimony; that the girl had her- self acknowledged a connexion with the witness, Impey; that the doctrine laid down by Lord Mans- field (a) went to say, "that if justice had not been done a new trial ought to be granted." That the case before the court was a strong one. That a custom which allowed young persons to re- main together for whole nights in bed-rooms without any witnesses of their conduct, was immoral in the extreme and should be abolished. That the jury must, in this case, have been influ- enced by undue motives. That great misconduct, more indiscretion is to be imputed to the plaintiff than to the young man, who, perhaps, had been many times tempted before ho gave way to his passions. That there was no doubt of the power of the court ' to interfere was clearly shewn by the case of Jones (rt) Bright V. Lyon, 1 Burrow. 254 MICHAELMAS TEEM, 6 GEO. IV., 1825. I V. Sparrow, (a) where they interfered in a case of tort of only £40 damages. That the case of Duberley v. Grunning {b) had beeij overturned by more modern decisions, and it was to be observed that in that case the court were not unanimous. That the case of Smith v. Book, formerly moved in this court, was quite in point with the present. There, though there was no imputation against the character of either the parent or the young woman, the court granted a new trial on account of the mother's indiscretion in permitting the defendant to remain in her daughter's room at night; that the court would in this case, as in that, mark this custom with their animadversion. That upon grounds of public policy and morality this verdict should be set aside, for what could be more contrary to them than to allow parents to be rewarded with £300 or £400 for their indiscreet carelessness of their daughters' virtue. Macaulay, in reply, stated it to be true that the young woman had been proved by Impey's evidence to have been connected with him, but it was after the seduction by the defendant, and therefore did not in the least take aw^y the plaintiff's title to damages. Suppose a case of two libertines supporting each other in their base practices, by such conduct as the defendant and his witness Impey had exhibited. (a) 5 T. R. 267 ; 1 X. K. 277. (i) 6 East 256. MICHAELMAS TERM, 6 GEO. IV., 1826. 255 That the jury perhaps thought it might be the case here. That they well knew all the circumstances of the bed-rooms, and the visits of the defendant ; they knew the custom which prevailed in the country, but considered as furnishing no ground to encourage vice and the defendant's breach of confidence. That nothing was withheld from the jury; nothing obtruded upon them which should not have been. That having, with a full view of the case, given damages neither outrageous or excessive, their vein diet he considered ought to stand. /'"\Oampbbll, C J. — I have given great considera- / tion to the cases and to the authorities to which we ^ are referred by the counsel, in some of which the decisions seem to be at variance with the clear prin- ciples of law as recognized, and indeed expressly and distinctly laid down. In the case of Duberley v. Gun- ning, Lord Kenyan, as well as all the other judges of the court, were decidedly of opinion, that £5,000 damages, under all the circumstances of that case, were beyond measure excessive; and yet the court, with the exception of Mr. Justice Buller, refused a new trial ; his lordship declaring that he thought the damages a great deal too much, and that he would have been satisfied with , merely nominal damages, but that he had not courage to interfere with the verdict. This is a doctrine to which I cannot sub- scribe even in deference to so high authority. The learned counsel in support of the rule in that 266 MICHAELMAS TERM, 6 GEO. IV., 1825. case contended, that if the injustice of the verdict be once admitted and established, the granting a new trial is no longer matter of discretion but of duty in the court. I entirely concur in that opinion, and I am warranted in that conclusion by the authority of Mr. Justice BuUer in that same case, and by that of Lord Ellenborough in the case of Chambers v. Caul- field, where his lordship, in delivering the opinion of the whole court, says, ' ' That if it had appeared from the amount of damages as compared with the facts of the case laid before the jury, that the jury must have acted under the influence of either undue motives, or of gross error, or of inisconception of the subject, the court would have thought it their duty to submit the question to the consideration of a second jury." And Lord Kenyan, in Duberley's case, expressly states, and indeed all the authorities agree, that the grant- ing a new trial is by no means encroaching upon the jurisdiction of the jury, nor drawing the question to the examination of a different tribunal from that to which the constitution has referred it,but only requir- ing the same jurisdiction to reconsider that opinion which appears to be erroneous, and without a general power in the court to do so, his lordship adds, injus- tice would be done in many cases. And I take it upon me to say, that to prevent such injustice is in all cases the particular province and duty of the court. Under this seeming discrepancy between some of the decisions, and the established principles of law, I confess I have paid more attention to the general reasoning and principles of law than to par- ticular decisions. It must be observed, however, that the actions in whicli those decisions took place, although in many respects similar to the case before MICHAELMAS TERM, 6 GEO. IV., 1825. 257 US, are not entirely so; those were actions brought by husbands for criminal conversation with their wives; this is an action brought by a father for the seduction of his daughter, and the consequent loss of her service. The general reasoning and principles of law, as regards the right of action, the quantum of damages, and the grounds upon which a new trial ought to be granted or refused, apply in some, but not in all respects alike to both. In both cases the governing principles are the de- gree of care and vigilance, or of indiscreet negligence or criminal connivance, which may appear in evidence on the part of a husband or parent, and which, accord- ing to its degree, will have the eflfect of destroying the right of action altogether, or of regulating the quantum of compensation to which the plaintiff may be entitled. When the seduction of a daughter is the ground of action, I think those considerations apply much more strongly than in a case of crim. con. I hold that it behoves a parent suing for damages in this sort of action, to shew that he has used a reasonable degree of parental care and watchfulness over his daughter's virtue and propriety of conduct; I mean to say a much greater degree of care and circumspection than would be required of a husband over a wife's con- duct; for besides the ordinary restraints on female conduct applicable to the sex in general, a wife is under the additional restraint imposed by the moral and religious obligations of her marriage vow, with all the conjugal ties and duties arising from and inci- dent to the married state; her prudence and experi- 33 ' 258 MICHAELMAS TERM, 6 GtlO. IV., i8S5. ence are Wore to be relied upon, afld her situation exetnpts her from those excitements and temptations to which a youiig unmarried inexperienced female is peculiarly exposed, iespecially when approached, as they freiqueOtly are, by seducers under the mask of honourable addresses^ I consider it, therefore^ the indispeusable duty of a parent to use'^all possible care and vigilance, and, if necessary^ to exercise his au- thority to prevent a daughter ft-om beitig exposed to such temptation, much less to be left alone in bed- rooms, of in ahy Other room's or places at unseasona- ble hours, and for whole nights With an individual of the other sex. A parent knowingly allowing such opportunities, betrays not only a foolish and ridicu- lous confidence and want of common prudence and cit-cumspection, but also such a degree of culpable negiigienee as in effect amounts to criminal conniv- ance, and, therefore, renders his right of action ex- tremely doubtful ; but at all events diminishes his claim to damages in an action of this kind for an in- jury, which has been the natural Consequence of his entire n^lect of a most sacred duty as a parent, and the dictates of Ordinary prudence as a man of com- mon sense. As to the necessity which the counsel for the plain- tiff has urged, of young persons being allowed to meet at late hours; if it is meant to the extent to which that indulgence has been carried in the case before us, I deny the existence of any such necessity — ^^the parties have been intimately acquainted from infancy; they have been bi-ought up in the same neighbourhood, a;nd have had daily opportunities of forming a thorough estimate of the good and bad MICHAELMAS TERM, GEO. IV., 1825. 259 qualities of each other; and, in short, of all those circumstaaees, th€ knowledge qf which is usually con- sidered necessary to enable young persons and their respective parents to decide on the propriety of the intended match, nothing was wanting for aU the purposes of honourable courtships, but the usual pro- posal of marriage. It does got appear that the pro- posal was ever made, either to the young WPfflan Qr to her father, the plaintiff. The absence of such pro- posal for so unreasonable a length of time, and such continuance of intimate intercourse, aud nightly visits, instead of induciug confidence, should haye excited suspicion and distrust, and should have called forth the peremptory commands of the father to desist from all such unseasonable interviews. I do not by any means excuse the criminal con- duct of the defendant, and if the sole question were, how much ought he to pay, I should not perhaps have thought the verdict too much; but the principgil question is, how much is the plaintiff entitled to claim, and that consideration must entirely be gov- erned by his own conduct as it appeared in evidence. Neither do I mean to excuse the easy virtue of the young woman; but if she were the plaintiff, and could have sued for damages for the irreparable in- jury she has sustained, I might perhaps allow to her inexperience and weakness that which I cannot con- cede to the criminal neglect of her parent. It is an established maxim with me, and in which I believe I am warranted by law, that no man has a right to sue for compensation in damages for any loss or in- convenience which has arisen from his own fault or criminal neglect pf duty. After mature consicjera- 260 MICHAELMAS TEEM, 6 GEO. IV., 1825. tion, therefore, of this case, with all its attendant facts and circumstances as .detailed in evidence, and also of the relative situation of the parties, I am of opinion the damages given are excessive, and that a new trial should be granted. In doing so, I do not consider that the province of the jury is at all inter- fered with, it is only re-committing the question to the consideration of the same tribunal to rectify a palpable mistake or misconception of the former jury of the grounds upon which their estimate of damages should have been made, and this I conceive it is the duty of the court to do in all cases, as I have already sufficiently shewn from indisputable authority. Sherwood, J. — In this cause the defendant has applied to the court for a new trial on several grounds stated in the affidavit accompanying his motion, one of which is on the account of excessive damages. As this is the only ground, in my opinion, worthy of ccb- sideration, I shall confine my remarks to it alone, without touching on the others. That the court have the power to grant new trials in all civil actions be- tween subject and subject, where the circumstances of the case and the advancement of public justice require such a proceeding, is already so settled to be law, that I do not think it necessary to cite cases for the support of the proposition. The court of King's Bench in England have refused to disturb verdicts apparently too great in actions for criminal conversation, because they considered the facts and circumstances of those cases as peculiarly within the province of the jury to determine, and respecting which the court could not well form an opinion, but they uniformly recognised the principle of their MICHAELMAS TERM, 6 GEO. IV., 1825. 261 having an undoubted right of granting new trials even in the same cases. In Duberley v. Grunning, reported in fourth of Dunford and East, which was also an action for crim. con., the court refused to grant a new trial for excessive damages for reasons already mentioned, but they were not unanimous in that re- fusal ; Mr. Justice Buller was dissentient, and it ap- pears to me that his arguments were stronger and more conclusive than those of the other judges. The present cause, it is true, is an action of tort, but it is not precisely of the same description as that for cri- minal conversation; it certainly differs in its nature from that in the same degree that the duty of a father differs from the dut}'^ of a husband. Here the court are not called upon to ascertain the nice bounds be- tween fashionable ease or familiarity of manner, and licentious or marked attention to a married woman, for in this case one gross feature of immorality ena- bles the court without difficulty to determine that the damages have not been properly measured. I think the plaintiff here was guilty of criminal negligence in his duty of a parent, and for this reason is entitled to less damages than he would have been if he had performed his part well. I also think the jury must have entirely misconceived that part of the testimony which particularly relates to the want of prudence and proper attention on the part of the plaintiff as the father of a family; it was distinctly in evidence at the trial, that the plaintiff allowed the young man, the defendant, to remain whole nights with his daugh- ter in her bed-room, and that he, the plaintiff, knew of the daughter being there. Such conduct leads directly to crime, and the father who connives at it, or who neglects to interpose his authority for its im- 262 MICHAELMAS TERM, 6 GEO. IV., 1825. mediate prevention, must be less deserving of com- miseration than the virtuous and discreet parent. What makes the conduct of the plaintiff still more inexcusable is, that it does not appear from the re- port of the evidence that any proposal of marriage was ever made by the defendant to the daughter of the plaintiff, or any intimation to the plaintiff of the intention of the defendant to visit the daughter as an honourable suitor. Had the last fact clearly appeared, the plaintiff's want of care would, in a great measure, have been excused, and the verdict would have pro- bably remained as it is. This fact, however, cannot possibly be inferred from the evidence given at the trial, because the young woman herself does not pre- tend that any proposal of marriage was ever made to herself or father, and if any had been made, she, of all others, must have, been inclined to mention it. It is of the greatest importance to society, that fe- males should be brought up in habits of virtuous and chaste demeanor ; for such habits will always have a decisive influence in correcting any licentious deport- ment in the other sex. I do not justify the conduct of the defendant in this cause. I think it was crim- inal and deserving of punishment ; but as the plain- tiff has been negligent in his duty, his claim to dam- ages must be lessened in my opinion ; he was not warranted in presuming every thing correct on the part of the young man who had visited his daughter with addresses for such a length of time, without any declaration of his ultimate intention. To give such a man damages to the extent of what a prudent pa- rent would deserve, would be to break down the barriers between right and wrong, and to set an ex- ample most pernicious in its consequences. MICHAELMAS TERM, 6 GEO. IV., 1825. 263 Upon mature Consideration of all the circumstan- ces of this eaSe, I think the opinion of a second jury should be taken. "Rule absolute. MoNally v. Stephekts. This court refused to set aside upon motion a ca. sa. which had been issued upon judgment more than a year old — no eci. fa. having issued to revive it. Small obtained a rule nisi to set aside the writ of capias ad satisfaciendum issued in this cause, and to discharge the defendant out of custody, the same hav- ing issued two year^ after the judgment was signed — no previous writ of execution or scire facias hav- iiig issued. Robinson, Attorney-General, shewed cause.— He contended that although this was an irregularity, it was not to be remedied by setting aside the execu- tion or discharging the defendant, but that he must proceed by writ of error or action for false impris- onment. That the case in Salkeld went to this point, (a) There the execution issued after the year and day ; and yet in an action against the sheriff for an escape he was held liable. He contended that the sheriff would not have been held liable if the defendant could at any time be discharged upon a summary application to the court. That it would be other- wise where the writ was void on the face of it, as wh«re it passed over a whole term. (o) Shirley v. Wright, 1 Salk. 273. 264 MICHAELMAS TERM, 6 GEO. IV., 1825. / That the case of Parsons v. Lloyd (a) went to shew that false imprisonment was the proper re- medy. The counsel also cited the cases below, {b) Small, contra, contended, that this writ was not merely voidable but actually void. That the authorities cited related only to the lia- bility or otherwise of the sheriff. That the defendant could not bring a writ of error upon this writ, for that both in that respect and as to an action for false imprisonment, it remained good until it was set aside. That the reason given for a scire facias after the year and day is, that a defendant may have an op- portunity to plead such matter as may have arisen in avoidance of the judgment, (c) That here, even if his client had a release, he could not plead it. His only remedy is to set aside the proceedings. Campbell, C. J.— ^This writ has, without doubt, been irregularly issued. The question is whether it is merely void, or whether the irregularity is only to be taken advantage of by writ of error, or in an action for false imprisonment. It is laid down in Leving, that this irregularity is to be remedied by writ of error, and it is said in Archbold, that this irregularity is not such an one as to render the writ void, but that the party is left (a) 2 Blaok 846. (b) 3 Wella 341 Com. Dig. (c) Tidd. MICHAELMAS TERM, 6 GEO. IV., 1825. 265 to other remedy. It appears that the court have not e?en a discretion, las the writ is laid down only to be voidable. Per Curiam — Application refused. DORMAN V. EaWSON. The ca. sa. lodged in tJie sheriff's office to oliarge the bail, is not a, charging in execution. Robinson, Attorney-Greneral, moved that the de- fendant be dischaj-ged by supersedeas, he not having been charged in execution within two terms after he had been surrendered in discharge of his bail, agreeable to the rule of Hilary Term, 26th G-eo. III. Macaulay contended that the ca. sa. which had been lodged in the sheriff's office previous to the defendant's surrender should be considered as charg- ing the defendant in execution. Robinson, Attorney-G-eneral, observed upon the impossibility of considering a ca. sa. which had been returned non est inventus as a charge in execution. Supersedecip granted. Nbvils v. Willcooks. In a case where justice has been done between the parties, the court re- fused to grant a new trial upon the ground that it had been agreed be- tween the contending parties that a third person should have beeh ajiplfed to, to settle the subject matter of the action,' which third person being under ho legal liability to do so. An action of assumpsit tried at the assizes for the London district, and a verdict for the plaintiff of £40. 34 266 MICHAELMAS TERM, 6 GEO. IV., 1825. The document upon which the plaintiff declared, with its endorsements, was as follows : (the common counts were also contained in the declaration :) " Left in my hands this 23rd day of June, 1818, a note of hand against I. Kilbourn for £10 ; also an affidavit against the estate of Colonel Bostwick for £30. " (Signed,) Inc. Tinbroece." " Please to settle the within receipt with Justus Willcocks or bearer. " Talbot Road, Nov. 9th, 1819. " Mr. John Tinbrobck. " (Signed,) Thomas Francis." " Justus Willcocks has received payment from James Nevills for the sum specified on the within receipt. Provincial currency. " (Signed,) Justus Willcocks." "July 24th, 1821. " Witness, John Connell." This document was proved at the trial, and that sun- dry notes of hand had been given by Nevills to Will- cocks, as the consideration for its transfer to him. It was also proved that there had at the transfer been an agreement between the plaintiff and de- fendant, that the former should apply to Francis, the previous holder of the document, for its amount ; but no evidence was given of such application. The plaintiff recovered his verdict upon the count for money had and received. MICHAELMAS TERM, G GEO. IV., 1825. 267 Macaulay had obtained a rule nisi to set aside the verdict, and for a new trial on the ground : 1st. — That there was no evidence given at the trial which could entitle the plaintiff to recover upon the count for money had and received, or upon the general counts; that the notes given as the considera- tion were for money, or that any of them had been paid. 2ndly. — That the plaintiff ought to have applied to Francis, the former holder of the document, for the amount, previous to an application to the defen- dant, that being a condition precedent. R. Baldwin shewed cause. — He contended that the instrument in question not being negotiable, but a mere chose in action, the application to Francis could only be considered as a matter of courtesy, but by no means a necessary condition precedent. The ap- plication would be vain and nugatory, and such as the law would not compel, as Francis was not liable in law to pay the money to the plaintiff; that it might be considered in the same light as an impossi- ble condition in a bond, which was void. That the policy of the law having said that choses in action are not assignable, a condition which pur- ported to make one so, might be considered as illegal and therefore void, {a) for that the same reasoning applied to conditions by parol as to those by deed. Macaulay, contra, contended the condition not to be one which could be considered as impossible or (a) Bac. Abr. Tit. Vendor. 268 MICHAELMAS TEEM, 6 GEO. IV., 1825. illegal; it was not that the plaintiff should sue Fi^ncis, but that he should try to get the money from him, which might be done by application. That courts of law as well as equity will take no- tice of choses in an action; therefore no illegality or impossibility can be inferred from an agreement in that respect. That if plaintiff was bound to apply to Francis it was a condition precedent, and he ought not to re- cover without doing so. The counsel was not satisfied that it was a roiere chose in action, but that it partook of the nature of a bill of exchange, the essentials of which it had ; and, if so, the plaintiff should have shewn an application both to the drawer and eiidorser of this instrument. That the whole of the evidence was defective. There was none that would entitle the plaintiff to recover on the money counts; none that the notes stated as a consideration were for money, or that they were ever paid. That the matter was a special contract, which should have been stated and proved. R. Baldwin, in reply, contended that this instru- ment could not be considered as a bill of exchange, which could only be for a sum certain; therefore, any application to any of the parties through whose hands it had passed, wbuld in a legal point of view be absurd. MlfeiiAEiMAS *ERM; 6 GEO. IV., 1825. 269 That as no adv^iltagfe wdWd be gained to the de- fendant by a new trial in fhi§ case, and that as no in- justice had been done, the court \^ould dischat-ge the rule. Campbell, C. J. — There are some objections which might weigh in this case ; but as justice has been done, and it appears that the defendant would not gain any advantage by a new trial, and as the appli- cation to Francis would be only a voluntary request, the court think that the verdict should stand. If the demand upon Francis was one which could be en- forced by law, the court would have been of a differ- ent opinion. Per Curiam. — Rule discharged. Doe eve. (km. of Burger, v. Robert Baldmn stated to the court that this action of ejectmeUt had been commenced in the vacation preceding a nonissuable term, agreeable to a modern rule of 'the Court of King's Bench in England, and applied to the court as to the adoption of that rule in this court. The Chief JustIcb observed that the Court con- sidered that all rules of the English practice were adopted up to the date of the rule of this court of Michaelmas Tei'in, 4 G-eo. lY. Naglb v. Eilts. A circular flourish with the word (seal) inscribed, is not a legSl seiil. This was a case of debt upbii bond, tried at the assizes for the London District. The instrument pro- 270 MICHAELMAS TERM, 6 GEO. IV., 1825. duced in evidence was not executed in the usual manner by having a seal of wax or wafer, covered with paper, but had a circular flourish with the word "seal" written within it in the following manner, (seal); a verdict was taken for the plaintiff, subject to the opinion of the court as to the validity of such a substitute for the usual form of sealing. Washburn had obtained a rule nisi to set aside the verdict and enter a nonsuit upon the cases in the margin, (a) Robert Baldwin shewed cause against the nonsuit. — He stated that seals were at first used to authenti- cate contracts from the parties not being able to write; but submitted that writing being in common use, a seal like i to set aside a bailable capias ad respondendum, upon whicli the defendant had been arrested upon a verdict ob- tained in an action of trespass, and which had been issued without a judge's order. Per Curiam. — Rule absolute. Moore v. Malcolm. Case and not trespass is the proper remedj^ against a sheriff ^'or selling goods under afi.fa. before the eight days are' expired. "' Declaration in trespass for taking the plaintiff's goods. 35 274 HILARY TERM, 6 GEO. IV., 1826. Pleas.— 1st. General issue. 2nd. Justification under a fieri facias directed to the sheriff of the London district. Eeplication.— That defendant sold the goods with- out giving the eight days' notice required by the provincial statute, {a) Eejoinder.— That notice was given. « Roh''rt Baldwin had obtained a rule to shew cause why the judgment should not be arrested, on the ground that the action should have been case and not trespass ; the cause of action being a mere nonfeas- ance, which could not be the subject of trespass. The counsel cited the six carpenters' case as establishing this doctrine, {b) Mucaulay shewed cause. — He allowed that by vir- tue of \hQ fieri facias, the sheriff, his bailiff or deputy were justified in seizing the goods; but contended, that if he sold them without giving the notice required by the statute, he became a trespasser by relation; for every interference with another person's property not warranted by law was a trespass. That the sale could only be justified by an observ- ance of the forms required by law, for under a justi- fication a defendant must shew that he has strictly pursued the authority given him by the law. That the language of the statute was clearly pro- hibitory. He shall not proceed to sell. That had (a) 49 Geo. ILL, c. 4, s. 15. (6) Reports M. T. 8th,, Jao. lat. HILARY TERM, 6 GEO. IV., 1826. 275 the words been that " he shall give eight days' uo- tice before he sells," the neglecting to do so might have been argued to be a nonfeasance only. That the defendant is not charged with a trespass, because he has not given notice of sale; but because he has sold the plaintiff's property, contrary to the express prohibition of the law. That the case is just the same as if the sheriff had seized and sold immediately. If he was justified in the one case he was in the other; both were equally contrary to law. That the principle in the case of the six carpenters, relied upon by the counsel for the defendant, did not militate against, but supported his arguments. It was that a mere nonfeasance or not doing, could not be- come the ground of an action of trespass. The not paying for the wine was a mere nonfeasance, and the cases referred to were cases of nonfeasance only. That the question in the present case is, whether the statute is conditional or prohibitory, or only directory. That if the law says that the sheriff shall not sell until he has done some previous act, it is clearly conditional and prohibitory. That the sheriff was a trespasser ah initio, having abused an authority in law, for that the law in that, case makes the party a trespasser ab initio by rela- tion to the first taking. 276 HILARY TERM, 6 GEO. IV., 1826. That the present case was analagous to that 6f dis- tress by the common law, where if the distrainer abuses a distress, he becomes a trespasser ah initio. That the officer having in this case committed an active abuse of his authority by selling contrary to law, has become a trespasser ab initio. The counsel cited the authorities below, (a) Eohert Baldwin contended, that the question in this case was simply whether a subsequent omission made the sherifif a trespasser in the outset. That the construction attempted to be placed .upon the provincial statute was too subtle. That to maintain trespass there must have been an interference with a property to which one has no right; but that in this case the sheriff had a property in the goods at the time of sale, and, therefore, coulA not be a trespasser, for no person can trespass upon his own property, though that property may be only a special one. That the application of the doctrine of distress by the common law to this case is erroneous, the prin- ciples are different; a party need not distrain, and therefore if he abuses a distress, he is made a tres- passer by relation ; but sheriffs must execute pro- cess, and therefore are eserupted from actions of trespass by relation. That as it is not contended that the officer could, in this case, have been a trespasser by the common (a) 4 Mod. 391 ; Hammonas, N. P. 161. MtAK? fmrn, 6 GEO. IV., 1826. 277 law, he cannot toy the statute, which position is well supported bj Lord Ettenbwou^h's construction of the 2 Geo. II., c. 19. Trespass d#s not lie, his lordship says, for subsequent omissions in the conduct of a distress, if the original taking was lawful, {a) That as it is not contended that the plaintiff has no other remedy, the sheriff should upon grounds of policy be protected from actions of trespass by rela- tion. That the doctrine respecting abuse of authorities in law does not apply in this case. To be subject to tr«*Sp3SS by relatioii for such abuse, a defendant must have committed a positive, and not a negative act of irregularity, which the counsel contended was not the case in the present instance. Chief Justice. — During the argument of this ease, I felt some hesitation upon the particular expression of ttie statute, but taking it altogether, I consider that this action should have been case and not tres- P6r Curium. — Rule made absolute. H'iCKALL V. OrAWFOKD. j" vi'/^ / ( An alias /. fa. may issue against lands returnable at such a distance of time as to alfoW tBe Sheriff to adVeftise, &e. Washburn stated to the court, that in this case a writ q{ fieri facias against the lands and tenements of the defendant, had been issued and was returnable a1)out a year ago, and proceedings stayed thereon by (0) Selwyn's N. p., 1231. 278 HILARY TERM, 6 GEO. IV., 1826. agreement between plaintiff and the defendant. The counsel applied for an order for an alias writ o^ fieri facias returnable in Easter Term next. The court gave leave to the plaintiff to issue such writ returnable in Trinity Term nest, observing that that would give sufficient time to give the notice of sale required by the provincial statute. DORMAN V. EaWSON. k fieri facias may issue against a defendant's goods, although he may be dis- charged from prison, for not having been regularly charged in execution. The defendant had been surrendered in discharge of his bail, and had last term been discharged out of custody upon the ground that the capias ad satisfa- ciendum which had issued to charge him in execution had not been issued within two terras after his sur- render. The plaintiff afterwards issued 2t. fieri facias upon the same judgment. • Robinson, Attorney-General, in the former part of the term obtained a rule nisi to set aside this writ of fieri Jacias, upon the ground that the defendant hav- ing been in execution under a capias ad satisfacien- dum, the plaintiff was not entitled to another execu- tion upon the same judgment, unless the first had been rendered ino^ffectual by the death or escape of a defendant, (a) Macaulay shewed cause. — He contended that the defendant should not be allowed to say at one time, (o) See Tanner v. Hague, 7 T. R. 420 ; Clarke v. Clement and English, 6 T. R. 625 ; Cohen v. Cunningham, 8 T. R. 123 ; Line v. Lowe, 7 East 330. HILARY TERM, 6 GEO. IV., 1826. 279 that the writ of capias ad satisfaciendum was a nullity, and thereupon procure his discharge, and at another time, that it was a good and effectual writ, viz., when he wished to prevent the plaintiff from obtaining the benefit of his judgment by an execution against the defendant's property. That the defendant in this case stands as if no exe- cution had been issued against him. That no case can be found to shew, that ^ fieri facms may not issue after a capias ad satisfaciendum has been set aside by the court as irregular, but only in cases where the defendant had been released, or the nature of the execution had been attempted to be changed by the plaintiff's own act. None to apply the rule to an execution, which had not been a legal satisfaction to the plaintiff. That the remedy by action on the judgment which had been mentioned, as the proper proceeding by the counsel on the other side, is much discounte- nanced by the law, as productive of no additional ' benefit to a plaintiff, and as being unnecessarily ex- pensive to a defendant, the law always countenancing the quickest and cheapest remedy. That the plaintiff's judgment not having been satis- fied, he was entitled to his remedy, as may be clearly collected from the case of Topping v. Ryan, {a) That the case of Lime v. Lowe, cited on the other side, only went to shew that a defendant could not (ffl) 1 T. R. 273. 28Q HILARY TEEM, 6 GEO. IV., I9?6. be arrestad alter he had been released for wmt oi halting been charged iu execution in proper time, and was by fair inference in favour of the plaintiff. Jtobinsap,, Attorney-Qeneral, contr^,. — In this case the defendant was actually in execration by a writ issued at the suit of the plaintiff, and which writ the sheriff was bound to obey, who wpuld accptdiagly have detained him until removed by habeas cqrny^, or discharged by the court; and he was in fact in actual custody for several mofiths. The case of Topping v. Ryan does not apply ; there the defendant attempted, by a plea in bar, to shew that the plaintiff could pot bring an action upon his judgment, which is not here contended. Macaulay, in reply, contended, that the defendant was in custody upon his surrender, and would have . continued so, whether the capias ad satisfaciendum had issued against him or not, until discharged as he was by the court. That writ the court have pro- nounced ineffectual. The plaintiff, therefore, has not had his remedy, and is still ejititled to it ; that Mr. Justice. BuUer's dictum in Topping v. Eyan cleq,rly shews thaf the plaintiff is still entitled to his remedy, to all intents and purposes, e?:cept as to the arrest of the defen- dant's person. The intention of the law is, first to protect defen- dants from being harrassed by a second arrest, and secondly to give plaintiffs those remedies for their debts which are next in decree. Per Curiam.— -'RvAs discharged. hilary term, g geo. iv., 1826. 281 Dalton v. Botts. An item in an account stated, being a sum charged for the price of a lot of land, does not make it incumbent on a plaintiff to prove the agreement respecting such land to have been made in writing. This was an action of assumpsit upon an account stated, tried at the assizes for the Midland district, and a verdict for the plaintiff. The account stated, which was proved at the trial to have been acknowledged by the defendant, con- tained, among other items, a charge of £50 as being the balance of a sum due upon the purchase of a lot of land. Robinson, Attorney-G-eneral, moved for and ob- tained a rule nisi to set aside the verdict, on the ground that such a charge should not have been proved without proving also, that the agreement for the purchase of such land had been made in writing agreeable to the 4th section of the Statute of Frauds. Macaulay shewed caus6. — He contended that the object of the statute being to preserve evidence of executory contracts by requiring them to be in writ- ing, that it is only when you want to support such contracts that the statute operates, but that it is well known to be otherwise when a contract has been executed by either party. That it is equally clear that when a balance of ac- count is struck and acknowledged, that there is no occasion to go into particular items, whether they are such as should have been proved by parol or written evidence, for an, account stated and acknowledged is an agreement by the parties that all the articles are true, and is in this case conclusive. 36 282 HILARY TERM, 6 GEO. IV., 1826. That the same law would hold if one of the items of an account had been a charge for the payment of a debt due to a third person, for it is upon the im- plied promise to pay an acknowledged account that the action is brought, and not upon particular items. That the case in East was in point where an agree- ment for the purchase of things, savouring of the realty, was considered as taken out of the statute by a subsequent acknowledgment of the debt, which was held sufficient in an action upon an account stated to support the demand. That the case in Bosanquet and Puller was also in point, where it was held that a special agreement executed by appraisement (which is analogous to an account stated) need not be proved, the amount due having been ascertained by such appraisement, and that it is unnecessary to state a special agreement which has been executed where the action arises oiU of something collateral to it. Robinson, Attorney-Greneral, contra, contended, that the question in this case was, whether the par- ties themselves could dispense with the requisites of the Statute of Frauds. That neither where a party is to be made liable for the debt of another, or a sale of lands is intended, can any subsequent agreement or account stated dis- pense with the necessity of shewing an original charge in writing. That where the statute says you ^an bring no ac- tion for the sale of lands, this provision must affect HILARY TERM, 6 GEO. IV., 1826. 283 the buyer as well as the seller ; but the counsel on the other side attempts to make it apply to the buyer only. The very charge in his declaration, as well as in his account stated, is for land, and includes that kind of uncertainty and floating charge which the statute applies to. That the case in Bast does not apply. It was re- duced to a charge for the price of trees after they had been felled and taken away by the defendant, supported by evidence of his acknowledgment of the price. That the case respecting the appraisement is as little in point ; the value of certain crops were ap- praised in the presence of both parties, and the de- fendant refused to pay, upon which indebitatus assumpsit was brought for the value, and held good by the court, who considered the case as not within the statute, the original special agreement being mere inducement. It was in fact a mere action for goods sold. Had no appraisement taken place, Mr. Justice Bulkr says that the decision would have been other- wise. Here, if a transfer and conveyance had been proved to have been made to Botts, the case might have been altered, but no such evidence was given. It rests merely upon the acknowledgment of an ac- count stated. That if an admission could take a case out of the statute it might constantly be evaded — such evidence might readily be procured. 284 HILARY TERM, 6 GEO. IV., 1826. That it was considered that the courts had gone a great way in allowing the note of an auctioneer to be evidence of a sale ; but in this case there was nothing proved in the shape of a note or memo- randum. That the case in Selwin was much the same with that in Bast. It was treated by the court as a mere action of assumpsit to recover the price of a quantity of potatoes, not, as in the present case, an action for the price of an estate in fee simple. That the fair inference to be drawn from all the cases is, that the statute must be pursued where an action is brought to recover the purchase money of a fee simple. Macaulay, in reply, agreed that the parties could not by their own agreement dispense with the provi- sions of the Statute of Frauds; but contended that in the cases referred to, the courts consider whether the matter before them is within the statute or not; that they have determined in the negative, and that this case is analogous. That in this case as^in that of Bosanquet and Pul- ler, and in the others cited, if the go-by had not been given to the statute by the subsequent arrange- ments, the original agreements would have been sub- ject to its provisions. That an account stated and acknowledged upon a balance due for. land, in no way differs from a note given for the same consideration, of the validity of which there can be no doubt, though a note of hand is no note in writing under the Statute of Frauds. HILARY TEEM, 6 GEO. IV., 1826. 285 That it is clear from Lord Kenyan's dictum in East, that it matters not what the items of an account stated and settled consist of. That there being no case to shew that an action like the present cannot be maintained, is a strong argument in the plaintiff's favour. The court were of opinion that this case was not within the statute. Eule discharged. Blebkbe v. Myers, and Myers' Executors, &c. In an action for breach of covenant for quiet enjoyment, freedom from in- cumbrances, &c., it is sufficient for the declaration to Btate, that one A. B. was seised before the conveyance to plaintiff, and that plaintiff was obliged to pay him £800 to obtain possession, without stating eviction by A. B., a plea stating that defendants, executors, as aforesaid, submitted to arbitration, does not imply that they submitted in their character as executors. Covenant. — The first count of the declaration slated, that the testator, by a certain deed poll, did grant, bargain, sell, alien, transfer and for ever con- firm, &c., the parcel of land, &c., to the plaintiff, his heirs, and assigns, &c., and did thereby impliedly covenant : 1st. — That the grantor was seised in fee, &c. 2ndly. — That he had full power and lawful autho- rity to grant, &c. 3rdly. — That the grantee, (plaintiff,) his heirs and assigns, for ever, should enjoy free from all incum- brances whatsoever. The declaration made profert of the deed, alleged entry of the grantee, and assigned as breaches on this count : 286 HILAEY TEEM, 6 GEO. IV., 1826. let.— That the defendant (the grantor) was not seised, &c. 2ndly. — That he had not full power to convey, &c. 3rdly. — That the plaintiff did not enjoy free from incumbrances; for that one Deforest was before, &c., seised, &c., and claimed possession, &c., or the pay- ment of £300, which, to procure possession, the plaintiff paid, therefore covenants broken. The second count set forth the like covenants not implied as in the first, but as absolute covenants, profert of deed; entry of plaintiff ; the like breaches; without any averment of title in another; eviction or disturbance. The third count similar to the second. The fourth count similar to the second and third, and averring title in Deforest, his demand of posses- sion or payment of £300, and the payment thereof by plaintiff to preserve possession, &c. Plea.^ — -Ist. Non est factum. 2ndly. — That defendant was seised and had fall power to convey, &c., protesting that he did not covenant. 3rdly. — That after the date of the deed of the al- leged covenants and the alleged breaches thereof, and after the death of the testator, and before the com- mencement of the suit, &c., the plaintiff of the one part, and defendants, executors, as aforesaid, of the HILARY TEEM, 6 GEO. IV., 1826. 287 other part, submitted themselves by mutual bonds of arbitration, conditioned well and truly to stand to, &c., the award of P. W. and T. N., arbitrators, &c., namedi &c., to arbitrate, &c., of and concerning all, and all manner of actions, cause and causes of action, and actions, &c., which at any time or times thereto- fore were, had been moved, &c., by or between the said parties; the award to be made under hand and seal at a limited time. That within that time said arbitrators did, under their hands and seals, make their award of and concerning the matters submitted to them, viz., that all actions, &c., touching the said premises, should cease and be no further prosecuted, and that each of the said parties should pay their own costs, tod that defendatits should pay to the plaintiff, within twelve months, £92 14s. 5d., and thereupon plaintiff and defendants should in due form of law execute each to the other releases sufficient in law for the releasing by each to the other, of all actions, &C., to the day of submission, averring that within the said twelve months the defendants performed all matters and things awarded on their part to be per- formed, and paid the said sum of £92 14s. 5d., to the plaintiff, and he accepted, and received of and from them the said sum in full contentment and sat- isfaction of the said award, and of the matters sub- mitted as aforesaid, in and by said bonds of arbitra- tion. The plaintiff took issue upon the first and second pteas. Demurrer to the third assigning for causes: 1st.— Want of profert of the arbitration bond. 288 HILABY TERM, 6 GEO. IV., 1826. 2ndly. — That it is not shewn whether the bond was destroyed or in existence. 3rdly. — That it was so pleaded that the plaintiff Qould not have oyer. 4thly. — G-eneral uncertainty. Joinder. Macaulay, in support of the demurrer, contended, that the plea was bad, inasmuch as the defendants are not therein stated to have entered into the arbi- tration in their character as executors, the language therein used being descriptive only; it merely stat- ing that defendants, executors, as aforesaid, submitted themselves, leaving out the monosyllable "as" be- tween the words defendants and executors, (a) This position was not only supported by the case of Hendrill v. Roberts, but also by the rule, that if a party sues out process generally, he may declare as executor, but that if he issues it as executor, he cannot declare in his private character, for in the former case he narrows, but in the latter he enlarges his demand, {h) 2ndly. — ^That the plea is bad, as it does not set out that the subject matter of the dispute was ever sub- mitted ; for if a party in pleading arbitrament, does not shew that the subject matter was submitted, he gives the go-by to the very gist of the plea; that this appears from the form of that plea given in Ohitty (a) HendrUl v. Roberts, 5 East 150 ; 2 Bos. & Pull. 424. (6) 1 B. & P. 383. HILARY TERM, 6 GEO. IV., 1826. 289 and other pleaders, as well as from the reason of the thing. That had an averment of the subject matter being arbitrated appeared in the plea, it might have cured the omission relied upon in the first objection; but that without the averment the plea was clearly bad on both grounds. Baldwin, contra, premised that his argument would resolve itself into two branches; for that if he could either shew that the defendant's plea was good, or that the plaintifif's declaration was insufiicient, judg- ment must be for the defendant, (a) First, as to the declaration, he contended that the instrument set forth conveys no estate whatever, and when the estate fails the covenants appendant to the estate fail also, for the words did grant, bargain, sell, and for ever confirm, did not of themselves make a4eed of bargain and sale. To constitute a bargain and sale, a deed must be made by indenture, and en- rolled, ip) and in this province registry is required, as a substitute for enrolment, (c) so that the instru- ment set forth instead of being an indenture regis- tered, is a deed poll not registered, and therefore bad, and the defendant's covenants consequently fail. The counsel cited the cases below, {d) That the declaration sets out no feoffment, for it does not appear that any livery of seisin was had. (o) 1 Chitly, 662. (6) Stat. Hen. VIII. (c) Pror. Stat. 37 Geo. III., o. 8. (d) Northcote v. Northcote, 1 Seth. 199 ; Capenhurst v. Gapeahurst, Lord Ray. 388; 1 Saunders, 252, N. 3 ; Touchstone, 204, 15. 37 290 HILARY TERM, 6 GEO. IV., 1826. Perhaps it may be sufficient in pleading a feoffment to state that A. B. enfeoffed 0. D., without setting out a deed; but here a deed is actually set forth with- out stating any livery, without which feoffment can- not be ; nor does any thing appear in the deed as set out upon oyer to presume livery, nor has it the operative word dedi; so that this instrument is not a bargain and sale, feoffment, fine, recovery, lease and release, or in fact any species of conveyance acknow- ledged by the law, and not being a conveyance of real estate the real covenants fail. That the deed set out upon oyer (be it what it may) does not contain the covenants alleged in the declaration; nor is this aided by setting forth those covenafits, as implied in the words "grant, bar^in, sell, &c," for there are no precedents of such plead- ing to be found; the words dedi concessi et dimissi in leases for years, imply a covenant for quiet enjoy- ment, but not in deeds in fee. (a) That even if there were a warranty m this deed, no action of covenant would lie, for such does not lie upon a warranty, either in deed or in law; the remedy being by warruntia chartce and voucher, and more- over a warranty is void if the estate be void, and there must be the word dedi to make a warranty; the word concessi only does not, and dedi is not in this deed, {h) That a feoffment implies a warranty during the life of the feoffer only, by the statute de Bigamis. The feoffment at common law only raises an implied war- (o) 3 Com. Dig. A. 4, Tit. CoTenant. (i) 2 Bac. Abr. «7 ; 7 Bac. Abr. 229, 231 ; Nokes' case, 4 Coke ; Touchstone, 181, N. 8. HILAKY TERM, 6 GEO. IV., 1826. 291 ranty, which feoffment was not by deed; a feoffment by deed implies a warranty during the lile of the feoffer, but such deed must operate by the word dedi. Here there is no dedi in the deed, so as to imply warranty even during the life of the feoffer, and the action, too, is against executors for a breach during the life of the testator. Xhat the covenant for enjoyment free from all in- cumbrances whatsoever, is ^so large that the court will not imply it, and even if such a covenant was expressed, the court would seek for matter to re- strain it. {a) That neither title in any other, nor eviction or dis- turbance is alleged in the second and third counts; and in the first and. fourth counts, where the covenant for enjoyment free from incumbrances is alleged, ihe breaches are not sufficiently charged, as not shewing an eviction or disturbance, the compromise with De- forest, the stranger, not being sufficient. That general covenants must be restrained by special ; eviction must be alleged and proved, or some entry or actual disturbance must be shewn, (b) That this action does not lie against executors, for covenant real determines with the estate. In support of the plea, he contended that the cases cited on the other side were not in point; that that of Henshall t. Roberts and others was solely on the point of misjoinder of counts by the plaintiff ; that in (a) Saunders, 178, A. N. 8. (i) 2 Bos. & Pull, 13 ; 2 Saunders, 181, 6. 292 HILARY TEEM, 6 GEO. IV., 1826. the present case, the point in question was the appli- cability of the bar as pleaded; there is no misjoindesr. It is simply and essentially one matter, viz., payment of £94 16s. 4d., in discharge and satisfaction. That whether the defendants plead this payment, as made by them as executors, or not, is of no mo- ment; that it is a good plea in their own right, as well as in their capacity of executors, in any action of the plaintiff, who with them, as appears by the plea, submitted all matters in the completest manner. That if all matters in difference are submitted, it extends to a demand as executors, (a) That the court ^ill intend that all matters were in the consideration of the arbitrators, and that if the facts were otherwise, the plaintiff should have shewn it, and have joined issue upon the facts. The counsel also cited the case below as in favour of the plea, {b) Macaulay, contra, after premising that nothing had been advanced by the counsel on the other side, which could at all support the defendant's plea, in the face of the authorities cited to shew that it was defective, contended in support of the declaration: That the covenants set out were express, but if they were not so, the words grant, bargain, and sell contained an implied covenant, (c) That no words could make a covenant stronger than that of the habendum, as set out upon oyer, " to (a) Com. Dig. Arbitration,!). 4; Strange, 1144; Croke, James, 447. (6) Smith V. Johnson, 15 East, 213. (c) 15 East, 530 ; 1 Salk. 137 ; 2 13. & P. 13 to 28, and notes. HILARY TERM, 6 GEO. IV., 1826. 293 hold free from incumbrances to him and his heirs for ever; they were an express covenant in themselves, no form of words being necessary to constitute a covenant; it may be effected by a recital or a condi- tion ; and a covenant may be considered as a condi- tion, (a) That the counsel on the other side was mistaken in contending that the covenants declared upon were void for want of registering the deed; for, That there was a material distinction between cove- nants that went to the title itself, and those which were collateral to or dependent upon it; or those to which title. was a condition precedent; as in case of a title for quiet enjoyment, upon which covenai^t would perhaps not lie without a title to support and precede it, or the covenant for payment of rent which depended upon a precedent title; that the law as laid down by Mr. Justice Butter, viz., that if the princi- pal thing failSj^that which is dependent on it fails also, applies to the case of rent, &c., but not to cove- nants for title ; to suppose which to be void, because the title was bad, would be a great absurdity; they being entered into for the express purpose of guard- ing against defects in title, {b) That it would be as unreasonable to require a per- son to register a deed which conveyed no title, as it would be to require a lessee to make an entry and so commit a trespass before he could sue his lessor for demising to him an estate, over which he had no power, as laid down in Holden v. Taylor, (c) (a) Mellorie's Entries, 2 vol. 92. (i) Owen 136, 4 T. R. 617 ; Chambers, 440. (c) Hobbes 12 ; Chitty. 2H HILABt TEEM, 6 GEO. IV., 1826. That there is no occasion to state livery in plead- ing as laid down in Chitty. That there having been an entry in fact was a suf- ficient livery at common law; for livery need not be by the ceremonies formerly in use, as delivery of a twig, &c. That the deed declared upon might well be taken to be a feoffment, (supposing the objection to want of indenting to be of any weight,) for that, although the proper and usual words are " give, grant and enfeoff," any others of equal import will do, as "grant, bar- gain, sell, &c," as in the present case, as laid down in Cruise, (a) where a bargain and sale considered 'Void as such for want of enrolment, was held to be a feoffment. That the law which required an estate to support a warranty, alluded to by the defendant's counsel, did not apply to covenants for title. That eviction, by process of law, was not necessary to be shewn (as had been urged by defendant's coun- sel) in an action of covenant for a ^od title, or upon a covenant for freedom from incumbrances, appeared frdm the case in the term reports, (b) where it was held that in assigning a breach of covenant for quiet enjoyment, it is sufficient to allege that at the time of demise to the plaintiff, one B. had lawful right and title to the premises, and evicted plaintiff, wrthout shewing what title B. had, or that he evicted plaintiff by legal process. And in another case in the same reports, where it is held, that A. B. lawfully claiming title under defendant entered, &c. (o) Cruise 55, 6. (6) 4 T. B. 617 ; S T. R. 278, HILARY TEEM, 6 GEO. IV., 1826. 295 That this position was further established in the case of Sherwood v. Johns, in this court, (a) where a plea of non-eviction was, upon demurrer, held bad, in an action upon a covenant that the plaintiff should hold free from incumbrances. That in the present case the title was not merely incumbered, but actually bad, which made it a stronger case. That these cases went also to shew that the title set out in Deforest, was sufficient to support an ac- tion against defendants, for that plaintiff did not enjoy free from incumbrances. That as to the last objection, that this action would not lie against executors, the ©nly cases where thai rule prevails, is where the covenant is not broken in the testator's life-time ; but that the ^.etion undoubt- edly lies where it is. The counsel for the defendant would have replied to the arguments adduced in support of the declara- tion, but was not allowed to do so by the court. Chief Justice. — I consider that the counts upon the implied covenants, if objectionable, may be con- sidered as surpliusage. > That the words of the deed are in themselves suf- ficient to raise the actual covenant set forth. It is dear that the land was to be conveyed " free of all incumbrances." (a) 307 296 HILARY TERM, 6 GEO. IV., 1826. I consider also that the plea is bad, as not stating the submission to be made by the defendants in their character as executors. Sherwood, J. — The defendant having raised objec- tions to the plaintiff's declaration, the que'stion to be first determined, is whether any of the counts in the declaration are sufficient to support the action; for it is a general rule in law, that judgment shall be against the party whose first pleading is bad in substance. I shall give no opinion on the implied covenant insisted on by the plaintiff's counsel, because the declaration contains an express covenant that the testator had a right to sell. The fourth count sets out an express covenant for the validity of the title in my opinion. There are no set form of words necessary to constitute a covenant. If the intention of the parties clearly appears in the deed, it should be carried into effect, in whatever part of the instrument it may be found. The words "grant, &c," coupled with those in the habendum, " to have and to hold, &c," amount clearly to an as- sumption or agreement that the plaintiff was to hold the estate free from incumbrances. It could be taken by the parties in no other view. With respect to the plea, if it is bad in part, it is bad altogether; pleadings are to be taken most strongly against the party pleading. It appears to me that it does not contain sufficient certainty, which at least should be to a common intent; the words leave it doubtful whether the defendants submitted to arbitra- ment in their character of exectitors, or in their own aiLARY TERM, 6 GEO. IV., 1826. 297 right, for the ward executors may be coiisidered as descriptive of the persons only. The plea states that the defendants, "executors as aforesaid," (referring evidently to the description in the introductory part of the' plea,) submitted to arbi- tration all matters in dispute betwe'en them'SClVes and the plaintiff. It should have stated distinctly, that they submitted to arbitration all matters in dis- pute between themselves, as executofs, if the fact was so, for the court cannot intend the fact in favour of the plea. The payment stated to have Been made is not set outwith such certainty as to cause a presump- tion that the money was paid to them in their capa- city of executors. The same phraseology is used in this part of the plea, and, of course, leaves the same doubt. Upon the whole, I think the plea is not suf- ficiently certain in the particular already stated. As to the objection that this action of covenant could not lie against executors, I consider it suffi- ciently answered by the covenant not having been broken during the life of the testator. Per Curiam. — Judgment for the plaintifi"; 38 [298] EASTER TERM, 7 GEO. IV., 1826. Present : The Honourable Chief Justice Campbell. Mr. Justice Sherwood. Cameron and Wife v. McLean. Where the plaintiff's attorney consented to a nonsuit, under an apprehen- sion that he would be allowed to move for a new trial, the court granted the same, although his consent had not been coupled with the leave of the judge at nieiprius to move. This was an action for a libel, and the plaintiff had been nonsuited at the assizes under the following cir- cumstances: the libel upon which the action was brought had not been read to the jury, and the late Chief Justice, who tried the cause, stated it as a fatal omission and offered the plaintiff a nonsuit. The plaintiffs' counsel refused it; but upon the Chief Jus- tice proceeding to charge the jury to find a verdict for the defendant, the plaintiffs' attorney consented to take the nonsuit. Macaulay, in a former term, had obtained a rule nisi to set aside the nonsuit and grant a new trial, on the ground that the defendant understood he should have liberty to apply for a new trial, and that in a conversation with the plaintiffs' counsel it was so un- derstood; and that the plaintiffs' attorney believed it was with the understanding of the defendant's coun- sel also. Robinson, Attorney-General, shewing cause, relied upon the strict practice, contending that there were EASTER TERM, 7 GEO. IV., 1826. 299 no cases in which the party having consented to a nonsuit was at liberty to move to set it aside. The court considering that the case had not been fairly brought before a jury; that the parties' coun- sel had originally refused the nonsuit, and that it had been acceded to under a misapprehension of the plaintiffs' attorney, made the Rule absolute. King v. Robins. A witness to a cognovit having left the province, leave was given to enter judgment. Robert Baldwin moved for leave to enter up judg- ment upon a cognovit, upon an affidavit stating that the witness attesting the execution had gone to Eng- land. Application granted. The King v. John McDonel. A copy of an indictment for high treason may be had by consent of the Attorney-General. Smail applied for an order from the court for a copy of an indictment for high treason, which, upon the Attorney-General's consenting, was ordered by the court. Morris v. Randall. The court refused to order a plaintiff to pay to a defendant's executors the costs of not going to trial, pursuant to notice. In this case an application had been made during the life of the defendant, since deceased, for costs for 3i(^ EASTER TEEM, 7 GEO. 1V„ J^. not having pi!oeeede!(J "to trial agreeable to notice whicli ha^ been ordered-— such costs not having been paid during the life of defendant. Robert Baidivm moved, on behalf of the executors, for an order upon the plaintiff to pay these costs to them, or for an attachment against the plaintiff for their non-payment. The court, observing that the attachment for non- payment of costs, for not going to trial pursuant to notice, was more in the nature of a civil process than a punishment for a contempt to the court, and that the cause was at an end by the death of one of the parties, which would preclude an application in any cause pending in the court, Refused the application. The KisQr v. The Welland Canal Company. Whereby a clause pf a prior sta,tute, the two directors having the smallest number of votes of the five chosen in » former election, are declared to be ineligible at any subsequent election, and by a subsequent statute, the pumber of direotprs wasfi^ed at seven, and that statute named the persons who were to constitute the board until the next election. The court held, that two of the board having vacated their seats by non-residence, ren- dered it ni^ecessary for two of the jremaining five to vacate their seats as having the smallest number of votes at the subsequent election. This was an application to the court for a rule nisi, for a mandamus to the president and directors of the company, to admit to the office of directors for the present year, Janies Gordon and James Crooks, Esquires, they being two stockholders duly qualified to be elected directors in the room of two of the pre- sent directors who bad the fewest number of votes EASTEB TEEM. 7 GEO. IV., 1«26. SOI at the last election for the said company, held at St. Catharines, on the 3rd of April last; the two of the present directors having the smallest number of votes at said election, being by law ineligible, and the said James Crooks and James G-ordon having the next greatest number of votes. By the 29th section of the act for incorporating the Welland Canal Company, its affairs are to be man- aged by five directors, including the president, who are to hold their offices for one year — such directors to be stockholders and inhabitants of the province, and to be elected on the 1st Monday in April in every year — the election to be by ballot, and the five persons who should have the greatest number of votes to be directors. The same section further enacts that two of the directors which should be chosen at the preceding year, excepting the president, shall be ineligible to the office of director for one year after the expiration of the time for which they shall be chosen directors; and in case a greater num- ber than three of the directors, exclusive of the pre- sident, who served for the last year, shall appear to be elected, then the election of such person or .per- sons above the said number and who shall have the fewest votes, shall be considered void, and such other of the stockholders as shall be eligible and shall have the next greatest number of votes shall be considered as elected in the room of such last described person or persons, who are hereby declared ineligible, and the president for the time being shall always be con- sidered as eligible to the office of director, but stock- holders not residing within the province shall be in- eligible. If any director absents himself from the 302 ^ EASTER TERM, 7 GEO. IV., 1826. province, and ceases to be an inhabitant thereof for the space of six months, his office shall be considered as vacant — vacancies happening between the days of election to be filled up by directors. By a subsequent statute (a) passed the 13th April, 1825, so much of the last clause as requires the elec- tion of five directors, is repealed ; and it is enacted, that the company should elect in like manner and times, as in the former act, seven directors, one of whom to be president. By the 13th clause, the Hon- ourable James Irvine and Simon McGrilvray, Esquire, in addition to the five directors already elected under the first statute, are to constitute the directors of the said company until the next general election. The affidavit to ground the application, stated that Messrs. Dunn, Merritt, Boulton, Keefer, and Allan were directors chosen in pursuance of the first statute in the year 1825. That on the 3rd of April last — the last meeting of the stockholders for the purpose of electing directors, Messrs. Dunn, Allan, Boulton, Eobinson, Keefer, Clark, and Merritt, were elected — the applicants, Crooks and Grordon, having the next number of votes; and on the part of the applicants, it was now con- tended by Washburn and Dixon, that two of those directors who had been chosen last year were ineli- gible, and should be withdrawn from the list, and that the applicants having the next number of votes, should be considered as duly elected ; for that Messrs. Irvine and McG-ilvray having been appointed by the (a) 6 Geo. IV., c. 2, s. 6. EASTER TERM, 7 GEO. IV., 1826. ' 303 last statute, and not having in fact ever been elected, did not come under the words of the statute, which are, that two of the directors which shall be chosen at the preceding year shall be ineligible at the sub- sequent election; and, therefore, that their having withdrawn or having been omitted in the number of directors in consequence of their not being residents in this province, did not satisfy the words of the statute, which are that two of the directors which shall be chosen at the preceding year shall be ineli- gible at the subsequent election. Robinson, Attorney-Greneral, contra, contended that that part of the first act which declares that any number of persons, more than three, who were direc- tors in the former year, should be ineligible, and their election 'void, must be considered as virtually repealed by the subsequent statute, which appoints seven directors instead of fire, and that the law as it now stands must be taken to be that five of the former directors may be re-elected. That the secession of Messrs. Irvine and McGil- vray are spfiBcient to satisfy the statute, for that no argument can be drawn from the distinction attempted to be made between their appointment and that of the other directors; they were all appointed directors by the last act as much as Messrs. Irvine and Mc- Gilvray. Chief Justice. — I cannot accord to the distinction which has been taken between the persons chosen at the first election, and the two gentlemen added by the second act; and as nothing I consider has been 304 EASTEE TEEM, 7 GEO, IV., 1826. shewn to convince me that the directors chosen at the last meeting of the stockholders are ineligible, I do not consider the court as called upon to interfere with the election. Per Curiam. — Application refused. Welbt v. Beard. Officer employed in executing the process of the court discharged from arrest. In the case the defendant having been employed to execute a bench warrant issued from this court, was, while in the performance of that duty, arrested at the suit of the plaintiff, in tbe Midland District. Upon the application of counsel, — '■ — , tJie court directed the arrest to be set aside. Wright v. Landell. Judgment roll amended by adding costs. Macaulay moved upon an affidavit stating the error, that the judgment roll in this cause (and which had been completed last term) might be amended by add- ing the costs, which had been omitted by mistake. The court observing that such an application might, perhaps, have been entertained, if made in the same term in which the judgment had been entered, refused the application. easter teem, 7 geo. iv., 1826. 305 White v. Hutchinson. New nisiprius record made up, the original haying been destroyed by fire. Small moved that the plaintiff be permitted to make up a new nisi prius record upon an affidavit, stating the former one to have been consumed with iire. (a) Application granted. MOFFATT AND ANOTHER V. LOUCKS. A person who assigns his property to trustees for the benefit of his creditors considered as a competent witness to a bond given to those trustees by one of his debtors, and an [L.S.] need not be inserted to a deed set out upon oyer. This was an action of debt upon bond tried at the assizes, and a verdict for the plaintiff. The Chief Justice, who tried the cause, reported, that Davies and Company, merchants, at Montreal, had assigned their property to the plaintiffs, for the benefit of their creditors, and that the defendant had given his bond to the plaintiffs for the amount of the debt due to Davies and Company. That Davies, the only witness to this bond, being absent at the trial, his hand writing had been proved, and upon such evidence a verdict had been found for the amount of the bond, subject to the opinion of the court upon the inadmissibility of Davies as a witness, upon the ground of his being interested in the re- covery of its amount. The defendant's counsel had also objected that there was no (L. S.) or other mark indicative of a seal to the bond, as set out upon oyer. (a) 2 strange, 1264 ; Arobibold, 243. 39 IQ6 EASTER TpBM, 7 (JEQ. IV., 182?,. Robinson, Attorney-G^eHeral, ia support of the ver- dict, contended that an (L. S.) or other such mark was perfectly unnecessary. Ho observed, that it was only of late that it had become usual in practice to insert the names of witnesses; that all that is re- quired to be given upon oyer is the contents pf tlie instrument. That if a defendant has any doubt as to the instru- ment being sealed, he may satisfy himself by inspec- tion. That the instrument is stated to be under seal in the pleadings previous to the oyer, which is a suffi- cient notice to the party that it is so sealed. As to the second point, he contended, that no in- terest hq,ving been proved in Davies, the witnpss, np objection to his conipetency could be taken. That in point of fact his interest was as much de- stroyed by the assignment, as that of a bankrupt by the commission; although the bankrupt, being inter- ested in having a dividend to a certain amount, is obliged to release that expectation to make him com- petent. That in this case, Davies having assigned his pro- perty without reservation to the plaintiffs, and a bond having been given to. them by the defendants to se- cure the original debt, which was upon simple con- tract, it had merged in the bond, and the present demand could be sued for by the plaintiffs, and by them only, they only having the legal interest. EASTER TERM, 7 GEO. IV., 1826. 30? That the only instrument from which it raiglil have been inferred that Davies had any future interest, proved the contrary, as it shewed that the debta due by him and his fifni were equal to the property transferred. He observed, that had it been necessary to use Davies' testimony, to prove the particulars of the original debt, a question might with more propriety have been made as to his competency, but as it was merely nsed to prove the execution of the bond, and partial payments thereon, there could be no doiibt upon the subject. Washburn, contra, contended, that Davies b'eiug the person legally entitled to sue for this demand, at the titiie the bond was given, could not be considfetfed as disinterested at the time he becam<3 a Mtiiess, and was therefore incompetent. That there was nothing in the case from wMdb to presume that Davies had released his interest in any surplus which might arise, in which case he was clearly interested and incompetent. Chief Justice, — As to the first point in this case, I consider that there is nothing in it to induce the court to set aside the verdict. The statement in the declaration that the instrument is under seal, coupled with th6 copy of its contents given upon oyer, is suf- ficient to shew the defendant the nature and ptifpdtt of the instrument. If hfe had any doiibt of the truth of the sttitein^nt in tie declaration, he fii^M bave ex^ffiined the deed itself. 308 EASTER TERM, 7 GEO. IV., 1826. As to the second objection, I consider that Davies' interest, if any, was too remote to affect his compe- tency, and that the plaintiffs being the only persons who can sue at law upon this instrument, the verdict must stand. Per Curiam. — Eule discharged. .Smith v. Sumner and Nevils. Semble, that a rule to plead is necessary where bail is filed according to the statute. Small moved for a rule nisi to set aside the pro- ceedings in this cause, upon an affidavit stating that no common bail piece had been filed according to the statute; that no affidavit of -service of the process had been filed, and that no rule to plead had been given — which latter he contended to be necessary in cases where, as in the present, judgment is signed by de- fault, and this, from the words of the act — which are in case of the plaintiff's filing common baU for tlie defendant — that he is to proceed thereon as if such defendant had put in and perfected bail in the action. Although a determination of the latter point was unnecessary, the two first objections being sufficient to set aside the proceedings, the court intimated an opinion that the position of the counsel was correct. Eule absolute. Radclippe v. Small, one, &c. The court will not issue an attachment against an attorney to compel him to pay over money to his client which he had in fact forwarded, but which had been lost by accident. Robert Baldwin moved for the order of the court upon Mr. Small, to pay Mr. Eadcliffe a sum of money recovered for him under the following circumstances: EASTER TERM, 7 GEO. IV., 1826. 309 Mr. Eadcliffe had directed him to forward the money by return of boat, the steam-boat which had brought the order. Mr. Small had enclosed the amount in a letter directed to Mr. Eadcliffe, at Nia- gara, and given it to a passenger in the boat, a re- spectable person, who left it at a tavern at Niagara, in charge of the landlord, in whose tavern it was lost or stolen. Mr. Baldwin contended, that the order to send money by return of boat, must be intended to mean by the persons having charge of the boat and not by a passenger, and that, therefore, the court would order Mr. Small to re-pay the money. The court, considering the case ,did not call for . summary interference, Eefused the application. Beardslet v. Clench. Whether an attorney suing as an unprivileged person is entitled to charge fees. The plaintiff in this case was au attorney of this court, and had sued the defendant in person, but without describing himself as an attorney or officer of the court. At the taxation of costs upon the judgment which he had obtained in the suit, the clerk of the Crown had allowed him to charge his fees as an attorney. Small moved for an order upon the clerk of the Crown to re-tax the costs, contending that Mr. 31 EASTER TERM, 7 GEO. IT., 1826. BeardSley, not having sued as a privileged person, was not entitled to charge fees. Application granted. Brock V. McLean, Esquire, Sheriff. A plea to an action for an escape, setting out " that tlie ca. sa. was hot en- dorsed with the sum set out in the declaration," held bad upon special demurrer. This was an actio* against the defendant as sheriff of the Midland District for an escape. The declaration set out the judgment — the capias ad satisfaciendum; the caption and escape; also that the writ was duly endorsed for bail for £119 13s. 9|d. Plea. — 1st. General issue. 2ndly. — That the ca. sa. was not so endorsed with such sum, in manner and form as set forth in the declaration. G-eneral demurrer— joinder. Macaulay, in support of the demurrer, contended, that the plea was no answer to the declaration; that it admitted the very gist of the action, the judgment caption and ca. sa. and escape. That the endorsement was immaterial as to effect- ing the efficacy of the writ, and was only required by statute for a particular purpose. That even if it were material, a misstatement of its amount in the declaration could only be tafeen EA?TER TERM, 7 GEq. IV., 1§3S. 811 advantage of ^.t ^he trial by the produetion gf the writ, when the variance between it and the declara- tion would appear. That this plea could not be sustained ; for a plea in bar must go to the whole actipn-r-rmust shew that plaintiff has no right to recover; that a plea to a n^ere variance had never been heard of, uqless where a specialty is the ground of action, and the oyer set out varies from the instrument, (a) Robinson, Attorney-G-eneral, contra, contended, that this plea contained a direct negative pf a point material to the action; that the averment of an en- dorsement to levy being necessary, was to be col- lected from all the forms of pleading in this action given in Chitty and other pleaders, who would not have set out such an averment if they had not con- sidered it so, for it is 'their constant direction to avoid inserting unnecessary averments. That the endorsement being a proceeding positively directed by the legislature, cannot be dispensed with. In a case in East (b) it is admitted, that the pay- ment of the sum endorsed upon the writ is a satisfac- tion, and, therefore, it ought to be endorsed, that the defendant may have the benefit of it. That supposing the defendant had in pleading singled out a particular fact, which amounts to the general issue, and which it is admitted may be incor- rect, still it can only be taken advantage of upon special demurrer, (c) (a) Chitty, Title Abatement, 465 ; Sethold, 565 ; 2 Wilson, 394, 6. (b) U East, 4^8, (c) Com. Dig. E- 14. 312 EASTER TERM, 7 GEO. IV., 1826. That by demurring generally the plaintiff has ad- mitted the writ was not endorsed, which is admitting that a material fact is wanting to enable him to re- cover. That it was not to be contended that nothing could be pleaded in bar which did not gp to the escape, for nultiel record might be pleaded, or any other matter which would excuse the sheriff. That it is impossible that the plaintiff could, at the trial, be allowed to shew an endorsement, which he has acknowledged the want of by a geiieral demurrer, and, therefore, to allow the parties to go to trial would be nugatory. That the endorsement was a fact which could not be dispensed with, and, even if it were otherwise, it has become so by having been set out in the decla- ration. That having become material, he must prove it or fail at nisi prius. That as the not proving it would be fatal, and it being a fact material and traversable, and the want of such fact being admitted by the general demurrer, it is impossible that the plaintiff can have judgment upon this record. Macaulay, in reply, insisted that the defendant's counsel had not shewn that any matter could be pleaded in bar which did not put an end to the action. That the case of Moore v. Malcolm, argued in this EASTER TERM, 7 GEO. IV., 1826. 313 court, where it was determined, that although the sheriff had neglected the positive directions of an act of parliament, such neglect did not subject him to an action of trespass, or annul his proceedings under a fi.Ja., was in favour of the plaintiff. That, if setting out the endorsement was material, it can only be taken advantage of at the trial as a variance, and, if immaterial, it may be struck out, and if so it need not be proved. That the plea of nul tiel record, which had been instanced as a proper plea in this action, is a com- plete bar to the suit, and not at all resembling the present. That the argument which had been drawn from the admission of the want of endorsement by the general demurrer, could have no weight, as the plead- ings upon demurrer were not attended to at nisi prius. That the plea being substantially bad, may be taken advantage of on general demurrer. Chief Justice. — This is an action against the sheriff of the Midland District, for the escape of a person charged in execution upon a ca. sa. returned cepi corpus. The declaration states the judgment in the original action, and that a writ of ca. sa. was taken out thereupon by the plaintiff, against the ori- ginal defendant, John White, who was taken there- upon; that before delivery of the ca. sa. to the sheriff, the sum of £119 13s. 9 Id., for which he was to de- tain him in custody, was duly endorsed on the writ 40 314 EASTEE TERM, 7 GEO. IV., 1826. pursuant to the statute. To which the sheriff pleads: 1st. The gfineral issue, aad 2udly, in bar to the ac- tioij, that the ca. sa. was not so endorsed with such sum in manner and form as set forth in the declara- tion, but without specially denying all the material allegations in the declaration, or the delivery to him of the writ of ca. sa., or the having the defendant in custody upon it or the escape — to this plea the plain'- tiff demurs, as not beipg a sufficient plea in bar, or denying the material cause of action — and I am of opinion the demurrer is right, the fact of the escape being the gist of the action, and not the sum en- dorsed, which I conceive as to this purpose to be quite immaterial; at common law, the writ itself without any endorsement is binding on the sheriff to keep the defendant in custody, unless for defects ap- pearing on the face of it. It is true, the statute 3 Geo. I., c. 15, positively requires the plaintiff to en- dorse the sum he means to levy, but that is for no other purpose than to direct the sheriff in chargiag his poundage, and is immaterial in all other respects; and if the ca. sa. is otherwise unobjectionable, and the facts of the arrest and subsequent escape are sufficiently set forth and supported, a wrong endorse- n^ent, or the want of any endorsement will not vitiate the writ, and therefore is no bar to the action. This I think maybe collected from various authorities, and, amongst otliers, from those of Lord Holt, and Mr. Justice Eyre, in the case of Waites v. Briggs, 2d Setheld, 565. Sheewoop, J.— The statute of Geo. I. recited, that poundage in many instances amounted to more than the debt, m^ for the sole purpose of preventing that EASTER TERM, 7 GEO. IV., 1826. 315 injustice, it was enacted tbat the amount of the levy should be endorsed. Such endorsenaent, however, does not affect the authority of the sheriff to arreSt the defendant, but he derives his right to do so from the writ itself. I therefore concur in opinion with the Chief Justice. Judgment for the plaintiff. Sawyer v. Manahan. Whether a foreigner forwarding prohibited goods to a place in the Uiiited States so situated as to furnish a strong presumption tliat they would be smuggled, can maintain an action for the price of such good^. This was an action by the plaintiff as payee, against the defendant as the drawer of a bill of exchange, tried at the assizes for the Midland District, and a verdict for the plaintiff for £400. The prinqipal ground of defence set up at the trial was, that the note was void, having been given for a smuggling transaction. The facts adduced in support of which" Were, that the defendant being a British subject, resident at Kingston, had there, by means of an agent, cohtracted with the plaintiff, an American subject, for the pur- chase of sixty chests of tea (same being a prohibited article) contained in a warehouse at Gravelly Point — a small village on Lake Ontario, in the United States, and opposite to Kingston, a commercial town situate upon the banks of lake Ontario in this country. There was no direct evidence that the defendant assisted in smuggling the goods, or even knew that 316 EASTER TERM, 7 GEO. IV., 1826. .they were smuggled into this country; the defen- dant's case resting upoU the strong presumption, that the contract being made in this country for the pur- chase of prohibited goods, warehoused directly oppo- site to the place where the contract was made, in a small village at which, and its environs, there could be no demand for them, they must necessarily have been purchased for the purpose of smuggling them with the knowledge of the plaintiff. The defendant also placed considerable reliance upon the statement of Eussel, the plaintiff's agent in the transaction, who deposed at the trial that he had no doubt but that the tea was intended to be smug- gled. The Chief Justice, who tried the cause, ex- pressed a doubt at the trial whether the circumstance of the contract being made in this country with a British subject, might not, with the other facts in the case, distinguish this from that of Holraan v. John- son, (a) as in that case the contract of sale had been made as well as completed abroad; but he charged the jury that he considered the mere knowledge of the plaintiff, a foreigner, and residing abroad, that the tea was intended to be smuggled, unless he gave some assistance in the smuggling, was not sufficient to take away his right of action. Robinson, Attorney-G-eneral, had moved for and obtained a rule to shew cause why the verdict should not be set aside and a new trial granted on the ground of misdirection, and that it was contrary to evidence. Macaulay now shewed cause. — He contended that (o) Cowper, 341. EASTER TERM, 7 GEO. IV., 1826. 317 this case came within the law as contained in the case of Hohnan v. Johnson, (o) in Cowper, viz., that the mere sale of prohibited goods abroad to a British subject, clid not contaminate the contract, although the seller knew that they were to be smuggled into England. That selling the tea at Kingston did not alter the case, as it was not contrary to any law in Upper Canada so to do, not even if plaintiff knew it was to be smuggled, unless he gave assistance to the smug- gling; that the contract was completed by delivery at Gravelly Point, and the plaintiff had nothing fur- ther to do in the, transaction; that Eussel's supposi- tion that the tea was to be smuggled, did not alter the case, nor were the presumptions derived from the local situation or size of the village of Grravelly Point to be at all taken into consideration, for that nothing but assistiug the smuggling could bar the plaintiff of his right of action. Robinson, Attorney-Greneral, contra, after premis- ing the importance of the question, and urging the necessity of preventing foreigners from coming to this country for the purpose of vending prohibited goods, and afterwards sheltering themselves from risk because no direct proof could be adduced of their actually assisting in the importation of the prohibited article, and observing that the case in Taunton was against authorities — He contended that this case was very different from that of Holman v. Johnson. There the parties (a) Cowper, 341 ; 5 Taunton, 181. 318 B ASTER TERM, 7 GEO. IV., 1826. were both resident in a foreign country at the time of the contract made, and the circumstance of both being foreigners was considered as material by the court — it was legal in its inception and completion. But that in this ease, instead of its being a contract legally entered into abroad, it was one illegally en- tered into at home — a contract for the sale of prohi- bited articles, with the intentioii of smuggling them into this country. That the pretence of the plaintiff being a foreigner cannot avail him, lor, at the time of the contract made, he was in this country, for although foreigners making contracts in their own country are not obliged to take notice of the laws of this, yet, when here, they are bound to do so, being for the time subjects to this government. That as in the different smuggling cases reported in the books, facts are addnced to prove the scienter and invalidate the contracts, so the facts in this case furnish a full and strong presumption against the plaintiff. The contract made at Kingston with a British subject — the goods totally prohibited (not merely subjected to duty) by the laws of this coun- try, were housed at G-ravelly Point on the foreign frontier, a small village where it was in the greatest degree improbable that such a quantity of the article could either be consumed or sold, except in this country where it was prohibited — the evidence of Eussel, the agent, that he had no doubt but that the goods were purchased with the intention of smug- gling, and not a shadow of proof to rebut these vio- lent presumptions, which could readily have been EASTER TERM, 7 GEO. IV., 1826. 319 had if the circumstances of the eventual disposal of this tea had warranted it. He contended that these circumstances were as strong to taint the transaction as those of the anchors and slings in Olugas v. Pampelona, (a) or the packing of the lace in Weymell v. Read, (b) In that case the plaintiff's counsel admitted, that if he had been a British subject he could not have recovered; and, in thp present case, the plaint^ having been in King- ston at the time he made the contract, must at the time be considered as such. That the fact of the goods being an article prohi- bited (and not merely subject to duties) coupled with the fact of the plaintiff's coming to this country for the purpose of selling them, distinguished this case materially from that of Holman and Johnson; and that the facts should fairly upon grounds of public policy (upon which the decision of these cases must frequently turn) be considered as aiding and assist- ing in the smuggling. The counsel cited the case of Wilson v. Saun- ders, (c) as shewing that strong presumptions are sufficient to shew an illegal intention without direct proof. Macaulay, in reply, contended, that no principle could be extracted from all the cases which could in- validate the plaintiff's right of action. That in all of them it appeared that the plaintiff knew the goods were to be smuggled; that they in (a) 4 T. R. 466. (A) 5 T. R. 599. (c) 1 B. & P. 267. 320 EASTER TERM, 7 GEO. IV., 1826. some shape assisted; aad that they were actually run. But for any thing that had appeared in this case, the goods might be still at G-ravelly Point. That the case last cited did not apply, for there an act had been done in pursuance of the intention to re-land the goods in England, viz., putting them on board a cutter, which was only licensed to sail be- tween certain points of the English coast. That this matter was analogous to the charge of treason, which could not be proved but by some overt act. Per Curiam. — Rule absolute. Blacklock v. McMartin. Semble, that a returning officer, whose conduct has been impeached, is not entitled to his expenses as a witness before a committee of the House of Commons, although he was summoned to attend by the Speaker's warrant, in the same manner as other witnesses. This was an action of assumpsit brought for the expenses of the plaintiff, as a witness attending a committee of the house sitting upon a contested elec- tion. The plaintiff was returning officer. Misconduct had been imputed to him in that office, and he had beep summoned .in thovsame manner with other wit- nesses, viz., by the Speaker's wai*rant. His return had been set aside, but no vote of censure had been passed upon him by the house. The cause was tried at the assizes, and a verdict for the plaintiff, for the amount allowed to witnesses in the courts of law, EASTEB TERM, 7 GEO. IV., 1826. 321 subject to the opinion of the court, whether the plain- tiff, under the circumstances of the case, had a right of action. Robinson, Attorney-Greneral, for the plaintiff, con- tended, that although in criminal cases witnesses had no right ot action for their expenses, yet that the present was more analogous to a civil proceeding, the party requiring the testimony was not only con- tending ^or a valuable and honourable privilege, but would also, if he succeeded, be entitled to parlia- mentary wages. That it could not be supposed that a witness, who was poor and unable to pay his expenses, must either beg his way to York or subject himself to punishment by the house. That the G-renville act allowing costs must extend to the expenses of witnesses. That there was nothing in the particular case which could deprive this plaintiff of his right tO costs; as returning officer he need not have attended at York without the subpoena. He has performed the service required of him, and is entitled to a reasonable com- pensation. Macaulay, contra, contended, that witnesses before committees of the house were not entitled to an ac- tion for their expenses under any existing provisions, but, that even if they were, that the case of the plain- tiff was very different— his conduct as returning offi- cer beitig impeached by the petition to the houSe he was bound to attend. 41 322 EASTER TERM, 1 GEO. IV., 1826. That there is no precedent of this action to be found, though none more likely to happen, which fur- nished a strong presumption against it. That the provision of the statute of Elizabeth, which requires a tender of expenses to persons sub- pcenaed, applies to witnesses incourts of record only. That inability, whether proceeding from sickness or poverty, would no doubt be considered as an ex- cuse in this case, as may be inferred from the case of Battye v. G-resley and others, {a) which arose out of a case before commissioners of bankrupt. It was there held, that there was no occasion to tender the witness his expenses, and that poverty might be an excuse for non-attendance. That the case in East, in the matter of Price, a prisoner, went a considerable length to shew that a person subpoenaed before a committee of the house, was not entitled to an action for his expenses, or it would have been unnecessary for the court to have required the undertaking of the party requiring his attendance to pay them, {b) That the defendant having petitioned on the ground of public interest, makes this case more analogous to 'a criminal than to a civil proceeding, in the former of which witnesses have no right of action for their expenses. Robinson, Attorney-Greneral, in reply, insisted that as no misconduct was imputed to plaintiff, as retur'n- (o) 8 East, 318. (6) 4 East, 587. " EASTER TERM, 7 GEO. IV., 1826. 323 ing officer, further than is usual in all election peti- tions, his case was the same as that of other witnesseSi. That the want of precedent was a very slight ob- jection, such as would apply to any other witness, for that in his experience he did not recollect this sort of action ever having been brought. That it is not by the statute of Elizabeth, (a) but by common law, that a witness is entitled to his ex- penses, that statute only requiring a tender of ex- penses, and in default thereof, exempting the witness from the penalties of non-attendance i m posed by the act. That the G-renville act could only intend to give parties the means of obtaining evidence, not that they should be at liberty to summon all the people of the country without paying them for their attendance. That the case in the matter of Price, is no prece- dent against this action, but that the principle of it, namely, that a witness ought to have his expenses, applies. That parties being allowed their expenses under the Grenville act, they must be entitled to the ex- penses of their witnesses as well as any other, and they would be taxed to them by the clerk of the Crown in Chancery, upon a presumption that they must have been paid. Chief Justice. — The present motion is on a point reserved at nisi prius, and the question is, whether a witness summoned by Speaker's warrant to attend (a) 5 EUz, 0, 9, s, 12, |!24: EASTEE :EEBM, 7 GEO. W., 1826. a committee of the House of Assembly, has a right of action against the petitioning candidate, at whose instance he is summoned, for his expenses, such wit- ness being the returning officer whose conduct at the election is the subject of complaint, and whose return is set aside by such committee, and a new electioii ordered. From the facts in evidence on the Chief Justice's notes of the trial of this case, it appears to me that the case now before us is widely different from the broad question, as to the right of action an ordinary witness might have when so summoned at the in- stance of a petitioning candidate to set aside an elec- tipn. Upon that general question we are not now called upon for any opinion. In the present instance there can be no difficulty. The plaintiff is the very person whose conduct, as returning officer, is com- plained of by the defendant in his petition to the House of Assembly, who, on such complaint, are bound to order an investigation in the way the law directs, and the Speaker's warrant is the ordinary process to compel the attendance of the- returning officer, as well as of all other witnesses required for the full investigation of the complaint. The petition- ing candidate (defendant in this action) has estab- lished his ground of complaint against the officer (the present plaintiff) before the proper tribunal appoint- ed by law to try it; I therefore cannot see upon what principle the present plaintiff, under all these circum- stances, can have any right of action ; if indeed the petitioning candidate had failed in his complaint, and that the officer's return had been confirmed, the case might have been different. Per Curiam. — ^New trial without costs. raster tebm, 7 geo. iv., 1826. 3^6 Payne v. MoLban. This ooui;t refused to set aside a verdict against the sheriff, io an actios fpr an escape, upon the ground that the coroner's jury who tried the cause was the satae witli that returned by the sheriff; that the filaintiff bad produced the original ca. ea. instead of a copy, or that the judgm^t against the party escaping had been obtained without consideration'. This was an action for an escape, tried at the assizes for the Midland District, and a verdict for the plaintiff. Robinson, Attorney-General, had obtained a rule nisi to set aside the verdict and enter a nonsuit, or grant a new trial upon the grounds — First.-^That the jury returned by the coroner was the same as that returned by the sheriff in his gen- eral pannel. Secondly. — That the plaintiff to prove the capias ad satisfaciendum upon which the party escaping had been arrested, had produced the writ itself and not an exemplified copy. Thirdly. — That the judgment which had been ob- tained against the party escaping was without con- sideration. Macaviay shewed cause. — After premising that it had formerly been the practice in this country, as it still is in England, to issue a writ of venire facias to the sheriff in each particular cause, but that a pro- vincial statute (a) now authorised the sheriff to return a general pannel for the assizes, but that where the sheriff was party to the suit, a venire went to the coroner. He contended, that, however the plaintiff might have objected to this jury, there could be no pretence (a) 36 Geo. III., c. 2, 326 EASTER TERM, 7 GEO. IV., 1826. for the sheriff to overturn this verdict, because the persons composing the jury who gave it had been chosen or summoned by himself for other causes, for there was no authority to shew that a sheriff, being a defendant, might not summon the jury if the ad- verse party thought proper. He admitted that a good cause of challenge was a ground for a new trial; but as the sheriff had object- ed to the jury at the trial, and his objections had been overruled, this must be taken to be a good jury; that the principle upon which challenges were made was, that there existed reasonable grounds to suspect that the jury summoned were unfavourable to the party objecting to them, which it was absurd to sup- pose in this case. That it could be no objection that the same jury has been returned by a coroner as has been returned by a sheriff ; for he may even return one which has been returned by the sheriff and quashed. He cited the authorities below, {a) As to the second ground of objection, he observed, that it was not easy to conceive that the mere filing of a paper made it a record, or that the original should not be as good evidence as a copy. That the reason for using copies is, that the origi- nals cannot, after filing, be had, and, therefore, when that has been done, a copy must be received in evi- dence; but, until filed, the original is good, as laid down in Selwyn and other authorities, {b) (a)Impey'B Sheriff, 242; Tidd, 999, 610; 2 Com. Dig. 344; Co. Litt. 156 ; SelloD, 460 ; 3 Bao. Abr. 732, 738, (i) Selwyn, N. P. 650 ; gnller'9 hisiprius, 66 ; Cowper, 18, 65 ; Phillips, 380 ; 3 Campbell, 897, EASTER TERM, 7 GEO. IV., 1826. 327 As to the third objection, he contended that a sheriff could not justify an escape on account of de- fects in the judgment, however competent it might be to the party against whom it had been obtained to set it aside on account of fraud or error. That if the writ justifies the arrest he is liable for the escape, unless he can shew that the judgment was altogether void, as having been obtained coram non judice, but that neither error in the judgment or pro- cess excuses the sheriff, (a) Robinson, Attorney-Greneral, contra, contended, that it was against reason to suppose that when a writ is specially directed to the coroner, requiring him to summon a jury in a case where the sheriff is a party, that he could legally summon the identical jury which has been summoned by the sheriff. That the sheriff had properly objected to this jury at the trial, as it was his interest that the cause should be tried by a jury who were competent to give a verdict that could not be set aside by the plaintiff. That the sheriff having made this objection at the assizes, and having been overruled, he was entitled to make it now; for what is a good ground of chal- lenge, is a sufficient reason for granting a new trial, as had been admitted on the other side. As to the second objection, that it is laid down itt Turner v. Eyles, ib) that although the writ be good (a) 1 Wilson, 255; Selwyn, 645; 3 Starkie, 1278; Croke, Eliz. 188; Lord Raymond, 775. (i) 3 B. & P. 456. 328 EASTER TERM, 7 GEO. iV., 1826. for sotae purposes, yet, when an action is brought, the writ must be tiled and the record perfected. That although in the case of Wigley v. Jones, (a) the court considered the production of the writ itself as sufficient, yet that opinion of the court arose from the distinction which had been taken between mesne process and execution; and, therefore, that case did not apply in, or rather was favourable to the present, which was of a capias ad satisfaciendum. The facts of the case as given in evidence at nisi prius, the counsel contended, inferred fraud; the ac- tion upon which the person escaping had been arrested, having been founded upon an accommoda- tion acceptance,* or promissory note, which he had signed but had never paid. Macaulay, in reply, allowed that if any case could be found where a party had overturned a verdict where the jury were suspected of partiality to him- self, such a case would apply; but no such was ever supposed to exist. That no suspicion having been imputed either to the jury or the coroner, the verdict must be estab- lished. That the cases where an exemplified record has been required, are where a defendant in execution has been removed by writ of habeas corpus and com- mitted by a judge, and there the commitment being stated to be of record, must be shewn to be so. (a) 6 East, 601. EASTER IMM, 7 GEO. IV., 1826. 329 That fraud or want of consideration can be np answer to this action, unless it could be shewn that there had been a conspiracy between the plaintiff and defendant in the original action to defraud the sheriff. That as to want of consideration for the judgmeiit, though it was by no means necessary to be shewn, yet that the plaintiff in this action, having been ac- tually arrested upon the note which he had signed at the request of the party escaping, he had given a sufficient consideration. Chief Justice. — As to the first ground of objec- tion taken to this verdict, I consider that it cannot be made by the plaintiff to a jury chosen, in fact, by himself. The coroner has some how or other, it does not appear how, summoned the same jury for the trial of this cause which the sheriff had summoned for the general business of the assize; but it is not alleged that this was done from any motives of collusion or partiality. The objection, too, I consider, if it had been founded in reasons arising from such improper motives, should have been made to the poll and not to the array. As to the second objection — admitting the ca. sa. itself to have been returned cepi corpus, as the cap- tion and subsequent escape are the gist of the action — I do not consider that the exception taken to the production of the original writ, instead of an exem- plified copy, is sufficient to affect the verdict. As to the objection on the ground of fraud or want 42 380 EASTER TERM, 7 GEO. IV., 1826. of. consideration for the original action, it appears that the plaintiff in the present suit gave an accom- modation note, acceptance, or endorsement to Whita- ker, who escaped. That he became liable to the payment of this docu- ment, and did actually suffer imprisonment in conse- quence of its non-payment; and, moreover, I consider that any objection made by the sheriff on the ground of fraud, should be a fraud affecting himself ; a collu- sion to confess a judgment, the escape from imprison- ment, and to saddle the sheriff with the debt, which are not alleged in this case. Sherwood, J. — As to the second grounti of objec- tion, the cases cited to shew that an exemplification of .the writ of execution, and not the original, should be produced do not apply. In the case cited of Turner V. Eyles, the defendant had been brought up by ha- beas corpus to be charged in execution, and being- thereupon committed by a judge of the court, it was insisted and allowed that the committitur should have appeared of record as an act of the court. That of Wigley v. Jones was one of mesne process — there the filing and entering the committitur were considered Unnecessary; but in neither of the cases was the question raised as to the propriety of giving the original capias ad satisfaciendum in evidence upon a trial for an escape. I consider that the original was properly received as evidence in this case, be- cause it was never returned into the clerk's office, and I concur with the Chief Justice upon the other points. Rule discharged. easter term, 7 geo. iv., 1826. 331 Richardson v. Northrope. An arrest set aside, the affidavit to hold to bail not setting forth the depo- nent's name in words at length. Macaulay moved for and obtained a rule nisiio set aside the arrest and cancel the bail bond in this case on the following grounds : First. — That the affidavit was not entitled in any court or in any cause. Secondly. — That no proper venue was mentioned in the jurat; it being only stated to be sworn at Nia- gara, which might be in the state of New York. Thirdly. — That it did not state of what court the person who administered the affidavit was a commis- sioner. Fourthly. — That the deponent's name was not in- serted in words at length, but with the initial only of a second christian name, which omission he con- tended was fatal, as clearly to be deduced from the case of Reynolds v. Starkin; [a) observing, that in that case the christian name had been taken from the signature to the promissory note upon which the ac- tion was brought. Washburn shewed cause. — He contended that the affidavit was sufficiently entitled in a court by its being headed with the letters B. R.; that the amount of the sum sworn to shewed that it must have been in the King's Bench. That to title the cause was not only unnecessary (a) 4 B. & A. 639. 332 EASTER TERM, 7 GEO. IV., 1820. but improper, no cause existing at the time of affida- vit made. That " sworn before me a commissioner, &c," was sufficient, if in fact the party were a commissioner.(a) That Niagara was a sufficient venue, that place being recognised as a division of this country by the statute providing for its police and other statutes. As to the last objection that it did not appear but that the deponent had been christened in the manner in which he has sworn, viz., John W. Eichardson, nor but that the "W. might be a mere fanciful addition to his name, or to distinguish him from other persons of the name of John Eichardson. He contended that the case of Hughes v. Sutton (b) where a wrong surname in the affidavit had been re- jected as surplusage, would either induce the court to reject the W. in this case, or to consider it as im- material. Macaulay, in reply, contended, that as this was not such an affidayit as an indictment for perjury could be framed upon it, must be insufficient. Campbell, C. J. — This is a rule to shew cause why the arrest should not be set aside for irregu- larity, and the bail bond given up to be cancelled, upon three grounds: first, that the affidavit is not entitled in any court; secondly, that it is not stated to be made before a commissioner of this court; aad (o) Kennett and Avon Canal v, Jones, 7 T. R. 451, (J) 3 M. & S. 178. EASTER iBRM, 7 GEO. IV., 1826. 33g thirdly, that the j)laintiff's christian name is not stated in full. As to the first ground it is now distinctly settled, that affidavits to hold to bail shall not be entitled of amy court, or with names of the parties j and in the case of E. King quitam v. Cole, (a) defendant was discharged upon common bail, because the affidavit was entitled. With respect to the second ground, the case of The Avon Canal Company v. Jones, {b) and that of The King v. Hare, seem to be completely at vari- ance. As to the necessity of stating the commissioner to be of this court, it being expressly required in the latter case, whereas in the former it is considered sufficient to state the affidavit to be sworn before A. B., commissioner, and provided he was in fact a com- missioner of the court, because it may be so alleged in an indictment for perjury; and I am inclined to favour that opinion notwithstanding the other is a later case. But it is not necessary at present to give any decision on that point, inasmuch as I think the rule must be made absolute on the fourth ground, viz., that the deponent's name is not inserted at full length. In the case of Weeks v. G-roneman, 2, Wilson and Cook V. Dobree, 1, Henry Blackstone, it is said, that great strictness is required with respect to the jurats of affidavits to hold to bail; the names of all the de- ponents must be written; nor can any affidavit be read that has any erasure or interlineation, or any (o) 6 T. B. 640. (J) 7 T. R. 13 East. 334 EASTER TERM, 7 GEO. IV., 1826. clerical error in a part material, however trifling; and clearly a clerical error, such as in indebted in- stead of is indebted, because in all such cases perjury connot be assigned; uor will any explanatory or sup- plementary affidavit be admitted because the first was no affidavit at all, and the arrest upon it was unlawful. And the court cannot make that lawful which the law says is not; although the court will admit of explanatory affidavits for small defects in a part immaterial; but never where the first affidavit amounts to none at all, as not being sufficient to sup- port a charge of perjury; I am therefore of opinion, that this rule must be made absolute with costs, on the ground that the christian name of the plaintiflF is not stated in full. Kule absolute. [335] TRINITY TERM, 7 GEO. lY., 1826. Present : The Honourable Chief Justice Campbell. Mr. Justice Sherwood. Allan v. Brown. Where a cause has been referred by this court to arbitration, notice of the time of sitting of the arbitrators must be given to the attorney in the cause. Macaulay had obtained a rule nisi to set aside an award made under a rule of reference of this court, upon the ground that the notice or appointment to attend the arbitrators had been served upon the party himself and not upon his attorney. Robert Baldvoin, in shewing cause, contended, that a proceeding before arbitrators was a proceeding de- hors the suit, and that, therefore, notice to the party himself was sufficient, particularly as his attorney had left the district. Macaulay, contra, observed, that if the attorney had left the district, the appointment might have been left at his office. The court observed that the retainer to the attorn ney was not changed by the reference of the cause to arbitration. Per Curiam. — Rule absolute. 336 TRINITY TEEM, 7 GEO. IV., 1826. Emert V. Miller. Semble, that where heavy damages are given in an action of covenant for good title, and it appears that the plaintiff knew the state of defendant's title, the court will grant a new trial, and that excessive damages may be considered as given contrary to evidence. This was an action for breach of covenant, tried before the late Chief Justice at the assizes for the Eastern District. The covenants upon which the breach was assigned were, that defendant was seised in fee, and had good right to convey. Breaches, that she was not seised in fee, and had not good, right to convey. The substance of the evidence given at the trial (exclusive of the proof of the deed) was, that the de- fendant being a tenant for life only, and the execu- trix of one Miller, deceased, had given a deed of bar- gain and sale to the plaintiff, containing the covenants upon which the breaches were assigned. Miller's estate was indebted to one Sheek, and Sheek was indebted to Emery, and the amount of ihe purchase money, £50, was to go in discharge of Sheek's debt to Emery; and Miller's estate would at the same time be discharged of its debt to Sheek. That at the time of the execution of the deed, both plaintiff and defendant being present, the plaintiff had expressed her doubts as tO the propriety of her giving a deed, but that Sheek, who was an attorney, had said she might do it. It appeared further, that the plaintiff had required and taken an indepmity from Sheek, and had after TRINITY TERM, 7 GEO. IV., 1826. 337 his purchase built a house, and made some improve- ments upon the premises. The Chief Justice had charged the jury that under the circumstances he considered very low damages as proper. They found a verdict for the plaintiff with £125. Robinson, Attorney-Greneral, had obtained a rule nisi to set aside the verdict, as being against law and evidence. Macaulay shewed cause. — He insisted that there being no evidence of fraud or conspiracy on the part of the plaintiff, that there was no pretence for a new trial on that ground; that even if there had been any evidence of that tendency, the jury were the proper tribunal to determine that fact, which they had done by their verdict. That if defendant had intended to covenant against her own acts only, she should have done so, but that having covenanted generally, no evidence could be received upou the plea of non est factum, to vary or avoid the covenant, short of actual fraud or conspi- racy. Sherwood, J., observed, that such evidence might be given in case of a latent ambiguity. The counsel admitted that courts of equity were sometimes applied to, to restrain suits by expound- ing covenants in marriage settlements according to the intentions of parties, but that even those courts would not destroy covenants by parol testimony. 43 338 TRINITY TEBM, 7 GEO. IV., 1826. That the only way to avoid or restrain the effect of a covenant in a court of law, was by special plead- ing, unl€>ss in the case of fraud, duress or misreading. The counsel cited the case of Hesse v. Stevenson, (a) as going very fully into the doctrine of the con- struction of covenants, 'and as shewing clearly that matter dehors, the deed itself could not be taken into consideration to vary or alter its covenants, it hav- ing been determined in that case, that the inceptive words of a covenant being " that the grantor had good right to convey, &c.," were not restrained by the subsequent words, " and that he had not by any means, directly or indirectly, forfeited any right or authority he ever had over it," although from the nature of the transaction it might have been inferred, that he only meant to covenant for his own acts. He also cited the cases below, (b) The counsel further urged that to grant a new trial would be nugatory, as no evidence short of that which would avoid the deed altogether, could be given upon the plea of nofi est factum, and that the record could not be altered by inserting a new plea after verdict. Attorney-General, contra, observed, that as to the last position of the counsel on the other side, there were cases to shew that a plea might be altered after a new trial granted, but that there was no occasion for such a proceeding in this case, the plea of non est factum, being sufficient to admit the evidence required to destroy the plaintiff's action. (a) 3 B. & P. (6) 1 Chitty, 478 ; 1 East, 619 ; 4 M. & S. 339 ; Moore, 158 ; Com. Pig. Pleader ; 11 East, 613 ; 2 B. & P. 26. TRINITY TERM, 7 GEO. IV., .1826. 339 As to the transaction itself, it was evidently dis- honest and fraudulent. That the plaintiff had shewn that he was cognisant of the defect in the title, by taking Sheek's indemnity. That the evidence would have well warranted the judge, who tried the cause, in stating that the plain- tiff had no right to any damages, for it went clearly to shew that an ignorant woman had been persuaded to give a title which the plaintiff himself had con- sidered as bad, and that he had immediately turned round and got a large verdict against her, which was mere plundering. That it must not be inferred, because courts of equity are so often called upon, that courts of law have not equally the power of relieving against fraud, suppression of truth or false assumption, and that upon the plea of non est factum, for a defendant may well say in such cases, that the deed executed under such circumstances is not his— not his solemn act — not fairly obtained. The counsel cited the cases below (a) as analogous to the present, and as shewing that the circumstances of this case were sufficient to infer fraud, and that in cases of fraud there was no distinction between law and equity. He further contended, that the general covenant for good title, &c., upon which this action was brought, should be restrained by the subsequent covenant, for (ffl) 3 P. W. 315 ; 2 Atkyna, Thomson v. Evans, and Lord Kame's Princi- ples of Equity. 340 TRINITY TERM, 7 GEO. IV., 1,826. quiet enjoyment in which the defendant only cove- nants, for the acts of herself and her heirs, and cited the case of Browning v. Wright, (a) where the gen- eral words, ' ' that defendant had good right to convey, &c.," were held to be restrained by the preceding warranty against himself and his heirs only, and that the. general construction of the instrument there in question required that the restrictive words, in other covenants, should be applied to those general words. He considered this case as analogous to the old one in the year books of the warranty of a horse, wherein it had been determined that no action could be brought upon the warranty, for defects which were as obvious to the buyer as to the seller, and that in this respect there was no distinction' between warranties under seal and others. That there was a difference between altering or varying the effect of a deed, and impugning the man- ner of obtaining it, or rendering it invalid on account of fi:aud. That in the present case there was no pretence for the plaintiff recovering damages, and that it was competent under the general issue to give evidence to invalidate a deed or covenant improperly and un- fairly obtained, and which ought not to stand. That the covenants in question should be construed as against the acts only of the defendant and her heirs. That this was at least a case for noininal damages (a) 2 B. & p. 23. TKINITY TEEM, 7 GEO. IV., 1826. 341 only; it could merely be a loss without injury, and one in which the maxim of volenti non fit injuria strongly applied. MacatUay, in reply, contended, that unless Sheek and Emery could be found guilty upon an indictment for a conspiracy, the evidence was not sufficient to set aside the verdict. That the case entirely turning upon the weight of evidence, was not one for a new trial. That the covenant gave a clear right to damages, and that the plaintiff having built upon, and im- proved the land, had probably given the jury the grounds for ascertaining the quantum. That they would have been justified in finding to the amount of £500; but that it was unnecessary to enter into the consideration of the damages, as their excess did not enter into the defendant's motion. That the cases cited on the other side were in equity; that this being a court of law, would confine itself to legal decisions only; that to invalidate the deed altogether would be impossible, as being clearly good to give a life estate. The Chief Justice observed, that although exces- sive damages did not form a part of the defendant's motion, and therefore might not be considered as the immediate ground of granting a new trial, yet they might be considered as given contrary to evidence, and that the case might be better understood by another jury. Per Curiam. — Rule absolute for a new trial. 342 trinity teem, 7 geo. iv., 1826. Grant bt al. v. Fanning. It is necessary in a declaration in trespass for mesne profits to state that the land was the land of plaintiffs, such omission is not cured by stating his expulsion. Trespass for mesne profits. Declaration stated, that defendant, on the 3rd day of April, 1824, with force and arms, &c., broke and entered the township of Wolfe Island, with the rights, members and appurtenances thereto belonging, situ- ate, lying and being in the Midland District afore- said, and ejected, expelled, put out, and removed said plaintiffs from their possession and occupation thereof, and kept, and continued them expelled and removed for a long space of time, to wit, from the day and year, &c., until the 18th day of June, 1825, and during that time took and had, and received to the use of him, the said defendant, all the issues and profits of the said township, with the appurtenances of great value, to wit, of the yearly value of £50, whereby the said plaintiffs, during all the time afore- said, not only lost the issues and profits of the said township, with the appurtenances, but were deprived of the use and means of cultivating the same, and were forced and obliged to, and did necessarily lay out and expend divers large sums of money, amount- ing in the whole to a large sum, to wit, £25, in and about recovering of the possession of the said town- ship, with the appurtenances, to wit, at Kingston, in the Midland District aforesaid, and the said defen- dant, during the said time, felled, cut down, pros- trated, and destroyed the trees and pollards, to wit, 500 oak trees, &c., of said plaintiffs, of great value, to wit, of the value of £50, there growing and being in and upon said township, and took and carried TRINITY TEEM, 7 GEO. IV., 1826. 343 away the same, and converted and disposed thereof to his own use — et alia enormia — to plaintiffs' damage of £100. Demurrer, assigning for causes : First. — That the premises which the said defen- dant is in the said declaration alleged to have broken and entered, are not in the said declaration alleged or described to be the close or property of the plain- tiffs. Secondly. — That the said premises are in the said declaration only mentioned generally as the township of Wolfe Island, with the rights, members and appur- tenances thereto belonging, but no lot, close, tract or parcel of land in said township, is described or re- ferred to as the place alleged to be broken and en- tered, by the said defendant, and such an allegation of a trespass on land committed somewhere in a whole township, is not sufficiently definite to enable or require the defendant to answer the charge. Thirdly. — That the felling, &c., the trees and pol- lards of plaintiffs, growing and being, in and upon said township, above supposed in the declaration to have been doiie by defendant during the time of the said trespass, are laid only as incidental to and aggra- vating circumstances of the said main trespass, and as that is insufficient, and fails, must fail with it. Fourthly. — That the said supposed felling, &c., the said trees and pollards, if laid, not as consequential, but as independent trespasses, are not in the said 344 TRINITY TEEM, 7 GEO. IV., 1826. declaration alleged to have been committed with force and arms, or against the peace, and, therefore, are not sufficient in law to require him to answer thereto. Fifthly. — That the said supposed breaking and en- tering are not in the said declaration alleged to have been committed by said defendant against the peace. Sixthly. — That said declaration is in other respects informal and insufficient. Joinder. Macaulay, in support of the demurrer, ai^ed : That the plaintiff could not take any advantage of the observation of Chitty, " that the deelaration for mesne profits should describe the premises in the same manner in which they were described in the declaration in ejectment," for that he can only be in- tended to mean that they are to be so described, if their description in the original declaration was cor- rect. That the want of the statement in the declaration, that the premises trespassed upon were the close or property of plaintiff, is fatal, and is not cured by the subsequent charge of expelling the plaintiffs from their possession and occupation, for such expulsion is a collateral injury and not the principal trespass, which must itself be correctly stated and proved. That the action for mesne profits is emphatically an action of trespass, and subject to its rules; that the title might even come in question where the judgment in ejectment was upon a default. TRINITY TERM, 7 GEO. IV., 1826. 345 The counsel cited the authorities below, in support of the above positions, (a) As to the second objection, that a township, although an organized part of the country, as a civil division, was not one in which a trespass could be alleged without further description, and that, therefore, the locus in quo was not sufficiently described, and was good cause of demurrer, (b) That the charge in the declaration of cutting down the plaintiff's trees, was laid as mere matter of aggra- vation, and could not cure the defective statement of the principal trespass, which failing, that must fail also. Robinson, Attorney-G-eneral, contra, admitted the declaration not to be according to the usual forms, as not stating the property trespassed upon to be the property of plaintiffs, but contended that the certainty required in pleading might be inferred from the sub- sequent parts of the declaration, and that the subse- quent statement of the plaintiffs' expulsion from their possession, was sufficient for that purpose, which" was also strengthened by the allegation of the taking away and converting the trees of plaintiffs. That the defendant's counsel had affected to con- sider a township as an insufficient description of the locus in quo, but he contended it to be as sufficient as lot, or any other general term; that the number of acres need not be mentioned, as no possession was required, he cited the authorities below, (c) (a) 3 T. R. 292; 2 T. R. 165; 1 Ch'itty, 607; 2 Camp. 175; Com. Dig. Pleader, Salkeld, 640; 3 T. R. 592. (5) Adams, 240. (c) Raymond, 288 ; 13 East, 407 ; 3 Com. Dig. 44 346 TRINITY TEEM, 7 GEO. IV., 1826. Macaulay, in reply, contended, that the number of acres should, in this action, be stated with the same certainty as in the declaration in ejectment, to the intent that the quantity of the land may appear; {a) and observed, that the case in East was a case after verdict, and that in Lord Eaymond against the plaintiff. The coyrt were of opinion in favour of the de- murrer, but gave the plaintiff leave to amend. Brown v. Hudson. A foreign law, authorising the discharge of an insolvent debtor, must be directly proved, and the court will not listen to an application for the dis- charge of such person after he has allowed judgment to go by default and is in execution. The defendant had been held to bail in the year 1823, and had several terms back made an unsuc- cessful application similar to the present, which had been refused on the ground of the insufficiency of the documents produced — he had let judgment go by default, and was now in execution. Washburn had, in a former part of the term, ob- tained a rule nisi to discharge him from the custody of the sheriff of the District of Niagara, upon filing common bail, he having been discharged from im- prisonment for the debt for which he was in execu- tion by the insolvent laws of the state of New York, The counsel, in support of the present application, produced the following documents : Defendant's affidavit of the facts. (a) Adams. TRINITY TERM, 7 GEO. IV., 1826. 347 His discharge, under the hand and seal of Na- thaniel Howell, Esquire, judge of Ontario county, in the state of New York, dated the 3rd day of July, 1821. The certificate of the Secretary of State ol New York, that Mr. Howell was first judge of Ontario county, and that he was authorised to grant dis- charges by virtue of an act of insolvency of the leg- islature, passed April 7th, 1819. The certificate by the governor, under the great seal of the state of New York, that Mr. Yates, who certified Mr. Howell's authority, was Secretary of the State. Robert Baldioin shewed cause, he contended, first, that this application being in the nature of one to discharge proceedings for irregularity, was clearly too late, as tending to involve a plaintiff in all the costs of prosecuting a suit to judgment and execution; whereas if the application had been made upon the arrest, and it had appeared that the defendant was entitled to his discharge, the plaintiff might have dis- continued the action. Secondly.^ — That a defendant could only avail him- self of a discharge under a foreign statute of insol- vency by plea, which would put it in the plg,intiffs' power to reply fraud or a subsequent promise, which he could not be prepared to do upon the return of a four-day rule. Thirdly.- -That the insolvent law of the foreign state, as well as that the defendant was fairly the 348 TRINITY TEEM, 7 GEO. IV., 1826. object of it, should be proved to the court, which had not been done in the present case. Washburn, contra, considered that although the application had been delayed from the difficulty in obtaining the proper documents, that it was not too late, and he contended that the proper mode for the defendant to take advantage of his foreign discharge was by motion, for that the plaintiff might be entitled to proceed to judgment although he could not arrest the person of his debtor. The Chief Justice considered that the application came too late, and that had it been made in time the foreign law should have been proved. Per Curiam. — Application refused. AjStdruss v. Page. A writ of fieri facias may be amended so as to have relation to the day of the entry of the judgment. Macaulay moved to amend the writ oifierijacias, issued against the lands and tenements of the defen- dant, by making it relate to the day of the entry of the judgment. Application granted. Holme v. Allan and Gray. One partner cannot sign a cognovit in the name of a firm without a special authority, and a judgment entered upon such will be set aside with costs. Macaulay had obtained a rule nisi to set aside a judgment and execution, entered up and issued upon TRINITY TERM, 7 GEO. IV., 1826. 349 a cognovit actionem which had been given by the defendant Allan, in the name of the firm, without his having received any special authority for thai pur- pose — the instrument was signed " Allan & Co." Robert Baldvdn, for the plaintiff, admitted the judg- ment to be irregular, but pressed the court to lay the defendants under terms of bringing no action against the plaintiff, observing, that if the defendant Allan had given the cognovit in his own name only, the partnership goods would have been equally liable to be seized under 2k fieri facias, and that, therefore, the defendant G-ray had, in fact, sustained no injury. He further contended, that no mention having been made of costs in the rule -m'si, that it should, if made absolute, be without costs. Robinson, Attorney-G-eneral, and Macaulay, in reply, observed, that in a case of a mere slip or in- advertency, the courts in setting aside a proceeding would sometimes restrain a defendant from bringing an action; but that it x^as otherwise in cases of gross irregularity like the present, where the court, in fact, had no discretion. That there was no doubt as to the defendant's right to costs, where the proceedings were so grossly irregular as the present went. The Chief Justice observed, that he considered the costs upon motions as always in the discretion of the court. Per Curiam. — Rule absolute with costs. 350 TRINITY TERM, 7 GEO. IV., 1826. * Doe DEM. DuNLOP v. Rob. Where it was sworn that the declaration in ejectment was served upon the tenant in possession, the court refused to set it aside upon an affidavit stating it to have been served upon a servant or stranger upon the premises. ^ Robert Baldwin moved to set aside the declaration in ejectment in this cause, upon an affidavit stating, that it had only been served upon a servant or some stranger upon the premises, and that there had been no subsequent acknowledgment of its receipt by the tenant in possession. The Chief Justice observed, that the sheriff had sworn positively to a service upon the tenant in pos- session. Per Curiam. — Application refused. McKoANB V. FOTHERGILL, BSQ. {Having privilege of parliament. ) The court gave leave to issue an original summons to warrant the testatum issued against a member, after motion to set the proceedings aside for irregularity. Washburn had obtained a rule to shew cause why the writ of summons issued in this cause to the sheriff of the District of Newcastle, should not be set aside for irregularity with costs, the venue in the bill filed being in the Home District, and the writ, to the sheriff of Newcastle, being an original instead of a testatum, and no original having actually issued in the first instance to the Home District. Robert Baldwin now produced in court a roll with the original bill, a summons to the sheriff of the Home District returnable on the last of Easter Term TRINITY TERM, 7 GEO. IV., 1826. 351 last, with a return thereto, and the award of a testa- tum, to the sheriff of Newcastle, returnable on the first of this term regularly entered on it, and also produced an original summons with the sheriff's re- turn thereto taken out since the obtaining the above rule, but tested on the first and returnable on the last of Easter Term, and moved to amend the writ to the sheriff of Newcastle by inserting the testatum clause in it. WasMur7i opposed the application, and insisted that the amendment ought to have been made before he had moved to set aside the writ for irregularity, but that at all events the amendment could only be granted upon payment of costs. Baldivin, in reply, stated, that as to his being in full time with his application there could not be a doubt, and that the question as to costs was quite as clearly in his favour. He cited the cases below, (a) The court said that the case in 6 T. R. was suffi- ciently satisfactory, and gave leave to amend with- out costs. The rule for setting aside the writ for irregularity obtained by Washburn, was subsequently discharged, the grounds of it failing. Per Curiam. — Application granted. (o) 2 Archbold, 95 ; 4 East, 192 ; Tidd, 117, 1037 ; 3 T. K. 388 ; Salk, 589; Tidd, 145, 6; 5 T. R. 577 ; 6 T. R. 440, 1. [352] MICHAELMAS TERM, 7 GEO. IV., 1826. Present : The Honourable Chief Justice Campbell. Mr. Justice Sherwood. Doe ex. dem. Sheldon v. Armstrong. A power of attorney and contract of sale passed before a notary in Lower Canada (an instrument not under seal) is not sufficient to authorise a conveyance of lands in this province. This cause was tried at the assizes for the Eastern District, and a verdict for the defendant. The plaintiff's lessor claimed the premises in ques- tion, under a grant from the Crown. The defendant claimed title under a deed executed in this province by virtue of a power of attorney and contract of sale, not under the seal of the party, but acknowledged before a notary in Lower Canada, agreeable to the forms used in that province, which instrument was followed by a deed regularly exe- cuted here in pursuance of the power. The defendant also relied upon the want of notice to quit, or demand of possession. Macaulay shewed cause, hecontended, thatalthough it might be necessary that a deed conveying land should be under seal, yet that it did not follow that an authority to execute such deed must also be under JIIC^AIILMAS TPRM, 7 GEO. IV., 1826. 353 seal, for that the Statute of Frauds did not prevent a person from giving an authority by parol to exe- cute a deed uuder seal. That the instrument executed in Ijower Canada being in itself a sale, and possession having followed under it, was sufficient to pass the land by way of feoffment, for that a feoffment might be withoujt seal, and the deed of sale delivered .before the notary was a sufficient delivery of a symbol; and that those deeds only required seals which take effect under the statute. That the power having been executed in Lower Canada, agreeable to the laws of that country, made it a valid authority here, in the same manner that an (L.S.) has been considered as a binding and valid seal, when proved to be the usage of a foreign colony. As to the point of notice, he contended that it was necessary before action brpught, the defendant hav- ing been in possession under a contract. Robinson, Attorney-G-eneral, contra, observed, that the positions attempted to be established by the defendant's counsel, were such as would, if it were possible to admit them, destroy all the settled and acknowledged practice of conveyances under the English law. That the plaintiff in this case sought to recover under a deed which was clearly void, as having been executed under a void authority. That as to transfers of laud being valid without 45 354 MICHAELMAS TERM, 7 GEO. IV., 1826. writing, it had been long settled that none could be so except leases for a less time than three years, the provision for which, in the Statute of Frauds, shews that no others can be valid without, and has no refer- ence to the present question, viz., of the valid execu- tion of a deed requiring a seal. That it is so clearly established that a power to execute a deed requiring a seal must itself be sealed, that it was never attempted to be questioned, {a) Chief Justice. — This was an action of ejectment in which a verdict was taken for defendant subject to the opinion of this court on points reserved; on which we are of opinion, that the tenant being in lawful possession under a contract for the purchase of the premises he was entitled to six months' notice, or at all events to a notice to quit and demand of possession anterior to the demise laid in the declara- tion, as determined in the case of Lewis v. Beard, 13 East, and Birch v. "Wright, 1 T. R. We are also of opinion, on the only other material point, that a power of attorney, without seal, (although made in a foreign jurisdiction where seals are not used to such instruments,) is not sufficient to authorise a deed under seal, for the conveyance of land in this pro- vince; but, instead of a verdict for defendant, we think this should have been a nonsuit. Sherwood, J. — The letter of attorney, under which the conveyance of the premises mentioned in the declaration in this cause was effected, and by which the plaintiff claims, is not an instrument under seal, (1) 1 Coke, 52. « MICHAELMAS TEKM, 7 GEO. IV., 1826. 355 and therefore by the laws of England invalid for the purpose of transferring real property. The letter of attorney appears, upon the face of it, to have been executed in Lower Canada, and the plaintiff alleges it is a good and operative instrument to authorise the conveying of lands by the laws of the colony where it was made, and under such circumstances ought to be equally efficacious in this province. I ■ have always understood the principle of the lex loci to relate to such transactions only, respecting which transitory suits are instituted, but not to any thing which must necessarily form the whole or any part of the grounds of a local action. The deeds under which the plaintiff claims relate wholly to lands in Upper Canada, the titles to Which are governed by the laws of England alone, and ac- cording to these laws the power of attorney in ques- tion is decidedly bad. To allow the lex loci to prevail in transitory actions of foreign origin, and particularly in commercial con- cerns, tends {o the advancement of justice, but the same principle extended indiscriminately to local ac- tions, would soon havfe the effect to change our whole system of common assurances to lands in this pro- vince, and to substitute, in many instances, the laws of a foreign country, for the determination of impor- tant rights, however incongruous to our own institu- tions. I It appears to me that the deed to the plaintiff's lessor is illegal, and consequently void. Supposing then the defendant to have no title in 356 MICHAELMAS TEEM, 7 GEO. IV., 1826. fee to the premises, the next question is, whether it was incumbent on the lessor of the plaintiff to demathd possession anterior to the day of the demise laid in 'the declaration. I think the defendant was tenant at will, and as such was entitled to a demand of posses- sion before the day of the demise, conformably to the authority in the case of "Wright ex dent: Lewis and others v. Beard. Discharged rule. OeSEE v. McMlCHiEL ET AL. Where it is intended in trespass to justify, that the locus in quo was a high- way, the averment must be direct, not left to inference ; and a justifica- tion in a second plea, for entering such of the closes as are not included in the limits of the highway alluded to in the first will also be insufficient ; and a plea proposing to justify the cutting down trees on the aJJAcent land to repair the highway, niust mention the number and description of the trees cut down. To an action of trespass for breaking and entering the plaintiff's close aiid cutting down and converting his trees, the defendant pleaded. First. — The general issue, not guilty. Secondly. — That as to so much of the "said sup- posed closes of plaintiff in the several counts of the declaration mentioned, as is included and contained within the limits of a tract of ground called a road, leading from a place known by the name of Abbott's Inn, in a straight direction to a certain other place known by the name of John Knapp's, being in front of the dwelling-house of the late John Knapp, and as to the breaking, &c., the said tract of ground called a road, and the felling, &c., the trees growing there- on, actio non, because at the time of the said stij)- MICHAELMAS TERM, 7 GEd. It., 1826. 3'57 posed trespasses the said tract of ground, called a road, was a commoii siiid public hi^ttwaly duly estab- lishfed according to law, and was ordered and directed by the justices, &c., to be opeiied, &c., and pursuant to the order of the said justices, and tinder th6 difec- tion of the overseers of the said highway, the defen- dant, with others liable to perform statute labour, entered, &c;, and felled, &c., the tre^s growing and being thereon for the cause assigned, &c. Thirdly. — "As to the rDsidufe of the supposed closes of plaintiff not included and contained within the limits of the public high my in second plea men- tioned, and as to the breaking, &c., arid felling, &c., the trees and pollards growing thereon, actio non, because at the time of the said supposed trespasses there was a causeway and bridge required tO be built and repaired upon the said highway, and the said residue of the said closes was then and there unin- ciosed and unimproved land, and the said trees, &c., were most corivenient and best adapted to building and repairing suish causeway and bridge, whereupon Isaac Knight, the overseer, &c., directed defendaiits, being the labourers, &c., to cilt and make use of Said trees for such purpose, whereupon they entered, &c., doing no unnecessary damage, &c. Fourthly. — "Actio non, because after the said sup- posed trespasses were committed, arid after plaintiff had demanded of defendant that he should settle with 'plaintiff for the damage done to him thereby, and before, &c., to wit, &c., defendants and plaintiff mutually settled all demands betwisen them to that date, and in the said settlemeiit defendaiits then and 358 MICHAELMAS TERM, 7 GEO. IV., 1826. there paid to plaintiff a sum of the lawful money of Upper Canada, in full satisfaction of all demands on the part of plaintiff against defendants to that date, and thereupon defendants and plaintiff executed and delivered to each other mutual receipts." The plaintiff joined issue upon the first plea, and demurred to the' other three, assigning for' causes: To the second. — " That it is not alleged or averred in the said second plea, that the closes in the decla- ration mentioned were, or that any part of them were a public highway or road, nor hath defendant, in his said plea, set forth the supposed order of the court of quarter sessions in, his said -plea mentioned, nor the date thereof, nor averred that the supposed order at the time of committing the trespass, &c., was, or remained of record in said court, &c. To the third. — "That it is not alleged or averred in the same, that the closes in the declaration men- tioned, or any part of them, were a public highway, or hath it set forth or averred the number of trees, or the description thereof, cut to repair the supposed bridge, &c." To the fourth, that it does not set forth the amount of the sum paid to plaintiff, on the supposed settle- ment of all demands, &c., and that it does not set forth that the supposed sum paid to plaintiff was in satisfaction of the trespasses, &c. Joinders. Robinson, Attorney-G-eneral, in support of the de- murrer, observed, that although the defendants might. mCHAELMAS TERM, 7 GEO. IV., 1826. 359 perhaps, under the provincial statute, have pleaded the general issue alone, and given the facts of justifi- cation in evidence, yet that having pleaded specially, he must be confined to the regular forms of pleading. That there was no sufficient averment in the pleas that the locus in quo was a highway; that such facts should have been averred directly and positively, and not left to inference; that the date of the order of sessions should have been set out, as well as the quantity of the trespass justified in the third plea, by setting out the number of trees cut down; that the third plea justified the trespass on the plaintiff's close, by setting out a trespass on the highway; that the fourth plea is defective in not averring the amount of the sum paid, and that it was accepted in satisfaction of the trespasses. Macaulay, contra, contended, that the averment that the locus in quo was a highway was sufficient, as it must necessarily be inferred that it was part of lot number eighteen. That the two pleas taken together formed a full answer to the declaration. The second justified the supposed trespass in the highway, and the third the remainder of the trespass. That the date of the order of sessions was not substance, and that the whole statement respecting it might be in fact struck out; that the statement of the trees cut down being only matter of aggravation, a justification of the principal trespass was sufficient, and that the number of trees being set out in the declaration rendered it unneces- sary to enumerate them in the plea. 360 MICHAELMAS TEEM, 7 GEO. IV-, 1.826. That tljiough no sum was mentioned in the fourth P|lea, yet a sum being stated to be paid in sajtisfaction was sufficient. Sherwood, J., delivering the opinion of the court, observed, there is no averment in the second plea in this cause, that any part of the premises meiitioned i^ the declaration is a highway. I therefore think fhe plea void for uncertainty. The third plea proposes to justify the entry of the defendant on the residue of the closes, not within the limits of the highway alluded to in the second plea. As no part of the premises mentioned in the declara- tion is stated to be a highway in the second plea, it is impossible by the third plea to determine on what part of the premises the defendant intends t;o justify an entry. It is quite evident he does not mean to justify an entry on the whole premises, but he does not, with sufficient certainty, set out the portion he intends to exclude. If the demurrer to the third plea were general, the court might make an intendment in its favour, but an intendment cannot supply the want of certainty in a plea, when the objection is alleged as a cause for special demurrer. Per Curiam. — Judgment for plaintiff. michaelmas tebm, 7 geo; iv., 1826. 361 Malcolm v. Rapblje, Shekipp op the London DiSTEICT. Iq an action ou the case against a sheriff for not giving notice of the sale of effects taken in execution at the most public place in the township, held not necessary to set out the name of such place. A statement that defen- dant sold the goods without legal notice, and that he sold them for le^s than their real yalue, not considered as distinct and independent grounds of action. This was an action on the case against the defen- dant, for selling the plaintiff's goods taken under an execution, without giving the notice required by the provincial statute. The declaration, set out Sh&fi.ja., and its delivery to the defendant in the usual form, and then stated that defendaftt, of his own wrong, sold the said goods and chattels without giving public notice in writing of the sale thereof, or of the time and place whep and where the same were to be exposed to sale, at the nipst public place in the township where the said goods and chattels were seized and taken in execu- tion, to wit, at the township of Oakland, eight days previous to such sale, but wholly neglected and re- fused so to do, contrary to the statute in that behalf, and also then and there, wrongfully and injuriously, sold and disposed of the said goods and chattels for much less sum of money, to wit, the sum of two hun- (Jred pounds less than the same were really worth, &c. The second count, similar to the first, but stating the unlawful sale to have been made by the deputy. To this declaration the defendant demurred speci- ally, assigning for causes, first, that it does not aver any place certain as the most public place in the said township of Oakland; and then deny that the notice 46 362 MICHAELMAS TEKM, 7 GEO. IV., 1826. was given at that place. Secondly, for uncertainty, as not shewing whether plaintiff therein complains that defendant did not give eight days' previous no- tice, at the most public place in the said township of Oakland, of the sale of the said goods and chattels, or that defendant sold the said goods, &c., at a place not the most public in the said township of Oakland, or that plaintiff complains of both, and that no issue can be taken on the same. Thirdly, for duplicity in joining two distinct matters and causes of action, and attempting to put two distinct causes of action in issue, to wit, whether defendant sold the goods, &c., without giving public notice of the sale thereof, or of the time and place when and where the same were to be exposed to sale at the most public place in the township of Oakland, eight days previous to such sale or not, and also whether defendant sold said goods and chattels for a much less sum of money than the same were really worth, and for which he ought to have sold them. Joinder. BaUmn, in support of the demurrer, observed, that the plaintiff should have pointed out some place as the most public, where the defendant should have advertised the goods for sale, in order to give him an opportunity of shewing that they were advertised there, or of pleading that some other place was more public, and that he had advertised them there. That it was no answer to this objection to say, that the statute had not named the place, which could not be, as that which was the most public place at the making of the statute might shortly cease to be so. That at any rate some place should be named. MICHAELMAS TERM, 7 GEO. IV., 1826. 363 although it might not in point of fact be the most public, for that in pleading a place must be mentioned where every material fact took place. That the charge throughout this declaration is in the disjunctive, contrary to the general rules of pleading. Macmday, contra, observed, that this being an ac- tion upon the case, the defendant, by pleading the, general issue, would have thrown upon the plaintiff the onus of proving the defendant's non-compliance with the statute, which might have been answered by contrary evidence, but that it could not be incumbent upon the plaintiff to assign a place to a negative. That where a circumstance must be reasonably considered as more in the knowledge of the defen- dant than in that of the plaintiff, the defendant must plead it, or rely upon the general issue. That as to the objection to two causes of action being included in the same count, it was the same in trover, where several articles were mentioned, or in the action against a sheriff for an escape and false return, in either of which cases there might be a separate action. He observed further, that in the present case, the selling the goods at an under value was rather con- sequential, and matter of aggravation, than a princi- pal cause of action. Sherwood, J., delivering the opinion of the court. —The plaintiff states, in the first count of the decla- 364 MICHAELMAS TERM, 7 GEO. IV., 1826. ration, that the defendant, as sheriff of the District of London, seized his goods and chatties by virtue of a writ of J/?. /«., and caused them to be sold, without giving any notice of such sale at the most public place in the township where the effects were taken in execution. The defendant has demurred to this count, and assigned for special cause, among others, the want of a specification in the declaration of the plaintiff of the most public place in the township. In the course of the argument on the demurrer and in support of it, the defendant alleged the impossi- bility of traversing so indefinite an averment as the plaintiff has made respecting the want of notice of sale; if there were any necessity of a traverse, to this part of the declaration, the objection would have a great deal of weight, but as the plea of not guilty in case puts the plaintiff u-pOn proof of the whole charge, it is competent for the defendant to adduce evidence of one place being more public than another, and then the jury would determine the question. Actions of trespass, and actions on the case, are essentially different; the former is an action stricti juris, but the latter is founded in the justice and conscience of the plaintiff's case, and in its nature and effect is similar to a bill in equity, therefore the defendant, by plead- ing the general issue in this action, would secure to himself all the advantages which the law allows under any mode of pleading. I also think the fact of the most public place is a matter lying more in the knowledge of the defendant MICHAELMAS TERM, 7 GEO. IV., 1826. 365 than of the plaintiff, and the defendant, as sheriff, was bound to ascertain, and to put up such a number of notices as would remove all doubts upon the subject. Another cause of demurrer assigned by the defen- dant is, that the declaration , is objectionable from duplicity. He also states that the plaintiff has set out two facts, either of which, independently of the other, does of itself establish a sufficient ground of action, that is to say, that the defendant sold the goods without giving legal notice, and that he sold them for less than their real value. It appears to me that the latter allegation was not intended by the plaintiff as a substantive and inde- pendent cause of action, and in fact is not such, even if he did intend it. It clearly has no other effect in this declaration than to aggravate the legal cause of complaint, the selling of the plaintiff's goods without giving notice of sale. There was nothing more probable than the fact of the goods selling for less than their value, when no steps were taken by the sheriff to insiire the attend- ance of purchasers, and therefore it seems to me almost a natural consequence of such dereliction of duty. This averment in truth answers as nearly as possible to the per quod, in an action of trespass, and in this particular case, seems to exhibit the pro- bable injury arising from the want of notice in a more extended view. I am of opinion, therefore, that the plaintiff should have judgment on the demurrer. Per Cmiam. — Judgment for plaintiff. 366 MICHAELMAS TEEM, 7 GEO. IV., 1826. BiDWBLL, Administrator op Washburn, v. Stanton. Where the payee of a note endorsed the same to A. upon an usurions con- sideration, and A. afterwards failed in an action against the drawer upon the ground of usury, such payee may nevertheless recover against the drawer ; and it seems that the ground of the failure in the former action may be proved by any person present at the trial, and it is not necessary to prove a re-endorsement by the usurer to the payee. This was a case tried at the assizes for the Mid- land District. The action was brought upon a promissory note drawn by the defendant, and payable to the plain- tiff's intestate, who afterwards endorsed to one Whit- ney upon an usurious contract. Whitney brought his action against the present defendant but failed. The record of the judgment in that suit was proved or admitted in the present action, which shewed that an action had been brought against the present de- fendant, and that there had been a judgment in his favour, but as the plea of usury did not appear upon the record, it did not shew the grounds of the judg- ment. The plaintiff in this suit offered the evidence of the person who had been the defendant's counsel upon the former trial, to prove that the verdict passed in his favour upon the ground of usury in Whitney. This testimony was rejected upon the ground of the witness having been the defendant's counsel in the matter before the court. Another witness was offered to prove what one Short had proved at the former trial, namely, that the defence set up was usury. This testimony was also rejected upon the ground MICHAELMAS TERM, 7 GEO. IV., 1826. 367 that it was not the best evidence, Short being still living. Upon this state of the evidence, and also upon the ground that the note should have been re-endorsed by Whitney, the judge at nisi prius nonsuited the plaintiff. Macaulay, having obtained a rule nisi to set aside the nonsuit and for a new trial, Robinson, Attorney-G-eneral, shewed cause, he contended that the evidence of the person who had been the defendant's counsel at the first trial, had been well rejected, inasmuch as it would be impossi- ble for him to know whether his impressions had been received from what passed at the trial, or by confidential communications from his client. He cited the authority below, {a) That the second witness was rejected with equal propriety, as his testimony could only have been hearsay. And that as it was necessary for the plaintiff in the present action to shew that the verdict against Whitney, in the former action, had proceeded upon the ground of usury, and as he had not done so, he was properly nonsuited. Macaulay, contra, contended, that evidence should have been received from any bystander at the former trial of what had passed there. (a) Currie v. Walker ; Wilson v. Bartall, 4 T. R. 753. 36,8 MICHAELMAS TEEM, 7 GEO. IV., 1826. That the erujorsement to Whitney having been by the former judgment proved to have been somehow or other void, it should be considered as a nullity. That Bidweli, the plaintiff, then takes the note as administrator and is entitled to recover. The usuri- ous transaction being nothing to Stanton, who gave the note, as it is to be presumed, upon a good con- sideration. That it would be absurd to suppose that a note, good in its original concoction, could be vitiated quoad the original parties upon the ground of usury between a subsequent endorser and endorsee. Robinson, Attorney-Greneral, in reply, contended, that Washburn, being a particeps criminis, could not have recovered, and that the present plaintiff, his ad- ministrator, was subject to the same objection. That the reason given by the late Chief Justice, at the trial, was very strong, viz., that Washburn, the in- testate, having received consideration for his endorse- ment to Whitney, could not in justice have received the amount Irom Stanton, which would be giving him double pay upon one note, he not being liable to re- fund to Whitney what he had received from him,. The counsel further observed, that although there was a judgment in favour of the present defendant at the suit of Whitney, it might hereafter be reversed, which might render him again liable. Sherwood, J., pronouncing the judgment of the court. — I think it was unnecessary at the trial of this cause to prove the fact of the usury in the transac- tion between 'W'ashburn and Whitney. MICHAELMAS TERM, 7 GEO. IV., 1826.- 369 A copy of the judgment in the case of Whitney v. Stanton was admitted without objection on the part of the defendant, as testimony between the parties in the present suit, and they had a right to make such admission between themselves, if allowed to do so by the court. Evidence of the grounds of defence in that action was all that was requisite in this case to shew the illegality of the endorsement from Washburn to Whitney. It appears to me, that any person present it the trial of that cause, who heard the whole of the evi- dence, was competent to prove that the only defence set up was usury between the endorser and the en- dorsee of the note. Such proof connected with the judgment, so admitted by the parties, would have been presumptive evidence of the invalidity of the endorsement on the note from Washburn to Whit- ney, and would have been sufficient for the plaintiff until rebutted on the partof the defendant by strohger testimony. It would have shewn that the whole ques- tion respecting the usury had already passed in rem Judicatam, and was completely set at rest. I cannot agree in opinion with the learned judge who tried this cause, that if the endorsement from Washburn to Whitney was usurious, it became ne- cessary for the administrator of Washburn to obtain a transfer of the note from Whitney before he could support an action upon it; the endorsement to Whit- neyj being usurious, was absolutely null and void, and after a legal decision on this point, the note must 47 370 MICHAELMAS TERM, 7 GEO. IV., 1826. be considered as never transferred from Washburn to Whitney; such transfer and endorsement cannot be illegal at one period and legal at another. In my opinion the plaintiff is clearly entitled to a new trial. Per Curiam. — Rule absolute. Shuck v. Ceanston. A prisoner insolvent applying for his weekly allowance, is sufficiently de- scribed in the affidavit, as a prisoner in execution in the gaol of the Mid- land District, at the suit of the plaintiff. Cartioright moved for an order of court for the prisoner's weekly allowance. The affidavit described the deponent as a prisoner in execution, in the gaol of the Midland District, at the suit of the plaintiff, without giving him any other residence or addition. Washburn opposed the application on the ground of insufficiency of the affidavit, but the court ruled it to be sufficient. Application granted. Haren v. Lyon. It seems that where a party purchases the goods of another at public sale, a notice given by the owner at such sale dispenses with the necessity of a demand and refusal to maintain trover, and a new trial will not be granted upon the ground of fresh evidence, it not appearing that it could not have been produced at the former trial. Fraud cannot be presumed contrary to a verdict. This was an action of trover tried at the assizes, and a verdict for the plaintiff for £17, under the fol- lowing circumstances -. MICHAELMAS TBRM, 7 GEO. IV., 1826. 371 A Mr. Steel died intestate, leaving Mrs. Steel, his widow, in possession of his effects. The plaintiff had been servant to Steel, and con- tinued in the service of Mrs. Steel after his decease, and a sum having accrued due to him for wages, she gave him a yoke of oxen (as was stated by plaintiff's witnesses) in payment or satisfaction of his demand, but Mrs. Steel herself stated in evidence, that they were only put into the plaintiff's possession to pro- tect them from the claims of the deceased Mr. Steel's creditors. The plaintiff" continued, however, in the possession or superintendence of them, (for the testimony as to the nature of his possession was contradictory, one witness attesting that they were delivered to him in payment of his debt, and another that he liad told him that he considered them as in his, plaintiff's, possession, only for the benefit of Mrs. Steel,) until they were sold at public auction with other effects belonging to the deceased Mr. Steel. The defendant became the purchaser of the oxen, took them into his possession, and the plaintiff, in consequence, brought the present action. No demand was proved to have been made by the plaintiff previous to action brought, but notice had been given at the sale, that he had a claim upon them. Robinson, Attorney-Greneral, having obtained a rule nisi to enter a nonsuit, or grant a new trial on the grounds: 372 MICHAELMAS TERM, 7 GEO. IV., 1826. First. — That Mrs. Steel had no power to sell, and her sale was fraudulent. Secondly. — That fresh evidence had been dis- covered since the trial. Thirdly. — That no demand had been made before action brought. Fourthly. — That the verdict was contrary to evi- dence. Macaulay shewed cause. — As to the first ground, he contended that Mrs. Steel, having continued in the possession and management of her husband's effects, (a) must be considered as an executor de ion tort, and so any payment made by her was valid; that the evidence of the delivery by Mrs. Steel to plaintiff being fraudulent, was contradicted by other testi- mony, and the jury, who were the judges of facts, had determined them in the plaintiff's favour; that they considered, no doubt, that as there was a bona fide debt due to plaintiff, it was most probable that the oxen were delivered to him in its satisfaction; that even assuming the sale to the plaintiff to have been made for the purposes stated by Mrs. Steel, it was good as between the parties, and could only be void as against creditors, in which situation it does not appear that the defendant stood; he should have shewn a judgment in his favour. Assuming, also, that Mrs. Steel had, in some sort, continued in possession of the cattle, which had been represented by the defendant's counsel as an evidence {a) Mountford v. Gibson, 4 East, 441. MICHAELMAS TERM, 7 GEO. IV., 1826. 373 of fraud, he contended it could only be so as against creditors, and that the delivery proved was agreeable to the cases in East, (o) These arguments, he contended, also answered the objection to the verdict being contrary to evidence, the judges of facts, namely, the jury, having weighed the contradictory testimony, and determined in the plaintiff's favour. As to the ground for a new trial, viz., the finding of fresh evidence, he contended that the affidavit of the defendant was insufficient, as merely stating that he had discovered fresh evidence, without stating its nature, for that it did not appear thereby, but that the evidence discovered was some omission of the witnesses already examined, which was no ground for such application, as laid down in Tidd. As to the third objection to the verdict, namely, want of demand before action brought, he contended that the plaintiff's possession being found by the jury, was au answer to it, particularly as his claim to the oxen was known at the second sale. He observed that the smallness of the damages, coupled with the fact of the plaintiff's being a bom y?^e creditor, would materially influence the court in their deciding against this application. Robinson, Attorney-G-eneral, contra, contended, that no inference was to be drawn from the cases cited on the other side, that Mrs. Steel had any (o) Eugg V. Minety, 11 East, 209 ; Whitehouse v. Frost, 12 East, 613. 374 MICHAELMAS TEEM, 7 GEO. Wi, 1826. power to deliver the oxen in question to the plaintiff, but the contrary; that they were cases where the executor de son tort had been in a regular course of administration, but did not apply to, or indeed com- pletely rebutted, a case like the present, where the wrongful act was the only ground of considering the party executor. That Mrs. Steel, not having been in a capacity to maintain trover for any of her husband's property, was not in a situation to transfer any part of it to another. That Mrs. Steel continuing in possession (for Ha- ren merely managed the oxen for her benefit) was an evidence of fraud, as laid down in the term reports, where it is determined that a creditor taking an abso- lute bill of sale, but allowing the debtor to continue in possession, avoided the sale, {a) In the case cited there was no evidence of fraud, but a mere stipulation that the goods were to remain in the debtor's possession for a limited time. He contended further, that there was no evidence of such a delivery as the Statute of Frauds contem- plated. That statute requires, that in sales of goods above ten pounds value there shall be an actual proveable delivery, which is not pretended in this case, and the necessity for which no existing debt between the parties can dispense with. That the positive testimony of Mrs. Steel should have outweighed the mere suppositions of the other witnesses, (ffl) Edwards v. Harben, 2 T. E. 387. MICHAELMAS TERM, 7 GEO. IV., 1826. 375 That as the defendant had not taken the oxen from the plaintiff, but had bought them at a public sale, a demand was necessary before action brought, for no case exists to shew that a mere possession, without a tortious taking, dispensed with a previous demand. Chief Justice. — To intermeddle with the goods of an intestate, without taking letters of administration, constitutes an executorship de son tort, as if he use them or sell them, or pay or receive debts, or milk the cows of the intestate, or distribute the goods to the poor, or if he only take a dog of the intestate, or any part of his goods, or if a wife take more for her paraphernal!^ than is suitable to her degree, as laid down in 5 Coke, 30; Dyer, 166; Croke Eliz. 114, 120, 472, Salk. 313; but the mere intermeddling with the goods of intestates, from the necessity of the case or for their preservation from injury, without using or applying them to the benefit of the party, will not constitute an executor de son tort. Except in some particular cases, the courts know no limitation, but grant or refuse new trials as it may tend to the advancement of justice, as laid down by Lord Kentfon in the term reports, (a) If there be contrariety of evidence on both sides, the court will never grant a new trial notwithstanding the judge be of opinion that the weight of evidence was against the verdict as laid down in Wilson; and although a verdict be against evidence, the court will not grant a new trial if the action be frivolous or vexatious, and the real damage small, as laid down in Burrow ; and new trials are never granted upon motion of a (a) 1 WiUs. 98 ; 1 T. E. 84 ; 2 T. R. 113. 376 MICHAELMAS TERM, 7 GEO. IV., 1826. party, where it appears he might have produced and given the material evidence at the trial, the omission of which is urged as a ground for a new trial, because it would tend to introduce perjury, and there would never be an end to causes if once a door was opened to such applications, (a) Sherwood, J. — The' widow, Steel, who sold the goods in question to the plaintiff, had the possession of them for a long time after the death of her hus- band, and made use of them on all occasions as her own property. To the rest of the world she appeared to be the owner; no executor or administrator was ever appointed. Such possession, under such circum- stances, makes the possessor executor de son toj-t, according to the authority in 3 Bacon, Abr. 21; also in 1 Com. Dig. 365. I think the present case is not within the 17th section of the Statute of Frauds, as it was in evidence that the goods were delivered at the time the sale was made. The other objection is that the sale was fraudulent; contradictory testimony was given on this point at the trial, and the jury who are the constitutional judges of the facts and the cre- dibility of the witnesses, on both sides, have found by the verdict that no fraud existed, and I- think no presumption can be admitted against such finding. Per Curiam. — Eule discharged. (o) Salk. 647; Stra. 691. michaelmas term, 7 geo. iv., 1826. 377 Dob ex dem. Robertson v. Metcali?. Where judgment is obtained against the casual ejector in consequence of the tenant in possession having neglected to give notice to his landlord, this court ■will set the judgment and writ of possession aside, and compel the tenant to pay costs. Robinson, Attorney-General, had obtained a rule nisi to set aside the judgment and writ of possession issued and executed thereon, and that it be referred to the master to tax the lessor of the plaintiff his costs occasioned by the judgment and taking posses- sion, together with the costs of the application, which costs, when taxed, should be paid by the tenant in possession, Metcalf. This application was made on the part of Williams, the landlord of the premises in question, on the ground that the tenant in possession had not given him any notice of the declaration served, and upon an affidavit of merits. Macaulay shewed cause. — He contended that on the authority of the cases the landlord was not en- titled to the summary interference of the court, but must resort to his tenant under the statute, and, if he had merits, might bring an ejectment in his turn. He relied upon the cases below, {a) Robinson. Attorney-General, contra, observed, that the case in 3 Taunton did not apply. That the decisions in the King's Bench in England were in favour of the landlord, and were much more reasonable. That by admitting him to the trial of his cause, (a) 3 Taunton, 506 ; 4 Taunton, 820 ; Strange, 1242. 48 378 MICHAELMAS TERM, 7 GEO. IV., 1826. they would only do that at once which might be done by a circuitious process, to force him to which would be a hardship; he urged the great inconvenience of allowing landlords to be divested of their estates by the probable collusion of tenants, or even casual oc- cupants, which was frequently extremely difficult to be proved. Chief Justice. — The point in this case is whether judgment by default, and a writ of possession exe- cuted thereon, obtained in consequence of the tenant in possession not having given notice to his landlord of the declaration in ejectment, by which means the landlord was deprived of an opportunity of defending his title, shall be set aside. The decisions in the King's Bench and Common Pleas are clearly at vari- ance on this point; the case reported in the 4th Taunton holds, that where the judgment is perfectly regular, and no collusion between the plaintiff and tenant, it must stand, notwithstanding the injury ac- cruing to the landlord for want of such notice, who must look to his tenant for remedy; on the ground that the court could not interfere with the rights of a plaintiff not in fault, and who was perfectly regular in his proceedings. This doctrine is seemingly so reasonable that we could not avoid being forceably struck with it, and especially when we found that it was not at all inter- fered with (as was at first supposed) by the decision in the case of the Grovers' Company v. Roe, in the 5th Taunton, which turned upon a suggestion of col- lusion between plaintiff and tenant; but the doctrine laid down by the Court of King's Bench in Troughton's MICHAELMAS TERM, 7 GEO. IV., 1826. 379 case, 4th Burrow, is entirely different on this point, and is perhaps,when closely examined, better adapted to the ends of justice in actions of this nature, and goes on the principle that it is better that a plaintiff, however regular, should be delayed in his remedy, than that a landlord should be dispossessed of his estate, without an opportunity of defence, by the treachery or other default of his own tenant, and which tenant perhaps (as we know to be ex- tremely probable in nine cases in ten in this country) may not be of sufficient responsibility to answer so important an injury to the landlord. But be the preference due to the opposite doctrines as it may, we are specially bound by the practice of the King's Bench, unless where it may operate pal- pable injustice, which we conceive it does not in the present case. We will, therefore, pursue the course adopted in the case of Troughton, and therefore direct that the present rule be enlarged, that the plaintiff's costs be taxed by the master, and that an order be served on the tenant to shew cause why he should not pay those costs. Sherwood, J. — This is an application to the court on the part of the landlord for leave to enter into the common consent rule and defend the action under the 11 Greo. II., c. 19. Itappears that judgment, by de- fault, has been entered against the casual ejector, and that the tenant in possession gave no notice of the action to his landlord. The lessor of the plaintiff contends, that as no collusion appears between him- 380 MICHAELMAS TERM, 7 GEO. IV., 1826. self and the tenant in possession, the landlord cannot be permitted to defend after judgment by default has been regularly entered; G-oodtitle v. Badtitle, 4 Taun- ton, 820, and the G-rovers' Company v. Eoe, 5 Taunton, 205, are cited in support of the plaintiff's position. These cases do certainly establish the practice in the Court of Common Pleas to be as stated by the plaintiff. It appears, however,^from the cases, Troughton v. Roe, 4 Burrow, 1996, and Jones v. Edwards, 2 Strange, 1242, that the Court of King's Bench in England puts a more liberal construction on the statute. The doctrine of these cases is, that the rule which requires service on the tenant in possession was made with a view that the tenant should give notice to his landlord; and if the intention of the rule is not substantially complied with, the court will in- terfere and set the matter right. I approve of this practice in preference to that of the Court of Common Pleas, and think the landlord in the present case should be allowed to defend the action, for if the possession is changed his situation will be much worse, and the question relative to the title will still be undetermined. Per Curiam. — Rule absolute. EVERINGHAM V. ROBINETT. A supplementary affidavit allowed to be filed after judgment entered upon cognovit, stating that it had been taken as prescribed by the rule of this court. Judgment had been entered upon a cognovit ac- tionem in this cause; but the person who attested the MICHAELMAS TEEM, 7 GEO. IV., 1826. 381 execution of the instrument had omitted to swear that it had been taken through the intervention of an attorney, agreeable to the order of court. Robert Baldwin applied for leave to file a supple- mentary affidavit of that fact. Application granted. Cameron and Wipe v. McLean. In an action for libel, wherein the plaintiff recovered only twenty shillings damages, the judge who tried the cause refused to certify. This was an action for a libel in which the plain- tiffs recovered twenty shillings damages only. George Jarvis applied for a certificate of the judge who tried the cause, to restrain the plaintiffs' costs to the amount of damages recovered, under the 43 Elizabeth, c. 6. Macaulay, contra, observed, that there being no inferior jurisdiction in this country to which the plaintiff could have preferred his complaint, it would be unreasonable to deprive him of his costs. Application refused. Campbell v. Berrie, one, &c. a rule to plead where necessary may be given at any time in vacation. The bill was filed against the defendant in Easter vacation, as of the preceding term, with notice to plead in the first four days of Trinity, but no rule to 382 MICHAELMAS TERM, 7 GEO. IV., 1826. plead was given until Trinity vacation, and not within the first four days after the term. The plaintiff signed interlocutory judgment and assessed his damages in Trinity vacation after the expiration of the rule to plead. Macaulay moved for a rule nisi to set aside the interlocutory judgment and proceedings thereon as irregular, and cited the authorities below, (a) Robert Baldwin, contra, contended, that the sixth order or rule of this court authorised the practice pursued by the plaintiff, the rule to plead being one of the class of rules therein mentioned, as authorised to be taken out in vacation as well as term. Per Curiam. — Application refused. Andrus v. Burwell. Semble, that if in an action upon the case for not manufacturing four hundred bushels of wheat into flour theplaintiflF recovers damages equal to the value of the wheat delivered to the defendant, he cannot bring an action for goods sold for a part of the wheat which had in point of fact been re-delivered to the plaintiff, and that such re-delivery should have been given in evi- dence in mitigation of damages ; and that an action upon the common counts could not at any rate be sustained in such case. This was an action of assumpsit for goods sold and delivered, tried at the last assizes for the Grore Dis- trict, with a verdict for the defendant — the following were the circumstances; about two years ago the present defendant had delivered to the present plain- tiff four hundred bushels of wheat to manufacture into flour; one hundred and twenty-six bushels had (a) Impey, 203, 4, 5 ; 1 Sellon, 300 ; 1 Archbold's, 131 ; Tidd, 490, 3. MICHAELMAS TERM, 7 GEO. IV., 1826. 383 been re-delivered as unfit for manufacture. An action upon the case was shortly afterwards brought by the present defendant against the present plaintiff, for not manufacturing the flour agreeable to contract, and he recovered a general verdict for a sum equal to the value of the wheat originally delivered. At the trial of the present cause the judge directed a verdict for the present defendant, observing that the re-delivery of the 126 bushels should have been given in evidence in mitigation of damages at the former trial, and that he considered also that the plaintiff could not, upon a common count for goods sold and delivered, recover the value of wheat belonging origi- nally to the defendant, and returned to him in con- sequence of its bad quality. Robert Baldwin now moved for a rule nisi to set aside the verdict on the ground of misdirection. He contended that the defendant having recovered in the former action the full consideration for the non-delivery of four hundred bushels of wheat, the whole quantity delivered by him for grinding, although he had in fact received back 126 bushels, the plaintiff was in this action entitled to recover the value of the wheat re-delivered, as that could not have been taken into the consideration of the jury. He observed, that it could not have been pleaded as a set-off to the former action, which being a special action upon the case the damages were entire, and that the defendant, by that action, having disaffirmed the receiving the returned wheat as a part perform- 384 MICHAELMAS TERM, 7 GEO. IV., 1826. ance of the grinding contract, it was but common jus- tice that the present plaintiff should be allowed to recover it in some shape, and he contended that the count for goods sold was sufficient to sustain the action. The Solicitor-General, contra, insisted that the judgment in the former action was a bar to the pre- sent; for that it appearing by the record that the plaintiff in the former action sought to recover the value of four hundred bushels of wheat not manufac- tured according to contract, the present plaintiff can- not now turn round and recover back the value of a part of the same flour. That it was impossible now to ascertain the grounds of the former verdict. They may have credited the defendant in that action with the amount of the wheat now sought to be recovered, and mulcted him for the breach of his contract in an equal or greater amount. That the subject of the present action was a part of the res gestce in the former, and could not be sepa- rated from it. He also contended that it was absurd to suppose that a person could, in an action for goods sold, re- cover against another for his own goods re-delivered. Per Curiam. — Application refused. michaelmas term, 7 geo. iv., 182g. 385 Hawley v. Ham. A nonsuit cannot be moved for in bank unless it has been moved for at nisi prius, and the point reserved by the judge with the plaintiff's consent. A recognition by a party that A. is his ■wife, is sufficient to charge him with necessaries, although they do not cohabit, having in fact separated, and although she may not stricii juris be his wife. This was an action for the maintenance of the de- fendant's wife, tried at the assizes for the Midland District, and a verdict for the plaintiff for £2 10s. It appeared in evidence that the defendant had been married for several years to the daughter of the plaintiff; the ceremony had been performed by a sectarian minister under the provincial statute. The defendant and his wife separated some time after his marriage, and she had returned to her father's house and continued to reside there until the commencement of the present action, shortly previous to which overtures had been made by her friends for a re-union, upon which the defendant wrote to the plaintiff authorising his wife to remain with him for a month longer, to give the defendant an oppor- tunity of considering and replying to the proposi- tion, which he, however, afterwards negatived. A nonsuit had been moved for at the trial upon the ground that the minister who had performed the mar- riage ceremony had no sufficient authority so to do, first, as not being one of the persons designated in the provincial statute, and secondly, as having married persons not belonging to his congregation. The judge who tried the cause refused the nonsuit and directed the jury to find a verdict for the plaintiff, at least to the amount of defendant's wife's board for the period mentioned in his letter. Boulton moved for a rule nisi to enter a nonsuit or 49 386 MICHAELMAS TERM, t GEO. tV., 1826. grant a new trial, and proceeded to state the grounds taken at nisi prius. Macaulay made a preliminary objection to that branch of the motion which related to a nonsuit, con- tending, that as no point had actually been reserved at the trial, such a motion could not be entertained in bank. That the only motion competent to the de- fendant to make was that for a new trial. Buulton, Solicitor-General, contended as to this point, that the objection to the legality of the mar- riage having been made at the trial, it was compe- tent to the defendant to move for a nonsuit upon that objection in bank, although the point had not been reserved, and he relied upon the dictum of Lord Ellenborough in Gould and another v. Eobson and another, in which case (which was a motion for a new trial, although no point had been reserved) his lordship observed, " that in strictness the defendants were entitled to enter a nonsuit, the objection having been taken at the trial." Sherwood, J. — The later case of Minchin v. Cle- ment (a) goes to establish a contrary doctrine. In that case the defendant's counsel contended, as is now done, that the objection having been made at nisi prius a nonsuit might be moved, but his position was overruled by Lord Ellenborough. Macbeath v. Haldmiand {b) is also an authority to shew that a plaintiff cannot be nonsuited without his consent. The Solicitor-General observed, that Lord Ellen- borough's reasonings did not apply to the practice in (^ 1 B. & A. 252. (4) 1 T. E. 176. MICHAELMAS TERM, 7 GEO. IV., .1826. 387 this country, as there was no court to which a bill of exceptions lay, therefore a nonsuit was more beneficial to plaintifiF, as its propriety might be considered in a court of appeal. That it was more beneficial to a defendant also, as it determined the law upon the case. That the reason for requiring the grounds of a non- suit to be stated at nisi prius, was to prevent a sur- prise upon the plaintiff in bank, and was equally answered by its being mentioned, as by its being formally moved. Macaulay, in reply, insisted that as a plaintiff can- not be nonsuited without his consent, it follows that a motion cannot be made to nonsuit him in bank, unless he has consented to the reservation of points at nisi prius. That the assumption by defendant's counsel, that there was no court of error in this country in which a bill of exceptions might be argued was probably incorrect. That another objection to a nonsuit was, that in the event of its being granted, the plaintiff would pay costs; but if a new trial was granted he might avoid costs by discontinuing. That there being a special act of parliament to authorise the court to pronounce nonsuits in certain cases, was a strong argument to shew that it could not be done in others. 388 MICHAELMAS TERM, 7 GEO. IV., 1826. The court, upon this preliminary point, determined with the plaintiff's counsel, viz., that a nonsuit could not be moved for in bank, unless it had been moved for at nisi prius, and the point reserved by the judge with the plaintiff's consent. The Solicitor-General was proceeding to state the circumstances of the illegality of the marriage as the grounds for a new trial, but was directed to assume that as a fact, coupled with the circumstance of the defendant's recognition of plaintiff's daughter as his wife, by the letter produced in evidence at the trial. He then contended, that the marriage being in- valid, the woman's case, whose maintenance was sought to be recovered, must be considered in the same light with thait of any other female cohabiting with a person, in which case the supposed husband was liable during the cohabitation only, but when that ceased it was the duty of persons giving credit to enquire whether there had been an actual mar- riage. The counsel drew an analogy between the present action and that against a tenant for not cul- tivating a farm in a husband-like manner, in which action actual tenancy, and not mere occupation, must be proved. That in cases of a marriage dejure, the legal obli- gation to maintain' the wife continued after what in common colloquy was called separation, but not so after a mere cohabitation was discontinued. The counsel cited the authority below (a) as in (a) 4 Campbell, N. P. MICHAELMAS TEEM, 7 GEO. IV., 1826. 389 point, observing that none of the cases were founded upon an illegal marriage. Macaulay observed, that in this case the plaintiff must establish a right, he must give sufficient evi- dence of the woman being the defendant's wife de facto; that that had been done or the plaintiff would have been nonsuited at the trial; that the judge considered so, and refused a nonsuit. That it was a question of fact which the jury had decided. That for the period of a month mentioned in the letter there had been clearly no separation, after that time the plaintiff was directed not to credit. The Attorney-General, in reply, observed, that in reason, as well as in law, it was perfectly clear that if a man, after cohabiting with a woman, was to sepa- rate from her, but still hold her out as his wife, he would be liable for necessaries; but that after a period of eight or ten years has elapsed from the separation without such recognition, the question naturally arises, why he should be liable ? and the answer is, that nothing but a strict legal obligation can make him so. j^Q j_ — The general doctrine we admit, but can you apply it to the particular case ?] The counsel further observed, that as in the action for not cultivating in a husband-like manner, the plaintiff must declare against the defendant as tenant 390 MICHAELMAS TEEM, 7 GEO. IV., 1826. and prove him such; so in this action, the plaintiff in his pleadings must state the woman to be the wife of defendant, and shew her to be so dejure or de facto; either legally married or cohabiting, or acknowledged as a wife — a mere statement in the declaration that she had once lived with the defendant would be as demurrable as the statement of a mere occupation would be in the former case. Chief Justice. — I consider that the facts of this case take it out of the general doctrine. The woman having been recognised by the defendant as his wife nearly'to the time of bringing the action, renders him liable. Sherwood, J, — In the case cited there was no re- cognition, but in the one before the court there was. I consider also that the parties having been actually married, though perhaps by a minister not strictly authorised to perform the ceremoay, distinguishes this case from others; the case in Campbell shews that although parties do not cohabit, yet if the sup- posed husband does other acts to recognise the woman as his wife, he makes himself liable for her necessaries. Per Curiam. — Application refused. Brown v. Hudson. Where the person of an insolvent debtor is discharged from arrest by a for- eign authority, this court will not set aside an arrest made under the pro- cess of this court for the same cause of action, it not being bound to model or restrain its course of proceeding by that of other countries. Robinson, Attorney-General, applied for a rule nisi to discharge the defendant from prison upon filing common bail, upon the ground that his person had MICHAELMAS TERM, 7 GEO. IV., 1826. 39l been discharged from imprisonment under an insol- vent law of the state of New York. The defendant had been arrested in this country upon a contract entered into with the plaintiff in the state of New York, had remained in prison, and after suffering judgment to pass by default and a ca. sa. to issue, made this application. His counsel contended, that the general maxim applied, which establishes that no person is to be arrested twice for the same cause. That the general principle as laid down by Lord Mansfield in Pedder v. McMaster, {a) "that a dis- charge from debt by a competent jurisdiction in a foreign country operated as a discharge in any other," and he contended that a partial discharge, as in the present case a discharge from imprisonment, was within the principle, and should be equally re- cognised. That were this merely an application to set aside proceedings for irregularity, it might be contended that the defendant was too late in his application, but that it could never be too late to discharge a prisoner illegally confined. That this case was analogous to that of a debtor, who, if once supersedeable, is always supersedea- ble. (5) That the case of Sharpe v. Iffgrave (c) was in (a) 8 T. K. 609. (i) Kobertson v. Douglas, 1 T. R. 191. (c) 3 B. & P. 394. 392 MICHAELMAS TERM, ? GEO. IV., 1826. point to shew that a debt might continue to exist without the defendant's continuing liable to arrest. In answer to the objection which might be made to this application, on the ground that it had been made and decided by the court in a former term, he observed that the grounds of the application were different, inasmuch as it had not been formerly repre- sented to the court, that the ground of action had arisen in the foreign jurisdiction. Robert Baldwin opposed the application, contend- ing that it was the same and no other than that which had formerly been made to the court, for that as the place of contract could not alter the merits of the defendant's application, so neither could it be considered as constituting other grounds. That the case cited to shew that a prisoner once supersedeable was always so, did not apply, or was against the application, for if a prisoner pleaded, after being supersedeable, he lost his opportunity of discharge. Chief Justice. — T consider that there is a wide distinction to be taken between the case where a debt is extinguished, and where, as in the present case, the mode of its recovery only is modified by the laws of a foreign country. In the latter case the plaintiff is left at liberty to recover his demand here, and that by the course of proceeding which is usual in this country. Sherwood, J. — I consider that the doctrine laid down by Lord Ellenhorough in the case of Imlay v. MiCHAilLMAfe DERJJ, i QB6. IV., 1826. 393 EUeffsion, (a) is decisive upon that point, and there- fore, that upon that ground this application must fail. I think it would fail too upon the ground of laches in the defendant. If he had made this application shortly- after his arrest, the plaintiff would not have been put to the expense which he has, in proceeding to judg- ment and execution. Per Curiam. — Application refused. Grey v. Holme. Time may be granted to plead partnership in abatement, but will not be renewed Upon the gi'ound that it bad been oihitted to bis filed upon the ground of overtures of accommodation. Declaration served in Trinity Vacation with the usual notice to plead in eight days. Defendant had obtained a judge's order for six weeks' time to plead (without terms) for the avowed purpose of pleading in abatement. During the six weeks overtures were made by the plaintiff to settle the present and other suits, and it was agreed on both sides ttat there should be no pro- ceedings while such overtures were pending; during the present term the time for pleading would expire. Robert Baldwin applied for a further time sufficient to enable the defendant to procure an affidavit of the truth of his plea (which was partnership) from Niagara. Macaulay opposed the application, 0bBerving that a month of the six weeks, granted by the judge's (a)2E. 3B. 453. 50 394 MICHAELMAS TERM, 7 GEO. IV., 1826. order, had elapsed before any overtures as to a com- promise had taken place, and suggested a doubt as to the regularity of granting time to plead in abate- ment. Sherwood, J. — I consider that the time for plead- ing was properly granted, and at the time of granting it I supposed it acquiesced in. Application refused. The King v. The Justices of the District op Nia- gara- UPON the relation op Edward McBride, Esquire, M. P. This court refused to issue a mandamus to justices of a district to order par- liamentary wages to be paid to the representative of a town, under the provincial statute. This was an application to the court for a rule to shew cause why these magistrates should not be directed by mandamus of this court to issue an order to the treasurer of the district, to pay Edward Mc- Bride, Esquire, his parliamentary wages as a member for the town of Niagara. The question arose upon the provincial statute 43 G-eo. III., c. 9, entitled, "An act the more conveni- ently to collect the compensation to the members of the House of Assembly for their attendance on their duty in parliament," &c. This statute enacts, " that after every prorogation and dissolution of the Assem- bly of this province, it shall and may be lawful for every member thereof, having attended, to receive from the Speaker of the House of Assembly a war- MICHAELMAS TERM, 7 GEO. IV., 1826. 396 rant under his hand and seal, signifying the time that such member hath attended his duty in the said As- sembly; and every member possessed of such war- rant shall and may ask, and demand of the justices of the peace for the district in which the county or riding represented by such member may be situate, in their general quarter session^ assembled, a sum not exceeding ten shillings per day for every day that such member shall have attended, &c., which sum it shall and may be lawful for the said justices to levy, by assessment to be made on every inhabi- tant and householder in the several parishes, town- ships, reputed townships or places within the county or riding represented by such member, in the same manner and form as by law any assessment may now or hereafter be levied for any public purpose in any district of this province, and for the said justices to issue their order upon the treasurer, &c." Boulton, Solicitor-Greneral, contended in favour of the application, that it was evidently the intention of this statute that every member thereof should re- ceive his wages, for to what purpose was every mem- ber, as directed by the statute, to receive a warrant, if it was not with a view to receiving his wages. If there could possibly be a doubt it was removed by reference to the words of the 33 G-eorge III., c. 3, the 30th clause of which states, "that whereas it was the ancient usage of that part of Great Britain called England for the several members representing the counties, cities and boroughs therein, to receive wages, &c.," evidently shewing that it was the inten- tion of that act, that every member was intended; 396 MICHAELMAS lEEM, 1. GEO, IV., 1826; and observed, that although this clause of that statute was repealed, yet being in pari materia it might well be called in aid to explain the latter statute. He further contended, that if the diflB.oulty arose in the mode of collection, that the words of the statute in question which directs the assessment to be made upon every inhabitant householder in the several parishes, townships, reputed townships, or places were sufficiently general to authorise an assessment upon the town which the member represented, and he consideredthat the amount might be levied in the same manner as sums were levied under the police act. He observed further, that it being evidently the intention of this statute to give every member wages, that it should receive the same liberal con- struction with the statute circum^pecte agite, which^ although it only mentions the Bishop of Norwich, has been held to extend to all bishops, and that to give this st^ytute the effect intended, the towns sending members should be considered as included in the provision giving wages to counties and ridings. Baldwin, same side, considered that the town members should be paid out of the district, funds, for that if they were not this absurdity would follow, that the inhabitants of towns would be taxed for pay- ing members who did not represent them, without ha,ving a reciprocal advantage. That nothing could be more just than that the dis- trict at large should pay them, as they, in fact, represented the district at large as well as the parti- cular town. He considered, however, that if the MICHAELMAS TERM, 7. GEO. IV., 1826. 397 general funds of the district should fail, these mem- bers might be paid; by a levy under the police act in, such towns as had a. police. Chief Justice. — By the 43 G-eorge III., provision is only made for payment of wages to the members of the House of Assembly representing counties and ridings. At that time there were no towns in this province sending members, consequently those poli- tical divisions could not have been within the con- templation of the legislature at the time. The 60 G-eorge III., c. 2, which authorises a repre- sentation for towns of a certain description and for a university, is altogether silent as to any provision for payment of parliamentary wages; and whether this omission was intended or not, I consider that a mat- ter ought to be very clear to induce this court to give an extended construction to any act of the legisla- ture, which has for its object the laying of any tax or assessment upon the subject, Shehwood, J. — This application is made under the provincial statute 43 Geo. III., c. 11. When that act was passed no representatives were sent from towns to the provincial parliament, and I think the phraseology of the statute is peculiarly ap- plicable to counties and ridings, and cannot properly be construed to extend to towns. The provincial statute 1 Geo. lY., was made seventeen years after- wards to increase the representation of the commons of the province, and enacts that members shall be chosen not only for counties but also for towns and a university when duly established. 398 MICHAELMAS TERM, 7 GEO. IV., 1826. It appears to me that the legislature in 1803 in- tended to allow wages to such members only as were then sent to the House of Assembly, but did not in- tend at that period to provide wages for such mem- bers as might possibly be added to the representation at any future period. I think the allowance of mem- bers from towns was not even in contemplation when the statute 43 G-eorge III. was passed, and it did not actually take place till seventeen years afterwards. No assessment or tax should be laid on the people without an express law to warrant the levy. In all ambiguous cases where it is really doubtful whether the parliament intended a tax to be laid and collected for the use of individuals, this court will not enforce such a measure by granting a mandamus to the Court of Gj-eneral Quarter Sessions of the Peace, from legal inference, or mere intendment of law. I consider it a casus omissus to be supplied by an act of the legislature whenever its wisdom shall deem such a step advisable. Application refused. Brock v. McLean, Sheriff. If a defendant moTes a nonsuit and afterwards examines witnesses, the plaintiff is entitled to any benefit which he can obtain from their evidence in support of his case. An attorney (merely as such) is not authorised to discharge a defendant in execution, certainly not without receiving the debt, and the sheriff, so discharging a debtor upon his authority, will be liable as for an escape. This was an action for an escape, brought against the sheriff of the Midland District, under the follow- ing circumstances : MICHAELMAS TERM, 7 GEO. IV., 1826. 399 Mr. Daniel Washburn, formerly an attorney of this court, became insolvent, and being about to leave this province, immediately previous to his departure instructed his clerk to discharge out of execution one White, a debtor, whom he had proceeded against at the suit of the plaintiff. After his departure, his clerk, who had in fact con- ducted the proceedings in the cause, and signed the writ of execution, wrote an authority to the defen- dant, who accordingly discharged the debtor. It appeared in evidence at the trial, that he, defen- dant, knew of Washburn's insolvency and departure. Some of the formal circumstances necessary to support the plaintiff's case, not having been proved by his witnesses, the defendant's counsel upon that ground, and upon the ground that the authority of the plaintiff's attorney was a sufficient warrant for the sheriff to discharge a prisoner in execution, moved for a nonsuit, which, being refused by the judge who tried the cause, the defendant's counsel proceeded to examine his witnesses, and upon their cross-examination the formalities necessary to the support of the plaintiff's case were elicited, and a verdict was taken for the plaintiff, with liberty to the defendant to move. Robinson, Attorney-Greneral, now moved for a rule nisi to set aside the verdict and enter a nonsuit, or grant a new trial. He insisted as a preliminary point, that the plaintiff, having failed in the proof of his case by his own witnesses, could not, after a mo- 400 MICHAELMAS TEEM, 7 GEO. IV., 1826. tion for a nonsuit, be allowed to do so by a cross- examination of ihose of the defendant, and that the case must now be considered as standing as it did at the time the motion for a nonsuit was made at nisi prius; in support of this position he relied upon Mr. Justice Bulkr's dictum as reported in Bosanquet and Puller, viz., "that on a motion for a nonsuit, the court is to consider itself in the situation of the judge at the time of the objection raised." (a) Boulton, Solicitor-Greneral, as to this preliminary point, contended, that Mr. Justice BuUer's dictum was not to be construed to mean the time the defen- dant moved a nonsuit, unless he relied upon it, and declined giving evidence; but that if he did so, the plaintiff had a right to the benefit of any facts that might come put in the course of the examination of the 'defendant's witnesses. The court agreed upon this point with the plain- tiff's counsel, observing, " that the dictum was to be taken sub modo, that is, if the defendant relied upon his grounds for a nonsuit, by declining to examine witnesses upon his defence." The defendant's counsel proceeded to the principal ground of his application, viz., that the verdict was against law and evidence. He contended that by the general principles of law, the acts of the attorney were to be considered as the acts of the client; that it had been the constant practice in conformity to this principle, to discharge prisoners upon the authority of the attorney. (a) Cox V, Kilohen, 1 B, & P. 339, MICHAELMAS TERM, 7 GEO. IV., 1826. 401 That it would be unreasonable to expect the sheriflF to ascertain before a defendant's discharge, whether the plaintiff had received his debt, and it would in- deed be impossible for him to do so, as he could re- quire no legal proof of such a fact from the attorney, if he thought proper to assert it. That a requisition of the sort would be equally hard upon defendants, many of whose plaintiffs lived out of this province, and who would frequently be kept in gaol an unnecessary length of time, if the at- torney's discharge was not sufficient to exonerate the sheriff without payment of the money, which was not done in nine cases out of ten. As to book authorities upon the subject, he ob- served that it was positively laid down in Eolle that the attorney might release a defendant in execution although he receives nothing; and although it is laid down in the same authority that he may acknowledge satisfaction on the record on receipt of the money, yet that mode of expression was not sufficient to overturn the other positive unconditional assertion, supported, as it has been, by the constant practice. He referred to the authorities below, [a) Boulton, Solicitor-Greneral, contra, contended, that as an attorney could not enter a retraxit, so neither could he discharge a defendant in execution; and for the same reason, viz., that he had no warrant to do either — his warrant being only to prosecute, and his authority ceasing with the judgment. That the dictum of Mr. Justice Dodridge, as re- (ffi) 1 Rolle, 291 ; 1 EoUe, 366, 7. 51 4ft2 MICHAELMAS TERM, 7 GEO. IV., 1826. ported in RoUe, was much invalidated by the dissent of Ooke, and was overruled by contrary decisions in the same reporter, and by the more modern authori- ties. Sherwood, J. — The application for a new trial is always to the discretion of the court; and if the mat- ter is not of sufficient importance, or if justice has been done, it is usual to refuse it. From the turn which the argument has taken, it is now only necessary to consider the principal point, which njay be reduced to the question, whether the attorney's general authority ceases upon judgment being obtained ? This appears to me to be decided by the modern cases, and particularly by that of Tipping V. Johnson, (a) and a sort of special authority which he has of suing out execution, or receiving money, or doing otter acts for the benefltof his client, do not interfere with this decision; but the discharg- ing a, prisoner in execution, without payment of the debt, is not an act of this description. Should a case ijQ,deed arise in which the attorney asserted that he had in fact received the money, the court would pro- bably consider that circumstance. As to the hardship of this case upon, the sheriff, it aippe9,rs that it was known to him that the attorney had. left, th^, province without the intention of return- ing^ and th^-t his circuin^tances were insolvent. Upon t}|e^ whole, it appears to ni,e, that it is the plaintiff who would have reason to complain, if a new trial were granted in a case where his debtor had been dischanged without any satisfaction. (o) 2 B. & p. 357. MICHAELMAS TERM, 7 GEO. IV., 1626. 403 Chief Justice.— I consider that in this case there is no ground to grant a rule nisi. An attorney being deeply insolvent and having departed the province, and the sheriff knowing this, discharges a defendant upon the authority of the absent attorney, and that even in defiance of the plaintiff — where, in this case, is the tangible person, if the sheriff is not ? I con- sider that great injustice would arise by otertufmng this verdict. Per Cwnam.— Application refused. Clench v. HekdrIOKs. The King's patent gives the patentee an estate sufficient to inailitaiti irdsp&as. This was an action of trespass tried at the assizes for the Midland District, and a verdict for the plain- tiff for £5. The plaintiff gave his patent from the Ci'dWtt as evidence of title, but gave lia evldeftce of adtiial entry. The act of trespass cottststed in the defeu'daQt's having erected a shanty upon, aftd havilig cut and carried away timber from, the plaintiff's premises, a lot of wild land. Bethune moved for a rule nisi to set aside the ver- dict as being against law and evidence. He con- tended that a grantee under the King's patent had no other title than that which a bargain©© had under a deed of bargain and sale under the Statute of Uses, 404 MICHAELMAS TERM, 7 GEO. IV., 1826. wlio could not bring trespass without first making an actual entry. Or than that of an heir upon whom the descent was cast, who could not, without entry, bring tres- pass against an abator. He suggested that the dictum in Plowden, which lays down that the King's grants pass an estate with- out livery, left it to the grantee to perfect his title (for the purpose of bringing trespass) by actual entry. He contended that he was supported in this posi- tion by the determination of this court in the case of Purdy qui tarn v. Eyder, in which case the King's patent was not considered as a protection to the de- fendant against the operation of the statute of Henry YH., made to punish persons transferring estates of which they had not been in possession. Boulton, Solicitor-G-eneral, same side, suggested that the defendant was in the situation of a disseisor, against whom an action real could not be brought without entry. Cartwright, contra, observed, that there was a great distinction between the case cited and the pre- sent. In that case Purdy had been many years in adverse possession, under a contract from Ryder, who had sold the land in violation of his contract, and opposed this application on the ground of the great public inconvenience which would ensue from granting it, as it was a well known fact that a very large proportion of the grantees of the Crown never took possession of their estates by actual entry. MICHAELMAS TERM, 7 GEO. IV., 1826. 405 Sherwood, J. — It is objected by the defendant, that the King's patent does not give the grantee pos- session of an uncultivated lot of land mentioned therein. It is contended that such grant is in effect like a deed of bargain and sale, by which the bar- gainee can bring no action of trespass before entry; and, therefore, the patentee can bring no such action. There is no analogy in the cases, for the King's patent operates like a deed of feoffment with livery of seisin, and completely passes the estate, and the grantee is in actual possession by virtue of the patent — all the authorities are clear as to this point. The defendant in this case had no adverse possession, for the act of cutting down and carrying away the timber was an act of aggression only, without any claim to the pos- session or property of the land. There can be no occupancy or tenancy at sufferance against the King. Lit. 17S; 1 Institute, 41 b.; 1 Institute, 57. Per Curiam. — Application refused. Perkins v. Scott. The court refused to set aside an assessment of damages upon the ground that the verdict was too low from a misapprehension of the jury. George S. Boulton applied for a rule nisi to set aside the assessment of damages in this cause, the jury having given their verdict for too small a sum under a misapprehension. The court considered the case of Jackson and Williamson as deciding the present case, and refused the application, (a) Per Curiam. — Application refused, {a) 2 T. K. 281. * ~ 406 MICHAELMAS TEEM, 7 GEO. IV., 1826. Batabd et al. y. Partridge. Accord ■with satisfiaction held a good plea to breach of covenant, and leave to withdraw the demurrer refused. Declaration ia covenant for non-payment of the purchase money of certain lands sold by the plaintiff to the defendant. Plea. — First, non est factum. Secondly. — Actio non, because the defendant, be- fore the commencement of this suit, to wit, on, &c., at, &c., conveyed and delivered back to the said plaintiffs, and into their hands and possession, the lands contracted for, in the full satisfaction and dis- charge of the sums of money in plaintiffs' breach mentioned and of the damages thereof, and which said lot of land so conveyed and delivered back to them, the said plaintiffs, they then and there received of and from the defendant, in full satisfaction and discharge of the said several sums of money in the said breaches mentioned, and of the damages, &c. The plaintiffs took issue upon the first plea, and demurred generally to the second. JBeihune, in support of the demurrer, contended, that a covenant to pay money cpuld not be discharged without deed, and cited the authorities below, (a) Robinson, Attorney-Greneral, contra, admitted that a covenant, not broken, could not be discharged without deed, but contended that the damages arising from a breach of covenant might be satisfied by pay- ment of money or any other thing ; and that the (a) 2 Institute, 212, b.; 6 Coke, 44 ; 2 Croke, 99 ; Croke, Eliz. 103, 357 ; Croke, James, 2^. MICHAELMAS TERM, 7 UEO. IV., 1826. 407 agreement for such satisfaction might be by parol. That acceptance in satisfaction was a good plea; and that the above distinction was to be gathered from the cases he cited the authorities below, (a) The court were of opinion that accord, with satis- faction, was a good plea to breach of covenant, Judgment for the defendant. Boulton, Solicitor-Greneral, applied before judg- ment for leave to withdraw the demurrer, but was not allowed. Sherwood, J., observing, that the plaintiff, by his demurrer, had admitted the facts stated in the plea, and could not now be permitted to deny them. (ffi) 9 Coke, 79 ; 5 T. E. 141 ; Bac. Abr. Covt. 1 *Morgan, 149, 326 ; 3 East, 252 ; 1 Saunders, 235. [408] HILARY TERM, 7 aEO. IV., 1827. Present : The Honourable Chief Justice Campbell. Mr. Justice Sherwood. MORAN V. MaLOT and ANOTHER. The court Trill not grant an insolvent debtor an order for the payment of the arrears of his weekly allowance, which had accrued pending an un- successful application for his discharge. Washburn applied for a rule to sliew cause why the defendant Maloy should not be discharged out of the custody of the sheriff of the Midland District, for non-payment to him of thirty shillings, currency, being six weeks' allowance due to him as an insol- vent debtor, which he had refused to receive pend- ing an application to this court for his discharge from prison under a misconstruction on the part of said defendant of the law respecting the weekly allowance of insolvent debtors, or why plaintiff should not pay defendant all arrearages of said weekly allowance. Sherwood, J., observed, that the defendant had made an experiment of which he must submit to the consequences. Per Curiam. — Application refused. hilaey term, 7 geo. iv., 1827. 409 Stewart v. Crawford. The court will not, upon a first motion, grant a rule absolute for an attach- ment for non-performance of an award although the party consents by his counsel. Washburn moved for u rule nisi against the defen- dant for the non-performance of an award. Stewart, (with a view to save costs,) on the part of the defendant, proposed that the attachment should go in the first instance, but his proposal was rejected by the court. Application granted. Crooks v. Stockings. A party must furnish his opponent with copies of any affidavits which he intends to produce as the ground of discharging a rule nisi. Stewart was proceeding to answer a rule nisi in this cause and to produce affidavits which had not been communicated to the other party. Sherwood, J., observed, that the counsel intend- ing to file affidavits should furnish the opposite party with a copy the day before argument. Bebbe v. Secord and another. Counts in assumpsit cannot be joined in a declaration with counts in debt, and such misjoinder will not be cured by verdict. The declaration commenced in the usual form in debt, demanding the aggregate of the several sums contained in the different counts. The first count was in debt upon an obligation in the usual form. 52 410 HILARY TERM, 7 GEO. IV., 1827. The second count was in the form generally used in assumpsit, for goods sold and deliverefJ, money lent and advanced, paid, laid out, and expended, had and received, and concluded with the usual promise in assumpsit. The third count was for interest in the same form and with the same conclusion. The fourth, in like manner, upon an account stated; the breach alleged the non-payment of the £550 above demanded, and concluded to plaintiff's damage of ten pounds. Plea to the first count, non est factum. To the others, nil debit — upon this declaration the parties went to trial, and there was a verdict for the plain- tiff. Boulton, Solicitor-Greneral, having obtained a rule nisi to arrest the judgment for misjoinder, Macaulay shewed cause. — He observed, that the criterion by which it was to be determined whether or not this judgment could stand was, whether there could be the same form of plea and the same judg- ment to these several counts. He contended that non est factum having been pleaded to the first count upon the specialty, and ml debit to the counts upon the simple contracts, (which might be considered as counts in debt,) that one judg- ment, namely, that the plaintiff recover his debt, would well apply to all the counts, and therefore would be good; he contended that the promise to pay HILARY TERM, 7 GEO. IV., 1827. 411 at the end of the simple contract counts could not vitiate, it was merely expressing what would be othierwise implied, and that however bad the joining these counts might have been upon special demurrer, that the verdict must cure thein. The counsel re- ferred to the authorities below, (a) BoultOn, Sblicitor-Greneral, in reply, observed that the counts upon the sinifjle dorltracts Vere in the regular assumpsit form, whereas the first count was in debt, which forms could not, agreeably to the rules of pleading, be joined together.' The judgment upon the one count must be that the plaintiff recovei* his debt; upon the others that he recover his damages — different judgments altogether. That the greatest confusion would arise if stich in- accuracies could be tolerated by the courts; that the defendant having pleaded nil deUi to the assumpsit counts, the plaintiiff niight havfe entered a rioti prose- qui upon the count in debt and have signed judgment for want of a plea. The counsel cited the authority belbV. [b) Sherwood, J. — The court cannot pronounce the same judgment upon all the counts in this declara- tiod, some of the counts are in debt, and sOtne in as- suthpisit — the judgment must be arrested. Per Curiam. — Eule absolute. (a) 1 WilaQU, 258 ; 2 Wilson, 319 ; 1 T. R. 274 ; 1 H. B. 249 ; 1 B. & P 58. (h) 6 Wilson, 321. 412 HILAKY lERM, 7 GEOi lV.,"l827. Henderson v. McOormick. Where four terms have elapsed after issue joined, a term's notice is necessary to be given before any subsequent proceeding, unless irithin the four terms a notice of intention to proceed has been given. Notice of trial had been given in this cause, in the vacation of Trinity Term, 6 Geo. TV.; no further proceedings were had until last Trinity vacation, when fresh notice of trial was given, and a verdict taken for the plaintiff — the date of the last notice of trial was within a year of the date of the first. BouUon, Solicitor-G-eneral, had obtained a rule to shew cause why this verdict should not be set aside on the ground of irregularity. Macaulay shewed cause. — He suggested that pro- ceedings (namely, a notice of trial) having been had within a year from the last proceeding, made it un- necessary for the plaintiff to give a term's notice, it being laid down in Impey, (o) that if notice be given "within the year from the day of the last proceeding, having no regard to the terms, it is sufficient," which is also conformable to what is laid down in Eichards V. Harris, {b) Sherwood, J. — It is contended by the defendant, that four terms having elapsed since any proceedings have been had, he was entitled to a term's notice of trial. By the plaintiff, that the second notice of trial having been given within a year from the former, it is sufficient. Tidd lays down, that where there have been no proceedings for four terms, exclusive after issue (o) 359. (i) 3 East, 1. HILARY 1ESM, 7 GEO. IV., 1827. 413 joined, a term's notice is requisite. Impey states the same in substance, but in a subsequent paragraph he says: " If notice be given within the year from the day of the last proceeding, having no regard to the terms, it is sufficient." I think that this seeming contradiction is reconciled by considering the latter paragraph in Impey, not as alluding to the whole term's notice, but to a notice of intention to proceed to be previously given within the four terms, and this is supported by the form of notice which we find in Tidd's appendix. I consider, from all the authorities, that it is the settled practice that if notice to proceed be given within the four terms, that an ordinary notice of trial will be sufficient, but that in the present case, no such notice having been given, and four terms having elapsed without any proceeding, the defendant was entitled to a term's notice. Per Curiam. — Rule absolute. Byard v. Read. The defendant had been held to bail by an affidavit which stated the deponent's residence as at Canan- daigua, state of New, (the word York being omitted,) and an order had been obtained for his discharge from arrest upon filing common bail, by an applica- tion to a judge at chambers. Beardley applied (a term having elapsed since the obtaining the judge's order) to rescind such order, 414 HILARY TEEM, 7 GEO. IV., 1827. cdntending that the affidavit was sufficient, and that it was nbt eompetent to a judge at chainbers to order a discharge upon filing common bail. He urged that our provincial statute, which re- quired an affidavit of the defendant intending to leave the province without paying the plaintiff's debt, dispensed with the niceties required by the English practice. Washburn was for the plaintiff. — -The court observ- ing, that the description of the depoiient was insuffi- cient, and that an application to the court to discharge an order of a judge at chambers should be made at the next term after such order had been obtainisd. Per Curiam. — Applifcatibn refused. Laing v. Harvey and Powell. Bailable process issued against two, the plaintiff allowed to proceed against one. The plaintiff applied by Macaulay for leave to dis- continue his action as to defendant, Harvey, and to proceed against Powell alone, upon an affidavit stat- ing, " the plaintiff having issued bailable process under which the defendant Powell had been arrested, and that the other defendant, Harvey, had abscdnded from the province, and that if the plaintiff was not allowed to proceed against the defendant Powell alone, he would probably abscond." (a) The counsel considered that he was entitled to his (a) Vide 5 Dumford, East ; 4 East, 568 ; 1 M. & S. 55 ; 2 B. & P. 49 ; Lewin V. Smith ; 4 East, Tidd, 736, 421. HILARY TERM, 7 GEO. IV., 1827. 415 application, by analogy, to the practice of inserting four defendants in a common process and declaiming in separate actions. And also under the equity of the provincial statute for proceeding against one or more joint debtors, where the others had left the province. Per Curiam. — Application granted. Butler, Executrix of Johnson Butlee, v. The Hon. J. H. Dunn, Ebcbivbr-G-eneral. The Receiyer-General of this province is not considered as liable to actions at the suit of individuals for money placed in his hands hy the executive to be distributed among them. This was an action for money had and received, brought against the defendant, for a sum awarded to the plaintiff's testator for losses sustained during the late war, under the provincial statute, {b) under the following circumstances: Andrew Butler and Johnson Butler (the latter being plaintiff's testator) had been awarded a con- siderable sum by the commissioners appointed under the above statute. From the difficulty which they experienced in as- certaining and apportioning the amount of the loss sustained by each of these individuals, the commis- sioners had awarded them an aggregate sum of £704, leaving it to the parties to appoint an attorney to re- ceive the whole amount and divide it according to their respective rights. " (a) 4 Geo. IV. 416 HILARY TERM, 7 GEO. IV., 1827. The claimants were correctly named in the origi- nal award of the commissioners; but in the printed schedule or list of persons to whom sums were awarded, they were called " Andrew and John,-' in- stead of Johnson Butler. Johnson Butler died, and appointed the plaintiff his executrix. Shortly after the publication of the schedule, a Mr. William Crooks, by virtue of a power of attorney from the representative of Andrew Butler and the representative of John Butler, received the whole of the sum awarded by the commissioners, from the de- fendant, who paid it, as usual, upon reference to the printed schedule, without reference to the original document. Under these circumstances there was a verdict for the plaintiff for £219, subject to the opinion of the court upon several points reserved; the principal, and only one upon which it became necessary for the court to decide, being "whether the defendant was liable to this action as being a public officer." Macaulay, for the plaintiff, contended, that Mr. Dunn, by his laches in depending upon the printed schedule, and not going to the office of the commis- sioners or the government office, where he might, by reference to original documents, have ascertained who were the parties actually entitled, had subjected himself to pay this money a second time. This would, no doubt, be the case with private individuals, and he considered that his situation as a public officer, as far as regarded his liability in this case, made no alteration. HILARY TERM, 7 GEO. IV., 1827. 417 He distinguished between cases which might be cited on the other side and the present, inasmuch as in those there was no specification, whereas in the present the particular sums having been appropriated by schedule to each individual, renders the defendant liable pro tanto to each person, and contended that the defendant's situation was more analogous to that of a paymaster who received sums appropriated to individuals, than to that of an officer who received large sums for general purposes. He cited Stewart V. Tucker (a) as shewing that the former description of officer was liable. He further observed, that Lord Mansfield's obser- vation in Burrow {b) would include the present case, viz., " That the gist of the action for money had and received is, that the defendant, upon the circumstan- ces of the case, is obliged by the laws of nature, jus- tice and equity to refund the money."' He observed further, that an application to the government, which might be pointed out as the plain- tiff's counsel, would probably be answered by a re- ference to the Receiver-General. Robimon, Attorney-G-eneral, contra, after premis- ing that the object of this defence was to ascertain whether Mr. Dunn was a public officer, liable to the actions of individuals in matters relating to the dis- position of the funds entrusted to his charge, con- tended, as a general position, that public officers were not so liable. That the case of the paymaster, cited from Black- (o) 2 W. B. 1137. (S) 1 Burrow, 1012. 53 418 HILAHY TERM, 7 GEO. IV., 1827. stone's reports, was professedly brought to ascertain whether an officer could assign his half pay, and it had been observed that the declaration in that case was ill drawn and the case confined. « The case of McBeath v. Haldimand (a) supported his gejieral position, and was considered as decisive in the subsequent case of Unwin v. Wolsley. {b) That the distinction attempted to be drawn be- ween moneys appropriated and unappropriated was done away by the case of Williams v. Everett, (c) In that case, although it was one of a private transac- tion, the court determined that although the defen- dant had received a gross sum, which had been re- mitted to him, with instructions to pay a certain part of it to the plaintiff, yet that an action for money had and received upon an implied assumpsit would not lie, and that the principle and reasoning, as laid down by Lord Ellenborough in that case, was not affected by the circumstance of the defendant's refusal to ap- ply the funds entrusted to him, agreeably to the direction of his principal. The question which natu- rally suggests itself in the present, as well as in the case cited, is that put by Lord Ellenborough — an locupletior f actus est. When did the sum claimed be- come money had and received to the use of plaintiff? If the defendant, in the present action, had been robbed of the whole sum entrusted to him, would every person named in the schedule have been en- titled to bring his action, and would each of them have lost his claim to any compensation elsewhere ? In the case before the court, as well as in the case (a) 1 T. R. 172. (6) 1 T. E. 674. (c) 14 East, 697. HILARY TERM, 7 GEO. IV., 1827. 419 cited, the defendants might have been called upon at any time by the principal in the one instance, and by the government in the other, to have returned the money deposited. When, then, could the money so deposited, or any portion of it, have become money had and received to the defendant's use ? At what time could the law have raised an implied assumpsit ? The late case of G-idley, executor of Holland, v. Lord Palmerston, (a) he further observed, had placed this matter beyond doubt ; it being in that case de- termined " that assumpsit could not be maintained against the Secretary-at-War, by a retired clerk of the war office for his retired allowance, although such allowance was included in the yearly estimates drawn for by such secretary, and received by him as applicable to such specific allowance, upon the ground that it would tend to .expose him to an infi- nite number of actions to be brought by any person who might suppose himself aggrieved. Sherwood, J. — The plaintiff has a verdict subject to be set aside, and a nonsuit entered, should the de- termination of the court be in favour of the defen- dant on the points reserved at the trial, among which is the following: " the defendant acted in this tran- saction as a public officer of the government, and no action on an implied assumpsit lies against him by the plaintiff." The sum claimed by the plaintiff is £219 16s. 6d., being a part of a larger amount allowed to the plaintiff's testator for losses which he sustained during the late war with the United States of Ame- rica, a part of which has been placed in the hands of the defendant as the Eeceiver-General of this pro- 420 HILAEY TERM, 7 GEO. IV., 1827. vince, for the purpose ot being paid over to the per- son legally entitled to receive it. The defendant, it appears, has paid the money, but it is asserted that he has paid it to a wrong per- son, and the plaintiff alleges, he has brought this ac- tion to recover it for the rightful owner. At the trial of the cause, I inclined to think the action would well lie against the defendant for money had and received to the plaintiff's use, but upon looking into authorities which I shall presently mention, I am fully convinced this action cannot be supported. The cases I allude to are Macbeath v. Haldimand, 1 T. R. 172; Unwin V. Wolsley, 1 T. R. 674, and Gridley, executor of Holland, v. Lord Palmerston, 3 Broderip and Bing- ham, 275, and although the circumstances of none of these cases are precisely analogous to the present case, still they fully establish in my opinion the doc- trine, that public policy will not allow an action to be brought like the present, against any person act- ing in the public character and situation of the de- fendant. The plaintiff" must also fail on another ground, which is the total absence of any implied promise. The money cannot be said to have been received to the use of the plaintiff, because it undoubtedly belonged to the Crown, and the defendant received it from the Crown in his public character of Receiver-G-eneral of Upper Canada, and in that capacity is responsible to the Crown only. The constitutional remedy of the plaintiff is by petition to the Crown, and conse- quently a nonsuit ought to be entered. Chief Justice. — The general rule seems to be HILARY TERM, 7 GEO. IV., 1827. 421 that where a public officer has a trust or discretionary- power reposed in him, although he may err in its execution, unless he does so wilfully he is not liable to an action at the suit of an individual. Further, that if his duty is purely ministerial, his situation is analogous to that of a paymaster of a regiment, and be is not protected by the general principle of law, contended for by the defendant's counsel. Upon con- sidering the general circumstances of this case, I am of opinion that the defendant's situation is more analo- gous to that of Lord Palmerston, than to that re- ported in Blackstone, and that this action therefore does not lie. Per Curiam. — A nonsuit to be entered. Taylor v. Eawson. Where a declaration upon common process was endorsed, " filed condition- ally until special bail, &c.," the court refused to set aside the proceedings as irregular. In this case a bailable process had been issued against the defendant, but those proceedings had been discontinued and a common process issued and served — appearance was entered according to the statute, and a declaration was filed, but was endorsed to plead de bene esse until special bail was put in and perfected; a copy had been served upon the defen- dant and a demand of plea given; judgment was afterwards signed for want of plea. It did not appear how the copy of the declaration was endorsed. Boukon, Solicitor-General, moved last term for a rule nisi to set aside the interlocutory judgment and proceedings thereon for irregularity — the declaration 422 HILARY TEEM, 7 GEO. IV., 1827. having been improperly endorsed, and such endorse- ment having tended to deceive the defendant, who might reasonably have supposed that the declaration was a continuation of the bailable proceeding. Macaulay shewed cause, he assumed (as it did not appear otherwise) that the copy of the declaration served had not been endorsed, and, therefore, could not have deceived the defendant; and that the demand of plea having been served, either with or after the declaration, left no room for doubt. He cited Cort v. Jaques, in which case the service of a notice of declaration, as filed generally, instead of the notice de bene esse, was held not to be such an irregularity as would set aside a judgment, {a) and the other authorities below, {b) Chief Justice. — If this endorsement upon the declaration had actually deceived the defendant, there would have been a strong ground for setting these proceedings aside; but the court consider that a demand of plea having been also served, left the defendant no room for doubt. Per Curiam. — Eule discharged. McPhbrson v. Sutherland. Macaulay applied for a rule nisi to stay proceed- ings upon an execution against goods and chattels taken out under a cognovit actionem, and judgment thereon entered, upon an afl&davit setting out a ver- (fl) 8 T. R. 77. (b) Impey 182 ; Sellen 222. HILARY TERM, 7 GEO. IV., 1827. 423 bal agreement at the time of the cognovit given, that the plaintiff would resort only to the lands of the de- fendant's testator for payment of his debt. The court observing, that the defendant must re- sort to an action upon the agreement, if so advised, as they could not interfere summarily, Refused the application. Sbwbll v. Richmond, (Bxoes. of.) Where, in an action for goods sold, the defence to which was that the goods were intended to be smuggled, it was doubtful (the verdict being general) whether the jury understood that the plaintiff knew that the goods were contraband. The court granted a new trial. This was an action tried at the assizes for the Mid- land District, and a verdict for the plaintiff. The defence set up was that the articles sold to the defen- dant were contraband. The defendant's testator had resided at Kingston, and by letter directed to the plaintiff at New York, desired him to forward to Gravelly Point, a small village on the Saint Lawrence, opposite tp Kingston, sixty chests of tea. The tea was put on board a vessel at New York, packed in chests unusually small, having upon them not the name of Richmond, but the mark R. C, such not being the ordinary mark of either Richmond or the plaintiff, and directed to a forwarder at Gravelly Point. Robinson, Attorney-General, had obtained a rule 424 HILAKY TERM, 7 GEO. lY., 1827. nisi to set aside the verdict, and grant a new trial on the ground of its being contrary to law and evidence, and now by consent and leave of the court argued first in support of the rule, it having been granted without argument. He acknowledged that the case of Holman v. John- son seemed against this application, as Lord Mans- field had there considered that mere knowledge that goods were intended to be smuggled would not pre- clude a plaintiff from recovering their value in the English courts, but that it was to be observed upon that case, that the contract was made and perfected in the foreign country, in the ordinary course of busi- ness, without any assistance given by the plaintiff in furtherance of the smuggling, but that in the present case the contract must be considered as made at Kingston, as much as in J;he United States. He admitted that this case was not easily recon- ciled to the later decisions, which went more upon the ground of public policy, a ground which, he urged, was much to be considered in this province, where a very extensive frontier offered innumerable points for carrying on contraband trade. He contended that in the later cases knowledge in a plaintiff (evident and indubitable) that the goods were intended to be smuggled, accompanied by any act in furtherance of the illegal transaction, would preclude his recovering their value in the courts of this country. He cited Biggs v. Lawrance {a) in support of this position, observing that the packing (a) 3 T. E. 454. ' HILARY TEEM flEO. IV., 1827. 426 the tea in an unusual manner in the present case, was analogous to the mode of furnishing the brandy in small kegs with the slings in the case cited. That although in that case the circumstance of the plain- tiffs being British subjects seems to have been re- lied upon, yet the later case of Weymall v. Eead, (a) went to shew that foreign merchants are bound to recognise the smuggling laws, and with the greatest propriety, as being made in reference to matters in which they are especially concerned. He considered that case as parallel to the present. There the for- eigner packed his lace in a peculiar manner to pre- vent discovery; in this case he packed and marked the tea in a peculiar manner, and forwarded it to a place where it could not be supposed,with any shadow of reason, to be consumed in any other manner than in a contraband trade. He contended further, that the doctrine of partici- pation, as laid down by Lord Chief Justice Eyre, in the case of Lightfoot v. Tenant, {b) should be applied to cases of this sort, for that parties who knew that the transaction which they were engaged in was illi- cit, would indemnify themselves for the risk which they sustained by charging an extraordinary price for the article furnished, and so might be considered as partners in the transaction. The Attorney-Gen- eral also cited the case of Laughton v. Hughes, (c) as not only shewing that the scienter was to be ascer- tained from circumstances without direct evidence, but also as establishing that the general policy of law required that vendors should not recover for goods to be employed in an illicit manner, insisting that (a) 5 X. R. 599. (i) 1 B. & P. 651. (c) 1 M. & S. 592. 54 426 HILARY TERM, 7 GEO. IV., 1827. the plaintiff in this case had, as observed by Lord Ellenborough in the case cited, contributed quantum in lib to the illegal transaction, and also as it recog- nised the cases of Biggs and Lawrence, and Wey- mell V. Read. He concluded by observing, that as there could be no possible doubt from the facts in the present case that the plaintiff knew the nature of the transaction he was engaged in, and had also assisted in the furtherance of it, that he could not recover in the action. Macaulay, contra, contended, that the cases cited were those in which British subjects having engaged in smuggling transactions against those laws which they were bound to recognise, were precluded from recovering, and that their being British subjects was the express ground of the decisions in the latter cases. That in the present case, as in that of Holman v. Johnson, the transaction was completed at New York, and that if that case was law, a decision against the plaintiff in the one before the court would be to legislate, and not to expound the law. That no sufficient argument in favour of the pre- sent application could be drawn from motives of public policy; which he considered as leaning the other way, for to decide against the present plaintiff would be to interdict foreign trade. No foreign merchant would trust the inhabitants of this country with his property, if defences like the present were to be set up to prevent his recovering their value. That such defences were highly immoral and should HILARY TEEM, 7 GEO. IV., 1827. 427 not be sanctioned, unless in cases where the imperi- ous and plain demands of public policy required it, which in the present case was more than counter- balanced by the injury which foreign credit would sustain by a decision in favour of the defendant. The counsel cited Vandyke and others v. Hewett, (a) and Johnson and others v. Hudson, (b) The Chief Justice observed, that as it could not be inferred from the general verdict given in this case, whether the jury considered the scienter as proved or not, that he considered (without going into the merits of the case) that it was a proper one to be submited again to a jury. Per Curiam. — Rule absolute. Applegarth v. Rhtmal. Case for diverting a water-courtt. An injury to a water-course considered as an injury to a permanent right, and in such case the court will grant the plaintiff a new trial, although the probable amount to be recovered by a verdict may not be large. This was an action tried at the assizes for the Gore District, and a verdict for the defendant. It appeared in evidence that the plaintiff had, for many years, occupied a mill upon the stream in ques- tion. That the defendant had recently erected another mill upon the same stream, about five miles above the mill of the plaintiff. (a) 1 East, 95. (ij U East, 180. 42S HILARY TERM, 7 GEO. IV., 1827. That during the time which the defendant occasion- ally took to fill his pond, the water of the stream ceased to flow in its usual quantity or velocity to the mill of the plaintiff, whereby his works were not only occasionally stopped, but when the defendant let his water off, it flowed in such a quantity as to overflow and injure the plaintiff's dam, by carrying away the brush, soil, gravel, &c., of which it was composed. The testimony given, as to the damage sustained, was very discrepant, the witnesses of the plaintiff (who were his servants, or persons resident at or in the immediate neighbourhood of the mill) estimating it at upwards of twenty-five poundscurrency,whereas the witnesses of the defendant (who were persons living at a distance from the mill) stated that he could have received very little or no injury. The judge who tried the cause charged the jury in favour of the plaintiff, who, however, found a verdict for the defendant. Taylor having obtained a rule nisi to set aside the verdict, on the ground of its being contrary to law and evidence, and the judge's charge. Robinson, Attorney-G-eneral, shewed cause. — He insisted that the action being for a tort, the damages in which (assuming for argument that there could have been a verdict for the plaintiff) must have been very small, the court would not interfere for the sake of giving the plaintiff a chance of recovering a verdict which, in all probability, could not exceed £5. That the judge having explained the law to the HILARY TERM, 7 GEO. IV., 1827. 429 jury, and having charged them in the plaintiff's favour, his duty was finished and satisfied, and that it would be unreasonable that the defendant should be har- rassed with a second trial because the judge differed in opinion with the jury as to the preponderance of conflicting testimony, to weigh which is the peculiar province of the jury, and more especially so in cases of tort. That the present was a hard action, tending to establish an unfair monopoly; that the amount of the injury was trifling — circumstances which would deter- mine the court in refusing this application, according to the authorities to be found in Wilson's and other reports. Taylor, in reply, contended that the position "that the court will not grant new trials on the ground of verdicts being contrary to evidence, where there is conflicting testimony," should reasonably be re- strained in its application to those cases where there is something like an equality in the conflicting testi- mony, and could not be extended to cases like the present, where the evidence on one side was as a feather compared to that on the other, where there could be no reasonable doubt upon the fact of the in- jury, and where the jury must have acted either from their own misconceived notions of the law or from a wrong bias. That the negative testimony of the defendant's witnesses should have had little weight when opposed to the positive testimony of the plaintiffs, who were persons qualified to judge of the injury and its extent, 430 HILAKY TEEM, 7 GEO. IV., 1827. and who had computed the amount of the damage sustained by the plaintiff in consequence of it. That the present case bore more analogy to an ac- tion for the infringement of a permanent right, where courts grant new trials, although the amount of the immediate pecuniary injury may be trifling, than to cases of tort which had been referred to by the de- fendant's counsel. In the latter there was no scale by which the amount of the injury could be ascer- tained, but in the present case the damage could be and had been computed. That it was matter of serious consideration, in cases like the present, that it was necessary that plaintiffs should resist any infringement of their right at once, and not by laches and length of time to give an op- portunity to a defendant to justify that as a right, which commenced in aggression. Sherwood, J., delivering the opinion of the court. — This is an action for obstructing a stream of water. The plaintiff is owner of the lands on both banks of the stream, and erected a mill and a dam on his own premises. Many years afterwards the defendant also built a mill and a dam further up the same stream, in consequence of which the water of the river was sometimes kept back when wanted by the plaintiff, and at others was allowed to come down in a much larger quantity than necessary, and with greater impetuosity than it naturally flowed. It was proved at the trial that both these changes in the ordinary progress of the stream occasioned injury to the plaintiff. HILAKT TEEM, 7 GEO. IV., 1827. 431 On the part of the defendant several witnesses gave their opinion that the plaintiff sustained no damage, others thought it very small. The witnesses for the plaintiff spoke of facts which, if true, estab- lished beyond a doubt that the plaintiff had been in- jured, and the witnesses for the defendant did not contradict those facts, but merely expressed their opinion of the absence of damage. The credibility of the witnesses on both sides was not impeached, beyond what a difference of opinion relative to the question of damage might possibly occasion. The course which the argument took on the motion for a new trial suggests three questions in this case: First. — Whether the prior occupancy of the water by the plaintiff gave him a right to the uninterrupted flow of the stream. Secondly. — Whether the smallness of the apparent damages, in a case like this, should prevent a new trial. Thirdly. — Whether this is a case of that descrip- tion in which the court generally consider a verdict of a jury conclusive. As to the first question, the common law rule is that a prior occupancy does give a right and pro- perty in a current of water to the first occupant, and every subsequent occupant must exercise his right so as not to injure the first occupant. — 2 Black. Com. 403. As to the second question, I know of no case 432 HILARY TEEM, 7 GEO. IV., 1827. which ever established the position that a small in- jury is entitled to no remedy, where the injury itself is of such a nature as to induce a probability of a continuance which would ultimately establish a right in the wrong doer. Great injury and small injury are relative terms, and depend on opinion, and in a case like this are too indefinite to aflford any perma- nent and rational rule, by which a candid mind can be governed in a question of right. It appears to me that the present action is similar in principle to an action on the case by a commoner in England, for an injury done to his right of common. In the case, Pindar v. Wadsworth, 2 East, 153, the court deter- mined that one farthing was sufficient to warrant the plaintiff in bringing his action, where the encroach- ment of a wrong doer, if not prevented in time, would change wrong into right. Twenty years' unin- terrupted possession and occupation of the water in any way, would give a right to the defendant in this case. The jury at the trial of this cause most pro- bably found a verdict for the defendant upon the erroneous opinion that the defendant, owning lands on the banks of the river further up tlie stream, had as good a right to use the water in any way as if the plaintiff had no previous occupancy. As to the' third question, this case differs essenti- ally from actions of adultery, slander, seduction and other actions of the same kind, where the quantum of damages must always depend in a great degree on sentiment, opinion and feeling, and which may be considered as actions sui generis. A measure of damages ascertained by ordinary computation is afforded by the circumstances of this case. Any man HILARY TERM, 7 GEO. IV., 1827. 433 of common sense who worked in the saw mill for two or three years, as one of the witnesses did, could say whether the water was or was tiot detained sometimes, and at other times let down in excessive quantity, and what difference there was in the quan- tity of lumber sawed in the mill in different seasons. All these facts were proved at the trial. In general cases the opinion of juries have been revised in England for a great length of time, when the court were convinced that justice required their interfer- ence ; I do not think this case an exception from the general rule, and therefore think the plaintiff entitled to a new trial. Rule absolute. MoNair v. Sheldon. A venue is not changed by a judge's order and servios alone, and a defend- ant will not be entitled to judgment as in case of a nonsuit upon the ground that the plaintiff did not go to trial in pursuance of notice grounded upon such order. In this case the venue had been originally laid in Niagara, but had been upon defendant's application changed to Gore by order of a judge in vacation. This order had been served upon the plaintiff, but no rule of court was taken out upon it. Notice of trial had been given for the Gore assizes, but the judge's order having been lost, the district deputy clerk of the crown had refused to pass the record. Macaulay had obtained a rule nisi for judgment as in case of a nonsuit, for not going to trial pursuant to notice. Baldwin, shewing cause, contended that the venue not having been changed by rule issued upon the 55 434 HILAEY TERM, 7 GEO. IV., 1827. judge's order, the venue must be considered as still remaining at Niagara, and that the notice for G-ore being nugatory, could not be the ground of a motion. Macaulay, in reply, contended that the defendant had done what was necessary in serving the judge's order, and that if the plaintiff was interested, in a further proceeding being had, he should have at- tended to it. Shbewood, J. — The question is whether the mere service of the order was a change of the venue. It appears to me that you should have gone further and taken the order to the office, or, as in England, taken out a rule, and therefore, the venue not being chang- ed, it remains where it was at Niagara and not in G-ore, and no notice having been given for that dis- trict, there can be no judgment as in case of a non- suit. Per Curiam. — Rule discharged. G-AVAN V. Lyon. At the return of a rule nisi the party who has obtained the rule cannot pro- duce affidavits containing new matter. Upon the return of the rule nisi in this cause, the plaintiff offered to produce fresh affidavits to contra- dict the matters sworn to by the defendant in oppo- sition to plaintiff's original affidavits. Sed per Curiam. — An affidavit in answer to the affidavits filed against the rule nisi, and containing new matter, cannot be read. hilary teem, 7 geo. iv., 1827. 435 Flint v. Sp afford. Parties cannot, by consent, dispense ■with the ordinary proceedings of the court. This was a motion for a new trial — pending the argument, the Clerk of the Crown and Pleas observed to the court, that the parties had gone to trial by consent without passing the record oi nisi prius. The court observed, that such conduct was a great presumption, and directed the verdict to be set aside without further argument. Fortune v. McCot. A notice of assessment will not be considered as a notice of trial. In this case the plaintiff had given a notice of as- sessment instead of a notice of trial, and had taken a verdict without defence. Macaulay moved to set aside the verdict. Shbrwood, J. — It appears to me that the question is reduced to this, — will a notice of assessment, with- out consent, operate as a notice of trial ? I think not, and that as there was no consent here the verdict must be set aside. Per Curiam. — Application granted. 436 HILARY TERM, 7 GEO. IV., 1827. HILARY TERM, 7 GEORGE IV. GENERAL EULBS. 13th. — It is ordered that from and after the last day of this term, all demurrer books shall be made up with marginal notes opposite the different counts, and other parts of the pleadings, briefly stating the substance of each part, and when so completed shall be delivered to the judges by the party applying for a consilium before his motion paper is filed. 14th. — In future no cause shall be tried at the as- sizes for any district, unless the record of nisi prius is delivered on the commissioa day, or first day of the court to the marshal, who is hereby authorised to receive for the entering or withdrawing of the same, five shillings and six pence, 15th. — That from and after the last day of this term, when any point or points are reserved at nisi prius on the trial of any action, paper books contain- ing accurate transcripts of all the pleadings in the suit, and of the point or points reserved, shall be made up and delivered to the "judge, by the party who applied to the court for a consilium to argue such point or points, or makes any other motion respecting them, and that no such motion shall be made till the proper books be delivered. EASTER TERM, 8 GEO. lY., ^827. ' Present : The Honotjeablb Chief Justice Campbell. Mr. Justice Sherwood. Shuck v. Cranston. The court refused to consider the service of an order for payment of an in- solvent debtor's weekly allowance, under the 2nd Geo. IV., as a service under the late statute, 7th Geo. IV. The provincial statute 2d G-eo. IV., c. 8, s. 3, en- acts that in default of payment of the sum of five shillings weekly allowance, pursuant to any rule or rules of court under the provision of an act passed in the 54th year of his late Majesty's reign, entitled, " an act for the relief of insolvent debtors," the first payment of which said sum of five shillings is there- by declared to become due and payable on Monday next, after the service of such rule on the plaintiff or his attorney within the district where such defendant shall be imprisoned, the prisoner, upon application to the said court from which such execution issued, in term time, or a judge thereof in vacation, shall, by order of the said court or judge, be discharged out of custody, &c. Under this statute the defendant had obtained an order for the weekly allowance of 6s., but could not serve the same upon the plaintiff or his attorney in the district where he was confined, neither of them being resident there. 438 EASTER TERM, 8 GEO. IV., 1827. By the statute 7th Geo. III., which passed subse- quent to the defendant obtaining his order, the above clause is repealed, and it is enacted, that the insol- vent debtor is to be discharged on the third Monday after the service of his order upon the plaintiff or his attorney, (dispensing with the necessity of the order being served within the district where the insolvent is confined.) Robert Baldwin applied to the court for the defen- dant's discharge, the order of court which the defen- dant had obtained under the old statute having been served upon plaintiff's attorney, and the third Mon- day having elapsed since such service without pay- ment of the weekly allowance. The court considered that the new statute had no retrospect to orders obtained under the old one, and that proceedings under the two statutes could not be joined, and the proper mode of proceeding was to take out and serve a rule on the attorney, conforma- bly to the proceedings of the new law. Per Curiam. — Application refused. Dascomb v. Hbacooks. The court refused to discharge a defendant upon filing common hail on the ground of his person having been discharged from arrest by an insolvent law of New York. Robert Baldwin moved for a rule nisi to discharge the defendant from custody upon filing common bail, upon an affidavit deposing that his person had been discharged from arrest by an insolvent law of the state of New York. EASTER TEEM, 8 GEO. IV., 1827. 439 The court observed that it would not discharge the defendant upon a summary application, and recom- mended him to plead the fact if so advised. Per Curiam. — Application refused. Whelan v. Stevens. A person hiring himself to ■work with his own team of oxen is not an object of the British statutes for punishing labourers deserting their service. This was an action tried at the assizes for the Bathurst District, and a verdict for the plaintiff. It was brought against the defendant, as a justice of the peace, for convicting and imprisoning the plain- tiff under the Statute of Labourers, {a) The plaintiff had been hired by one Wetherley to work with his oxen for a month, and having quitted his service before the time had expired, he had, upon Wetherley's complaint, been convicted and sent to gaol. The verdict was subject to the opinion of the court, whether the defendant was a labourer intend- ed by the statutes. Boulton had obtained a rule nisi to set aside the verdict and enter a nonsuit. Macaulay shewed cause, he contended that the plaintiffs case was within the mischief of the statute. That he contracted with Wetherley as an husband- man to labour upon the land, one particular class of labourers pointed out by the statute, persons whose regular employment in their occupations was essen- tial to the well-being of society. (a) 20 Geo. 2, c. 19. 31 Geo. 2, c. 11. 6 Geo. 3, c. 25. 440 EASTER TEEM, 8 GEO. IV., 1827. That the being employed with oxen should make no difference, that being the usual mode of employ- ment in this country. He cited the case of Lowther V. Eadner {a) as shewing that a labourer whose ex- ertions were confined to his own person, was not the only one contemplated by the statute. The com- plainant, one Soph, having in that case contracted for a piece of work, and employed another person under himself to assist in its completion, a case to the full as little embraced by the words of the statute as the present. The court being of opinion that the plaintiff in this case was not such a labourer as is contemplated by the statutes. Per Curiam. — Rule discharged. Briggs v. Spilsbtjrt, J. P. A conviction bad upon the face of it although not quashed, held not to be sufficient defence to an action of trespass. In this case the defendant, a justice of peace, had convicted the plaintiff under the statute of labourers, for leaving his employment before its expiration, and had sentenced him to three months' imprisonment and correction. An action had been commenced and referred to arbitrators, who found in favour of the plaintiff. The case came before the court upon a motion to set aside the award as being against law, with a view to obtain the decision of the court upon the following points : (a) 8 East 113. EASTER TERM, 8 GEO. IV., 1827. 441 First. — "Whether the conviction was bad, as not stating that the witnesses were examined in presence of the plaintiff (the party accused.) Secondly. — Whether, as being a subsisting convic- tion, (not quashed,) it did not protect the defendant in an action of traspass and false imprisonment. Boulton, for the defendant, had obtained the rule nisi. Macaulay was for the plaintiff. The court referring to the cases of the King and Crowther, {a) the King v. Vipont and others, {b) and the other authorities below, determined the con- viction to be irregular, and that, as it appeared to be so upon the face of it, it could not be considered as protecting the defendant against the present action. Per Curiam. — Eule discharged. Jones v. Scofield. Impertinent matter in a return to a writ, considered as a contempt in the sheriff. As a return to a writ of capias ad satisfaciendum against the defendant, the sheriff of the District of London, by a paper appended to the writ, made tlie following return, upbn'being ruled, "by virtue of the annexed writ of ca sa.'^ I arrested the body of the said Joa Scofield, as therein I am commanded, whom I have since released upon giving satisfactory secu- (fl) 1 T. E. 125^; 2 Burr. 1163. (6) 5 M. & S. 614 ; 1 Brod. & Bing. 432. 56 442 EASTER TERM, 8 GEO. IV., 1821 ' rity to satisfy the said writ, and with which arrange- ment the said Jonas Jones, of Brockville, attorney- at-law for the said 0. Jones, has acquiesed. Boulton, Solicitor-G-eneral, moved for an attach- ment against the sheriff upon this return. The court being of opinion that the surplusage was a contempt of the court. Per Curiam. — Application granted. McCoLLUM V. Jones. Evidence of a verbal agreement to allow land to be set off against the amount of a note, held not to be admissible. This was an action brought upon a promissory note und for goods sold, tried at the assizes for the Johns- town District, and a verdict for the plaintiff. The defendant offered evidence of a verbal agreement entered into sometime after the date of the note, be- tween himself and the plaintiff, for the purchase of a lot of land, whereby it was agreed that the amount of the note, together with a quantity of wheat at various times delivered by plaintiff to defendant, and the value of which formed part of the subject of the present action, should be set off against the price of the land, and of which land the plaintiff had taken possession. The judge who tried the cause refused to admit this evidence, as contrary to the Statute of Frauds. Boulton, Solicitor-General, had obtained a rule nisi to set aside the verdict and grant a new trial. EASTER TERM, 8 GEO. IV., 1827. 443 He contended that the plaintiff having taken posses- sion of the land, was a sufficient part performance of the agreement to take the case out of the statute, and that therefore the evidence should have been ad- mitted. Macaulay shewed cause. He contended, that to give this contract respecting land in evidence would be a direct violation of the Statute of Frauds. For that to shew the note was satisfied by the contract, the whole agreement must be gone into, an agree- ment respecting the sale of an interest in land, which is directly prohibited by the first section of the statute. That although such agreements partly per- formed can be enforced in courts of equity, they cannot be considered as considerations at common law. That if the defendant had pleaded this contract in bar, he must have stated the contract to be in writ- ing, or his plea would have been set aside upon de- murrer. That the cases in equity which decree a delivery of possession to be a sufficient part performance to take them out of the statute, or where the decrees are in favour of the parties who have been let into possession, who would suffer inconvenience by being dispossessed, but in this case the application is from a party altogether differently situated, namely, the defendant in this action, who cannot be injured by the plaintiff's possession, which he can put an end to whenever he pleases, and also recover for the mesne profits. 444 EASTER TERM, 8 GEO. IV., 1827. Farther, that there having been no part perform- ance, it was competent to the plaintiff to discharge it by parol, as laid down in the case of Crosby v. Wadsworth ; (a) which he had in fact done by re- fusing to accede to it. The counsel cited the case of Walker v. Consta- ble (b) as a strong case to shew the necessity of a contract respecting lands being made in writing, ob- serving that in that case the plaintiff could not re- cover the purchase money paid for an estate, with- out shewing an agreement for the purchase in writ- ing, although both parties had agreed that the con- tract should be abandoned, and he observed in order to apply this case to the present, that in the case before the court a contract in writing should be shewn to enable the defendant to set off the price of the land against his note. Farther, that the note itself could not be avoided by a parol agreement- He also cited the case of Moggridge v. Jones, as shewing indisputably that the defendant in this ac- tion could not set up a non-executed agreement for the sale of land, which was the alleged consideration of this note, in answer to an action upon it. That as the plaintiff could not by his asserted possession bring an action for the deed, so neither could the defendant resist the payment of his note, for if he could this absurdity would follow, that he might refuse paying either the note or the amount of the wheat, and nevertheless turn the plaintiff out of possession by ejectment, who could not set up a (a) 1 Boss, and Pull,, 306. (6) 14 East, 485, EASTER TEEM, 8 GEO. IV., 1827. 445 parol contract as a title, but that if the court refused this application, the plaintiff would get the amount of his note and wheat, and Jones, the defendant, would get his farm. That if Jones, the defendant, could bring any ac- tion for the amount of his purchase money, it must be a special action, to which a recovery by the plaintiff in this suit would be no bar. He further noticed, that none of the recepts given for the several quantities of wheat purported that it was to be taken in payment of land, which shewed that in point of fact that might not have been the case. Boulton, Solicitor-General, contra, admitted the principles advanced by the opposite counsel, but contended that they did not apply to the case before the court ; that the counsel had not distinguished be- tween a suit to compel the performance of what was undone, and one , to undo what had already taken place, which was the present case, in which McOol- lum had resorted to the Statute of Frauds to assist him in committing a fraud. He observed, that there were general loose ideas afloat that all agreements where land is the object are void if not put into writing, but that the statute does not render such agreements altogether void, but reduced the estates thereby contracted for to estates at will only. That in the present case if the plaintiff is not com- pellable to perform his contract, he should at least 446 EASTER TERM, 8 GEO. IV., 1827. be the sufferer in the same manner as where a pur- chaser has paid the auction duty or purchase money, it has been decreed no fraud in the vendor to keep it, but a loss to himself which he must sustain. But there is no case in which a vendee can recover back his purchase money, if a vendor is able and willing to complete his contract. The counsel also referred to the Earl of Aylesford's case, as shewing the futility of setting up defences under the statute where part performance (which he insisted was the present case) took the case out of the statute. He observed, that the distinctions made between the powers of courts of law and equity were often nugatory, except so far as related to compelling a specific performance. That more than half the suits which were entertained in equity might be tried at law. The counsel cited Knowels v. Michel as in point, it being there determined that although an agreement might, in its inception, require a note in writing, yet that if its consideration had been in any manner liquidated, the amount ascertained became the sub- ject of an action of assumpsit, {a) That it was clear that Mr. Jones could bring an action for the remainder of the purchase money upon tendering a deed; but that was not his object, he de- fended this suit in order to prevent the vendee from recovering back the deposit on his purchase money. That as to plaintiffs having or not having a remedy to compel a deed which had been considered as im- (a) 13 East, 248, EASTER TERM, 8 GEO. IV., 1827. 447 portant to be delivered, the court would not look to that in a case where the vendor had always been ready to complete the purchase. The counsel asked if the plaintiff had committed waste, would the court allow him to turn round and recover back his purchase money. That this being an action of assumpsit, the jury should have had all the facts before them, and even if evidence respecting the liquidation of the note could have been excluded (the defendant not having the note to produce) it was quite unreasonable to exclude evidence of the receipt of the wheat, and of the purpose for which it was received. That the transaction might have been specially pleaded, and such plea would have been good, which the counsel indeed in part admitted, and that if it could have been pleaded it might, in the equitable action upon an assumpsit, be given in evidence. He concluded by observing, that the evidence offered should have been received on two grounds : First. — Inasmuch as the facts offered in evidence were a part performance of the agreement. Secondly.— That the jury might have had it in their power to lessen the damages. Chief Justice. — I consider that this case is within the statute, and, therefore, that the evidence was properly rejected. Nor was there indeed any evi- dence given at the trial to shew that the note was 448 EASTER TERM, 8 GEO. IV., 1827. paid in part of the purchase money, it having been in point of fact given before any contract of sale was contemplated by the parties. Fer Curiam. — Rule discharged. Kirk v. Tannahill. It seems that a note made at Albany may be declared upon as such under the statute of Anne. In this case the plaintiff declared upon a promis- sory note under the statute of Anne, as made at Al- bany, to wit, at Niagara, in the district of Niagara. The defendant demurred upon the ground that the note appearing on the face of it to have been made in foreign parts, could not be considered as a note under that statute. Washburn, in support of the demurrer, cited an authority, where upon special demurrer to a decla- ration stating that tlie defendant made his note at Philadelphia in parts beyond the seas, to wit, at London, &c., according to the form of the statute, the court advised the plaintiff to amend. Macaulay, contra, contended, that the averment might be struck out, as it was admitted the action would lie at common law; and observed upon the distinction between the present declaration and that in the case cited, it being in the latter stated that the note was made in parts beyond the seas, which was not the case in the present pleading. The Chief Justice concurred in the distinction EASTDR TEEM, 8 GEO. IV., 1827. 449 made by the plaintiff's .counsel, that the action be- ing a thing ,of mere transitory nature, might be laid any where, and that he did ,not think it necessary to infer that Albany was in a foreign state. Per Curiam. — Judgment for plaintiff. Choatb v. Stevens. In an affidavit to hold to bail, the provincial statute not satisfied by the "words, that the plaintiff had reason to believe that the defendant was About to depart this province, without paying, &c. The defendant was arrested upon an affidavit de- posing, that the plaintiff had reason to believe that the defendant was about to depart this province, without paying the said debt. Ridout had obtained a rule nisi to discharge the defendant upon filing common bail, upon the ground that the affidavit was defective, as not using the words of the statute. Macaulay shewed cause, he contended that no form of words had been given by the statute — that it had merely pointed out the substantial matter to be sworn to. That the words used in this affidavit expressed the apprehension or belief of the deponent, as well ias the word apprehensive, which was that used in the statute. That the word apprehension is explain- ed in Johnson's dictionary, by belief, persuasion, opinion. That to have reason to believe, must mean to h3.ve a firm persuasion ; that the terms indeed 57 450 EASTER TERM, 8 GEO. IV., 1827. were synonymous, as well as those, to depart, to leave, that without satisfying or without paying, could not be distinguished. That the words, reason to believe, are used in the clause of the statute authorising the capias ad satis^ faciendum, which shews that they were considered by the statute as having a meaning equally strong with the word apprehension. Ridout, contra, observed, that the word apprehend expressed in a much stronger manner the state of a deponent's mind, than the words "reason to believe" — that the reason might in fact be such as to be worth nothing. Mr. Justice Sherwood {a.bsente C. J.) observed, that it had been contended by the plaintiff, that the words used in the affidavit were synonymous with those used in the provincial statute, but that he be- lieved few words in the English language were ex- actly alike in meaning. Further, that if the courts allowed parties to depart from the words prescribed by an act of parliament, as proper to be used in the affidavit to hold to bail, there would be no knowing where to stop. That leaving the authority of John- son out of the question, he did not think the words were, in popular acceptation, synonymous, and that it would be more safe for plaintiffs to use the words set out in the act ; he considered, therefore, that the affidavit should be set aside, the defendant under- taking not to bring any action. Per Curiam. — Rule absolute. EASTER TERM, 8 GEO. IV., 1827. 451 Priestman V. McDoUGAL. Mistake in the calculation of interest, held not a sufficient ground to set aside an award. Robert Baldwin moved to set aside the award on the ground of mistake in the calculation of interest. The affidavit vras made by one of the arbitrators. Per Curiam. — Application refused. McNair v. Sheldon. The motion for a commission to examine witnesses must be supported by affidavit. Robert Baldwin applied upon motion only, without affidavit for a commission to examine upon interro- gatories. Per Curiam. — Application refused. Culver y. Moore. There is no necessity for a term's notice by a defendant signing a nonpross, &c., although four terms may have elapsed without any proceeding had. In this case the defendant filed a demurrer to the declaration on the 6th December, 1825. Plaintiff joined in demurrer on the 7th. The de- fendant not having brought the demurrer on to argu- ment, On the 28(h of March, 1827, the plaintiff ruled the defendant to enter the issue,. which not being done, the plaintiff signed a judgment of nonpross. Macaulay moved for a rule nisi to set aside the nonpross, on the ground that four terms had elapsed 452 EASTER TERM, 8 GEO, IV., 1827: between the 7th day of December, 1825, the time plaintiff joined in demurrer, and the day of his ruling the defendant to enter the issue. The court observing that the rule respecting a term's notice, did not apply to cases where a party took a step to put an end to a suit, as to judgments of nonsuit or to the trial by proviso, and referring to the authorities below, (o) Per Curiam. — Application refused. G-AVAN V. LtOK. An agreement between the parties takes away the necessity of a terin's" notice. In this case there had been an agreement at the assizes for 1825, that the trial should be put off until the next assizes. The plaintiff shortly before the time'fOr trialgave* a notice, but not in sufficient time to satisfy the rule requiring a term's notice of proceeding, where four terms have elapsed. He went to trial and obtained a verdict. Boulton had obtained a rule wm to set aside the proceedings as irregular, urging that the plaintiff having actually given notice of trial, should have given, it in a regular manner. Per Curiam. — The agreement made between the parties rendered a term's notice of trial unnecessary (a) Barnes, 2 Sulkeld. EASTER TEEM, 8 GEO. IV., 1827. 458'' in this case, and tlie defendant will therefore take nothing by his motion. Ridoui was for the plaintiff. Eule discharged. EoBiNSON" V. Hall. The court refused to discharge a prisoner debtor from custody, upon the ground, that the gaoler having taken him before a magistrate upon a charge of felony, without warrant, permitted an escape. Baldwin made an application for an order of court to discharge the defendant out of the custody of the gaoler of the Midland District. The gaoler, upon an alleged charge of larceny, had; without warrant from a magistrate or any other authority, carried the de- fendant before a justice of peace to be examinedj and had afterwards re-conveyed him to gaol. The counsel contended this was an escape, and that as it was voluntary on the part of the gaoler^ the defen- dant was entitled to his discharge. Per Curiam. — Application refused. Baldwin then applied for an habeas corpus, which was granted. Jones v. Stewart. Where a paper contains matter which is grossly libellous _^er j«., without reference to any particular situation or office, it is no objection to a ver- dict upon such libel, that the office mentioned in the declaration was of an inferior grade, that it was not sufficiently proved that the plaintiff held such office, that there was no such office in fact, that no proof had been adduced that the person mentioned in the declaration as principal in the office was so in fact, nor is an objection that the libel does not supjpbrt the innuendoes supported by shewing that there was other matter in the libel, not set out in the declaration, which indicated the defendant's reasons for 454 EASTER TERM, 8 GEO. IV., 1827. its publication. Nor is such libel excused on pretence of its being a formal application to the head of a department to redress grievances. And charging a person with violating a public trust for the purposes of revenge are vrords libellous per se., and do not require connecting with any parti- cular office. An office may be introduced as an explanatory circumstance. This was an action for a libel, tried at the assizes for the Johnstown District, and a verdict for the plaintiff for £2 5s. The libel consisted of detached parts of a letter written to Mr. Sutherland, the Postmaster-G-eneral at Quebec, accusing the plaintiff of misconduct in the management of the post-office at Brockville. The declaration, after the usual inducement as to plaintiff's character, stated him to be a merchant and co-partner, carrying on business with one Henry Jones, postmaster, and that he (plaintiff) was occa- sionally employed as the deputy acting postmaster, agent or clerk of the said Henry Jones, to transact the affairs and duties appertaining to the office of postmaster at Brockville. It then, after the usual averment of malice, sets out the libellous matter as follows, but without alleging it to be written concerning any office : " A false, scandalous, malicious and defamatory libel in the form of a letter to Daniel Sutherland, Esquire, Postmaster-G-eneral, Quebec, containing, &c., , the false, &c., and libellous matter following, that is to say : I (meaning him the said John Stewart) am teacher of the Bathurst District school, held in the town of Perth, Sidney Jones, meaning the said Sid- ney Jones, the acting paymaster at Brockville, for Henry Jones, the nominal one scarcely ever makes EASTER TEEM, 8 GEO. IV., 1827. 455 up a packet, bears me (meaning the said John Stewart) some ill-will, and I (meaning himself the said John Stewart) believe he (meaning the said Sidney Jones) does not hesitate to violate a public trust for the mean gratification of personal revenge. I (meaning himself the said John Stewart) request that you (meaning the said Daniel Sutherland) will interfere your authority to check the insolence of office, (meaning that the said Sidney Jones insolently discharged the duties of his said office,) and allow every subject of his Majesty in this province equally to enjoy the benefit of a post-office establishment, without lying at the mercy or capricious whim of any deputy's deputy, who may delay, overcharge, or otherwise injure papers directed to any one, and then endeavour to screen himself in the mean, dirty subterfuge, that he is not accountable for his conduct, as he was acting for another. By means, &c." The letter upon which the action was founded, after the words personal revenge, contained an account of the various alleged grievances which had induced the defendant to write to Mr. Sutherland, which, however, were omitted in the declaration, being con- sidered by plaintiff's counsel as unnecessary to the support of his action. The verdict was subject to the following objections made by the defendant's counsel, upon which Ma- caulay obtained a rule nisi to set aside the verdict and enter a nonsuit : Firstly. — That the office was insufficient to warrant the action. 456 EASTER TEEM, 8 GEO. IV., 1827. Secondly. — That there was no sufficient proof that the defendant held the office. Thirdly. — That there was no such office in fact. Fourthly. — That Henry Jones was not proved to have possessed the office. Fifthly. — That the letter does not support the innu- endoes. Sixthly. — That the letter being a formal complaint to the head of a department, it is not the subject of an action for libel. The judge who tried the cause had charged the jury that they should consider whether the complaint, as stated in the letter, was a bona fide charge, for if so, that the action would not lie. The Attorney and Solicitor-G-eneral shewed cause; in answer to the first objection, it was observed, that the law had not excepted any public officer, whatever rank or estimation his office might be held in, from defending himself against libellous attacks, and the office of constable was instanced. In answer to the second, third, and fourth objec- tions it was observed, that the defendant had assumed in his libel the facts, that there was such an office, that the defendant held or acted in it, and that Henry Jones was the principal, which relieved the plaintiff from the proof of those facts. In support of which position the counsel cited the authorities below. («) (o) T. R. 866 ; 2 Starkie, 860. EASTER TERM, 8 GEO. IV., 1827. 457 To the fifth. — That there were no grounds for stating that the libel did not support the innuendoes; that the words bore the plain meaning ascribed to them, and that it was unnecessary to set forth more of a paper than was necessary to substantiate the plaintiff's charge; that if there were other parts of the composition which explained or mitigated the offensive matter, they were iit (as had been done, in the present case) to be considered by the jury. And that the charges were of so direct and gross a nature as to render any averment that they were published concerning any particular office unneces- sary. As to the last objection, the counsel observed, that the obvious matter for consideration was, whether, under pretence of a bona fide communication with a view to correct abuses, a person was authorised, in general terms, to accuse anothet of the violation of public trust, for the gratification of personal revenge, of insolence in office, and the other gross and unwar- rantable charges put forth in the libel; that the answer to which consideration, which reason, princi- ple, and the authorities gave, was obviously that this could not be done; that epithets outrageously abusive could not be justified under pretence of any such communications. That neither reports of cases in courts of justice, or arguments of counsel, if impertinent or without instruction, were allowed to contain such matter. That to justify such a libel as the one before the court, the defendant's counsel must go upon the nar- 58 458 EASTER TERM, 8 GEO. IV., 1827. row untenable principle that no complai&t against a public officer, however offensive the language, could be the ground of an action for a libel. In support of these observations the counsel cited the authorities below, {a) Macaulay, contra, insisted that the plaintiff having in his declaration set forth an office, and that he was the officer, was bound to prove those averments; whereas he had in his defence proved that he was neither principal nor deputy, not having acted in the office for two years ; that if he had in fact acted in the office, it was not such an one as entitled him to an action. In support of these positions he cited the authorities below, {b) In support of the objection that the libel was not supported by the proof, he urged, that as there was much more matter contained in the letter than in the libel as stated upon record, and which matter went to explain the reasons for the defendant's complaint, the whole letter, with its extenuating and explanatory parts, was intrinsically a different composition, bear- ing a very different interpretation to the extracted part when taken alone.' That there should have been a statement that the libellous matter was written " of and concerning the alleged office." That the matter, as charged, did not warrant the innuendoes. (a) Stai-kie 136 ; 3 B. & A. 161, 702. (i) Starkie 115, 116, 433, 859, 60, 378 ; 1 Ventris, 275. EASTER TERM, 8 GEO. IV., 1827. 459 That the paper itself, and the statement in the declaration taken separately, did not bear the same sense. The counsel read the commencement of the letter as follows : " I would not trouble you by letter at this time, but a sense of duty urges me to make you acquainted with the treatment which I have received from the Brockville post-office;" he then read the first branch of the libel set forth in the declaration, and proceeded with the intermediate part of the libel from the words personal revenge as follows: "Last fall I received several small single letters from the Brockville post- office, a,ll marked double, and all following each other in succession." "This strange coincidence caused me to write a note to Sidney Jones, civilly requesting an explanation ; instead of this my own note is put under cover with- out remark or comment, charged double and sent to Perth. I then sent him another note while I was in Brockville, which I must confess was not very com- plimeutary to his integrity in the discharge of a pub- lic situation. This shared the same fate with the former one, viz., ' charged double and sent to Perth.' I am agent for the Canadian Review. When the par- cel of the third number of this work, which was meant to supply the Perth subscribers, was on its way to this place, it was intercepted at Brockville, where it lay several weeks; and when at last it was thought proper to forward it, it was stripped of the cover, directed to me, and given to the post-carrier, who charged 4s. 6d. extra postage, whether by Jones* order or not I cannot say, I wrote to Mr. Chisholm 460 EA8TER TERM, 8 GEO. IV., 1827. how I had been treated ; he strongly advises me to represent the whole transaction to you as the only person capable of finding a remedy for the evil; I have done so." . The counsel, after reading the remainder of the libel charged, contended, that the whole sense of the letter, taken together, altered the sense of the part charged as the libel, and so varied from the matter on the record. In support of these positions the counsel cited the authorities below, {a) On the ground of the letter being an authorised application for redress to the head of the department, the counsel observed, that although the terms used might be uncouth, that such may be used if the case warrants it, and the party is not actuated solely by malice; and that if the subject matter be true, malice did not alter the propriety of the complaint. That the jury should have been directed to con- sider, whether malice was or was not the prepon- derating motive upon reference to the whole tendency of the paper. That to have found the verdict against the defendant they should have been convinced that he had no ground for his complaint. \_Sherwood, J., here called to the counsel's recollection, the evidence of the witness Titt, and asked if he meant to contend that there was no evidence of malice.] That there was nothing in the letter itself, written by an angry man, to shew malice. (a) Starkie on Libels, 334, 7, 44; on Evid. 1546; 4 M. & S. 164, 5; 1 Saunders, 243, N. 4 ; 8 East, 427 ; 5 B. & A. 615 ; 1 CampbeU, 852, 3 ; 2 Comp. 398. EASTER TERM, 8 GEO. IV., 1827. 461 He concluded by observing, that he doubted whether the jury understood the charge properly, that they might have thought the direction to them was merely to consider whether the face of the libel itself shewed malice. The Chief Justice observed, that the authority cited from Yentris, which confined actions for libel to offices of a certain grade, was not now the law, and that the other grounds stated were not sufficient t,o warrant a nonsuit. Per Curiam. — Rule discharged. Same v. Same. ; Macaulay moved to arrest the judgment upon the ground that there was no averment in the declara- tion that the libel was written of and concerning the plaintiff's office, contending that the cause of action, as set forth, was imperfect without , such averment. He also insisted, that charging the plaintiff with in- solently discharging the duties of his office, was not libellous without some explanation, and was another ground for his motion. He cited the authorities below, (a) The Chief Justice observed, that the libel was such as would be actionable without any office being men- tioned or referred to. That the averment respecting such office might be struck out and sufficient ground of action would still (a) 4 M. & S. 164 ; Cowper, 686 ; Com. Dig. c. 10. * 462 BASTEE TEEM, 8 GEO. IV., 1827. appear upon the record, the words, " violating a pub- lic trust," might be taken without reference to any office, and would be libellous. Sherwood, J., observed, that however valid the objection might be in an action for words merely, he did not consider them so in a case of written libel. Where words are not actionable in themselves, without referring to a trade or profession, there must be the averment contended for by the defendant's counsel. Not so in the present case, where the men- tion of of&ce is merely introduced as explanatory ; and that the plaintiff's conduct would have been most extraordinary if it had been introduced with any other view, as he had brought evidence at the trial to prove that he had not acted in the office for a length of time. That the words alleged, viz., that the plaintiff would violate public trust for purposes of revenge, were libellous per se, without reference to any office, and made it unnecessary to resort to the doctrine contended for by the defendant's counsel. Per Curiam. — Application refused. Walbkidgb v. Lunt. A commissioner ■who takes a recognizance of bail cannot himself make the affidavit of such taking. This was an application to stay proceedings upon the bail bond, which had been taken, in consequence of the affidavit of bail being put in having been EASTER TERM, 8 GEO. IV., 1827. 463 sworn to by the commissioner himself who took the recognizance. Fer Curiam. — Application granted upon payment of costs. Smith v. Kennett. A notice of intended motion for judgment as in case of a nonsuit will not supply the place of a rule nisi. Plaintiff's counsel moved for judgment as in case of a nonsuit (absolute) upon affidavit of the usual ■facts, and that nbtice of the intended motion had been given. Per Curiam. — Eule absolute refused, but rule nisi granted. Wood, Administrator, &c., v. Leeming et al., Devisees, &c. The court refused to interfere summarily to set aside a sheriff's sale and covenant, for payment of purchase money entered into thereon, upon grounds suggesting that the sale was unfair, and that the court had an equitable jurisdiction over the acts of its officers. Boulton, Solicitor-General, applied for a rule nisi to set aside the proceedings had under a sheriff's sale, by which he had sold lands as in the hands of the defendants to a Mr. O'Hara, who had given an obligation under seal for the amount of the purchase money; the application also prayed an order upoii the sheriff to give up or cancel the obligation for thfe purchase money given by Mr. O'Hara. The grounds of the application were that a good 404 EASTER TERM, 8 GEO. IV., 1827. title could not be made, and that these proceedings and sale having been made by an officer of the court, were sufficiently under their control to authorise an equitable interference, particularly as there was no Court of Chancery in this country to which Mr, O'Hara could apply. Fer Curiam. — Application refused. NiCHALL V. CaRTWRIGHT AND ANOTHER. Rohinson, Attorney-G-eneral, applied for leave to enter judgment upon a cognovit against one defen- dant only. Suggestion of the death of the other being entered upon the roll. Per Curiam. — Application granted. Dob ex dbm. Dunlap v. MoDougal. Where the heir and the widow of the mortgagor remained in possession after the death of the ancestor, but had frequently recognised the title of the mortgagee, it was held no disseisin. This was an action tried at the assizes for the Nia- gara District, and a verdict for the plaintiff. Colin MacNab, the elder, being seised in fee of the premises in question, mortgaged them to Edwards by deed, dated the 16th February, 1802, whose estate became absolute at law, in consequence of the non-payment of the mortgage money on the first of October in the same year. In the year 1810, Colin MacNab, the mortgagor, EASTER TEEM, 8 GEO. IV., 1827. 465 died, haviiig continued in possession until his death, leaving his widow and heir in possession. In the same year, but subsequent to the mortgagor's death, Edwards, the mortgagee, cQuveyed absolutely \o the heir of the plaintiff's lessor. Edwards never having made any actual entry, the tenant in possession claimed as purchaser at a sheriff's sale, which took place under Si^eri facias issued against the lands of Golin MacNab. It was insisted at the trial, that the mortgage having been executed more than twenty years ago, a presumption arose that the mortgage money had been paid. To rebut this presumption, evidence was given of conversations had between the widow as well as Colin MacNab, the heir of the mort- gagor, and the agent of the mortgagee, with a view of settling the amount due upon the mortgage. Also of the infancy of plaintiff's lessor during a great part of the period which had elapsed since the execution of the mortgage. The judge who tried the cause had not particu- larly called the attention of the jury to the fact of presumption of payment. Boulton, Solicitor-Greneral, had obtained a rule nisi to set aside the verdict and grant a new trial, the verdict being contrary to law and evidence, con- tending, that Edwards having been disseised by Mac- Nab's heir, had not been able to make an effective deed of bargain and sale to Dunlap, and for non- direction of the judge. iZoiewsow, Attorney-General, shewed cause.— After premising that Edward's deed to Dunlap, the ances- 59 466 EASTER TERM, 8 GEO. IV., 1827. tor of plaintiff's lessor, being absolute instead of by way of mortgage, was immaterial, as mortgagors and mortgagees could do nothing to prejudice each other, the mortgagor having his equitable remedy against the assignee, as well as against the original mortga- gee, (a) He observed that the possession of the mortgagor was the possession of the mortgagee, and that he could never stand in his way. (b) That he was a tenant at sufferance and not at will, which invalidated any argument which considered the death of MacNab, the elder, as the determination of an estate at will. In the case reported in Croke, (c) the mortgagor made a lease for three years, and after its expiration returned into posses- sion. The lessee being a stranger and without privity, it was attempted to make him a disseisor, but it was held that the case worked no disseisin. That to make the heir of MacNab a disseisor his father must have been a disseisor, or he must have entered tortiously, which was not the present case. His situation was analogous to that of a trustee or agent, who could not be disseis9rs. That an equity of redemption being now considered as the subject of inheritance, the heir must be considered as having continued in possession merely with the view of ex- ercising that right. He further contended that the elder MacNab not having in him an estate of freehold, and, therefore, (a) 2 Black. Com., 158; 1 Coke, Litt., 210. (J) 2 Institute, (c) Croke, James, 660. EASTER TERM, 8 GEO. IV., 1827. 467 not being a disseisor, his heir could not be consid- ered as such. He stated that the absurdity and inconvenience of the doctrine of considering an heir who merely re- mained in his ancestor's lawful possession as a dis- seisor, would prevent all mortgages from taking place, as no one would lend his money upon real security if he was liable to be disseised in the man- ner contended for. As to the ground of presumption of payment he contended that the evidence of Mr. Dickson was suf- ficient to rebut it. That there was a great distinc- tion between presumptions of this sort, and the time appointed by the Statute of Limitations. In the case of bonds the custom had been to consider 20 years as a ground of presumption, but no time had been established for mortgages, and that it was farther answered by the deeds being in possession of Dun- lap, and the infancy of the plaintiff. Boulton, contra, contended that a person not in ac- tual possession cannot convey. Edwards, therefore, not having been in possession, as he had been dis- seised by the entry of the heir of MacNab, could not convey. He supported his position by reference to the Statute of Uses, which enacts that when any persons shall be seised of lands, &c., to the use of another, the cestui que use shall stand and be seised or possessed of the land, &c. That in the present case Edwards, having been disseised by the entry of Colin, the younger, could 468 EASTER TERM, 8 GEO. IV., 1827. not stand seised to the use of another, and 1161*6 fore his deed of bargain and sale could not raise an tise in Dunlap's favour. He admitted that while MacNab, the elder, lived, Edwards, the mortgagee, was in possession by virtue of the possession of MacNab, the mortgagor, who was quoad his tenant ; but that his tenancy being at an end by his decease, and it being necessary that the freehold should subsist somewhere, (a) it vested in Colin, the son, who took an unqualified possession as heir of his father, which the counsel contended amounted to a disseisin : for where one takes as heir, he takes the whole estate. That the case cited of a mortgagor making a lease for years was not in point, as the disseisin was purged by the return of the mortgagor into posses- sion, as it would have been in the present case if MacNab had returned into possession after disseisin. The counsel insisted there was no case to shew that the heir of a mortgagor was in the same situation with his ancestor. In the present case the heir entered generally without consent ; paid no interest ; and no inference, the counsel contended, could be made by the court that his entry was not tortious. The evidence of Diicon as to the Conversations held with him and the widow w'6re insuffieient-^pay- ment of interest might have altered the case, (a) He doubted also whether the evidence given of (a) Saunders, 246. (o) 5 3. & A., 604. EASTER TERM, 8 GEO. IV., 1827. 46.9 these conversations should not have been rejected by the judge who tried the cause. That if it was said that the possession which was continued after MacNab's death was that of the widow, it would, after her forty days, have the same effect of disseising Edwards, and thereby making him incapable of being seised to Dunlap's use; for every unlawful continuation of possession, is a tres- pass in the same manner, as every continuation of the possession of goods stolen is a fresh asportation in the county to which they are taken. That arguments drawn from the inconvenience which persons residing abroad or at a distance would suffer by being compellable to make entries, were obviated by the consideration that they might do it by attorney. As to the presumption of payment of the mortgage money, he contended from the case of Wilson v. Wetherley, (a) that the twenty years' possession of MacNab and his heir was a sufl&cient ground for the presumption, which the evidence of the conversations had between the widow and children and Mr. Dixon was not sufficient to rebut, they not having been proved to have had any interest, and he contended that the evidence should not have been received. He concluded by observing that the questions be- fore the court were, whether Edwards was not out of the possession when he made the bargain and sale to Dunlap. (a) Bull., N. P, 468 EASTER TERM, 8 GEO. IV., 1827. not st^nd seised to the use of another, and therefore his deed of bargain and sale could not raise an tise in Dunlap's favour. He admitted that while MacNab, the elder, lived, Edwards, the mortgagee, was in possession by virtue of the possession of MacNab, the mortgagor, who was quoad his tenant ; but that his tenancy being at an end by his decease, and it being necessary that the freehold should subsist somewhere, (a) it vested ia Colin, the son, who took an unqualified possession as heir of his father, which the counsel contended amounted to a disseisin : for where one takes as heir, he takes the whole estate. That the case cited of a mortgagor making a lease for years was not in point, as the disseisin was purged by the return of the mortgagor into posses- sion, as it would have been in the present case if MacNab had returned into possession after disseisin. The counsel insisted there was no case to shew that the heir of a mortgagor was in the same situation with his ancestor. In the present case the heir entered generally without consent ; paid no interest; and no inference, the counsel contended, could be made by the court that his entry was not tortious. The evidence of Dilson as to the conversations h6ld with him and the widow were insufficient^-piay- ment of interest might have altered the case, (a) He doubted also whether the evidence given of (a) Saundere, 246. (a) 5 B. & A., '604. EASTER TERM, 8 GEO. IV., 1827. 469 these conversations should not have been rejected by the judge who tried the cause. That if it was said that the possession which was continued after MacNab's death was that of the widow, it would, after her forty days, have the same efifect of disseising Edwards, and thereby making him incapable of being seised to Dunlap's use; for every unlawful continuation of possession, is a tres- pass in the same manner, as every continuation of the possession of goods stolen is a fresh asportation in^e county to which they are taken. That arguments drawn from the inconvenience which persons residing abroad or at a distance would suffer by being compellable to make entries, were obviated by the consideration that they might do it by attorney. As to the presumption of payment of the mortgage money, he contended from the case of "Wilson v. Wetherley, (a) that the twenty years' possession of MacNab and his heir was a sufficient ground for the presumption, which the evidence of the conversations had between the widow and children and Mr. Dixon was not sufficient to rebut, they not having been proved to have had any interest, and he contended that the evidence should not have been received. He concluded by observing that the questions be- fore the court were, whether Edwards was not out of the possession when he made the bargain and sale to Dunlap. («) Bull., N. P. 4'/0 EASTER TERM, 8 GEO. IV., 1827. And whether the evidence of the conversations referred to in argument, should not have been re- jected ? Shbr"W00d, J. — All the objections taken at the trial of this cause are abandoned except one, which is, that when the conveyance was made by Edwards to Dunlap the former was not in possession of the premises so conveyed, but that a disseisor had the actual possession at that time, and it therefore be- came necessary, in order to effect a valid conveyance, for Edwards to enter and seal a deed on the premi- ses. It is admitted that Colin MacNab, the mort- gagor, died in possession of the premises in April, 1810, and that Edwards made the conveyance in question in the month of October following. In the interim between the last mentioned periods, and at the time of the execution of the conveyance by Edwards, the widow of the mortgagor was in pos- session of the premises, and subsequently continued in such possession for a number of years. While the widow so resided on the premises and after the conveyance from Edwards to Dunlap, both she and Colin MacNab, the younger, the heir-at-law of the mortgagor, acknowledged that the mortgage money had not been paid, and seemed desirous that it might in some way be satisfied. These appear to me the principal facts in the case. In the argument upon the motion for a new tz'ial, the defendant contended that the act of taking pos- session and continuing it by the widow amounted to a disseisin, and that Edwards being a disseisee no- EASTER TERM, 8 GEO. IV., 1827. 471 thing passed by his deed. The sole question there- fore for the court to determine, is whether there was a disseisin or not ; because I take it for granted that if there was, the deed from Edwards was ineffectual. Whatever may have formerly been the doctrine relative to disseisin, it seems to be fully settled at this day, that to constitute a disseisin the act must be of that nature that an intention to disseise can be clearly inferred from it. (a) In order to make a title by disseisin there must be a wrongful entry, (b) Tn the present case, I think no inference can be drawn that the widow in- tended to disseise the mortgagee ; but on the con- trary, her recognition of his title is quite apparent from her admission of the justice of his demand, and of its actual existence. It is true that this recogni- tion was made several years after she commenced to occupy the premises ; but still I think it goes to shew the intention with which she took possession, and negatives the fact of disseisin. Neither Ed- wards, the mortgagee, nor Dunlap, his assignee, ever objected to the occupation of the premises by the widow, which appears suflicient to me to warrant the inference that both of them assented, especially as the widow admitted the validity of the claim under the mortgage. The view, therefore, which I take of the whole case is, that the occupation of the widow was by the assent and implied permission of Ed- wards, and subsequently by Dunlap, and that the widow from the beginning fully recognised the claim under the mortgage, and if so, that there was no ad- verse possession. (a) 12 East, 141 ; 3 M. & S., 271. (A) 1 Salk.^ 245 ; 5 B. & A., 689. 472 EASTER TEEM, 8 GEO. IV., 1827. It appears to me that the deed from Edwards to Dunlap is a valid conveyance, and that the lessor of the plaintiff is entitled to judgment. The Chief Justice, referring to the case of Smartle V. Williams, {a) observed, that he considered there were sufficient circumstances in this case to take it out of the dictum there laid down, " that the entry of the heir of a mortgagor upon the mortgaged estate was a tortious entry," as in the present case the heir who remained upon the mortgaged estate after the decease of the mortgagor, had always acknowledged the title of the mortgagee. Per Curiam. — Rule discharged. In the matter op Hugh Oaeprae. The court refused to order a sheriff to re-fund money received by bim as the price of land sold at sheriff's sale, the purchaser having been ejected upon the ground that lands could not be sold under a fi. fa. as assets in the hands of an administrator. * This was an application on the part of Mr. Car- frae, for an order upon the late sheriff of the Home District, to re-fund the sum paid to him as the pur- chase money of a freehold estate, which had many years ago' been assigned to him as the purchaser thereof by sheriff's deed. The estate had been sold under a judgment ob- tained in a suit of ^G-ray v. Ruggles as assets in the hands of the administratrix, and the purchase money still remained in the sheriff's hands. The heir-at-law had recently brought an ejectment and recovered the («) ;Holts BeportB,- 6 W. & M. EASTER TERM, 8 QEO. IV., 1827. ■4^7i3j, possession upon the ground that freehold estq,te was not subject to be. sold, as assets in the hands of an administrator. The Chief Justice observed, that this application had arisen in consequence of the difference of opinion in this court, respecting the construction or operation of the 5th Geo. II., some of the judges having con- sidered that lands might be sold as assets in the hands of an administrator, while others considered that they could not. That his own had. been the latter impression, and the Chief Justice referred, to the case of Wycott v. McLean, administrator of Eob- inson. (a) Mr. Justice Sherwood observed, that he was not prepared to say whether lands in this province can or cannot be sold by process against executors or administrators. Lands in Barbadoes, he observed, were considered as quasi chattels until the testator's or intestate's debts were paid. He wished to have the question argued before he gave an opinion on the subject. Per Curiam. — Application refused. De Riviere et al. v. GtRant. Wbere the plaintiff declared as upon a penal bill, and gave in evidence a bond witb a condition in the usual form, it was held not a sufficient v»ri-; ance to set aside a verdict, it should have been taken advantage of bj; spjBcial demurrer upon oyer. This action was tried at the assizes, where the plaintiff was nonsuited with leave to move. The declaration was upon a bill penal, stating that the (a) Vide Eugglesv. Carfrae. 60 474 EASTER TEEM, 8 GEO. IV., 1827. defendant by his certain writing obligatory sealed, &c., bound himself, his heirs, &c., unto plaintiffs in the sum of £8218 of lawful money, &c., to pay or cause to be paid unto plaintiffs the full sum of £4109 with interest, as follows, that is to say (setting out the instalments) averment of non-payment. Plea no7i est factum. The evidence given at the trial to support this declaration was a bond with a condition thereunder in the ordinary modern form, upon which the plain- tiff was nonsuited. Washburn had obtained a rule nisi to set aside the nonsuit and enter a verdict for the amount of the debt declared for. He observed that the form had been taken from Morgan's precedents, and now moved to make the rule absolute. Sherwood, J., gave the judgment of the court. — The declaration in this case states that the defend- ant is indebted to the plaintiffs upon a penal bill to secure the payment of a less sum by several instal- ments. At the trial a bond was produced in evi- dence to support the action, which corresponds in the amount of penalty with the penal bill, and con- tains a condition for the payment of a less sum by instalments at the same time, and of the same amount as mentioned in the declaration. It was ob- jected at the trial, that a material variance was ap- parent between the penal bill declared upon, and the bond produced in evidence, because the latter had a condition underwritten. Although the declaration in this case is not drawn EASTER TEKM, 8 GEO. IV., 1827. 475 with technical precision, and such a form ought never to be adopted when the instrument declared upon is accompanied with a condition, still, I think, that since the passing of the statute 8th and 9th Will., 3, c. 11, that there is no essential difference in the le- gal effect of a penal bill for payment of money by instalments, and an obligation with a condition for the same purpose. In my opinion no objection on the ground of variance in this case should have been allowed at the trial, and if any advantage could have been taken of such a circumstance, it must have been so done upon special demurrer after ob- taining oyer of the obligation, and not on the plea of non est factum, which was pleaded in this case. The case of Cartridge v. G-rifiBth, {a) and the case of Harrison v. Yallance, although their circumstances are quite different from the present, go to establish the doctrine that the legal effect of a deed is to be considered at the trial rather than the exact corres- pondence of form, and that the plaintiffs ought not to be nonsuited on the ground of misdescription if the deed produced in evidence can have the same legal effect as the one mentioned in the declaration. I think the nonsuit should be set aside. Per Curiam. — Rule absolute. (a) B. & A., 57 ; 1 Bingham, 45 [476] TRINITY TERM, 8 GEO. IV., 1827. Present : The Honourable Chief Justice Campbeel. Mr. Justice Sherwood. The King v. Whitehead, one, &c., and Ward, Esquire. Where an attorney of this court practising in an inferior court has charged, aod the judge has allowed costs clearly not sanctioned by law, this court ■will punish by fine or attachment. Mr. Ward, the judge of the district court of New- castle, and Mr. Whitehead, one of the attorn eysof this court, having this day appeared at the bar upon the return of an attachment which had issued against thetn; against the former for a fcharge of extortion, and for having in several instances taken illegal fees for business done in the district cOurt, and for having made charges for disbursements which he had not in fact made; against the'latter on a (ihafge of not hav- ing adhered (in the taxation of Mr. Whitehead's bills) to the table of fees prescribed by the provincial statute. The circumstances had been presented by the grand jury at the quarter sessions for the New- castle District, and had been by the judge referred to the consideration of the Solicitor-G-eneral there present, who had brought the facts before this court in a former term, which facts having been substan- tiated to the satisfaction of the court by affidavits, and those facts not having been satisfactorily answered to the court upOn interrogatories administered to the TRINITY TERM, 8 GEO. IV., 1827. 4? 7 defendants, an attachment had issued, which being this day returnable, the Attorney-Greneral moved for the judgment of the court, which was pronounced by the honourable the Chief Justice, as follows : ' Chief Justice. — Mr. Whitehead — the manner in which the accusations against you have been brought to the notice of the court, namely, by the represen- tation of a grand jury of the country, give them ad- ditional importance. In their presentment, which stated various acts of extortion, and other unfair practices, I perceived they had included many things which were more fit subjects for the examination of this court than for the investigation of the petit jury at the assizes, and I therefore referred them to the consideration of the Crown of&cer, who has deemed it his duty to bring them before this court, in the manner which he has done. The court have examined a great number of affi- 'davits, containing charges against you of having taken illegal fees ; they have also examined a great number of bills of costs which have been taxed and allowed in the different districts of this province, by the persons who had the immediate superintendence of the practice of the district courts, and which bills you have produced, in order to shew that your charges *do not in general vary from those taxed in other courts. If the charges authorised in those bills were even larger than those you have made, that circumstance would be no justification. Your exhi- biting those documents was rather injudicious, as 478 TEINIlY TEEM, 8 GEO. IV., 1827. rendering it imperative upon the court to draw a comparison, the result of which is unfavourable to you, as the greater part of them do not come up to yours. It appears that you have for a considerable time injured the suitors in the district wherein you prac- tice, in a manner very discreditable to the general administration of justice, and particularly so to the character of that court in which you have been prin- cipally conversant. It is the duty of this court to superintend the pro- ceedings of all inferior jurisdictions, but your con- duct is more especially and immediately under the cognizance of this court, in which you are a minister, and in virtue of that character are allowed to prac- tise in the local courts of the country. This court consider your conduct as so improper, in many instances, that it would be justified in strik- ing off your name from its roll; but, considering that this is the first instance of the kind that has been brought before the court, it is unwilling to proceed to such extremities, but such a sentence must be pronounced as may strongly mark its disapprobation of your conduct, and, at the same time, convince you that a repetition of the same would be visited by the heaviest censures. The sentence of the court, there- fore, is, that you pay a fine of fifty pounds, and re- main in custody until the same is paid. Mr. Ward, you may imagine that this court feel much pain in finding it necessary to visit, by their TRINITY TEEM, 8 GEO, IV., 1827. 479 reprehension, a person whose respectability of cha- racter has been so long and so well established in this province ; but the complaint which has been brought to light against Mr. Whitehead considerably implicates you, and, therefore, you have necessarily been called upon. You have given the best expla- nation of the misconduct or neglect attributed to you of which you were capable ; but that explanation is not satisfactory. We must either suppose a degree of ignorance or gross negligence, by no means com- plimentary to a person of your profession and situa- tion, or be obliged to attribute your conduct to mo- tives which would be still more disgraceful and even criminal. Among other instances, the charge which has ap- peared against you is taxing illegal fees, as costs of the day, against a plaintiff in whose behalf you had granted a new trial, and has been fully substan- tiated ; nor is the excuse offered by your counsel, that those fees were taxed by the consent of the at- torneys concerned for both the parties in the suit, at all satisfactory. To allow such an excuse would in- troduce a doctrine too injurious to suitors to be ad- mitted by this court. It would render it too easy a matter for attorneys opposed to each other to con- nive at improper charges, to the great injury of suitors. You have an act of the legislature of this country pointing out a table of fees by which you are to be directed in your taxation of costs, and by no other. Setting at naught the provisions of this statute, you have incurred the imputation of great neglect 480 TRINITY TERM, 8 GEO. IV., 1827. or of improper motives, either of which this court are bound to notice. The family connexion which it appears subsists between you and Mr. Whitehead, compared with other facts, unfortunately gives a ground for suspi- cion that you may from that circumstance have al- lowed yourself to have been subjected to a degree of improper influence incompatible with your duty, but which may have probably arisen from your good opinion of, as well as your good feelings towards, that gentleman. This connexion made it your duty to be doubly vigilant in cases in which that party was concerned ; for however amiable such a feeling may be in pri- vate life, it must never be allowed to interfere in the administration of justice. It induces a bias of which we are not always sensible, and which ought, there- fore, to be the more cautiously guarded against. The items which you have allowed in your taxa- tions of costs, as appears by the affidavits exhibited, are, without doubt, contrary to law, and as it is not only in the power, but also the duty of this court to see strict justice is duly administered, in all inferior jurisdictions, you have subjected yourself to its censure. This court is, however, pleased to find that this reprehensible conduct on your part has not proceed- ed from the criminal motive of putting money in your own pocket, so that your character for integrity in that respect remains unimpeached, but still your duty should go further. TRINITY TEEM, 8 GEO. IV., 1827. 481 Although in consideration of this distinction which the court has been able to draw in your favour, and of your general excellent character it is inclined to be lenient, you must be apprised that a repetition of such conduct would be severely visited. The inferior courts of this country have not that discretion in establishing the quantum of costs which has been given to this court ; such courts have no- thing to do but to adhere to the table of fees pointed out by the statute. This you have not done, and are, therefore, highly censurable ; but the court considering that you have not been influenced by corrupt motives, do only sen- tence you to the payment of a fine of five pounds, which is the greatest degree of lenity it could possi- bly exercise towards you. Taylor v. Eawson. Where a person in possession of a promissory note sued in the name of the payee, the court refused to set aside the proceedings after judgment upon an affidavit by the supposed payee that he had never possessed such a note ; the defendant at the same time not swearing that he had never given such a note. George Boulton moved for a rule nisi to dis- charge the defendant out of custody, upon the ground that one David Smith had carried on the proceedings against defendant without any authority from the nominal plaintiff, or why said Smith should not be attached. The action had been commenced upon a promis- sory note signed by the defendant, which had been purchased by Smith and put in suit in plaintiff's name. 61 482 fEINITY TERM, 8 GEO. IV., 1827. The affidavit to support the motion was made by the nominal plaintiff, who resided in the state of New York. It stated that he never empowered in writ- ing or by parol any person to sue for or discharge a note payable to himself by the defendant, as he never was the owner, possessor, or proprietor of such a note. There was no affidavit made to the same effect by the defendant, or denying his having given the note upon which the action was brought. The defendant was in custody upon a ca. sa., after having suffered judgment to go by default. The court observing that the application was out of season, and that the defendant had tacitly ac- knowledged that he had signed the note, not having contradicted it by affidavit. Application refused. Robinson v. Hall. The court refused to discharge a prisoner out of custody on the ground that the gaoler had taken him to a magistrate upon suspioioii of his having cominitted a larceny in the gaol. The court refused to commit a prisoner brought by ha. co. from a county gaol to the custody of the sheriff of York. The court determined it not unreasonable for the gaoler to charge 6d per mile, both going and returning with a prisoner by habeas corpus. The defendant, a prisoner in the custody of the gaoler of Kingston, was brought up under a habeas corpus issued last term, the writ of capius ad respon- dendum under which he was confined, and the return to the writ of habeas corpus being read, Baldwin moved for his discharge under the following circum- stances : the prisoner was some time after the re- TRINITY TEEM, 8 GEO. IV., 1827. 483 turn of the mesne process under which he had been confined, suspected by the gaolef of having commit- ted a larceny in the gaol, and he thereupon, assisted by an escort of soldiers, took him without any war- rant before a magistrate residing in the town of Kingston, without the limits of the gaol ; and after his examination and commitment, took him back into custody. It appeared that the defendant was after- wards acquitted of the charge at the quarter ses- sions. Baldwin contended that this removal by the gaoler was a voluntary escape, and that therefore the prisoner's subsequent confinement being illegal he vras entitled to his discharge, and cited Atkinson v. Matteson, and the cases there cited, as shewing by clear inference, that a prisoner once voluntarily permitted to go at large after the return of the writ, (mesne process) cannot be re-taken by the bailiff ; shewing, that although a bailiff may permit a pria- soner to go at large before the return of the writ he cannot do so after it. The counsel cited the case of Borthman v. the Earl of Surrey, {a) as shewing that a bailiff, who re- moves a prisoner out of his custody without a habeas corpus or other lawful authority, is liable in debt for escape. He further contended that as in the present case the gaoler could have had no pretence or claipa to an escape warrant, that he could not therefore re-take or bring back the prisoner after he had taken him out of the gaol. (a) 2 T. R., 5. 484 TRINITY TERM, 8 GEO. IV., 1827. The Attorney-General, in reply, observed that there was a distinction between mesne process and execution, that, in the latter case, the close custody of the prisoner, the arcta et salva custodia was the plaintiff's satisfaction for the debt, but that in the former the custody was only with a view to the pro- duction of the defendant at the close of the suit, and that therefore other custody than that of the gaol answered the same purpose, and doubted if the court would enquire in what custody a prisoner confined upon mesne process was. That it was unreasonable to suppose that a pris- oner could not be removed on any occasion without an ha. co. At the sessions where the testimony of prisoners might be required it could not be obtained. That none of the authorities went to shew that the party imprisoned might himself apply to be dis- charged under circumstances like the present. That if the counsel could cite any instance of a prisoner in execution being discharged by the court, who had been taken to gaol, after a temporary re- moval, under the circumstances of the present case, he might perhaps doubt as to a case upon mesne process. Robert Baldwin, in reply, observed that it was not argued that a habeas corpus was at all times neces- sary to remove a prisoner for the purpose of giving testimony as a witness, or being himself examined when accused criminally, but that certainly some authority known to the law must be resorted to, TRINITY TERM, 8 GEO. IV., 1827. 485 otherwise the party, he contended, was out of custody- while going before a magistrate or any other tri- bunal. That the question here is, whether voluntary escape or not, if the conduct of the gaoler made an escape, which he contended it did, he considered that the court would discharge the prisoner. He further observed there was no distinction be- tween mesne process and execution after the return of the writ. Chief Justice. — Admitting that the conduct of the gaoler may have been in this case illegal, the court would decide in too summary a manner, upon the rights of third persons if they were to discharge the defendant. It appears that the processes under which he is in custody are legal, and whatever his remedy, by action, may be against the gaoler, the court do not consider that he ought to be discharged upon this summary application. If the gaoler has suffered an escape, the court consider that he is amenable to the parties at whose suit the defendant is in custody, and under the circumstances they can- not grant this application. The prisoner was there- fore remanded. Per CwnaTO.— Application refused. Baldwin now applied to the court to commit the prisoner to the custody of the sheriff of York, but the court refused the application, on the ground that the committing prisoners brought up from county gaols to the custody of that officer, would be subject- ing him to too great a burthen and responsibility. 486 TRINITY TERM, 8 GEO. IV., 1827. Baldwin also objected to the charge of £10 for briDging the prisoner up, but it appearing that the mileage for bringing the prisoner up and conveying him back amounted to that sum, the court decided the charge to be reasonable. The sheriff of the Home District asked the court if he ought to receive the prisoner into his custody during his stay at York, without an order from the coart. The court replied that the ha. co. was a suf- ficient warrant to him, and that it was his duty to receive him. Baedon" v. Cawdell. Where a person had been arrested under a judge's order, the court consid- ered it not necessary to make use of the precise words pointed out by the provincial statute, authorising arrest. Small moved to set aside the arrest in this case, upon the ground that the affidavit to hold to bail, and upon which a judge's order had been granted, did not follow the words of the statute. The words of the affidavit were that the defendant was about to leave the province as the plaintiff was informed and verily believes, whereas the words of the statute are that the plaintiff is apprehensive that the defendant will leave this province, &c. The court observed, that the clause of the statute which authorised an arrest under a judge's order, had no reference to the clause containing the form of the affidavit, and that as it was necessary that there should be an order in this case, the strict adherence to that form was dispensed with by such order. Per Curiam. — Application refused. trinity term, 8 geo. iv., 1827. 487 The King v. Bidwbll. To subject a person to the penalty of the 22d Geo. 11., o. 46, for suing out process, &o., the attorney allowing his name to be used must be first convicted. An application was made against the defendant, by the Solicitor-G-eneral, for a rule to shew cause why an attachment should not issue against him for having practised, as an attorney of this court, with- out being authorised so to do, and for a contempt in abusing the process of this court in discharging one White out of execution, without sufficient authority, said White having been confined upon a capias ad mtisfaciendum at the suit of one Brook, (a) It appeared to the court, in respect to the first part of the charge, that the defendant had been, for several years, acting as the managing clerk of Mr. Daniel Washburn, formerly an attorney of this court, and, in fact, had in a great measure conducted the busi- ness of the office, and of Mr. Washburn's clients; but it also appeared from Mr. Bidwell's affidavit that he was employed at a salary, and did not participate as a partner in the profits of the office. The intention of instituting these proceedings was, in some mea- sure, to compel Mr. Bidwell to refund to Mr. Mc- Lean, the sheriff of the Midland District, a sum which he had been compelled to pay in an action for an escape, the ground of which was that he had re- leased a prisoner in execution by the written direc- tion of Mr. Bidwell, as clerk or agent to Mr. Wash- burn, such direction being unauthorised and void. Sherwood, J., pronounced the judgment of the court as follows : (a) See the case of Brook v. McLean. 488 TRINITY TERM, 8 GEO. IV., 1827. Application has been made to the court for a rule to shew cause why an attachment should not be granted against Mr. Bidwell, upon the following ac- cusations : Firstly. — That he abused the process of this court by discharging, without legal authority, a debtor in the custody of the sheriff on a ca. sa. Secondly. — That being an unqualified person, he practised as an attorney of this court by using the name of the late Mr. Washburn, who permitted him to do so contrary to the statute 22 Geo. II., cap. 46, sec. 11. With respect to the first accusation, it appears to me that the discharging a debtor out of custody, without authority to do so, does not constitute a criminal abuse ot the process of this court, so as to render the agent liable to an attachment without some circumstances shewing fraud, deceit, or gross imposition. The party injured may resort to a civil action. As to the second charge, I can find no instance of the conviction of a person under the statute 22 G-eo. II., who acted merely as the clerk or servant of a licensed attorney, at a fixed salary or stipulated wages in the ordinary transactions of the professional business of his master. From a perusal of the statute I am also inclined to think that in all charges of the description now under consideration, it is necessary, in the first in- stance, to convict the attorney who has improperly allowed his name to be used by an unqualified per- TRINITY Tt!R]Vr, 8 GEO. tf., 1827. 489 son, before any proceedings can bfe Had against the lattfei- ; for if convicted at all, such ilhqtialified per- soti nllifet, hf thfe express provision of the statute, bfe convicted at the Satne time, or at least upon the same complaint and proof which have been previously adduced against the attorney himself. The ahbient common law rule of principal ahd ad- cessat-y, without any relaxation, seems to have beeti in the contemplation of the legislature at the time of this enactment. Mr. Bidwell, in his affidavit, filed in answer to the affidavit of the prosecutor, distinctly and posi- tively states, that he was not a partner with Mr. Washburn, but was hotxafide his clerk or servant at a fixed salary, by the year. For these reasons, I think, that even a rule nisi ought not to be issued. Per Curiam. — Application refused. Eead v. JoHiirsoN. A demand of plea cannot be served before declaration filed, however short the time may be. Small moved for a rule nisi, to set aside the inter- locutory judgment, signed in this case for irregu- larity on the ground that the service of the demand of plea had preceded the filing of the declaration. It appeared that the demand of plea had been served upon the clerk of the defendant's attorney in the crown office, a few seconds before filing the de-^ 62 490 TBINITY TERM, 8 GEO. IV., 1827. claration. The counsel insisted on the words of the statute, which are " that the plaintiff may after a de- claration filed, and service of a copy upon the de- fendant, by demand in writing, call for a plea." Boulton, Solicitor-General, contra, contended that the demand of plea might be served at the same time with the declaration, and that the court would not notice the very small portion of time which had elapsed between the one and the other in this case, and would consider the acts as simultaneous, and cited Edmonton v. Osborn, and Maxwell v. Skerret. The Chief Justice observed that applications like the present tended to the discredit of courts of justice, but that although a simultaneous service of the declaration and demand of plea might be held good, yet as it appeared in this case that the de- mand had ■ actually been served before declaration filed, that the court were bound by the express words of the statute. Per Curiam. — Application granted. The Chief Justice observed that the appoint- ment of Mr. Cawdell or any other deputy to perform the duties of clerk of the Crown, must be with the sanction of the court. Keefer v. Merrill, et. al. The court will not set aside an arrest upon the ground of irregularity in the affidavit to hold to bail after a prisoner has in fact escaped. Washburn had obtained a rule nisi to discharge the defendants out of custody, upon filing common bail, for defects in the affidavit to hold to bail. TRINITY TERM, 8 GEO. IV., 1827. 491 It appearing to the court that two of the defend- ants had escaped from gaol some months previous to this application, it being in fact made with a view to exonerate the sheriff from his liability. Per Curiam. — Rule discharged. JBoulton, Solicitor-G-eneral, was against the appli- cation. Davidson Dob ex dem. v. Roe. Service upon one of several tenants in possession of the same parcel of land is suflcient. Boulton, Solicitor-General, applied for a rule nisi to set aside the proceedings in ejectment in this case, upon the ground of only one of two tenants in common having been served with the declaration and notice. The court referring to the case in Bosanquet v. Puller, and observing that the cases, where a ser- vice upon one tenant had not been considered as sufficient, contemplated the tenants being in posses- sion of different and distinct parcels. Per Curiam. — Application refused. McLean v. Hall. A plaintiff cannot arrest a defendant for the amount of purchase money paid for an estate conveyed to him by deed, upon the ground that the defendant, the vendor, was not lawfully seised, but must resort to his covenant and proceed by judge's order. The defendant in this case had been arrested up- on an affidavit, stating that the plaintiff had pur- chased a house from him for £50. That he had 492 TRINITY TERM, 8, GEO. lY-, W^- covenanted th£(,t he was \\\e lawful owner, and law- fully seised of tlie property sold ; which, in fact, he was not, and that he w^s indebted to the plaintiff in £55, by virtue of such covenant, with the usual con- clusion. No judge's order had been obtained. Macaulay had obtained a rule nisi to set aside the arrest. Boultoji, Solicitor-G-eneral, shewed cause. Per Curiam. — Rule absolute. Stocking v. Crooks. An award will be set aside if arbitrators examine one of the parties upon oath, they not having been authorised to do so by the submission. Eidqut had obtained a rule nisi to set aside the award in this case, on the ground that the arbitrators had exceeded their authority by receiving evidence not warranted by the submission. The arbitrators had taken the evideijce of the plaintiff upon oath. The defendant, although he did not resist this, declined beir^g swojn hir^iself. The counsel cited Caldwell on Arbitration, 53, and the same work passim; also, 2 Taunton, 254. Rule absolute. BaSTABLIS and another v. Mow ATT. Where a defendant applied for security for costs by afSdavit, dated 22d May, and one of the plaintiffs deposed in an affidavit on the 21st June, that he was resident at Kingston, where, in fact, he was in gaol, the court ordered security. The defen(Jaot applied for security for costSi upon an apdavit, dated the 22d of May last, stating t,]fL? TRINITY TERM, 8 GEO. IV., 1827. 493 non-residence of plaintiffs within tlie jurisdiction. Tlie plaintiffs opposed the application upon an affi- davit, stating that one of them was resident in King- ston, where, in fact, he was confined in gaol; the last affidavit was sworn 21st June. Application granted. Eansom and Sheldon v. Don-aghub. Where a defendant had been arreated by one of two plaintiffs for £18, and was afterwards arrested in the name of both for £18 10s., the court or- dered the bail bond to be cancelled. Macaulay had obtained a rule to shew cause why the bail bond should not be delivered up, to be can- celled, upon an affidavit stating that the defendant had been held to bail in a former action for the same debt, at the suit of one of the plaintiffs — the former affidavit was for £1 8. The one in the present action for £18 10s. Eule absolute, with costs. Robert Baldwin was for the defendant. Smith v. Sullivan. The affidavit to hold to bail upon a promissory note must state it to be payable. Ridout having obtained a rule nisi to discharge the defendant from arrest upon filing common bail. The affidavit not stating the promissory note upon which the action was brought " to be pa^yable." Per Curiam.-r-:B>VL\Q absolute. 494 teinity term, 8 geo. iv., 1827. Brown v. Waldron. The court ■will not set aside an execution upon the ground that the action was commenced in debt and the cognovit given in assumpsit. Washburn had applied to the court for a rule nisi to set aside the execution in this cause, upon the ground that the action had been commenced in debt, and the cognovit given in assumpsit. Boulton, Soli- citor-Greneral, shewed cause. Per Curiam. — Application refused. Doe ex dem. Stewart v. Radich. The operation of the Statute of Limitations is not suspended by the 59 Geo. III., 0. 3 Where twenty years' possession has lollowed a division of ad- jacent lots, ejectment will not lie, although the division may have been inaccurate. The lessor of the plaintiff and the defendant hav- ing about iive and twenty years ago received grants of adjacent lots, employed a surveyor to run the line between them, and, thereupon, divided their lands agreeable to such survey, and the defendant made considerable improvements on the land so assigned to him. It being lately surmised by plaintiff's lessor that the survey had been inaccurately made, he em- ployed a surveyor to re-survey the land, who having surveyed the land anew, according to the directions of the provincial statute, for ascertaining and estab- lishing boundary lines, 59 Geo. III., c. 3, gave in evidence that the old survey was incorrect, and that the land on which the defendant had made his im- prftvements, in fact, belonged to the plaintiff's lessor under the grant from the Crown. It was contended at the trial, by the counsel for TRINITY TEEM, S^ GEO. IV., 1827. 495 the defendant, that his twenty years' possession bar- red the plaintiff's lessor from an action of ejectment; by the plaintiff's counsel that the possession not having been adverse, but under a mutual understand- ing, arising from the error of the surveyor, that the Statute of Limitations was no bar, and even if it had been, that the provincial statute establishing meri- dian lines gave the plaintiff's lessor a right of entry commencing from its passing. The jury found a ver- dict for the plaintiff, subject to the opinion of the court upon the above points. Robinson, Attorney-G-eneral, for the defendant, contended, tLat the case was within the principle and intention as well as the language of the statute, viz., "no person shall make an entry into lands but within twenty years next after their right or title, which shall first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made;" that the intention of the statute was if a defendant has been twenty years in possession, the claimant shall be barred from his entry, and that a person must find as well as assert his right in that time. That if the mistakes of surveyors were to be con- sidered as preventing the operation of the statute, it would be almost inoperative in this country. That error or mistake should no more prevent its operation in cases of ejectment than in those of as- sumpsit, trespass, &c. The counsel cited the cases of Esson V. Esson, Cook v. Danvers, and Duroura v. 496 TRlNtTY TERM, 8 GEO. IV., 1827. Jones, (a) as determining that where the statute has begun to run that its progress cannot be stayed by subsequent circumstances. Boulton, Solicitor-General, contra, contended that the twenty years' possession intended by the Statute of Limitations was an adverse possession ; and that uuder the circumstances of this case an ouster should at least have been found or presumed by the jury. That the statute did not at any rate bar the plain- tiff until he had acquired a right of entry under the provincial statute, which directed the manner in which lines between lots were to be run. The defendant in this action had been in peaceable possession of the premises in question, under a dif- ferent title from the plaintiff's, for more than twenty- five years before the day of the demise mentioned in the declaration in ejectment. Each of the parties had a deed from the Crown, the one of the east and the other of the west half of a lot on the river St. Lawrence, and those deeds were issued more than twenty-five years before the commencement of this action, as before stated. This period of uninterrupt- ed occupation on the part of the defendant, under a distinct title from the lessor of the plaintiff, since the statute of 21 James L, cap. 16, sec. 1 is like a de- scent at common law which tells entry, and trans- fers the right of possession from the lessor of the plaintiff to the defendant, even if the former has the legal right of property. Stokes v. Berry 2d, Salk., (a) 6 East, 80; 7 East, 299 ; 4 T. R., 300. TRINITY TEEM, 8 &E0. IV., 1827. 497 421. Taylor V. Horde, 1. Burrow, 119. The plain- tiff does not claim to come within any exception con- tained in the Statute of Limitations, but alleges that the provincial statute 59 Geo. III., cap. 14, sec. 12, takes his case out of the statute 21 James I. It ap- pears to me the provincial statute cited by the plain- tiff was made for the express purpose of regulating the mode of surveying lands subsequently to the pas- sing of that act. I think the legislature intended by the 12th section, to give the court an equitable power to secure a reasonable compensation to such claimants only who are not protected by the Statute of Limitations, on account of their possession, since the issuing of the king's patent, being less than twenty years. To render the Statute of Limitations inopera- tive you must shew a repeal of its enactments. This has not been shewn. If the lessor of the plaintiff is in truth the rightful owner of the premises, he has by his own negligence rendered a resort to a higher remedy indispensably necessary to obtain his land. In my opinion his estate, if he has any, has been di- vested and put to a right of property alone. The right of possession, I think, is gone. The lessor of the plaintiff contends that as no adverse possession on the part of the defendant was proved at the trial, the Statute of Limitations does not reach his case. It appears by the evidence that the defendant held under a deed from the Crown, and not under any title at all identified, with that of the lessor of the plaintiff ; and the lessor of the plaintiff never claim- ed any right to the premises till after a lapse of more than twenty-five years, during all which time the defendant had the king's grant and lawful posses- sion under it. Adverse claim or possession as re- 63 498 TRINITY TEEM, 8 GEO. IV., 1827. lates to either party appears to me to be quite out of the question. The plaintiff acquiesced in the de- fendant's possession, because he never thought him- self the owner of the land, and the defendant never disputed any claim of possession on the part of the plaintiff, because none was ever made before this action was brought. A claim to the possession is now made for the first time, and, as I said before, I think it comes too late. Per Curiam. — Nonsuit to be entered. Beaslet v. StEGMA]!?. Where ia an action on bond for the performance of an award, the count set out the intention of plaintiff's daughter and her husband, the defendant, to live separate. That it was submitted to arbitrators to settle the amount of an allowance to be paid her in lieu of alimony, &c., upon plain- tiff's entering into such security as should be deemed proper to indemnify her husband, &c., and that plaintiff should, when the award was made known, enter into such security. That the condition of the bond was to pay defendant's wife what should be awarded upon plaintiff entering into such security — assigning for breach, (without stating that the award had fixed the nature or amount of the security,) that the award had fixed the allowance at £50, payable quarterly, thenceforward, commencing from the day of her departure from her husband, the defendant, (a day, in point of fact antecedent to the submission,) averring that plaintiff did afterwards by his deed, &c., covenant to indemnify, &c., that although plaintiff afterwards tendered said covenant, and exhibited the bond and award, (without any profert of the covenant,) and demanded the sum, to wit, £62 10s., being one year and one quarter from the 6th of Septem- ber, 1822, being the day of the separation, &c., (a day antecedent to » the submission, ) due on the award — refusal of payment — was held good upon a special demurrer objecting to it as inconclusive, having a retro- spect not warranted, and wanting profert of the covenant. A second count omitting the statement of notice of the award and a request to pay, also held good A third count assigning for breach, that plaintiff offered to enter into any security as might be deemed proper to indemnify, &c., yet that defendant refused to accept any thing at all therein, (without stating a tender of a covenant,) also held sufiicieut, upon the ground that defendant's refusal to accept any thing at all discharged the plaintiff from making such tender. Debt upon bond for performance of award. The first count of the declaration set out : first the sub- mission, viz.: — that differences had arisen between TRINITY TERM, 8 GEO. IV., 1827. 499 plaintiff's daughter and her husband, the defendant, their intention to live separate, and that defendant should make her an allowance upon the plaintiff's entering into such security as should be deemed pro- per to indemnify defendant against further claims on the part of his daughter ; and that the plaintiff and his daughter had agreed to leave the amount of the allowance to be settled by arbitrators, who should fix the amount and times of payment, .&c., that plain- tiff when said award was made known, should enter into such security as should be deemed proper to in- demnify defendant, &c. Secondly, the condition, &c., to perform the award of the arbitrators, and to pay defendant's wife such sums as should be awarded her upon the plaintiff entering into such security as aforesaid. And then assigned for breach : that the award had fixed the allowance from the defendant to his wife yearly, at the yearly sum of fifty pounds, pay- able quarterly thenceforward, commencing from the day of her departure from her said husband, &c. And that although plaintiff did afterwards by his certain deed under his hand and seal, in consideration of the said provision, &c., covenant that defendant's wife should not molest him, &c., or institute any suit for alimony, &c., and referring to the deed. And that although plaintiff afterwards, &c., tendered and of- fered to defendant the said covenant, and requested him to accept the same, and exhibited the aforesaid bond and also the award, and demanded the sum, viz.: £62 10s., being one year and one quarter from the 6th of September, 1822, being the day of the se- 500 TRINITY TERM, g GEO. IV., 1827. paratioa of the defendant and his wife, due on said award ; yet defendant refused to accept the covenant or pay the amount, &c. The second was similar to the first, omitting the state- ment of the request to defendant to accept the cove- nant, and also the exhibition of the liond and award. The third count similar to the others ; but assign- ing for breach that plaintiff offered to enter into any security as might be deemed proper to indemnify, &c., and that although a large sum was due under said award, to wit, £62 10s., &c., yet the defend- ant refused to accept any thing at all therein, where- by he discharged the plaintiff from giving any secu- rity — request and refusal of payment. Demurrer — assigning for causes — To the first count — that it appears thereby, that defendant was bound to pay the sum awarded, &c., upon the plaintiff's entering into such security as should be deemed proper, &c., and that it is not stated in the said first count what security it was deemed proper the said plaintiff should enter into, or that defendant had deemed the covenant therein alleged to have been made and tendered, to be such security as it was proper the said Beasley should enter into, and that it does not appear that the plaintiff-ever did enter into such security as was re- quired before defendant could be legally called upon, according to the condition of his said bond, to pay the sum awarded, and consequently that it does not appear by the said count that the plaintiff at the TRINITY TEEM, 8 GEO. tV., 1827. SOl time of commencing his action was entitled to claim any sum under the award. That according to the obvious intent, &c., of the bond and condition, it was submitted to the arbitra- tors, and they ought to have awarded the proper se- curity — and that as it appears by the said first count that they did not do so, the award is inconclusive and void. That plaintiff has not made profert of the sup- posed deed or covenant, whereby defendant might have had oyer ; it not appearing that said covenant is in existence. That said award directs that a yearly allowance of £50 shall be paid by defendant to his wife quar- terly thenceforward, commencing from the day of her departure from her said husband, &c.; but that it is not stated at what time she did depart, &c., or that she ever did depart; therefore void for un- certainty. That the award, as set forth, directs a sum of money to be paid as an annual allowance to com- mence from a day antecedent to the said award or to the bond of submission of the defendant set forth — whereas the bond and the condition recite an in- tention to live separate thenceforward, and submits to the said arbitrators what allowance shall be paid on account of such separation, and for no other thing; wherefore arbitrators could not legally award any allowance to accrue from a period antecedent to said submission; and that they have named a day for the commencement of said allowance, on which they had 502 TRINITY TERM, 8 GEO, IV., 1827. not power to make the said allowance commence, and that no day being named, &c., except by reference to a period to which the power of the arbitrators did not extend, the award is altogether null smd void. That no period is mentioned when the annual allowance is to cease; wherefore the award is alto- gether uncertain, inconclusive and void. To the second count the same objections as to the first, and that it is not stated therein that the defen- dant had any notice of the award; nor is it averred that he was requested to comply with the same. To the third count. That the arbitrators have not awarded the nature of the security, as objected to the first count. That it sets forth the award as directing a sum of money to be paid, commencing from a day antece- dent, as objected to the other counts. That no period is stated when the allowance is to cease. That no notice is stated, as in the objection to the second count. Joinder. Robinson, Attorney-G-eneral, in support of the de- murrer, observed, that it was absurd to suppose that the plaintiff could get rid of the covenant alluded to in the pleadings by tendering his own deed. TRINITY TEEM, 8 GEO. IV., 1827. 503 That a party cannot be said to give security, unless he gives something more than his own personal lia- bility. That the giving security was a condition prece- dent, before completing which the plaintiff's right of action did not accrue. That it was the duty of the arbitrators to have qualified the uncertain and general terms in the sub- mission, by pointing out the nature and security, which was the evident intention of the parties, and, without doing which their award was useless. -"■a In support of these observations the counsel cited the authorities below, (a) That it was the fair interpretation of the submis- sion that the award was not to have a retrospective operation, but which the arbitrators have given it. That admitting such was the intention of the par- ties, the awarding an allowance from the time of the departure of defendant's wife, left the allowance un- certain and subject to future litigation. That the award wanted mutuality in directing one party to pay to the other fifty pounds annually, with- out any equivalent. That the want of profert of the covenant tendered was also a ground of demurrer, for, that a plaintiff must bring into court any deed which contains a con- dition precedent, to be performed upon his part, be- (a) 2 Mod. 272 ; Strange, 1024. 504 TRINITY TERM, 8 GEO. IV., 1827. fore doing which he acquires no right of action, (a) and this to enable the defendant to judge as well of its due execution as of its sufficiency. That the omission of a period at which the allow- ance was to cease was also an objection to the award. He observed, upon the third count, that the gen- eral averment, that they tendered any security the defendant should deem proper, was objectionable; for that the nature and quantum of the security was not more within the decision of the defendant than within that of the plaintiff, but should have been settled by the arbitrators; and that want of an aver- ment of notice of the submission and award was bad, and that no precedent could be found to sanction such an omission. The counsel also cited the autho- rity below, (b) Macaulay, in reply, contended that the submission to pay such allowance as should be awarded, gave the arbitrators a retrospective power, and that although they had not named a day from which it was to commence, yet having named the annual sum to be paid was sufficient, and that it was unreasonable to expect that they should name a time of departure, as in fact there had been several. That it was no part of the duty of the defendant to tender the sum awarded and demand sufficient security; and if it was not given, he had a right of action. The counsel cited the authority below (c) to shew that the party to whom a deed is to be made, must show what he wants. (a) Lord Raymond,776 ; Croke Eliz. 212 ; Com. Dig. Pleader. (J) Strange, 432. (c) 1 Ventris, 195. TRINITY TEEM, 8 GEO. IV., 1827. 505 That had a security been referred to the arbitra- tors, there might be some ground for objection to their award if they had neglected to ascertain it. The giving the security, he contended, was not a condition precedent; but, that the plain intention of the arbitrators was to leave the defe^idant to his ac- tion if proper security was refused. He cited the authorities below, (a) ' Observed further, that the second objection was involved in the first, the true question being whether it was necessary for the arbitrators to establish the security. That the want of profert was a matter dehors the award, and might be amended if necessary: admitted that if a party claimed under a deed he must make profert, but that the deed in question was induce- ment only, and, indeed, no deed until delivery. Compared it to a deed tendered by a vendor at a sale who never made profert of it, in an action to compel a completion of the purchase. As to the uncertainty of the day of departure, he observed that the fact itself was admitted by the submission. That in awards, that is certain which can be made so, and it was the object and intention of courts of justice to uphold and establish rather than to overturn them by nicety of construction, (a) Upon the objection of want of mutuality, he did (a) Com Dig. Arbitrator, B ; Caldwell, 95-8 ; Saunders, 189 ; 1 Burr., 278, (a) Caldwell, 114, 19, 144, 94; 2 Wilson, 267; 2 Saunders, 62. 64 506 TRINITY TEEM, 8 GEO. IV., 1827. not consider that it applied ; but, at any rate, a re- lease might be considered as intended. Upon the want of notice, as objected to the third count, he considered notice as unnecessary, unless it had formed a part of the submission ; and that de- fendant had discharged the plaintiff from tendering any deed by his general refusal as set out in the first count. And further observed, that if there was any thing in the objection made to the award having a retro- spect, that the words having that effect might be re- jected as surplusage ; and its operation might be considered as bounded by the term " henceforward." Attorney -General, contra, observed that words much more loose than those in the submission had been considered as making a condition precedent, which could not be got rid of by the party to be charged ascertaining the security. That if the arbitrators had authority to award re- trospective payments, some period should have been stated for their commencement, which not having been done leaves the award uncertain and nugatory; and if they had not power to do so ' they have ex- ceeded their authority, which equally vitiates the award. Further, that whenever a tender of a deed is ne- cessary, a profert is necessary. As to the anxiety &f the courts to support awards, he observed that that anxiety was shewn only in tolNITY TERM, 8 GEO. IV., 1827. 507 cases where it was attempted to impeach the justice of a perfect award, not where it was uncertain and inconclusive. Sherwood, J., in pronouncing the judgment of the court, made the following observations. — After peru-i sal of the pleadings in this case, I am of opinion that no one of the special causes of demurrer is tenable which the defendant has assigned against the several counts in the declaration. The only question, there- fore, which remains to be determined is, whether the plaintiff has done every thing on his part, re- quired by law to enable him to support an action for the non-payment of the money awarded. The first two counts in the declaration are precisely similar in principle, and may, therefore, be considered to- gether. The statement of the plaintiff's case, in these counts, clearly shews it was necessary for him either to give security to the defendant, or to offer to do so, before he could legally call upon him for the payment of the money. Now has he not tendered security ? The defendant by his pleading has not' disclosed any objection to the security itself, or to the written instrument by which he proposed to per- fect the security. The defendant contented himself with barely refusing the security without assigning any reason for such refusal, and, therefore, it must' be presumed that he had no good objection to it'. What more could the plaintiff do ? It was out of his power to compel the defendant to accept security. If the defendant thought the security insufficient he' should have said so, and then the plaintiff must have tendered better security, or stated' his right to re- recover the money on the one already offered. The^ 508 TEINITY TERM, 8 GEO. IV., 1827, defendant, however, chooses to be wholly passive, and trust to the failure of performance of what was necessary to be, done by the plaintiff. In this, I think, he has been mistaken, and that thfe plaintiff has gone far enough to support his action on these two counts. The third and last count in the declaration, after setting out the bond upon which the action is brought, together with the award of the arbitrators, contains an averment that the plaintiff offered to give any security as might be deemed proj)er, with- out alleging the tender of any draft of a deed or other instrument to perfect the security to the de- fendant. The plaintiff then further avers that the defendant wholly and absolutely retused to accept of any security. The question on this count, therefore, is, whether the plaintiff should have gone further and tendered the draft of a deed to compensate the security to the defendant. In the case of Jones v. Barkley, a draft of an assignment was tendered by the plaintiff to the defendant; but I think the decision there did not turn on that point. Lord Mansfield said in that case, " the party must shew he was ready; but if the other stops him on the ground of an intention not to per- form his part, it is not necessary for the first to go farther, and perform a nugatory act." In the present case the plaintiff offered to give any security that might be deemed reasonable ; upon TRINITY TERM, 8 GEO. IV., 1827. 509 which the defendant absolutely refused to accept of any security at all ; and at the same time, wholly refused to pay the money awarded by the arbitra- tors. It is contended by the defendant, that the plaintiff should have gone on and tendered a draft of a deed as stated in the first two counts. It appears to me, however, that such an act would have been perfectly nugatory and idle after the broad refusal of the defendant to accept any security at all, or to pay any money. It is true, that unless there is a discharge from the other party going further, the plaintiff must take every step necessary for him to do, in which the defendant's concurrence is not re- quisite, before he can avail himself of a refusal by the defendant. In the case now before the court, I think the words and conduct -of the defendant, as stated in the third count, amounted to a discharge to the plaintiff from executing any security at all to the defendant, on the ground of the intention of the latter never to pay the money awarded by the arbi- trators. The defendant in effect says to the plaintiff, that he need not give himself any further trouble, for no security would be accepted which he could by any possibility offer. ' In my opinion the plaintiff is entitled to judgment. Per Curiam. — Judgment for the plaintiff. 510 trinity term, 8 geo. iv., 1827. Doe ex Dbm. Moffat v. Hall. It seems that a conveyance from the sheriff by deed under seal is necessary to complete a vendor's title to lands sold under the provisions of the 5th Geo. II. That the return upon the fi. fa, cannot be considered as a mode of giving such title. Nor can such vendor take a title by act and opera- tion of law alone. That a neglect on the part of the sheriff to advertise the property sold, would not defeat the vendor's title ; and although the land may be knocked down to the agent of a; firm, the deed of conveyance may be afterwards made by request of the partners conveying to any in- dividual of the firm. This was an action of ejectment tried at the as- sizes for the Johnstown District, and a verdict for the plaintiff. The action was brought upon a sheriflf's deed by which he assigned to the plaintiff's lessor 25,000 square feet of land with storehouse, buildings, &c. It appeared in evidence that 5000 feet of the land in question had not been included in the de- scription of the premises inserted by the sheriff in the public advertisement for the sale, but the frame- house, store and premises, which were in fact in- cluded in the 5000 feet omitted, had been mentioned in the advertisement. The premises had been knock- ed down by the sheriff to one McCarley, who acted at the auction as agent to Moffat and Company, who were plaintiffs in the action under which the pre- mises had been sold under 6th G-eo. TL, at £752, a sum considerably exceeding the value of that part of the land which was not occupied by the house, &c., which the defendant held under a separate deed, but which was intended to be comprised in the sheriff's advertisement. The sheriff forthwith made a deed of the 20,000 feet, more or less, and the store, frame- house, &c., thereon erected, to Moffat, the plaintiff's lessor, who took the same for the benefit of himself and his co-plaintiffs in the action, but who, finding a few days after the sale, that the 20,000 feet did not include the house which had been advertised, TRINITY TERM, 8 GEO. IV., 1827. 611 applied to the sheriff, who, upon his representation and receiving indemnity, executed a second deed comprising the whole 25,000 feet. It was intended by the sheriff to advertise the whole of defendant's premises, situate in Brockville ; his mistake arose from the circumstance of defendant's holding his pre- mises under two deeds, one including the 20,000 feet, the other 5,000, on which the store and frame house were erected. The defendant insisting that the house, &c., were not comprised in the advertise- ment, sheriff's sale, or first deed, and that he had no right to execute a second deed varying both from the advertisement and the first deed, kept possession, upon which the action was brought. It was in evi- dence by McCarley, the agent, at the trial, that he, as well as all persons present at the auction, under- stood that the whole of Hall's premises were under sale. BouUo)i, Solicitor-Greneral, having obtained a rule 7iisi for a new trial objected — Firstly. — That the sheriff could not legally execute a deed to plaintiff's lessor alone, that the deed should have been made to the whole firm in whose name ih.efi.fa. had issued. Secondly. — -That having executed one deed he could not execute another. And, Thirdly. — That the plaintiff's lessor can only take the premises mentioned in the advertisement, viz., the 20,000 feet, the sheriff not having any power to include any thing not therein clearly comprised, he 512 TEINITY TERM, 8 GEO. IV., 1827. being after the sale, functus officio, and the sale and not any subsequent deed, being the act which gave purchasers at sheriff's sales their title. RoUnson, Attorney-G-eneral, shewed cause. — He stated the principal question to be whether the buildings which, in point of fact, were erected on the 5000 feet oniited in the advertisement, could be con- sidered as included in the general words more or less. He contended as to the first objection, that it was immaterial as far as respected the defendant whether McCarley, the agent, was the actual purchaser for the whole firm or any individual of the house of Moffat & Co., for the appointment of an agent was legal and proper to prevent property being unfairly enhanced, if the real purchaser was known ; and no- ticed that it was the practice in this country for one partner of a firm to take an estate in the manner practised on this occasion for the purpose of more conveniently turning it into money for the benefit of the firm. As to the second objection, he contended that if the whole premises were embraced in the first deed under the more or less, the house having been also mentioned, that such first deed could not be invali- dated by the second ; that if the first did not by its general words include the whole of it, that the omis- sion of the exact number of feet was well supplied by the second deed, which could not be vitiated by the first. As to the third objection, viz., that plaintiff's les- sor must stand or fall by the advertisement, he con- TRINITF TEEM, 8 GEO. IV., 1827. 61-3 tended that the advertisement having noticed the house and buildings, which where situated on the small adjacent lot of land, was sufficient to include the whole property, as it appeared in evidence that it was understood by all parties at the sale that the whole property was intended to be included ; and