Id^-^^' Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of 1 JUDGE DOUGLASS BOARDMAN j FIB8T DEAN OF THE aCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KEO 1051829 Report of cases decided in the Court of 3 1924 016 966 404 Cornell University Library The original of tiiis 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/cu31924016966404 REPORT OF OASES DECIDED IN THE COURT OF KING'S BENCH. OF" UPPER CANADA. BY WILLIAM HENRY DRAPER, ESQ., BARRISTER AT LAW. CONTAINING THE CASES DBTBEMINilD FROM MICHAELMAS TBKM 10 GEO. IV., TO EASTER TERM 1 WM. IV. WITH A TABLE OP THE NAMES OP CASES AROUED, AND DIGEST OP THE PRINCIPAL MATTERS. SECOND EDITIQN. REVISED AND CORRECTED BY THE REPORTER, WITH THE ADDITION OP NOTES OP VARIOUS CASES BEARING ON THE DECISIONS REPORTED. TORONTO: HENRY ROWSELL, 1861. Entered according to Act of Provincial Legislature, in the year of our Lord one tiou- Baad eight hundred and sixty-one, hy Hehet Eowsbii,, in the OfBoe of the Begietrar of the Province of Canada, BOWSEIiL »i IIiLIS, FBINIEBS, KINO SIEEEI, lOBONIO. JUDGES THE COTTET OF KING'S BENCH, DUEING THE PEMOD Or THESE REPORTS : The Hon. John Beverley Robinson, Chief Justice. " Levius Peters Sherwood, ) ,, T T. Tir \ Puisne Judaea. " James Buchanan Maqadlay. | " Attorney-Creneral : Henry John Boulton, Esq. Solicitor-G-eneral : Christopher Alexander Hagerman, Esq. A TABLE or THB NAVIES OF CASES REPORTED IN THIS VOLUME. PAOB. A. Andruss T. Bitchie 6 Atkins T. Thornton 239 Attorney General t. Spafford 320 B. Bank of Upper Canada, on the appli- cation of Robert Baldwin, Esq 55 Baker T. Booth , 65 Beardv. Orr , '.. 40 Beardv. Orr 241 Benham v. Shaw 113 Bell V. Stewart 159 Bergin T. Thompson 1 Bergin T. Whitehead 608 Burford v. Oliyer 9 C. Gallagher T. Strobridge 158 Campbell T. Madden 2 Campbell V. Hepburn 3; Cavan v. Welsh 246 Chisholm t. Simpson 2 Church T. Bamhart 213 Churchv. Bamhart 443 FAQB. C. Chisholm v. Ward 478 Cooper V. The Canada Company 189 Cooper V. The Canada Company 413 Cornell T. Quick ,, 427 Cozens V. Ritchie 167 D. Dickson v. Crooks 117 Dickson V. Markle 286 Dougallv. McLean 318 Doe V. Lindsay 123 Doe T. McDonnell 374 Doe V. Mitchener 471 Doe T. Roe 162 Doe V. Chisholm 216 Drummond v. Bradley 243 E. Evansv. Shaw 14 F. FaUs V. Lewis 269 Falls T. Lewis 500 Ferrie v. Bykman , 61 VI TABLE OF . CASES. P. FAOE. j Ferrie V. Starkweather 413 Ferrie v. Tannahill ;. 827 Fishv. Doyle 328 Forsyth t. Hall 291 G Gardner y. Stoddard 94 Gates V. Crooks 180 Gates V. Crooks 446 Grace v. Meighan 187 H. Hale V. Matthison 63 Holt V. Jarvis 190 Howe T. Newman 90 Hngill V. Driscoll 234 Hyde v. Barnhart 53 Hyde v. Barnhart , 201 I. Ingraham T. Cunningham ; 109 Jn re. Sheriff of Newcastle 503 Ives V. Hitchcock 247 Ives V. Hitchcock 48o L. FAOE. J. Jarvis V. Washburn , 168 Johnson T. Ourand 68 JonesT. Chace 322 K. Leonard v. Glendennan 23^ Lindsay t. McFarling 6 Linley V. Cheeseman ,... 53 M. Macanady v. Foster 479 MaitlandT. Secord 456 McDougall V. Young Ill McNab T. Bidwell 144 Meighan T. Browne 167 Moffatt V. McCrea 11 Moorev. James 233 Mulgrew V. Pringle 269 Murrayv. Orr 3 P. Phelanv. Fhelan 386 Phillips v. Bedpath 68 Phillips V. Smith 290 Powell V. McMartin 169 Prentice T. Hamilton 393 R. Kilbom y. Forrester . 332 Leonard V. Merritt 190 Leonard V. Merritt 281 Bex V. Jackson 50 Rex V. Justices of Newcastle 114 Bex V. Justices of Newcastle 204 Rex V. Theale sig Rex V. Sheriff of Niagara 331 Bex y. Ives 44Q Robinet v. lewis 44 Bobinet V. Lewis 154 Robinet v. Lewis 228 Kobinetv. Lewis 260 Bowsell T. Hartwell 90 Rochleau v. Bidwell 345 Btgglesv. Beikie 244 TABLB OF 0A5SS. PAOG. Small V. MoKenzie 174 Small T. MoEenzie 241 Trnai V. Christy 213 V. Vincent T. McLean 168 V. PAOE. Varyv. Mttirheaii 486 W. • WashbtimT. Fothergill 476 Whitehead V. Fothergill 200 Whitney V. Stone 235 Willard V. Woolcutt 201 Williams V. King 439 Winchester v. Cornell 60 UPPER CANADA REPORTS IN THE KING'S BENCH, CASES DETERMINED IN MICHAELMAS TERM, 10 GEO. IV. Present : The Hon. John Bbverlbt Eobinson, Chief Justice. " Lbvius Peters Sherwood, Judge. " James Buchanan Macaulat, Judge. Bergin v. Thompson. Where the plaintiff appears by statute for the defendant, a rule to plead cannot be dispensed with, {a) The court set aside the interlocutory judgment and assessment of damages in this cause, upon the following grounds : first, that the affidavit of service of process stated only that there was a notice on the copy explaining the '^intent" of such service, and not the " intent and meaning." Secondly, that there was no rule to plead ; which the court thought requisite, by the terms of the statute 2 Geo. lY., ch. 1, in all cases in which the plaintiff appeared for the defendant ; and they remarked that this omission was a substantial defect, not a mere irre- gularity. In answer to a question which arose in this cause, (a) Vide 4th rule of court, mftde in Easter Term, 11th Geo. IV., infra. B VOL. I. 2 MICHAELMAS TEEM, 10 GEO. IV., 1829. the Chief Justice remarked, that notice of intention to move to set aside proceedings, as in this case, should be given two days before the commencement of the assizes in which the damages are assessed. Washburn for plaintiff, King for defendant. CHiaHOLM V. Simpson. Motion for costs, for not going to trial pursuant to notice. Per Curiam. — This is a peremptory rule, (o) Campbell v. Madden. A declaration is not properly filed till it is marked "filed" by the proper officer. The court set aside the interlocutory judgment and assessment of damages, without costs under the following circumstances. An appearance had been entered for the defendant, by his attorney, in the office of the Deputy Clerk of the Crown, in the district where the action was brought. This attor- ney afterwards left the district, without appointing any agent therein. Two copies of the declaration were taken to the office of the Deputy Clerk of the Crown; one of which, together with the demand of plea, was put up in the office, the other copy was left there, but the officer did not mark it " filed," nor was he desired to do so at the time it was left. — ^Interlocutory judgment was signed for want of a plea. (o) See C. L. P. Act, 1856, sec. 148. Consolidated Statutes, U. C. oh. 22, sec. 223. MICHAELMAS TEEM, 10 GEO. IV., 1829. 3 The Chief Justice coEsidered this as no decla- ration filed. Sherwood, J., thought no paper regularly filed till marked by the officer. Draper for plaintifi", Boswell for defendant. Campbell v. Hepburn, The court will not amend an original ca. re. by making it a tatatum, although apracipe for a testatum is filed, where the writ is bailable. A prcRcipe for an original ca. re. directed to the Sheriff of the Home District had been filed, together with a prcBcipe for a testatum to the Sheriff of Niagara. By mistake, an original was issued to the Sheriff of Niagara, whereon the defendant was arrested and held to bail. King moved to amend the original thus issued, by making it a testatum ; contending that this was a misprison of the clerk, and there was a preecipe to amend by; but Per Curiam. — ^This cannot be amended without prejudice to the bail. Rule refused. Murray v. Orr. The master is not to refuse to tax E, B. costs merely because the verdict is within the District Court jurisdiction, although the Judge who tried the cause has not certified. Semble — That defendant should apply for leaye to enter a suggestion, ia order to deprive the plaintiff of his costs. This was an action of assumpsit. The damages 4 MICHAELMAS TEEM, 10 GEO. IV., 1829. in the declaration were laid at £100. — Plea, non assumpsit and notice of set-off. At the trial, at the last assizes for the Home District, the plaintiff had a verdict for £1 5s, 7d. The master refused to tax the plaintiff his King's Bench costs. Washburn now moved for a rule directing the master to tax full costs, and cited Langham v. Cruikshank, decided in this court last Easter Term, and cases. — Temp. Hardw. 5. Ridout resisted the application, on the ground that the judge who tried the cause had not certified under the statute 58 G-eo. III., ch. 4, and on the small amount of the verdict. Sherwood, J. — The statute creating the District Courts gives them jurisdiction in cases from 40s. to £15 of unliquidated demands, and to £40 where the amount is liquidated, or ascertained by the act of the parties. Now this verdict is below the jurisdiction, and the cause of action, as spread on the record, is beyond the jurisdiction of the District Court. As to what might be decided if this appli- cation came from the defendant, to resist costs, I give no opinion. As it is, I think the plaintiff is entitled to his King's Bench costs. Macaulay, J. — I cannot subscribe to the case in Hardw. to the extent urged, for I cannot agree that the party's own statement on the record shall be considered decisive as to the amount of his claim. Prima facie, I take it this court has juris- diction in every case. Its being restrained is a matter of exception, and the party who claims to MICHAELMAS TERM, 10 GEO. IV., 1829. 5 benefit by that exception must take proper steps to bring his case within it. I think this exception should appear in some way upon the record. Sup- pose one count only in the declaration, and verdict for an amount of the proper competence of the District Court; or for a promissory note of the pro- per competence of the District Court, with other counts, and a verdict for the note only; or a verdict for goods sold and delivered to £14, and on every other count verdict for the defendant. — In all these cases, by comparing the record and postea together, there being no certificate, it would appear that the action might have been instituted in the inferior court. The plaintiff may apply for the certificate or not, as he pleases, but I do not think the master is bound to infer, either from its absence or the small amount of the verdict, that the plaintiff is not entitled to King's Bench costs. The plaintiff's cause of action might be beyond the inferior juris- diction, and reduced, as in this case by set-ofi", to £1 5s. or less, still the judge cannot certify that this was a case proper to be withdrawn from, when in fact it could not have been brought in the District Court. In all cases, where the record and postea taken together would not warrant the conclusion that the action was improperly instituted in this court, the proper course for the defendant is, in my opinion, to apply for leave to enter a suggestion on the roll, to deprive the plaintiff of his costs. By this means consistency will be preserved, and the matter will appear clearly on the record. — The learned judge cited the following cases as applicable to the question : 3 B. & P. 617 ; 1 Str. 49 ; 2 Str. 1120, 1191; 2 H. B. 250; Hullock on Costs, 250. 6 MICHAELMAS TERM, 10 GEO. IV., 1829. The Chief Justice having been counsel in the case when at the bar gave no opinion. Rule absolute, (a) Andruss v. Ritchie. When the word "payable" was omitted in the affidavit to hold to bail, the court Bet aside tiie arrest. The court set aside the arrest in this cause, on the defendant filing common bail, and engaging to bring no action for a defect in the affidavit to hold to bail; which stated that the defendant was indebted on a promissory note made by him to Burr, Wakeman, and Co., or order, at the Rochester Bank, six months after date; omitting the word " payable." Attorney-General for plaintiff, Baldwin for defen- dant. LiNDSAT ET Ali. V. McFaRLING ET AL. In trespass for mesne profits, defendant may give in evidence, under the general issue, in mitigation, the value of buildings erected on the premi- ses by him. This was an action for mesne profits, tried at the last assizes for the Eastern District, before Sherwood, J. On the trial, the judge refused to allow the defendants to give in evidence, in mitigation of damages, the value of certain buildings they had erected on the premises. Yerdict for plaintiff. Bidwell had obtained a rule nisi to set aside the (a) See Gardner v. Stoddard, infra. MICHAELMAS TEEM, 10 GEO. IV., 1829. 7 verdict, and for a new trial, for the improper rejec- tion of this evidence. T/te Solicitor-General shewed cause. The jury- are not limited to the amount proved in giving damages, they may go beyond the mere rent of the premises. 3 Wils. 118; Doug. 684; Adam's Eject. 337. The costs of the ejectment, and not merely the taxed costs, may be given in evidence. In this case, much expense has been incurred be- yond the costs taxed, and the damages are under £21. The action being sustainable, some damages must have been given, and the court cannot say the sum rendered is unreasonable. No evidence of this sort appears to have been admitted in any reported case; and the very buildings, the value of which the defendants seek to have allowed to them, form part of the estate which was recovered in the ejectment. In order to have availed themselves of this mitiga- tion, the defendants should have pleaded that these buildings were taken in full satisfaction of the mesne profits, not offered the facts in evidence under the general issue: the plaintiffs then, if they persisted, would have recovered nominal damages only, 4 Taunt. 459. The plaintiffs were clearly entitled to the mesne profits, from the time of the demise laid in the ejectment. The defendants, in erecting these buildings, committed a trespass, and cannot there- fore call upon the plaintiffs to pay for them. Bidwell, contra. The amount of damages is not the question now. The point in discussion is, was this evidence properly rejected or not? and this was what the defendants had leave to move. It was 8 MICHAELMAS TERM, 10 GEO. IV., 1829. proved that the defendants went into possession innocently, and with the plaintiffs' approbation — surely, this being the case, the value of the buildings erected should have been taken into consideration, in mitigation of damages, although it could not, as matter of right, be claimed from the plaintiffs. It is argued that the jury may consider extraneous matter to increase, then why not to mitigate damages. This matter could not have been pleaded, it could only have been given in evidence under the general issue. 2 Bac. abr. damages, B. Grodb, 53. If dis- seisor fells trees and makes repairs, such repairs shall be allowed in damages. Com. dig. Trover, G. 6. The Chief Justice. — I think this evidence pro- per to have gone to the jury; it would most proba- bly have materially affected the verdict. Sherwood, J. — On reflection, I think this evi- dence should have been received at the trial. At that time, it struck me that the erection of this house was a trespass, and therefore could not be taken into consideration, but I am now of a different opinion, and agree that there should be a new trial. Macaulat, J., expressed no opinion. It was afterwards directed by the court, that the rule for a new trial should be made absolute, with- out costs, unless the plaintiffs would reduce their damages to forty shillings sterling, and enter their judgment accordingly, which they afterwards did. {a) (a) See Patterson v. Beaidon, 7 U. C. Q. B. 826. MICHAELMAS TERM, 10 GEO. IV., 1829. 9 BuRFORD V. Oliver. In case for disturbing plaintiff's ferry, it is not necessary to prove that the defendant either reoeiTed or claimed any hire or payment. Action on the case for disturbance of the plaintiff's ferry. At the trial, evidence was given that the defendant carried passengers, goods, &c. The plain- tiff's right to the ferry was also proved, but no evidence was offered to the jury that the defendant either received or claimed any hire or payment. The defendant's counsel objected that such proof was necessary, and this point was reserved for the opinion of the court, which was this day delivered by The Chief Justice. — ^The single point referred to the decision of this court is, whether, in an action on the case for disturbance of the plaintiff's ferry, it is necessary to aver that the defendauit ferried for hire or gain. In the declaration there are counts containing such an averment, and others in which it is omitted; but upon the trial it seems, although abundant evidence was given of the carryiajg pas- sengers and their goods by the defendant, to the manifest injury of the plaintiff, there was no proof that gain accrued to the defendant, or that he islapu- lated for any hire, and upon an objection tiiat such proof was necessary, the point was reserved at nisi prius. Upon argument no authority has been pro- duced to shew that such evidence is necessary to sustain the action, and upon reason and principle it cannot be required. The case of Blisset v. Hart, Willes 608, is so far satisfactory on this point, that the declaration in that cause coB>ta)ined no such C VOL. I. 10 MICHAELMAS TERM, 10 GEO. IV., 1829. averment; and though various exceptions vs^ere raised, none of them proceeded on that ground, and after mature consideration that declaration was sus- tained. In the case in 4 T. E. 666, there was no such averment; but though in other cases such averments have been introduced, because the facts happened to be consistent with them; it cannot be reasonably inferred that they are necessary in all cases to sustain the action. With respect to fairs and markets, the same question might arise. More cases are to be found under that head than respecting ferries, and they commonly proceed on the same principle. In 2 Saund. 172, there is a case of this description which shews clearly that the true question in such actions is, whether an injury has been done to thie plaintiff 's right. In that case the plaintiff had a franchise of a market to be held every Wednesday, with right to tolls, stallage, &c. The defendant, without right, held a market in the same place every Tuesday. It was contended that this was no direct contravention of the plaintiff 's privilege. But the court adjudged that by fore- stalling the plaintiff's market it might do him more injury than if held on the same day, and that whether nuisance or not was the question with the jury. So here, the carrying gratuitously, if the case really was so, was probably a much greater injury to the plain- tiff (as was urged in argument) than if tolls had been charged. It will be found also, that in the case in Saunders, just alluded to, there is no averment that defendant charged or received any thing for the stalls in his market, or that he erected them for gain. Upon the reason of the thing, many consider- MICHAELMAS TERM, 10 GEO. IV., 1829. H ations occur upon very slight reflection, but they are so obvious that it is unnecessary to state them. We think the point is clearly with the plaintiff. Per Curiam. — Judgment for the plaintiff, (a) Moffat et al., Exbcutoes of PATERSOur, v. McCrea et al. In an action for use and occupation, a declaration whicli stated the occupation to have been by A. B., at the special instance and request of the defendants; Held good on motion in arrest of judgment, though it was not averred that A. B. was tenant to the defendants, nor tbat defendants held under the plaintiffs. This was an action for use and occupation. The declaration stated that defendant was attached to answer to plaintiffs, executors of one Paterson, and was indebted for the use and occupation of certain premises held, used, occupied, &c., by one A. B. at the special instance and request of defendants. In- terlocutory judgment had been signed and damages assessed at the last assizes for the Bathurst District. The Attorney-General had obtained a rule nisi to arrest the judgment, and in the meantime to stay the proceedings; and now no cause being shewn, moved to make it absolute as a matter of course, without argument, which the court refused unless some substantial objections were shewn to the record. He then urged that the declaration does not shew that A. B., who occupied the premises,, was tenant to the defendants, nor that the defendants held under the plaintiffs. It cannot be inferred that such was the case — the more apparent inference is, (a) See Peter v. Kendall, 6 B. & C. 703; Trotter v. Harris, ,2 Y. & 3. 285. 12 MICHAELMAS TERM, 10 GEO. IV., 1829. that the defendants were mere guarantees for the payment of the rent. This is not within the statute of use and occupation. It also appears on the record that plaintiffs have no right to claim the rent of these premises. I admit that in an action of this sort the tenant is precluded from denying the title of his landlord; but here the plaintiffs have spread the fact on the record, and the court must take notice of it. They shew that they were the executors of Paterson; now on that shewing, if defendants were liable at all, it must be to Paterson's heir. Plain- tiffs were not bound to shew title, but having done so, the court will see that it is defective and bad. Chief Justice. — An action for use and occupation would be sustainable, stating the use and occupation to have been by a third party. This would also be the case though in point of fact the premises were empty. Although the defendants might be liable to another person for the rent of the premises, yet if A. lets B. into the possession of premises to which he has no right, he may maintain this action. Upon this declaration it is competent for the plain- tiffs to prove that by the will of Paterson they were entitled to this rent without pleading the fact — and the objection comes after an interlocutory judgment. There is another objection, which has not been noticed in argument, which is, the want of any statement or averment that the premises were occupied with the consent of the plaintiffs. I am however inclined to think that the statement of the occupation by A. B. at the special instance and request of the defendants, is sufficient, as I think it implies that the defendants requested the plaintiffs to permit A. B. to occupy. MICHAELMAS TERM, 10 GEO. IV., 1829. 13 Shkrwood, J. — concurred in thinking the decla- ration good. Macaulay, J. — I think there is no averment of permission to occupy, sufficient to support this action. It is true the plaintiffs need not have the legal title in them to maintain it, as the defendants cannot contest the title of those by whose permission they occupied. 5 T. E. 4; 10 East. 352; but the plaintiffs must state with correctness, by whose permission the defendants occupied. 1 Camp. N. P. C. 466 ; 2 Stark. N. P. 0. 356. For the plaintiff, unless the defendant came in under him, or recog- nized his title, can only recover from the time the legal estate is vested in him. I certainly think the permission of the plaintiffs is a substantive aver- ment and necessary to be proved. No action would be sustainable by the plaintiffs upon a re- quest made by the defendants to Paterson, and it does not appear that the permission to occupy was after his death given by the plaintiffs as his execu- tors. The occupiation, for all that is shewn to the contrary, might be under a permission given by Paterson. The plaintiffs do not shew that they were ever recognized as landlords by the defendants. Per Curiam, — (Maoaulat, J., dissenting.) — Eule nisi discharged. [ William Henry Draper, Esq., was appointed Ee- porter to the Court this term, in the room of Simon Washburn, Esq., resigned.] [14] HILARY TERM, 10 GEO. IV., 1829. Present : The Hon. John Beverley RoBmsoN, Chief Justice. " Levius Peters Sherwood, Judge. " James Buchanan Macaulat, Judge. Evans et al. v. Shaw. To an action on a bond for the limits by the assignee of the sheriff, the bail pleaded, 1st. That the debtor left the limits without the knowledge of the bail, and before the commencement of this suit, and before the assignment the debtor returned, and after such return remained upon the limits ; and before this suit, and before the assignment, the bail surren- dered, and the sheriff received him into custody in satisfaction and dis- charge of the bond. 2nd. The same down to ihe statement of the debtor's return to the limits, and then averring that after the return the debtor remained within the limits in the custody of the sheriff until the commencement of this suit. Meld bad on demurrer. This cause had been argued last term, and judg- ment was deferred till now. It was an action of debt for £40, on a bond given by defendant to the sheriff of the Midland District, conditioned that L. A., who was in execution on a ca. sa. issued out of the Midland District court, should not go or remove beyond the limits. The declaration alleged that L. A. did go and remove beyond the limits during his confinement at the suit of the plaintiffs, and did withdraw and depart from and out of said limits. After Oyer — defendant pleads that L. A. departed from the said limits privately and without defendant's knowledge, and avers that before the commencement of this suit, and before the assignment of the bond from sheriff to plaintiffs, and before defendant had notice of L. A's departing from the said limits, he returned, and continually after his return he re- mained within the said limits, until afterwards and before the commencement of this suit, and before HILAUl! TERM, 10 GEO. IV., 1829. 15 the assignment of the said bond, defendant surren- dered L. A., and the sheriff received him into his custody in full satisfaction and discharge of the said bond, with an averment of notice to plaintiffs, and of identity. Second plea the same as the first, to L. A.'s return, and averring that continually after his return L. A. remained within the said limits in the custody of the said sheriff, until the commence- ment of this suit. To both pleas there was a gene- ral demurrer. The question arose on the construc- tion of the provincial statute 2 G-eo, IV., ch. 6, which reciting the expediency of assigning limits in which debtors may have the benefit of exercise and air, without subjecting the sheriff to an action for escape, enacts that justices in quarter sessions may appoint limits not exceeding six acres, and that debtors may be or remain at any part or place within such limits, without subjecting the sherifi" to an action for escape from such gaol or limits; but it shall not be incumbent on the sheriff to allow any debtor the use and benefit of such limits, unless he shall furnish good and sufficient security that he will not at any time during his confinement go or remove beyond such limits. By Ind section. — If any debtor who may have given security, &c., shall withdraw or depart from or out of such limits, it shall be lawful for the sheriff from whose custody he shall so with- draw, to sue such debtor and 'bail, &c. By '^rd section. — The sheriff is bound, on such debtor so withdrawing or departing, to assign such security to the plaintiff if required. This act is amended by the 7th G-eo. IV., ch. 7, which enacts that it shall be lawful for any person 16 HILARY TERM, 10 GEO. IV., 1829. having given security to the sheriff for any person to enjoy the limits, to surrender such prisoner into the hands of the sheriff, his deputy or gaoler, and upon such surrender the sheriff shall deliver up, &c., the bond or security given to him by such person, so that he shall be wholly discharged therefrom. Provided always, that nothing therein contained shall be construed to prevent the sheriff from re- newing such security in the same manner as if such prisoner had not enjoyed the limits, &c. The Solicitor-General in support of the demurrer. In England it is true that an action could not be sustained against the Marshal in K. B., who pleaded a plea similar to the above. But there the security is not assignable. Here the statute makes it so. The condition of the bond is not leaving the limits — if this be done the bond is forfeited and the leave or knowledge of the bail is immaterial. If it were otherwise a party might continually slip off the limits and return. The forfeiture of the bond clearly takes place when the defendant leaves the limits, and his subsequent return cannot cure it. The security is not merely to the sheriff, but to the creditor. Cited 2 T. E. 126 ; 6 T. E. 37 ; 2 0. & P. 539. Bidwell, contra. The demurrer admits the facts stated in both pleas. It is not indeed ,averred that L. A. remained in the sheriff's custody in gaol, till the commencement of this suit, but that is implied in the averment that the sheriff received him into custody, in fuU satisfaction and discharge of the bond. In 11 Ea. 406, it was held that an averment HILARY TERM, 10 GEO. IV., 1829. 17 that the sheriff detained prisoner without stating how long, was a sufficient averment of detention until the commencement of the suit. So the aver- ment that the defendant surrendered L. A. into the sheriff 's custody, and that the sheriff received him in discharge of the bond, implies a detention until the commencement of this suit ; at all events, it appears from the pleadings that the escape was not voluntary but negligent. This appears from analogy in the case in 2 T. E. 126. It is clear that a return of a prisoner to custody before action is brought is a bar to a suit against the sheriff. The sheriff then would not be liable to the plaintiffs. If so, why should his security? The 2nd Geo. TV., ch. 6, was passed for a humane purpose, to give the debtor certain liberty without subjecting the sheriff to an action. If, then, in this case, the sheriff would not have been liable, he could not have maintained an action against his bail. If he had no right of action, his assignees cannot be in a better situation, especially as the plaintiffs had notice. But further, when the surrender to the sheriff took place, he alone had a right of action, and this is discharged and released by his accepting the prisoner in the manner stated in the pleas. This was an actual executed satisfaction, and its legal effect is the same as if the bond had been given up to the defendant. Chief Justice. — This is an action brought by the plaintiffs, as assignees of the sheriff of the Midland District, upon a bond given under our provincial statute, 2 Greo. IV., ch. 6, by a prisoner, and the defendant, his surety, upon occasion of the former obtaining the indulgence of the gaol limits. The D VOL. I. 18 HILARY TERM, 10 GEO. IV., 1829. bond is not denied by the defendant, but he pleads two special pleas, setting forth, &c. (as stated.) The question upon the general demurrer to these pleas is, whether either of them is a bar to the plaintiffs' recovery, and it is a question which must be decided without the aid of cases precisely in point, because in England the same circumstances cannot occur. I am not aware that any decision involving this question has taken place here. The court are strongly impressed with the importance of the principles which it involves, and my brothers and myself have anxiously endeavoured to bring our minds to the same conclusion upon it ; but I regret to say we have not succeeded in that at- tempt, and it therefore only remains that we de- clare the opinions which we have severally formed. In my judgment, the matter set forth in these pleas is no bar to the plaintiffs' action, and though I may think it reasonable, and perhaps desirable, that the facts pleaded should constitute a good legal defence, I cannot satisfy myself that upon any sufficient authority I can determine that in law they do so. G-reat solemnity is attached to con- tracts under seal, and the law deals with them in a manner which partakes of mathematical pre- cision. Here the defendant has executed a bond to the plaintiffs, or rather a bond which, under the statute, has been assigned to the plaintiffs, in the penalty of £40; but the plaintiffs' right to sue upon the bond is subject to this condition— that if a certain prisoner, who has been allowed the gaol limits, shall not depart from those limits, so long as he remains confined at the suit of the plaintiffs in the original action, this bond shall be void. The HILARY TERM, 10 GEO. IV., 1829. 19 plaintiffs sue upon this bond, averring that the con- dition has been broken and is gone, and that their right of action is therefore absolute, and stands discharged from that condition or defeasance. The defendant neither denies that he executed the bond, nor does he plead that it was illegal, or that it was fraudulently obtained, nor does he pretend that the condition was kepi ; on the contrary, he admits that, in fact, the condition has been broken, and he relies for his defence upon some thing that has been done since the breach. The prisoner, he says, departed, it is true, but it was without his knowledge ; that he returned, also without his knowlege ; that he (the defendant) surrendered the prisoner to the custody of the sheriff, who has received him and holds him, and that all this was before the action was brought, and before this bond was assigned by the sheriff to the plaintiffs, the creditors in the original action. Now, considering the strictness that prevails in pleading upon specialities, in which many equitable defences that may be entertained in actions of assumpsit, or debt on single contracts, are of no avail, I cannot see upon what authority the matter pleaded here can be adjudged to be a bar to the plaintiffs' re- covery. It cannot be upon the principle which governs the court in interposing, on various grounds, to relieve bail to the sheriff upon mense process, even after the assignment of the bail bond and an action brought upon it, neither can it be upon the same principle upon which the court relieves bail above after a sci.fa. is brought upon their recogni- zance ; because, in the one instance, the power of extending relief is given by the express terms of a statute, and in the other, the court ground their 20 HILAR! TERM, 10 GEO. IV., 1829. right to interpose, upon tlie principle that a recog- nizance is a record of their own court, over which they can exercise such a control as to prevent it being used oppressively or unjustly. And besides, in both these instances the court interposes upon motion, and it is expressly declared that the relief which they extend in that manner could not be ob- tained by pleading, after the condition of the bond or recognizance has been broken, because the ground on which they interfere would form no bar to the plaintiffs' action ; and therefore it is, that although after a sci. fa. brought, the bail may surrender their principal upon motion, and obtain an exonerttur and stay of proceedings, they could not plead such a surrender in bar, as they may, when they have suri-endered the principal upon the return of the non est inv. to the ca. sa. — 1 Ld. Eaym. 157. Then it remains to be considered, whether our provincial statutes, with respect to gaol limits, au- thorise us to treat a surrender, after the bond has been forfeited, as a discharge or satisfaction of the obligation. The statute, 7 Geo. lY., ch. 7, expressly empowers the surety to render the prisoner in dis- charge of his bond, and the question is, whether it gives the surety power to do this, and thereby bar the plaintiffs' action against him, after the bond has been broken. If we could fairly discover, from any thing in the act, that the legislature had that inten- tion, we should be bound to give effect to it ; but without pretending to conjecture what may have been meant, further than the language furnishes us with a guide, I cannot discern such an intention, and I do not, myself, feel authorised to supply it HILARY TERM, 10 GEO. IV., 1829. 21 from implication, contrary to the contract of the parties in the bond, and contrary to the principles of the common law, which certainly would not re- cognise, in the matter pleaded here, any legal defence to the action. The case of Bonafous v. Walker (2 T. R.), is good authority to shew that in an action of escape against the sheriff, a retak- ing on fresh pursuit, or a voluntary return, which is equivalent, may be pleaded in bar, but, for ob- vious reasons, it is inapplicable here ; while the case of Chambers and Grambier, cited in it from Com. Rep., though it is loosely stated, tends strong- ly to show that in this action the surrender is no defence. If it be thought reasonable, on the other hand, that it should be a bar, it ought to be con- sidered that the granting the limits is an indulgence which, in some cases, may have a tendency to di- minish the creditor's chance of obtaining payment of his debt, and therefore it is due to the creditor that abuse should be guarded against by rigorously enforcing the conditions upon which the indulgence is granted. I am not, therefore, certain, that it would be safe to found my judgment upon a pre- sumption that the legislature intended to give the right to surrender, after breach of the condition ; and, at any rate, as I see nothing to indicate such an intention, I am in favour of the demurrer. Sherwood, J. — (After stating the case.) — It ap- pears to me that the principal question in this case is, whether the bail for the limits are liable to the creditors, in a case where the sheriff is not at any time liable. It is my opinion that the bail are en- titled to equal protectien with the sheriff. Under 22 HILARY TERM, 10 GEO. IV., 1829. the first act, (2 Geo. IV., ch. 6,) I should feel great doubt whether the defendant is liable in this action. This act directs the sheriff, if required by the plaintiff, to assign to him the security, on the debtor withdrawing or departing from the limits, and I am not at all clear that the sheriff was bound to assign the bond in this case, if the plaintiff did not require him to do so, before the debtor volun- tarily returned, and was placed by the sheriff in close confinement. The words of the act are, " on such debtor withdrawing or departing," the sheriff shall be bound to assign the security to the plaintiff, which expression makes it at least doubtful, in my mind, whether the proper construction of the act would not require that the debtor should be proved to have been off the limits, at the time the plaintiff demanded the assignment of the security, in order to give him an absolute right to such assignment, and to enable him to sustain an action against the sheriff for refusing to assign. It is very clear, however, that this statute does not confer any authority on the bail to imprison the debtor, under any circumstances whatsoever. The legislature found it expedient to amend this act by the 7 Greo. IV., ch. 7., by giving the bail the power of taking and surrendering the debtor in their own discharge. It is urged, on the part of the plaintiffs, that the bail have no authority, under this act, to take and surrender their principal, after he once leaves the limits, even for the shortest space of time, although he may return on the same day, and before any other person has knowledge of his departure. It is also said, the power of the bail to surrender the debtor is circumscribed by the gaol limits, and cannot be exercised beyond those bounds. HILARY TERM, 10 GEO. IV., 1829. 23 Before 1 proceed to state the views which I take of these acts, I will remark that, in my opinion, they should receive a liberal and equitable construction, according to the rules of the common law, respect- ing special bail, prisoners confined for debt, and the officers themselves charged with the custody of debtors. The statutes now under consideration, were made for the relief of prisoners confined for debt, and such acts should be construed equitably. — Burr 747, 901. Suppose the sheriff should allow the debtor to remain on the limits without exacting bail from him, which I think he has an undoubted right to do ; if the debtor depart from those limits, and the sheriff should immediately fol- low and bring him back, before any action Avas com- menced for the escape, would the sheriff be liable ? T think he would not, if the escape were a negligent one. Now I consider that the intention of the legislature was, to give equal power and equal pro- tection to the bail for the limits, as regards the creditor, to that which the common law gives to the sheriff, for the same purpose ; because, while the debtor is on the limits, he is as much at the risk of the bail, as he would be in close confinement, at the risk of the sheriff" ; therefore, the reason for protec- tion is as strong in the one case as in the other. It appears to me, that the justice and necessity of placing the bail on the same footing with regard to immunity that the sheriff is, must have been evident to the legislature ; and I therefore conclude that thej'- intended to do so, by the very general words which they have thought proper to use in the creation of the power given to the bail, of surrendering the principal. They had no such authority by the first 24 HILARY TERM, 10 GEO. IV., 1829. act, and were left by that statute to rely on the honesty and correct conduct of the debtor, which, in many instances, were found to be imaginary. This circumstance undoubtedly rendered the obtaining bail for the limits extremely difficult, and, in my opinion, formed the principal inducement for changing the law. The legislature must have been convinced that nothing could facilitate to the debtor, the obtaining bail for the limits, more than the conferring on the latter the power to take and return the debtor to close confinement, whenever their vigilance should discover, or the conduct of the debtor, prove that his intention was fraudulent, and his design was to ab- scond. So long as a debtor continues on the limits, there is nothing to indicate any bad intention on his part, and there is little or no probability that his bail would surrender Shim ; and if the legislature really intended that the bail should have the power of taking their principal for the purpose of surrender, no longer than he quietly remained on the limits, I certainly think that they intended to confer but a very small benefit. This, however, is not my opinion. I think the legislature extended their views much farther, and that they intended to allow the bail for the limits the right of taking and surrendering their principal, if they found him within or without the limits, at any time before the creditor took an assign- ment of the bail bond, or brought an action against the sheriff for an escape. The principal objection to the equitable construction, which I give to the statutes in question, is this— that the bond is a con- tract, and the condition of the obligation being once broken, the creditor has an absolute right to an assignment of it from the sherifi", at any time after HILARY TERM, 10 GEO. IV., 1829. 26 the infraction of the contract, and that the sheriff would be liable to an action for refusing to execute the assignment. Now it appears to me, the very word.s of the statute last enacted, contain a sufficient answer to this objection, without resorting to the aid of any equitable intendment, on the part of the law makers. The expressions are to this effect : " that it shall and may be lawful for the bail to surrender their principal into the hands of the sheriff, who is directed to give up the bail bond upon such surren- der." In my opinion it would be difficult to find words more general and extensive, in their ordinary acceptation, than these are ; and I think the legisla- ture contemplated that all courts of law would give a liberal construction to a remedial act, conformablj'^ to the rules of the common law. The best construc- tion of a statute is, to construe it as near the rule and reason of the common law as may be, and by the course which that observes in cases of the same nature. — 2 Inst. 148, 301. There is great similarity between the liability of the sheriff and that of the bail for the limits ; while the prisoner remains in close confinement, he is there at the risk of the sheriff" — while he is on the limits, he is there at the risk of the bail. If the sheriff allow the debtor to be on the limits without bail, then the situation of the bail is exactly like that of the. sheriff. If the debtor, in such a case, escape from the limits without the knowledge and against the will of the sheriff, and voluntarily return to the limits on the same day, and the sheriff, being informed of the fact, should place the debtor in close confinement, before an action were brought for the escape, I think the sheriff would not be liable. In the present case, the first E VOL. I. 26 HILARY TERM, 10 GEO. IV., 1829. plea alleged that the prisoner left the limits without the knowledge and against the will of the defendants, (his bail,) and voluntarily returned on the same day, and before any assignment of the bond, took and surrendered the debtor to the sheriff, who received him in custody in full satisfaction and discharge of the obligation. It is alleged, however, that the con- tract was broken, and therefore the surrender was inoperative under the statute. My answer to this objection is, that the words of the statute are suffi- ciently comprehensive to give the bail, and the legislature intended to give them, the full right of surrendering their principal, so long as the bond is not assigned and the sheriff cannot be injured. The sheriff cannot know that the plaintiff will elect to take an assignment of the bond and discharge him, until the plaintiff require the assignment, according to the words of the first statute ; and until this be done, he does no injustice by accepting a surrender of the debtor from the bail. The prisoner is again placed in the custody of the sheriff, to answer the exigency of the writ upon which he was first arrest- ed : the subsequent liability of the sheriff remains good to the plaintiff, and the things resume the same position which they occupied before the debtor ob- tained bail for the limits. It may be said, however, that there is a difference in the legal principles which govern the two cases I have just now put — that when a prisoner escapes from the sheriff, the law gives an action to the creditor, on the ground that there has been a breach of duty ; when a debtor, who has bail, escapes from the limits, the law gives an action for breach of contract. For my part, I discover no essen- tial difference between such a breach of duty and such HILARY TERM, 10 GEO. TV., 1829. 2*7 ^a breach of contract ; the form of action, it is true, could not be alike in both cases, but the legal effect must be precisely the same to all parties concerned, and the statutes relating to gaol limits, if construed according to the common law, would operate as favourably to the bail, in the one case, as the com- mon law does to the sheriff' in the other. Whether the plaintiff elect to sue the sheriff for the recovery of his debt and costs, or whether he elect to sue the bail for the same purpose, the action in either case is substantially the same, and intended to produce similar effects. I have thus endeavoured to shew that the statutes protect the bail for the limits, to as great an extent as the law does the sheriff, and upon the same principles of justice and equity ; and farther, that it protects them for the benefit and relief of prisoners confined for debt, who might find it extremely difficult, and perhaps impracticable, to obtain bail without such protection. I will now ex- amine whether the bail for the limits have not this right from their analogy to other bail. In civil ac- tions there are three kinds of bail — to the sheriff — to the action — and bail in error. The first and last of these descriptions of bail have no right to take their principal into custody, or to surrender him in discharge of themselves, but, like mainpernors at the common law, they can do nothing, but are barely and unconditionally sureties for their principal. Like sureties for the performance of any other act, they become, liable when the condition of their obli- gation is broken, and are entitled to no more favour, by the common or statute law, than other obligees, with one exception — when the proceedings are by original writ, the bail to the sheriff are not liable to 28 HILARY TERM, 10 GEO. IV., 1829. be sued upon their bond till the fourth day, inclusive, after the return of the writ. — 4 D. & R. 160. Special bail, or bail to the action, may, in some respects, be compared to bail for limits. Both are equally responsible for the safe keeping of the debtor — ^both have the right of surrendering their principal in dis- charge of themselves, and where either kind exists, the plaintiff necessarily has the choice of two reme- dies for the recovery of his debt, and, in my opinion, is equally bound to take some step declaratory of that choice, before either description of bail become liable to him for the payment of the debt. ■ Special bail undertake by recognizance, which is a high spe- cies of contract, that if the defendant be condemned in the action, he shall satisfy the costs and condem- nation money, or render himself a prisoner to the sheriff, or that they will do it for him — when the plaintiff recovers final judgment for the debt and costs, the defendant is then condemned in the action, and according to the plain words of the contract, they must be liable, if the defendant should neglect to pay the amount of the judgment, or to render himself a prisoner to the sheriff within a reasonable time, that is, as soon as the existing circumstances of the case would fairly allow. The law, however, is clearly otherwise. The plaintiff has his election of two remedies : he may take out process against the lands or goods of the defendant, or he may have the body of his debtor as a security for the debt. If he wish to make the bail liable, he must sue out a ca. sa. against the principal, and this is the only means by which he can effect his purpose. The bail are always at liberty to surrender their principal, in discharge of themselves, till the plaintiff takes this HILARY TERM, 10 GEO. IV., 1829. 29 step. Years may pass without lessening the right of this surrender ; it remains good till the writ of ca. sa. issues, and if the principal should die, before the plaintiff takes out the writ, the bail may plead the occurrence, in discharge of the recognizance. An examination of the laws relating to special bail, clearly evinces that they have the right of surren- der, till the plaintiff takes some step, indicative of his ultimate determination to sue the bail upon their undertaking, by recognizance. It appears to me that the provincial statute, which I last cited, gives the bail for the limits a similar right of surrender, till the plaintiff takes some step, equally conclusive of his determination to sue them, or till he actually sues the sheriff, when he is liable for an escape. The taking an assignment of a bail bond is a proceeding which as definitely proves his intention, in the latter case, as the suing out a ca. sa. would in the former, and there is no other step which he could possibly take that would be capable of conveying greater certainty. The legislature, in my opinion, intended to protect bail to an extent commensurate with that which is conceded by the common law to special bail ; because, as I have already stated, they have made their liability and power of relief very analo- gous, and it is not probable they designed to restrict the exercise of that power to such a degree as would almost destroy it. I therefore think, in a case cir- cumstanced like the present, the penalty of the bond is not forfeited to the plaintiff, till he require and obtain from the sheriff an assignment — and that a surrender of the principal by the bail, before such event, amounts, in operation of law, to a perform- ance of the condition, and may be pleaded in bar of 30 HILARY TERM, 10 GEO. IV., 1829. an action, b.y the creditors on the bond suggesting a breach of the condition before such assignment. This position, I am perfectly aware, is open to ob- jection. It may be said that the rules of the com- mon law, which govern the proceedings on bonds or other specialties, are different from those which ap- ply to an action on a recognizance of bail ; that the jurisdiction of the courts of l&vf, in the latter in- stance, is founded on their inherent authority to take care that no improper use is made of their records; but in the former instance, their jurisdic- tion rests on the strict rules of the common law ; that those rules admit of no defence, short of the performance of the condition of the obligation, or the release of the penalty, by some instrument, whose effect is as solemn and binding as the bond itself. Admitting the force and correctness of such objections, I think the present case is wholly ex- empted from their operation. The legislature, by virtue of their amending statute, as I think, have made the surrender of the debtor to operate as a complete performance of the contract, either before or after its infraction, at any time before the bail are fixed with the debt, in the manner before stated. If this be the effect of the statute, then I think, that the legal consequence is, that the defendant may plead the fact, in bar of any action brought on the bond. For the legislature to allow a specific act to have the effect of performance of the condition of an obligation, even after it is broken, is, by no means, anomalous. Many instances of the kind might, per- haps, be produced, but I shall mention only one. HILARY TERM, 10 GEO. IV., 1829. 31 which I think sufficient to shew that the rigidity of the rules of pleading has been relaxed, and the principles of the common law have been set aside by the legislature in England for the purpose of arriving at the justice and equity of a particular case. By the common law, a bond given in a penalty conditioned for the payment of a less sum, at a stipulated period, would become absolutely forfeited if the money were not paid on the day, and a plea of payment after the day would not be available. The statute, 4 Ann, ch. 16, sec. 12, gives a remedy in this case, and, in substance, enacts that if the debt shall have been paid before any action is brought on the obligation, although it was forfeited by the nonpayment of the money, according to the condition, yet it may be pleaded, in bar of the action, by virtue of the enactment contained in the statute. Solvit post diem was no plea before this statute, but the act makes it a good plea now. I have already expressed my opinion that the statutes relative to bail for the limits, were introduced for the sole benefit and relief of debtors confined in gaol, but I cannot think the legislature designed to make any alteration in the remedies which the law gave the creditor. Those remedies were left precisely where the legislature found them. The condition of the creditor was not to be worse, but it was not intended to be made better by increasing his power of com- pelling payment. The construction which I give the acts, has no tendency to abridge the established rights of the creditor. His legal remedy against the property and the body of his debtor remains unim- 32 HILARY TEEM, 10 GEO. IV., 1829. paired, while the power of proceeding against the bail for the limits is equitably restrained to those bounds which the law prescribes, in cases similar in their nature and alike in their circumstances. The foregoing remarks on the liability of bail for the limits are intended only for a case where the bail are sued by the original plaintiff, on an assign- ment of the security by the sheriff ; if the actions were brought by the sheriff himself — a rule some- what different in practice, though not in principle, must necessarily prevail according to the different circumstances in which the parties would be placed. Upon as full a consideration as I have been able to give the present case, I am of opinion the first plea is sustainable, and that the defendant is entitled to judgment on that plea. With respect to the second plea, I am of a different opinion ; I think it is not good. It contains no averment that the defendant surrendered his principal to the sheriff, conformably to the provisions of the statute. Nothing but a sur- render before the assignment of the bond, in the case now before the court, could have the effect, in my opinion, of satisfying the condition of the obli- gation. Macaulat, J. — The first consideration is, how stood the law upon the passing of these acts ? A ca. sa. could issue, as in England, and the sheriff was bound to observe the same duties, and subject to the same liabilities, as in England. By the com- mon law, the sheriff and every gaoler ought to keep persons in execution in salva cmtodia, and if he permit an escape, an action lies. — 3 Co. 44 ; 2 Wils. HILARY TERM, 10 GEO. IV., 1829. 33 294 ; 2 Bl, 1048. At common law, ease was the only remedy against a sheriff for an escape in exe- cution on final process, and that form of action must still be adopted,, when the escape is before final pro- cess. But the statute, Westm. 2, (13 Edw. 1, c. 11,) and 1 Ric. 2, c. 12, gives the action Of debt against the sheriff or gaoler to recover the sum for which a prisoner is charged in execution. They do not deprive the party of his action on the case. — Cro. Jac. 288 ; 1 Saund. 38, n. 2. Debt is, how- ever, generally preferable, as entitling the plaintiff to his whole debt. — 2 T. E. 129. In case the dam- ages are in the discretion of the jury. — 2 Chit. Rep. 454. To a voluntary escape, re-caption or a volun- tary return is no plea. To a negligent escape, re- caption on fresh suit, or a voluntary return before action, (but not after,) is a good bar. — 2 Co. 52 ; 2 Str. 908 ; 1 Saund. 35, n. 1. A voluntary return is held tantamount to a caption on fresh suit. — 2 T. R. 129 ; 11 Mod. 341. The obligation of the she- riff arises out of common law liability ; the common law remedy was in case for the tort, and re-caption is a good plea, (I suppose,) as being a full answer to all damages ; for if the sheriff, having negligently suffered an escape, promptly pursues and re-takes ' before action, and has the defendant in custody when action brought, it would seem to negative any dam- age to the plaintiff. It is true a re-caption may be pleaded in debt, indeed it formerly could be given in evidence, under nil debet ; but this seems an ex- tension of the common law defence to the extended remedy. This defence must now be pleaded and sworn to.— 8 & 9 W. III., c. 27, s. 6, and, I Should think, a plea of voluntary return must be verified F ' VOL. I. 34 HILARY TERM, p GEO. IV., 1829. in the same way, when urged as a defence. — 4 Star. Ev. 1349 ; Imp. Sheriff, 160-1. No special plea is to be received without affidavit that the escape was without the consent, privity, or knowledge of the sheriff. After a voluntary escape he cannot re-take, and is therefore liable. It is obvious the law of escape, as between the creditor and the sheriff, rests upon its own princi- ples, and is composed of common law and statatory provisions. A duty is, by law, cast upon the sheriff ; an obligation is, by the bail, voluntarily assumed ; between which a very solid distinction will be found to prevail— 6 T. R. 754 ; AUeyn, 27 ; 3 B. & P. 420 ; 1 T. R. 418. The case in 2 T. R. 126, was an action of debt on the statutes, brought against the marshal, and, of course, he being charged by these statutes, which extended the common law remedy, ' had an obvious right of defending himself, as in other cases of escape! The gist of the action was the es- cape ; the form of action was extehded by the sta- tute ; an escape in a sheriff^ is a breach of duty ; a tort, not a breach of contract. Upon an arrest being made, the law imposes ^it on the sheriff to keep his prisoner safely. If he carelessly suffer him to go at large, the plaintiff has an action, against which a re-caption before suit, though not after, is an an- swer ; but if the fugitive die before action, the she- riff is fixed. In the present case it is a specialty contract. In one case, a tort— in the other, an agreement ; and to be governed by the rules of law, applicable to the respective actions. The case in 2 T. R. 126, is in debt, founded on a tortious act, bv yirtue of the statute, and is not in point, unless to HILARY TERM, 10 GEO. IV., 1829. > 35 prove that the prisoner is in the sheriff 's custody, though on the limi^ts, and that he is responsible in the event of escape. Had the sheriff, in that case, refused to accept his voluntairy surrender, and sued the sureties, and they had pleaded the return as a bar, the cases would have been more similar, and we should have known- the nature and terms of their engagemeat. An escape against the bail of the sheriff is a tortious act of the prisoner, for which an action lies by the sheriff ; he is not obliged to pur- sue and re-take him, nor is he compellable to accept a voluntary surrender, but may at once sue the party, by reason of his lialbility to the creditor. — Cro. Eliz. 237, 53,124, 264 ; Godbolt, 126 ; Pitzh. N. B. 130 h. So also, after a voluntary escape and a voluntary return, though the sheriff cannot detain the defendant, still the plaintiff may admit him in custody, so as to charge the then or subsequent sheriff— 1 Vent. 269, 2 Lev. 109, 132— and can, if at large, obtain an escape warrant. He is not obliged to resort to the officer. It is said, also, that if the sheriff permit a Voluntary escape, the subsequent assent of the plaintiff is not a bar to the action. I mention this to shew that an ex post facto defence, when admissible,' rests upon pre-established rules. It appears to me, if analogies are to be resorted to, the present case must be determined by a consider- ation of the law of bail in other cases, rather, than by the law of escapes respecting sheriffs. The undertaking of bail is a contract, and the contract here was not that L. A. should make nq escape, but that "he should not go or remove beyond the limits " of the gaol. The breach is, that he did 36 HILARY TEEM*, 10 GEO. IV., 1829. go, remove, withdraw, and depart. The plea ad- mits a departure and seeks to avoid the penalty by avoiding the breach. A departure is doubtless a literal breach of the condition, and if so, the penalty was incurred ; but it is contended that the condition was saved by the subsequent render. Such a de- fence rests, I fear, rather upon equitable than legal grounds. If we look to cases of bail bonds, and bail' to the action, we find that nothing can be pleaded to the bond or recognizance, after action, that does not strike at the root of the contract. A bond may be avoided upon some grounds, so also a recognizance ; but the pleas will be found to anticipate the possibi- lity, or deny the fact of any breach. After breach, in the case of bonds, the court is enabled to grant summary relief by stat. 4 & 5 Anne, c. 10. In case of recognizance, they exercise a similar control over their own record. — 5 B. & A. 192. To an ac- tion on the bail bond, defendant may plead compe- ruit ad diem ; but if the appearance is not entered of record the bond is forfeited. — Cro. Eliz. 460. Or, that the bond was taken for ease and favour. Or, if void on the face of it, they may demur ; or they may plead no process against the principal ; or no affidavit, shewing the arrest illegal and the bond void, as under a species of duress ; or that the as- signment is not stamped. But matters of defence in equity, or merely founded on the indulgence of the court, are not pleadable ; as that the bond was given to plaintiff as trustee for his officer, to whom defendant had paid debt and costs. — 7 Ea. 147. Satisfaction after breach cannot be pleaded.— -Cro. Eliz. 46 ; 6 Eep. 43 ; 2 Wils. 86. If good, it should be pleaded to the condition, not to the bond. — Yel. HILABY TERM, Io'gEO. IV., 1829: 37 192, Oro. Jac. 99, 254. Before the statute 4 Anne, c. 16 — solvit post diem could not be pleaded to a bond. The undertaking of special bail is, that defendant, if condemned, shall satisfy the debt, or render him- self, &c. These bail are discharged, by death of their principal, before the return of a ca. sa. ; but not, if after the writ is returnable. — 6 T. E. 284. After judgment, plaintiff may elect to proceed against the body or effects of defendant, and, owing to this election, it has become a settled rule that before proceedings against bail, a ca. sa. miist be sued out and returned nan est inv. The render ought to be when plaihtiff signifies by ca. sa. that he will have the body. A render can never be pleaded after the return of a ca. sa. — 1 L. Eaym. 156. Nor would the court formerly accept such render. — 1 Cro. Eliz. 738. Indulgence was gradually extended by the court exercising a control over the record. — 10 Mod. 267. The forfeiture of the recognizance takes place by not rendering before the return of a ca. sa. issued against the principal ; when once forfeited, it will be found that nothing can be pleaded in bar, predicated upon the breach. Bankruptcy of principal and cer- tificate is no plea, though held an equitable defence. — 2 B. & P. 45. The courts have enlarged the time for the render of principal. But a render after the return of ca. sa. is no plea in bar. Accepting a' cognovit will, under some circumstances, discharge the bail. Yet such matter is not pleaded, but sub- ject of motion.— 4 Taunt. 455 ; 5 Taunt. 319 ; 7 Taunt. 126 ; 15" Ea. 616 ; 4 B. & A. 91. Bail'in error cannot render, their contract being absolute ; and, upon the same principle, the defendant here, being liable under the bond, upon the departure of 38 HILARY TERM, 10 GEO. IV., 1829. the debtor, cannot render afterwards in discharge of the bond ; the right of render is gone. I think the present defendants had a right of surrender, so long as the condition of the bond was not infringed ; but,, when once broken, (as it was by the departure admitted,) the right no longer existed. The act upon render requires the bond to be given up, that the bail may be wholly discharged therefrom, i. e., from the bond — not from the condition or conse- quences of a breach : it contemplates no present forfeiture, as is shewn by what follows, that, the sheriff may renew the security as if the debtor had not enjoyed' the limits ; but, if rendered after an escape, it is not probable another enlargement would be allowed. Upon breach of the condition, the she- riff is bouild to assign the bond to plaintiff ; and I do not see that the sheriff can, by a subsequent acceptance of the original defendant, affect the rights of the plaintiff, however he might his own ; besides, the detention of defendant may be perfectly cohsist- ent with a subsequent assignment. The plaintiff having a right to resort to the she- riff, in his common law liability, he might desire to be in a position to plead a re-caption, or a volun- tary return. Whether, after plaintiff claims an assignment of the bond, the defendant becomes supersedable, may be a question. On that I give no opinion, though it might appear that plaintiff had a right to detain defendant and proceed against his bail, as a collateral remedy, till satisfied. — 2 T. E. 129 ; Skin. 582. The sheriff may accept a volun- tary render of defendant, in discharge of the she- riff's bail, before the return of the process, but not after ; not after breach of the condition to appear. HILARY TEEM, 10 GEO. IV., 1829. 39 — 1 Ea. 390 ; 10 Ea: 100. It is not stated in the plea that the departure was with or without the con- sent of the sheriff ; nor does it appear that the ren- der pleaded was made before plaintiff had notice of the departure. The sheriff shall not avail himself of his own irregularity. I find no case in point. The one most resembling it is in Com. Eep. 554 ; Chambers v. Gambler — debt on bond — condition, to be a true prisoner, without making any escape ; plea, that J. L. did remain a true prisoner, without making any escape ; replication, that on the 13th January he made an escape ; rejoinder, that he wen^a little, way out of the rules, and being sent for back, immediately returned, with consent of plain- tiff, was received as his prisoner, and so continued ever since. Demurrer, — the rejoinder was held ill as being a departure. Reeves, G. J., said, "If it would have excused the escape, it should have been pleaded at first. This plea, in the matter of it, is no excuse. It is not said he was re-taken on fresh suit ; but he returned, being sent for, without say- ing when, or after what time, or any thing certain." Considering, therefore, the nature of the undertak- ing, the principles that govern the court in the con- struction of specialties, and those which seem tp have regulated the decisions in cases of bail especi- ally, I am constrained to hold that the present de- fence is not a good plea in bar of the action on the bond, however desirable I may deem it that the court should possess the power of granting equitable relief under the 'facts disclosed, if true. Per cur. — Judgment in favour of the demurrer — Sherwood, J., dissenting. 40 HILARY TERM, 10 GEO. IV., 1829. Beard v. Orr. Quocre. — ^Under what circumstances -the court will allow the costs to a defendant, under the provincial statute 48 Geo. 3, c. 4. This was a ease argued last term, but as the court were divided, it stood over till now for further con- sideration. Eidout obtained a rule nisi under the provincial act 48 G-eo. 3, c. 4, that the taxed costs of the defendant in this cause should be allowed and set off against the sum recovered by the plaintiff. The facts were : — defendant was arrested for £60. At nisi prius a verdict was taken for the plaintiff, by consent, for £50, subject to the award of arbi- trators, to whom that verdict and all mattei^ in difference between the parties was submitted, with power to call for books, papers, &c., on either side. Affidavits were put in on behalf of defendant, stating that plaintiff arrested him without probable cause, as plaintiff well knew that the said demand had been considerably reduced by the work and labour of the defendant, and otherwise ; that a day or two before the arrest defendant called on plaintiff for a settle- ment of accounts, urging, as a reason, that he was about to go to Oavan for a time. That Joshua Beard, plaintiff's son, in presence pf plaintiff, said that it made no difference ; that the accounts could not then be attended to, or words to that effect. That, subsequent to the arrest, he paid plaintiff £10, included in the above award, upon an understanding that the plaintiff should withdraw the action, pay costs, and settle amicably. That plaintiff, instead of so doing, declared that if but Is. was coming to him, he would make defendant pay costs. On the part of the plaintiff an affidavit was produced, stating HILARY TERM, 10 GEO. IV., 1829. * 41 that the defendant had not performed the agreement under which he claimed to set off, and that he (plain- tiff) had been put to a considerably expense ii) get- ting others to finish what defendant had begun. Also, that defendant would not produce a book, containing entries of their transactions, to the arbi- trators, when required by them., The award was for £37 10s. 8d. Draper shewed cause. — TJ'he courts have always laid great stress on the circumstance of parties going to' arbitration, and when no verdict has been taken that circumstance has always been considered an answer to this application. Particular attention has also been paid to the fact (when such has been the case) of the power of examining the parties them- selve's, and of sending for book's and papers. — 1 B. & B. 278 ;.l Moore, 92 ; 3 Moore, 59.0, 605 ; 3 B. & 0. 494 ; 5 D. «fe R. 383. In this case all matters in difference yfQVQ submitted, besides the verdict. The court will presume that there were such other matters, or why was any mention of them introduced in the submission. In one of the cases cited, it was said that the examination of the defendant gave him the opportunity of reducing the plaintiff's demand to a trifle ; hete he withheld ' the evidence of his books, when those of the: plaintiff' were produced. Non constat, but those books would have reduced his set-off, or proved, by acknowledgment, a larger sum due. The cases in 5 B. & A. 513, and 1 B. & C. 91, will probably be cited on the other side. It is sufficient to reply to them, that in each of those cases the plaintiff had expressly agreed to take a smaller sum than that for which he held the defend- ant to bail'. In those' cases, too, the defendant could G VOL. I. 42 HILAR:^ teem, lO GEO. IV., 1829. hot have been held to bail for the sum which was actually recovered. « The Attorney-General and Ridout, contra. — The court will consider the introduction of the words, " all matters in difference," into the submission, as mere surplusage. It is not shewn that any thing but what regarded the verdict was submitted or determined, and, in the absence of such shewing, the court will presume against it. The cases in 1 B. & 0. 91 ; 2' Smith, 261 ; and 5 B. & A. 513, are in point. In the last case, the court said that where there are mutual accounts, the plaintiff should only arrest for the balance. Here he has arrested for the whole, and has recovered little more than half of what he held defendant to bail for. Surely this is without probablfr cause, and if so, the defendant's application should be granted. * The Chief Justice having been retained when at the bar, gave no opinion. Sherwood, J. — I think there are sufficient grounds for this application. It is decided that if a verdict be taken, subject to award, the sum awarded is to be considered as recovered in the ac\ion ; and I do not think the wording of this particular submission alters the case. As to the want of probable cause, I think that is to be inferred fairly from the feet that the plaintiff held the defendant to bail for £60, and recovered little more than £30. Macaulat, J. — In this case the nature of the dealing between the parties, or of the te'stiniony on either side, is not disclosed. It is urged, on behalf HILARY TERM, 10 GEO. IV., 1829. 43 of the plaintiff, that it was a general reference' of all disputes. But it is not shewn that any subject mat- ■ ter was considered that might not have been dis- cussed at nisi prius. The plaintiff's counsel also objects that this application cannot be entertained after a reference ; but where there is a verdict, I think it may ; at least where the case only is re- ferred. Nor do I see that the arrest being on the affidavit of plaintiff 's agent, can make any difference, if unwarranted. The learned judge then went into an examination of the following cases : — 2 Smith, 261 ; 1 Moore, 92 ; 1 B. & B. 278 ; 5 B. & A. 513. This appears the strongest case in favour of the defendant. It was obvious that the plaintiff there arrested for as much again as he pretended to be entitled to. He made no allowance for a previously .admitted set-off. But in the case in judgment, plain- tiff s^ys he credited all that was paid ; that he knew not the extent of defendant's unliquidated claims, but intended to dispute the whole, on the ground of breach of contract. 5 B. & A. 661 ; 10 Ea. 525 ; 13 Ea. 90 ;.2 N. R. 76 ; 1 Smith, 428 ;1 Taunt. 60 ; 1 B. & C. 91 ; 1 Smith, 521 ; 2 Smith, 667 ; 1 B. & B. 66 ; 2 Marsh, 532 ; 2 D. & R. 266 ; 4 D. & R. 186 ; 6 Price, 126 ; 5 Price, 1 ; 2 Chit. Rep. 147 ; 7 D. & R. 369 ; 1 Marsh, 21 ; 5 D. &R.'383 ; 6, B. & C. 193 — which last case is quite against the defendant's motion. Upon a full consideration of th'e cases and matters submitted oa the present occasion, I cannot .consent to make the rule absolute, but think it should be discharged, though ,without costs, as not being made without probable cause. The court being divided, Ridout took nothing by his motion, {a) (a) See McGregor v. Scott, Tayl. U. 0. Rep. 66 ; PoweU v. Gott, 1 U. « ^x. ^i_Q_jt.M^i.j — ---ss— — ,,Hil. Term. 6 Vic, perifc£aa»,,J. 44 HILARY TERM, 10 GEO. IV., 1829. RoBiNET V. Lewis. In dower, the Replication to a plea of alien ne need not lay any venue, as ! to the place of biith,. within the allegiance, nor state of what parents, or when the demandant was born. Such a replication is properly concluded to the country. Alien ne may be pleaded in bar. This was an action of dower. Plea in bar, actio non, because demandant is an alien, born in foreign parts, and out of the allegiance of our lord, the late king, and within the allegiance of a foreign state,, to wit, the United States of America, and is not made a subject of our lord the king, by naturalization, denization^ or otherwise, est hoc par. est ver. Repli- cation,— jorecZw^fi non, because she is a natural born subject of our lord the king, born in the allegiance of our late lord, the then king ; to wit, in the then province of Pennsylvania, and not an alien born in foreign parts, or within the allegiance of a foreign state, in manner and form as is in the plea alleged — conclusion to the country. Special demurrer — assigning for causes that the place of birth was not pleaded with an averment of time, nor of what parents, or with a proper venue, and that it should have been concluded with a verification. Joinder in demurrer. The Attovney-General in support of demurrer. — This replication is pleaded in bar. Where alien enemy is pleaded in abatement, the conclusion is to the country ; but when pleaded in bar, it is con- cluded with a verification. This replication intro- duces fresh matter, and whenever that is the case, a verification is the proper mode of concluding. — Fortes. ?21 ; 1 Salk. 2 ; 4 Mod. 285-6. There is no venue laid iu this province of the birth of the demandant. Every material fact should be laid (if necessary, under a scilicet) within the jurisdiction of. HILAEY TERM, 10 GEO. IV., 1829. 45 the court." No time is pleaded as to the birth of the demandant. The rules of pleading require every material fact to be pleaded, with proper averments of time and place. — Leach. Or. Ca. 801. Sullivan, contra.- — This replication is rightly con- cluded. The affirmative is directly alleged' in the plea ; the replication distinctly denies that allega- tion ; where there is an affirmative and a negative there is an issue to go to the country, and therefore this conclusion is proper. — 1 Saund. 102, and notes ; 2 Burr, 1022 ; 1 Taunt. 224 ; 2 T. E. 439 ; 7 B. & C 809 ; 7 Taunt. 30. This replication is according to the best rules of pleading, and its conclusion has a tendency to prevent unnecessary prolixity on the record. As to place, a formal venue is not neces- sary in a plea in bar, or in a replication, all things referring to the place laid in the declaration. — Saund., on Pleading, 778.. There is no new fact in the replication, it is only a denial of the plea. — -2 K. Bl. 161 ; 10 Ea. 369. ; The Attorney-General, in reply. — New facts are stated in the replication ; these are, that demandant is a natural born subject, and was born in the pro- vince of Pennsylvania ; neithfer one nor the other is averred in thp declaration or plea ; they appear on the redord for the first, time in the replication. It is a clear rule that the proof of the issue lies on the party last affirming, and the dem,andant must prove her being a subject. The tenant is, by the conclusion, prevented from a rejoinder, though' two or three might be framed. This case in 4 Mod. 285, is in point. ' The time of the birth, too, should have 46 , ' HILARY TERM, 10 GEO. IV., 1829. been alleged, in order, to shew that it was previous to the peace of 1783, when Pennsylvania was a British province. This, argument took place last term, and the opin- ion of the court was this d^y pronounced by the Chief Justice. — The case is now before the court on this demurrer, and stands for our judgment upon the pleadings only, as they are spread upon the record. Though not absolutely without precedent in this co^rt, the action is still novel with us, but our judgment is not called for upon any other point than the sufficiency of the pleadings. "W^ith respect to the first cause of demurrer as- signed, naihely, the want of laying some place within the allegiance of the king, by way of venue, where the demandant is supposed to have been born, it is, in our opinion, not sustainable. If the objection be urged with reference to a supposed necessity of as- signing in the replication a place within the juris- diction of the court, as a venue, in order to the trial of the issue, it is clearly unimportant on that ground. The original intention of the law was, that whenever an issue of fact was joined, the jury who were to determine it come from the hundred or parish where the disputed fact is alleged to have taken place ; but this advantage in the investigation of truth, if indeed it was an advantage, was dispensed with when the statute was passed, which directs the jury to be taken, not from the visne, but from the body of the county in which the venue is laid in the decla- ration. HIIARY TERM, 10 GEO. IV., 1829. 47 The effect of this change in dispensing with the necessity of assigning a veiiue in the replication^ is most clearly stated in the case of I^^derton v. Ilder- ton, 2 H. B, 161 ; which also was an action of dower. \ The decision in that case has ever since been taken to establish it as a principle, that a statement of venue in a replication is wholly immaterial, because, since the statute of Anne, the venue in the declara- tion necessarily draws after it the venue in the subsequent pleadings ; and therefore to assign, in the subsequent pleadings, any other venue, would evidently be nugatory, and to assign the same would be useless, since the statute sufficiently provides for it. If the objection be urged,' not with reference to the statement of the venue for the purpose of trial, but upon the ground that some place 'within the allegiance of the king must be stated as the place of the demandant's birth, then we are still of opinion that the averment in the replication is sufficient. It is agreieable to the principles of pleading, and to the forms of replication, in all cases like the present, that a place of birth should be averred ; biit it is clear that the particular place is not traversable ; the party pleading is not confined to it in evidence, but may- prove his birth in any other part of the king's dominions. ' < It is expressly laid down that if one " born in Jersey, or elsewhere within the king's obediencle, brings a real action, and the tenant pleads that the demandant is an alien, borh under the obedience of the French king, and out of the allegiance, &c., the demandant may reply that he was born at such a place, in England, within the king's allegiance, and 48 HILARY TERM, 10 GEO. IV., 1829. such hath, ever been the manner of pleading in 'such case." — ^Bac. Abr. Aliea., E. Here the demandant has named a place, alleging.it to be, or rather have been, at her birth, a province of the late king, and within his allegiance. At the trial, where it be- comes necessary for her to prove her allegiailcei it lies u^on her to shew that she was, in fact,, born at some place within the king's allegiance, and it is immaterial at what place, whether in ^ew Bruns- wick, in ^Pennsylvania, when it was a British colony, (as certainly it once was,) or in London. We think there is nothing in the second cause of demurrer assigned, and, indeed, it did not seeifi to be insisted on. It has been determined that in a plea imputing alienage, in which every thing must be stated that is necessary to negative the plaintiff's right, the additional statement, et de patre et de matre, ' &c., is not necessary after the averment of the plam- tiff 's birth, extra hgeantiam. A question might be raised, whether the statutes passed subsequently to the decision referred to, and which preserve to the children and grand-children of J^ritish subjects born abroad, the character of British subjects, have not imposed the necessity of such an averment mutatis mutandis, in the plea of alienage, as it is contended, ought to have been inserted in this replication ; but upon principle and precedent it is clear that no ob- jection on this point lies to the replication. The third cause of demurrer is, that the time of the birth is not alleged ; but no a,uthority applies to shew that this is necessary ; neither do the prece- dents require it. In argument, this objection was HILARY TEEM, 10 GEO. IV., 1829. 49 urged upon the ground that, in this case, it was necessary the time should have been stated, in order that it might appear whether the demandai^t was born during the period that Pennsylvania belonged to the Crown ; but, for reasons already given, we do not think that argument applies. The last cause of demurrer assigned, is, that the , replication is ill concluded to the country, and au- thorities were cited, which, without examination, would appear to support that objection ; particularly the cases in 1 Salk. 2, & 4 Mod. 285. These cases, and others of an earlier, as well as of a later date, maintain a distinction where alien ne is pleaded in abatement, or in bar, deciding that in the former case the plea may conclude to the country, but that in the latter it cannot, but must conclude with a verifica- tion. The reason given for the distinction shews, however, very clearly, that the distinction itself now no longer prevails. It was held clearly not neces- sary to conclude with a verification, when the matter of alien ne was pleaded in abatement, because, as it was said, it shall be tried where the action is brought. But since the statute of Anne, it shall equally be tried where the action is brought,' if pleaded in bar, and therefore the reason for the difference fails. The case of Ilderton v. Ilderton, before referred to, and Sergeant Williams' note, in 1 Saund. 8, and the case in 7 T. E. 234, are conclusive upon this point. All those authorities, indeed, which seem at fi^-st sight to support this objection, are directly in point against it, when they come to be applied to H VOL. I. 50 HILAM TERM, 10 GEO. IV., 1829. pleadings in the present day. The case in 2 T. R. 439, and that in 3 T. R. 426, are also material to shew that, upon general principles, it cannot be con- , tended that there is in this replication such an intro- duction of new matter as to prevent the demandant from concluding to the country. We are therefore of opinion that judgment must be given for the demandant on this demurrer. If any of the objections to the replication had ' appeared to us to be sustained, we should have, found it necessary, before we gave judgment for the tenant, to come to a satisfactory conclusion upon a question which arises upon the plea, and upon which we have found the authorities very conflicting. The plea of alien ne, in all the cases referred to, (except when alien-enemy is expressly pleaded,) are in aliatement, and not in bar ; and Lord Coke, and many other authorities, lay it down broadly, (with- out any distinction as to real actions, where certainly the objection goes to the right,) that alien-amy must always be pleaded in abatement. Upon principle, however, (although in this case the authorities are not so express or so consistent as we might expect to find them,) we are at present inclined to consider that in this action the plea in bar is sufficient. Per Curiam. — Judgment for demandant. The King v, Jackson ,et al. Crown reeerre having expired, the court re after a conviction of forcible entry and detaine The defendants were indicted for a forcible entry The lease of a Crown reeerre having expired, the court refilled a writ of restitution, after a conviction of foreihle entry and detainer.' HILARY TERM, 10 GEO. IV., 1829. 51 and detainer. The indictment contained two counts : one at common law, the other under the statute, — prosecutor alleging he had a term of years in the land. The indictment had been removed, by certio- rari, from the quarter session in the Home District. At the trial, the prosecutor proved a forcible entry and detainer on lot No. 8, in the township of Etobi- coke, and, with a view to entitle himself to restitu- tion, gave in evidence a lease from one Meighan to him, of lot No. 7 in the same township, contending that this in fact was meant to be a lease of the lot on which the forcible entry was made. The defend- ants put in evidence a lease* from the Crown to them, of both lots 7 and 8, for a term expiring the 26th December, 1829. There was a general ver- dict of guilty, and sentence was passed last term on the defendants, when Baldwin moved for a writ of re- stitution, and obtained a rule nisi, returnable this term. SmaU and Draper shewed cause. — There are many instances in which, although the defendant may have been convicted of forcible entry and de- tainer, still the prosecutor is not entitled to restitu- tion. Such is the case of a disseisee who enters with force and ousts his disseisor ; restitution shall not be awarded, for the disseisee's title is revested by his entry, and he is in by operation of law. At common law restitution could not be awarded, and it was given by statute to save the party injured froin being driven to his action. But the party must shew such a title as would entitle him to recover in ejectment. It must appdar in the indict- ment, and be supported by evidence, to warrant a restitution. Now, in the first place, the only evi- 52 HILARY TEEM, 10 GEO. IV., 1829. dence offered, which supports the count for a term of years, is of a lot different from that on which the tortious entry was proved. Before a writ of resti- tution can issue, not only a title to the lot, but a forcible dispossession of the same lot must be shewn. Here the title is to one lot, the force to another. Besides, the title, let it be to which lot it would, is at an end ; for, by the patent before the court, it appears that the term of years granted by the Crown in those lands expired the 25th December, 1829. Restitution could only be awarded of the term, and the court see that is expired, and the title of the premises is now in the Crpwn. Baldwin, contra, contended that as defendants were convicted on both counts, it was conclusively found that they entered forcibly on land in which the prosecutor was interested for a term of years. A party may convey his land by any name he pleases to give it, and it appeared, at the trial, that the land on which the forcible entry was made, was the same which Meighan had been in possession of, and had leased ; and the difference of the number of the lot should not weigh with the court, as the party must take possession, at his peril, of no more than he is entitled to. As to the title being in the Crown, it is an additional reason why restitution should be granted ; for the prosecutor cannot maintain an ejectment, nor can he get a renewal of the lease, while he is out of possession, which he has no other means of obtaining, and which, as against the wrong doer, he is surely entitled to. Sed per Curiam.— 1^ rit of restitution refused. I HILARY TERM, 10 GEO. IV., 1829. 53 LiNLBY V. ChEBSBMAN. Court will not grant leave to enter an exonereiur, when bail have surrendered their principal, without a certificate from the sheriff. This was a motion for leave to enter an exoneretur on the bail-piece, the defendant having been surren- dered into custody. But this was only proved by the gaoler's receipt, and by an afi&davit of the fact, and that the sheriff was not in the district at the time of the surrender, and that his deputy was absent from the county town, on the business of his office, at the same time. Bed per Curiam. — The statute is peremptory. If you wish to avail yourself of a surrender thus made, to discharge the bail, you must comply with the terms of the act, and obtain the sheriff's certificate. Hyde v. Baenhart. Payment of the weekly allowance to a person acting as turnkey is good. Motion to discharge the defendant, an insolvent debtor in execution, from custody, for non-payment of the weekly allowance. To support the application, an affidavit from the defendant, stating that it had not been paid on the 21st of December last, and one from the gaoler, stating that he had not received it for the defendant, were produced. To answer these, an affidavit of one Trickey was read, who swore he went to the gM on the day in question, for the purpose of paying the weekly allow- ance — that the door was opened by a person named 54 HILARY TERM, 10 GEO. IV., 1829. Wilson, who had the keys, and who stated that defendant was in prison, and had requested him (Wilson) to receive his allowance. The affidavit 3,lso stated that Wijson appeared to be acting in the capacity of gaoler, having the keys in his possession and letting pebple in and out, and that Trickey paid the money to Wilson for defendant's use. The ques- tion was, whether this payment was good under the provincial statute. Sherwood, J., thought this payment good, and that this case was similar to that reported in 1 N. Rep. 111. The Chief Justice and MaCatjlat, J., having been retained in the cause, gave no opinion. Motion refused. Draper for plaintiff, Washburn for defendant. Leave was afterwards asked by Reward, for the plaintiff to file fresh interrogatories, and in the mean- time to suspend payment of the weekly allowance, upon an affidavit that further instructions had been received by the plaintiff 's attorney, respecting pro- perty supposed to have been made away with by the defendant, and which the attorney had no know- ledge of when he filed the first interrogatories. But, upon consideration, Sherwood, J., refused the application. HILARY TERM, 10 GEO. IV., 1829. 55 In KB. The Bank of TJpper Canada, v. Robert Baldwin. > a stockholder, merely as such, has no right to inspect the stock or other books of the bank ; nor will the court grant a mandamus for that purpose although they have the power, unless some special ground be disclosed sufficient to warrant it. Baldwin obtained a rule last term for a rule nisi, for a mandamus to the President, Directors, and Com- pany of the Bank of Upper Canada, to permit him to inspect the stock book, in which are entered the names and numbers of shares of stockholders, and to take copies thereof, or of any part thereof — grounded, first, on an affidavit that such a book is kept ; second, on an affidavit of having made such a demand, which was refused, and that Baldwin is possessed of twenty shares of capital stock. No special object lor the inspection was alleged or urged. " The court desired the matter might lie over till this term, and now judgment was given as follows : [The Chief Justice giving no opinion.] Sherwood, J. — I think this court hks the power of granting a mandamus in this case ; but I am of opinion that no sufficient cause has been shewn, to justify its interference. Nothing has been adduced to prove that any failure of justic^e has or will occur in case the writ does not issue ; or that any object would probably be obtained if it should issue. Mr. Baldwin grounds his motion on his right as stock- holder only. I am not aware of any decided case which at all supports his application, and on general principles I think it cannot be sustained. Macaulay, J. — (After stating the'case.) — Without going into the question of right, it does not, on the 56 HILARY TEEM, 10 GEO. IV., 1829. present occasion, appear that Mr. Baldwin, when he made the alleged application, was a stockholder at all, or in any ways interested or concerned in the affairs or business of the bank, But assuming that he was — is he entitled to call upon this court ex deUto justiticB, to grant to him, as a matter of right, an order to inspect, and if desired, to copy the stock book, or any part thereof, because he owns twenty shares of stock, which the statute shows would entitle him to vote for, and also qualify him to be elected a director, being a subject resident in this Province ? By the provincial statute, passed 21st of April, 1821, sec. 1, the Bank is incorporated ; the management by a president and directors ; their qualifications, time and mode of election are stated in sec. 8 ; sec. 10 entitles stockholders to vote ; sec. 11 provides for declaring dividends, &c. ; sec. 12 gives directors the power of making rules for the management of the stock, &c., and all such other matters as appertain to the business of a hank, not repugnant to the laws of this province. By sec. 11, transfer books are to be kept. Two questions include the whole matter in judgment : — 1st, whether a wzawdawj/s can be granted at all in tte present instance— 2nd, if so, whether, on the matter shewn, it ought to issue. In answering these questions it is necessary to examine into the nature of proceeding by manda- mus, as respects corporations. A mandamus is a writ commanding the execution of an act, where otherwise justice would be obstruct- ed, or the king's charter neglected, issuing regularly only in cases relating to the government and the HILARY TERM, 10 GEO. IV., 1829. 57 public, and is termed a prerogative writ, grantable only where the public justice of the nation is con- cerned. — Bac. abr. Mandamus. It is to be issued when the law has established no specific remedy, and where in justice there ought to be one. — 1 Bl. 352, 552 ; Cowp. 377. It lies not as a private remedy, excepting on the statute of Anne, Com. dig. Mand, A. B. Bull. N. P. 199. The motion for a mandamus to inspect is entertained only where an action is pending. — Barns, 236 ; 3 Wils. 398 ; 5 Mod. 385. These cases are, however, shaken by the following :— 1 T. E. 689 ; 3 T. E. 303 ; but the same doctrine is established in 8 T. E. 590 ; and it is decided to be by no means a matter of course to grant a mandamus. -^ir. 646, 717, 1005, 1203. When granted, it is confined to an inspection of matters relative to the point in issue. — Str. 1223, 1242 ; 3 T. E. 579 ; 7 T. E. 746 ; 10 Ea. 235 ; 4 M. & S. 162 ; 2 Chit. Eep. 288. The right of in- specting public documents is well treated in 1 Phill. Ev. 405. If we refer to the cases and circumstances attending them, no one in point will be found, and, in applying the principles they establish, it is open too much to question whether the present applica- tion is at all sustainable. Mr. Nolan, the editor of Strange's Eeports, (2 Str. 1223,) says he can find no instance of a mandamus to inspect books of this kind, and that it did not seem settled how far any cor- porators could apply for a general inspection, &c. I believe no case can be found down to the present period. On the, contrary, the authorities would rather seem to restrict than extend the privilege desired. A distinction prevails between public corporations, having the government of towns, &c., I VOL. I. 58 HILARY TERM, 10 GEO. IV., 1829. or constituted for purely public purposes, and trad- ing companies, such as banks, &c. — 5 B. & A. 399 ; 2 B. & A. 620. The case last cited would seem to deny the right of mandamus altogether. The facts of that case were far stronger than the present. The applicajit had an interest at stake, and was actually seeking a private benefit — his share of profit. Here nothing is sought, but the right claimed without any definite object. "When parties are litigating claims, the power of the court to interfere is quite a different question, and for obvious reasons. The constitution of the bank is contained in the act of incorporation already mentioned. The directprs are the repre- sentatives of the whole body. They are required to declare half-yearly dividends ; but, it seems, cannot be compelled to do so by mandamus. They are re- quired to keep stock books ; but where is it found that they can be compelled to shew them to any or all of the stockholders, at any or all times ? They are to make rules touching the stock, property, effects, officers, clerks, servants, and all other such matters as appertain to the business of a bank. Now, had they made a rule that the stock book should not be open to inspection, except at the time of election, would it be held to be an unreasonable or illegal by-law ? I am iipt prepared to say it would. To many purposes the corporation is a partnership. A great object in a corporate charter is, that individual partners are not personally responsible ; but if an act of parliament authorised a trading company of a thousand members, liable to all the usual partnership responsibilities, I do not see that a member of that company might not as well apply for redress, by mandatp.us, if aggrieved or abridged in his ^ight, as HILARY TERM, 10 GEO. IV., 1829. 59 in the present instance. I cannot admit that it is because a public body is a body corporate, that the courts assume the right to interfere ; but because of their public character. Now, as between the stock- holders individually aind the directors, I question whether the bank is to be regarded as more than a private trading company. The interests of the whole are intrusted to directors of their choice, and those who wish to become interested in the corpo- ration, must do so, relying upon their management, and that alone, unless where private rights are litigated in courts of law ; when, for the ends of justice injudicial proceedings, the courts may inter- fere so far as the particular case may require. The directors represent the whole, and they have access to all books, &c., and the control of all matters. If a majority of the directors refused access to the minority, and the latter sought the aid of the court, it would be a much stronger appeal. It is not necessary, at present, to say whether a case might not arise, that would justify the interference of the court by mandarnus, as between the stockholders and board of directoi's ; bht I by no means find authority that it would. It is not now incumbent on the court to decide this, for however a case might arise, calling for the high prerogative writ, I am quite satisfied it Ought not to issue upon the present application. Per Curiam. — ^Rule nisi i-efused. 60 HILARl TERM, 10 GEO. IV., 1830. Winchester v. Cornell. This was an action of covenant. The defendant had leased certain premises to the plaintiff, and con- tracted to give possession on a certain day subse- quent to the date of the agreement. The breach was the non-delivery of a part of the premises leased. Plea, non est factum. At the trial., at the last assizes for the District of Niagara, jthe subscribing witness was called to prove the execution of the agreement. The defendant was illiterate, and could not write. The witness could not positively state that he saw the defendant make his mark, or deliver the deed ; but, to the best of his knowledge and belief, he saw both. Two witnesses, daughters of the defendant, were called on his side, who swore they were pre- sent at the same time, and did not see the defendant execute the agreement. The Chief Justice, who tried the cause, charged the jury " that it was proved the plaintiff entered into part of the demised pre- mises, under agreement." The jury found for the plaintiff, and last term a new trial was moved for, principally relying on the ground that there was no evidence of, the execution of the agreement. On reading his notes, The Chief Justice remarked that he did not find the fact, which he had stated to the jury as having been proved, with regard to the plaintiff 's taking possession, in his minutes of the evidence, and time was given till this term, for the plaintiff to file affi- davits, stating that such evidence had been given. And now two affidavits were produced, both swear- ing to the fact itself, but neither stating it had been HILARY TERM, 10 GEO. IV., 1880. 61 proved on the trial. Under these circumstances, the Chief Justice, being satisfied that a new trial would not alter the event, was of opinion that the rule nisi should be discharged. Sherwood, J., differed — thinking that when any reasonable doubt existed, as to the verdict being the same, in case the fact had not been proved as stated, a new trial should be granted. Cited 4 T. E. 753 ; 4 M. & S. 532. Macaulat, J., having been concerned in the cause, when at the bar, gave no opinion. The court being divided, the defendant took no- thing by his motion. Fbrrie v. Rykman. In an action on a promissory note, the declaration must aver presentment for payment at the place where it is made payable. Assumpsit, brought to recover the amount of a promissory note, drawn by the defendant, in favour of the plaintiff, and payable at the Bank of Mon- treal. The declaration was in the common form, and the defendant demurred specially, assigning for cause the want of an averment that the note was presented for payment at the particular place where it was made payable. Ridout, in support of the demurrer, urged, that however the decisions might have been contradictory . at one time, the later cases clearly recognised the 62 HILARY TERM, 10 GEO. IV., 1880, principle of this demurrer as good law ; arid, al- tlioiigh, in 2 Camp., Lord EUenborough denies the necessity of such an averment, yet that opinion is overruled in 3 Camp. 247. He contended that the case of Rowe v. Young, 2 B. & B., applied in prin- ciple to this, and was decisive. He also cited 2 Taunt. 61 ; 5 Taunt. 32. The Solicitor-General, contra. — This case is clearly distinguishable from that of Rowe v. Young. That was an action against the acceptor, who had accepted, payable at a particular place. He had a right to narrbw his undertaking, and it is in the option of the holder to accept or refuse this qualified accept- ance. But this action is by the payee against the drawer of a promissory note ; he, surely, is every where liable. The introduction of the words '-on demand," into a promissory note, does not make a demand a necessary preliminary to bringing an ' action. The bringing a suit is, according to express decision, a sufficient demand. So here the introduc- tion of a particular place is only a notice that the party will be prepared at that place, but ought not to narrow his liability, which is general. The Chief Justice. — In consequence of the deci- sion of the Hou^e of Lords, in the case of Rowe v. Young, an atet of parliament was passed, with refer- ence to acceptances payable at a particular place ; but I am satisfied that act does not, and was not intended to apply to promissory notes. Then, as to them, the decisions are certainly contradictory ; but I think the weight of authorities is in favour of such an averment, and that on the trial it must be proved. HILARY TERM, 10 GEO. IV., 1830. 63 Sherwood, J. — Con,curred. Macaulay, J,, having been concerned in the cause, gave no opinion. Per Ci/n'rtm.— Judgment for defendant. Johnson v. Durand. Small moved to revive a rule nisi, which had been obtained in this cause last term, and which had lapsed, on affidavits stating that the rule, which had to be served in the Gore District, has been duly served and sent to York ; but was by some accident mislaid, and did not reach until after term. He argued it on the ground that he was too late to ob- tain a new rule, and that if this motion were refused the party would be without remedy. The court, under the circumstances, granted the motion. Hale et al. v. Matthbson. a mis-recital in a submisaion will not Titiate an a^^ard. The Solicitor-General, last term, obtained a rule nisi to set aside the uonsuit granted in this cause. The action was brought on an award, witt^ the com- mon counts. The submission recited in the decla- ration, was between the plaintiff in that suit and three defendants; but in the award, the name of one of the defenc^ants was omitted. For this variance Sherwood, J., nonsuited the plaintiff. 64 HILARY TERM, 10 GEO. IV., 1830. Jonas Jones now shewed cause. The declaration states an award between the plaintiff and three de- fendants ; and to support this they give in evidence an award between the plaintiff and one defendant- This is a fatal variance, it is not the instrument declared on, and consequently the nonsuit is right. The Solicitor-General, contra. — In the award a distinct reference is made to the identical submis- sion ; it is made on the authority given by that sub- mission, and is made in the same suit, and refers also to the rule annexed, which is a rule in that same action. The recital of the names was wholly unnecessary. The true question is, was there not an award made, such as described in the declaration, and grounded on that very submission, Besides, the omission of the name of one defendant is not in the body of the award itself, it is in the recital of the submission, and the reference to the rule annex- ed shews clearly that the award was made in that suit. A mis-recital will not vitiate. — 1 B. & B. 350. A submission mis-recited was judged immaterial in an action on a bond. — 1 B. & P. 40. In an action on a promissory note the plaintiff 's name was Ed- ward, the note was given to Edmond ; this variance was decided to be of no consequence. — 16 Ea. 110. The Chief Justice — Two grounds of nonsuit were taken at the trial. 1 st. That the arbitrators had not sufficient authority. 2nd. That there was a vari- ance. The first ground was very properly over- ruled at the trial— for the fifth count in the declara- tion sets out an award made by the arbitrator, on a submission by the parties to him. As to the second HlLARt TERM, lO GiEO. IV., 1830. 65 submission — did the arbitrator make this award between the parties to the suit, or between other parties ? Looking at the papers as attached toge- ther, I cannot say but that the award is made between the identical parties. The annexed rule is expressly referred to, and that rule is in the cause referred- The mis-recital of the submission cannot, in my opinion, vitiate the award, and the variance is there- fore, as I view it, insufficient to warrant the nonsuit. Sherwood, J. — Concurred. Rule absolute. Baker v. Booth. Where acts are concurrent an averment on plaintiff's part of performance or readiness to perform the act to be done by him, is indispensable. Debt. — The declaration contained two counts ; one on a submission, the other on the award. The case was brought before the court last term, on a demurrer to the replications to the 2nd, 3rd, 8th and 15th pleas, but was ultimately decided on the declaration only. It is therefore unnecessary to state the other questions, as the court did not decide them. It was argued last term by Bidwell for the plaintiff, and Bethune for the defendant, and in this term by The Solicitor-General for the plaintiff, and the Attorney-General for the defendant. For the plaintiff it was urged, after stating the award, as follows : —That the defendant should pay E vol. I. HILARY TEEM, 10 GEO. IV., 183(). 66 to the plaintiff £149 on the 5th January then next, and that plaintiff should deliver up to defendant a dwelling-house, then in his occupatibh, on the 5th January then next, in as good repair aS it was at the time of the making the award. That the plaintiff should have liberty to harvest a crop, then growing on the land. That all suits should cease, and mu- tual releases be executed. That the objection raised to the declaration, is the wani of an averment of the plaintiff 's readiness to deliver up the house to the defendant, it being insisted that the delivering of the house is a concurrent act with the payment of the £149 awarded — to recover which, this action is brought — and that therefore such an averment is necessary. These two acts are not necessarily con- current, neither are they made so by the express terms of the award ; it depends entirely on the will of the parties, whether they should be done at the same time, or whether one should precede the other. The way in which the day is fixed Iby the arbitra- tors, for the performance of these two acts, shews that they did not intend them to be dependent, one upon the other. They do not say the defendant shall, on a given day, pay £149 and at the same time, or on the same day, the plaintiff shall give up possession ; on the contrary, they give a specific date for the performance of one independent act by the defendant, and a specific date (not referring to the one already given) for the performance of ano- ther independent act by the plaintiff. The manner in which this is done, is equivalent to laying two distinct days. The acts, therefore, are not necessa- rily concurrent ; but if concurrent, it is only neces- sary to aver performance where the one concurrent HILARY TEEM, 10 GJIO. IV., 1880. 67 act is the coQ^^deration of the other. — 1 Saund, 320, n. 4. Isfow, neither act, in this case, depends in the slightest degree on the other ; each stands alone, to be perforwed at all events, not as the consideration by which performance is to be obtained from the other side. They are like independent covenants, and in principle this is similar to an action of cove- nant;. But supposing this to be a consideration ; by examining the award we find that if it is to be thus viewed, there are also other acts which are, with equal reason, to be taken in the same light : the plaintiff is to have liberty to harvest his crop, ac- tions are to cease, releases to be executed. The delivery of the house, if a consideration at all, is only a part consideration, and then such an aver- ment is not necessary. For the defendant, it was argued that this is simi- lar to an action on a covenant between the parties, and the established rule of law is, that where any two acts are to be performed, one by each party, they are necessarily concurrent acts. The award is the agreement qf the parties, declared and carried into effect by the arbitrators. That such an aver- ment is necessary, appears clearly by the reasoning in 2 Saund. 351, and the oases there cited ; as to there being other considerations, they do not appear in that part of the award which the plaintiff has thought fit to set forth in his declaration. In the replication the plaintiff has set forth the whole award, but the declaration must stand or fall on its own merits — ^the subsequent pleadings cannot be called in to its aid. 68 HILARY TERM, 10 GEO. IV., 1830. The Chief Justicb. — The court think this decla- ration cannot be supported ; on a demurrer nothing can be intended ; after a verdict no notice could be taken of the facts thereby found. The facts pleaded, and the manner in which they are pleaded, are what we must determine. The declaration contains two counts, one on the submission, the other on the award. The pleading is not sustainable. In debt, on a submission bond, the whole award must be set out, either in the declaration or replication ; here he has only set out part, not the whole, and this is a fatal objection. When the whole award is set out, it appears that neither count can be supported. There is no averment that the concurrent act was performed, or that the plaintiff was ready to perform is part. We entertain no doubt but that these are concurrent acts, and that such an averment is strictly necessary.— 4 T. R. 762 ; 8 T. R. 366 ; 1 Ea. 203 ; 7 T. R. 125 ; 1 Saund. 320, note c. ; Doug. 691 ; 1 Salk. 112, 171, all bear on the question. For want of this averment, we think the defendant entitled to judgment, and the declaration being bad, it is not necessary to decide upon the objections to the sub- sequent pleading. Per Curiam. — Judgment for defendant. Phillips t. Redpath and M'Kay. In trespass, if the defendant rest his defence on acting under the Rideau Canal act, he should be prepared to prove that the act which is com- plained of, was regularly done under that statute, and 'not rest his defence on the circumstance that he was employed in the construction of the canal. Trespass qu. dans. freg. and a count, de bonis HILARY TERM, 10 GEO. IV., 1830. 69 asportatis. Plea, not guilty. The cause was tried before Sherwood, J., at the last assizes for the Johns- town District, when the following facts appeared m evidence : — that the plaintiff had authority from Charles Jones, Esq., the owner of the locus in quo., to erect a frame building there : that the agents of the defendants wrote to plaintiff, forbidding him to erect a frame at the place proposed, on the ground that the land in question was required for the Eid- eau Canal : that one of the defendants interfered, to prevent its erection on any part Of that land : that the frame was torn by the defendants' servants : that defendant Kedpath used insulting expressions respecting the plaintiff, stating also that he wanted the place for a friend of his to keep a store on : that the frame was drawn away and destroyed by Eed- path ; and that the land in question had never been used, in any way, for the canal. No justification was attempted. The learned judge left it to the jury to find for plaintiff, and to measure damages according to their opinion of the defendants' motives. If they thought the defendants were actuated by a view to the public service, or even inadvertently, not to enlarge upon the damage actually sustained ; but if their conduct, under the evidence, was not entitled to such favourable consideration, to exer- cise their discretion. The jury found for the plain- tiff, £100. The Attorney -Gineral had obtained a rule nisi for a new trial, last term. — 1st. Because a sufficient justification under the Rideau Canal act was in proof, in consequence of the letter produced to that effect. 2nd. For excessive damages ; and this term. 70 HILABY TERM, 10 GEO. IV., 1830. Jonas Jones shewed cause. — The actual damages sustained by the party, does not constitute the sole question in a case of this sort. The current of authorities proves the contrary, and that other con- siderations are properly left to the jury to influence their verdict. — Burr, 609. The jury are to exercise a proper discretion as to the damages. The matter was here left to the jury, not only as to actual, but as to probable, or even possible damage. They were to consider what had been the conduct of the defendants ; and, taking all into consideration, these damages are not outrageous. In the case in 2 '^Vils. 160, imprisonment for a few hours — damages £300, and a new trial refused. In 2 Wils. 206, it is said, "it is dangerous to meddle with the damages in actions for torts." The learned counsel cited also, 2 Wils. 252, 405 ; 6 Ea. 256 ; 5 Taunt. 281 ; 4 T. E. 654 ; 3 Wils. 62 ; 2 Bl. Eep. 929, 942 ; Cowp. 230 ; 1 Marsh. 139, as establishing the principle that there was no ground to interfere on account of the damages. The Attorney -General, cow^ra.— There was no evidence to shew that the plaintiff sustained damages beyond the mere value .of the frame. The cases cited result' from the personal injury and affront ; it was not a question af injury to property, which arose in them. In those cases there was no criterion as in a case lilie the present ; nothing whereby to measure the damages. This is an action for an asportavit. Trover might have been brought equally well, for taking scantling and boards, the value of which is the true estimate of the damages. The HILARY nm, 10 (|E0. IV., 1830, 71 land in question was in possession of the defendants, who cleared it. (This was shewn by one of the affidavits.) No evidence was given that plaintiff meant to set up a tavern, as was pretended. The proof was confined to the putting up and pulling down a frame, and an idle expression uttered in heat. They do not, nor could they prove, that the intent of defendants was to favour some other per- son ; it was merely an empty assertion of Redpath, a subordinate agent to the other defendant. There is no ground to allow the plaintiff damages for the loss of tavern keeping, where non constat that he would get a license. The Chief Justice. — This is a case of consider- able importance, from the nature of the defence ; not properly the defence made out by evidence at the trial, for the defendants called no witnesses ; but the defence which has been adduced in the affidavits produced on the argument for a new trial. This defence has been grounded on the act of this prov- ince, commonly called the Rideau Canal act, which confers on the persons employed in constructing the Rideau Canal certain powers and privileges. Under these powers and privileges the defendants claim to be protected against this verdict, and it is equally necessary for the public service, and for the peace and interests of individuals, that any legal questions likely to arise upon the extent and application of the act alluded to, should be speedily and clearly set- tled. The Rideau Canal is a public work of great im- portance to the province in several points of view, 72 HILARY TEEM, 10 GEO. IV., 18S0. and that its accomplishment will confer immense advantages upon this country, there can be no doubt. Like other great and general benefits, how- ever, it cannot be attained but with some partial sacrifices — and, of necessity, private interests and convenience must, for the sake of such objects, be made to yield to the public welfare. It is so in all countries. It is the duty of the legislature, however, and without doubt it is their wish, to make such provisions upon these occasions as will secure to private rights all the protection that is consistent with the end in view. The statute now in question confers large and liberal powers, such as manifest, on the part of the legislature, the greatest confidence in the judgment and discretion of the public officers and agents to be employed. It may be, that the powers given by the act now under consideration, are unusually ex. tensive ; but I believe, upon a comparison of its provisions with those of acts passed for similar pur- poses, and even for less important purposes, both in these colonies and in Great Britaiji,' it will be found that they are, in no respect, unprecedented. It is evident that the legislature, when they cre- ate such powers to be us^d only for the public good, act upon the double assurance that there will be no disposition to abuse them, and that even if such a disposition should discover itself, there is inherent in the constitution a power to correct it. The language of the Eideau Canal act is so comprehensive as to afford great latitude to the court, in applying the ample protection it gives, according to the truth of HILAUT TERM, 10 GEO. IV., 1880. Y3 the case. I say, aocordiog to the truth of the case, for if indeed a mere pretence should be advanced, it omght not to toe suffered to succeed, and the law will take care that it shall not. In this case, the plain- tiff complains that the defendants committed a tres- pass on his close, and pulled down and destroyed the frame of a house that he had erected. He proves the acts that he complains of to have been committed, and defendants produce no witnesses ; but it appears from the testimony brought forward on the other side, that they are contractors on the Eideau Canal, and if any question can arise as to their right to pro- tection in that character, I have no hesitation in considering that whatever power is given to the Military Superintendent employed in constructing the work, is equally extended to them, as his servants or agents, and that whatever he could justify as ne- cessary for the service he is engaged in, they could equally justify, if done under his discretion and with his sanction. It would make no difference, in my opinion, whether they were labouTing under the su- perintendent, in a military department, or upon a contract. They are protected, when they shew that the act complained of was done under the authority contemplated by the statute, and was necessary for some of the purposes to which its provisions extend. But heue, in my judgment, the defendants have failed to prove any thing that might Cattish such a defence. It is true that since the trial, and upon the, motion before us, for setting aside the verdict, the defendants have read an aflBdavit of an engineer, upon the necessity of the act committed by the defendants ; but we cannot try the cause here, nor can we properly direct a new trial, in order that it It 74 HILARY TERM, 10 GEO. IV., 1830. may be decided upon this new evidence. In evidence of that nature the defence, if any could be urged, entirely consisted. None such was offered at the trial. There is no allegation of surprise, nor any reason given why the defendants were not prepared to justify their act before the jury. In all other cases the rule is, that a new trial shall not be granted in order to enable a party to give fresh evidence, which he ought to have given upon the first trial. If it were otherwise, there would be no end to liti- gation. The exceptions to this rule are so few, and under such circumstances, that they tend strongly to establish the rule. Law is administered upon general principles, and if, without some satisfactory reason, we should forbear to apply a well known rule here, w^ich is applied in other cases, we should act arbitrarily, and against authority. The only reason suggested is, that the case affects the public officers ; but I cannot, in the absence of all necessary proof, attach importance to that circumstance. In common cases, between party and party, ignorance or poverty may sometimes really have occasioned a defendant to omit evidence necessary to his defence ; but the very allegation that here the defendants' acts were done tinder higher authority than their own, implies that there was no such want of intelligence or means, as might sometimes be pleaded, though not effectually, by other defendants. Why the defendants did not take the necessary measures for bringing their de- fence properly before the jury, does not appear; but it may be gathered ^rom the argument at the bar that they relied upon the act for protecting them. But to have the benefit of that protection they should have shewn, if they could, that their conduct was HILABY TERM, 10 GEO. IV., 1830. 76 such as the act justifies ; they should have proved themselves within it; primd, facie, their act was a trespass. It was a forcible interference with another's right, and the proof of every fact necessary to justify such an interference, was incumbent upon them. There are numerous statutes which protect indivi- duals in the discharge of public duties. They all proceed upon the same principle, and, with respect to all of them, the party claiming protection in a suit at law, must make out his case, and not leave it to be conjectured by the jury. He cannot content him- self with merely proving that he was a public officer, and call upon the jury to presume that all he did was legal. It may, without consideration, appear a hardship to the officers employed on the Eideau Ca- nal, that they are exposed to be harassed with actions at law, and put to great trouble in vindicating acts which the law has authorised for the public good; but this is unavoidable, because, on the other hand, pri- vate rights must be protected; and this can only be done by providing that when an injury is complained of, there shall be a coln'plete investigation. Magis- trates, for instance, are acting gratuitously in the discharge of duties very important to the public, and in no way beneficial, but often disagreeable to them- selves; still they are liable to be harassed with actions, in which they must defend themselves by proving their acts to be legal. It is so also with path-masters, sheriffs, custom-house officers, and many others. It is not their public character alone, but their- conduct in that character, which constitutes their protection; and that conduct, therefore, must be shewn by them to be legal, whenever it is brought into question in a court of law. 76 HILARY TERM, 10 GEO. IV,, 1830. In thig case, the only particle of evidence that could make for the defendants, came out by an ad- mission of the plaintiff that a clerk of the defendants had written a letter declaring to the plaintiff that he would not be allowed to place his house where he afterwaj^ds did place it, the ground being required for the eanal. It is impossible to contend that this is any evidence; because if the mere assertion of a clerk of a. contrac- tor, that a piece of ground was necessary, is to be considered conclusive pr:^?ti^al^lp= mo- tive, and, althpugh th^, expressious used may have been spol^en in haste, or un^rexciitement, still it was properly left to the jury to pass an opinion upon the whole merits of ther transaction, as in evidence. They have found that tl^e defendan.t,s were actuated by improper iriotives, and that they transgressed the law. The testimony warranted such finding, and having so found, I dp not feel that we are at liberty to say they haVe dcted incorrectly. The verdict is right in law, and' though! less damages would doul[)t- less have redressed the plaintiff, yet I cannot declare that the jury have so fajf , exceeded in th^ discretion reposed in them,,as to warrant a new tml for. exces- sive damag'es. I^ think the rule nisi should be, dis- Pei' €ui^ilim^^^ii\'e nisi discharged, (a) RegUih GeneraUs. — Oj?der!ed'i that the fiTSt Friday, the second Monday, and' the second Wednesday in eveijy term, big paper diasys for the; argiiing. demur" i^ers, special eases, special Verdict^j or pbints, reserved; and that on those days'thftp&jperlistbe gone through before any other motion or business' is eifertained. tldward C. Campbell, IVfittei Hamilton Dickson, and Johfi Bogart, Esquires, wpre called to the bar;, and' sworn in this' term. ntU- ':''■'■ (o)'"Vide, 1 B. & 0. 163 ;. 2 B( & C. 768; 2 Bl. 1141." N [90] EASTER TERM, 11 GEO. IV., 1830. Present : The Hon. John Beverley Robinson, Chief Justice. " Levitts Peters Sherwood, Judge. " James Buchanan Macatjlay, Judge. ROWSELL V. HaRTWELL. A rule for payment of costs had been granted in this cause. The court, on the usual affidavit of the service of that rule and demand, made the rule for an attachment for non-payment absolute in the first instance. Howe et al. Newman bt al. This was an action of covenant, brought upon an agreement, by which, as it is stated in the declara- tion, the plaintiffs covenanted " that they would quarry and deliver, at or near the lime-kiln, on the lot of land occupied by Colonel Ferguson, adjoining the north easterly part of the town of Kingston, two hundred toises of stone for building the piers and abutments of an intended bridge over the great river Cataraqui, and that all the stone should be good sound quarried stone, subject to be inspected by the overseer of the Cataraqui Bridge Company; and that if any part of the said two hundred toises of stone should be condemned by the overseer, either as not sound or as not fit for the intended purpose, the same part so condemned should be replaced by the plain- tiffs, and at their own proper costs and charges. All EASJEE TERM, 11 GEO. IV., 1830. 91 of which said two hundred toises of stone were to be quarried and delivered, as before set forth, as fast as possible, and to be always ready when required for the said work." And the said defendants on their part covenanted, "that they would pay to the plain- tiffs the sum of 6s. 9d. for each and every toise of stone, that is to say, the sum of 6s. 9d. for every 216 feet, cubic measure, of stone, when laid in the wall, the said sum to be payable within oncrthird of the measurement as the said work should progress, and the residue on the fulfilment of the contract." And in conclusion, each party binds himself in a penalty of £200 to perform their part of the agreement. The plaintiffs then aver that although they have per- formed aU things incumbent upon them, according to the true intent of the agreement, and although they have well and truly quarried and delivered the said 200 toises of good sound quarried stone, near the said lime-kiln aforesaid, subject to be inspected, as in the said agreement is mentioned ; and although the said stone was always ready for the said work, &c.; yet protesting that the said defendants have not per- formed any thing on their part to be performed, the said plaintiffs aver that the defendants did not, nor did either of them pay, &c., to the plaintiffs the sum of 6s. 9d. for each and every toise of stone so quar- ried and delivered, as in the said agreement is men- tioned; that is to say, within one-third of the measure- ment of the said stone, as the said work did progress, and the residue of the said sum on the fulfilment of the said contract and delivery of the said stone, but on the contrary thereof, although the said contract hath been long, since fulfilled, and the said stone delivered as aforesaid, yet the defendants have not 92 EASTEK TilEM,' 11 OiEO. it., 1830. paid the said sum of 6s. 9d. in tiaaiiiier as aforesaid, for each and every toise of stone ^o delivered in manner as aforesaid, amounting in the whole to £^1 10s.; but to pay the same, or any pa-rt thereof, me said defendants have hitherto wholly refused, c6n- trary to the effect of the said agreement. 'In 'iEe second cdtint, the agre^taent is stated ill the saiine terms, and the plaintiffs aver, that a;ltho«^h ^hey have always been ready and willing to fulfil, &c., on their part, &c.; and although they have, in part per- ■ foi?mance 6f their covenant arid agreement, Well and truly iquatried and delivered for the defeM^ntS a large i}iili&^«b'WhWIy infused to pay to ttie platofiffs, in ^inann^r aS'tefegaM,^ the Said' sum of -es. •9ai f<3F!e!abh M every^toise of sbne so delivered^s aforesaid J liy 'Msori ^e^i^edf; 'the >la!ritiffs have beenariable to ^foi!rii'thfe saM^caveriant, and have *e'6n&p*^^teiaPftnM«'^te ^0 \^it, -i^Ve EASTER TERM, 11 GEO. IV., 1830. 93 toises of stOne, according to tHe said agreement. And so the plaintiffs say that the d^feh&nts have not ke^t their said covenant, but have broken the saine, &c. The agreement is afterwards set out on oyer; not varyiiig ffoin the statetodnt of it in the declaration ; non est factum, and four sp6cial jpleas were pleaded. The plaintiff^s took issue on the, two first special pleas, and demurred to the two last, and last terin this de- murrer was ' argued. The j adgment of the court was deferred until this term, and was given on the de- claration only. And the whole court were of Opinion, that the second count was not sustainable. For though the plaintiffs in that count do aver, that the 195 toises which they say they delivered, were laid in the wall, they do not claim, abcording to the >iiumber of toises of 216 cubic feet, as measured in the wall : nor do they aver how much the 1&5 toises so quarried and delivered measured when laid in the wall ; and they State therefore as a breach, that the defendants did not pay^s. 9s. for each toise of stone so delivered, as aforesaid; that is, delivered at the lime-kiln, which they never covenanted to dO. The want of a slate- raeht what tiie plaintiffs are entitled to claim, by m^surement in the wall, and stiH more that such a measurement has taken place are fa,tal objections to this count. As to the first count, the Chief Mistice and Sher- mod, 3., were of opinion, that it was also bad, 'for #ant 6f 'dh'ay6rm6irt that the stoiie'haid been l)aid in 94 EASTER TERM, 11 GEO. IV., 1830. the wall and measured there; hut Macaulay, J., thought that although the plaintiffs did not specially aver that the stone delivered by them was used in the work, still it might be fairly intended under the pleadings on this demurrer. That if it were not used in the work, much of what the plaintiffs affirm, and the defendants do not deny, would be untrue ; although the objection would be fatal on special demurrer. On the subsequent pleadings no, judgment was given, as the declaration was held bad by a majority of the court. Per Curiam. — (Diss. Macaulay, J.) Judgment for defendant. G-ARDNBR V. Stoddard. In covenant, when the plaintiff has a Terdict for £2 only, the court held he was not entitled to King's Bench costs. It is not necessaiy for the defen- dant to apply for leave to enter a suggestion to deprive the plaintiff of his King's Bench costs. The Solicitor-G-eneral had moved, last term, for an order on the master, to revise his taxation of costs in this cause, or for leave to enter a suggestion on the roll, that the case was of the proper competence of the district court, in order to deprive the plaintiff of King's Bench costs, under the stat. 58 G-eo. III., c. 4. The defendant had leased to the plaintiff a saw- mill, and defendant covenanted to put it in immediate repafr. This action was brought for not repairing, and the plaintiff had a verdict for £2 damages. No certificate was obtained or applied for, and the mas- ter had taxed full costs, under the authority of Mc- EASTER TERM, 11 GEO. IV., 1880. 95 Murray v. Orr. (a). The court took time to consider, and not agreeing, delivered their opinion sencr^m, as follows : Macaulay, J. — After final judgment no suggestion can be entered, and the question is, whether plaintiff can be restrained from taxing more than district court costs upon this record and verdict, or whether any su^estion be necessary of the facts which (exclusively of the verdict) shew the cause a proper one to have been brought in the district court. At the time when the 68 G-eo III. was passed, the district courts were constituted and held under the authority of 34 Geo. IIL, c. 3, and 37 G-eo. III., c. 6. These two sta- tutes were repealed by 2 Geo. lY., c. 2, 1822, which last act constitutes the district courts, with power to hold plea in all matters of contract, from 40s. to £15 ; and when the amount is liquidated, or ascertained by the act of the parties, or the nature of the transaction, to £40. Also in tort respecting per- sonal chattels, when the damages to be recovered shall not exceed £15, and the title to lands shall not be brought in question. The first question is — can covenant for damages be brought in a district court ? All matters of con- tract include contracts under seal, as well as simple contracts, and I should think both descriptions equally within the jurisdiction. Then is the 58 Geo. III., which was made to apply to the 34 «fc 37 Geo. III., to be extended to the 2 Geo. IV., which repealed them and constituted new district courts ? Assuming for the present that it is, the next question is, to what (a) Page 3. See Wheeler t. Sime, 3 U. C. Q. B. 265. 96 EASTER TERM, 11 GEO. IV., 1830, suits does 58,,C^eQ. IIL extend? Sopa^e- obscurity exists in thip use ; of the word withdrawn. I do not take it literally; liut merely to mean not institutejd, as if it were enacted, "unless the judge, &c., certir fied that the cause was a proper one to have bpen institUitedvintlje King's ]S,encli, and not in the dis- trict courti" It( seems to me, that it extends to all suits that might have been effectually carried on in the district courts, although commenced in the King's Bench, and to no others. Then the question arises, what is tl^e jurisdiction of thQse courts "^ Is it over all transitory actions, the defendant being within their jurisdiction; or local, oversuch causes of action merely as arise within the limits of; its jurisdiction ? If , , as I believe, generally over all: suits, depending only upon the residence of tlje defendant, then how is. th{s court to be informed tli^t the suit is of the compe- tence of the diatrijit; court,, and ,hoW' is the-derfe^ndant to avail himself of the provisions of the 5:8' Geo. HI., as to costs ? It seems to me, at present, that a suggestion is requisite unless it appear unequivocally on Jtl^fj^ re- cord ; and even then, I doubt whether some entry is not necessary in the natji-re of a suggestion. It' is obvious the King's Benq]^! has a^ concurrent^ jurisdic- tion, and a I case may, at msiprius, though not biefore, appear to,!be of the. comp^tenoe of the; district court. The judge of assize, if , moved in such a case, may certify, and there is. an end of tlie matter* and the plaintiff is entitled to full costs ; but; if the plaintiff has omitted to move, or should the certificate be refused, it would not appear, unless by the amount of the verdiet, that the suit was within the district EASETR TERM, ll GEO. IV., 1830. 97 qourt cognisance. Had it been intended that the verdict should regulate, why was it.notso expressed ? As thus, that suits which by the verdict rendered should appear to be of the proper competence, &c. ; or, suits in which the plaintiff shall not recover more than such sums, repeating the district court limits. It may, in the first place, be very doubtful whether a suit is of the proper competence or not ; for ex- ample — the cause of action may have occurred abroad, or in one district, defendant residing in another. When the question occurs, as to the origin of suits, over which these iiUferior courts have juris- diction, it may be very doubtful whether the title to land comes in question or not. In cases of doubt, a certificate would settle it ; but if the certificate should be refused it might be very importa,nt to have an adjudication of this court on the point. Again, as justifying resort to the King's Bench, admitting the district court jurisdiction, it might be urged that de- fendant contracted in one district and afterwards removed to another ; or, the sufficiency of the cause, in law, .might be questioned ; or, it might be alleged that witnesses resided in different districts, and such fact might be contested. It might be doubtful whether the facts establishing a daim to, £30 prove a liquidated demand or not. Indeed various points of law might arise, and various facts be contested in acting under the statute. Yet still the question re- mains, how are they to be disposed of? If the verdict is to regulate, the judge at nisiprius must hear, examine, and decide facts as well as law, un- less he is disposed to reserve any legal point for further consideration. But I do not perceive why the verdict should regulate, for it seems obvious to 98 EASTER TERM, 11 GEO. IV., 1830, me that the propriety of resorting to the King's Bench, does by no means generally depend upon the amount to be recovered, but upon various collateral circumstances. The verdict may be re- duced by set-o£F, from £100 to £5, yet it would not appear on the record. To ask a judge to certify that such a cause was a fit one to have been withdrawn from the district court, i.e., not brought into that court, would be inconsistent, if it were per- fectly apparent to the court that the plaintiff could not have effectually prosecuted and obtained his right there, if it were plain that the district court could not have jurisdiction over the matter. The act applies only to suits which might be brought in the district court, but which, for special reasons, were withheld and instituted here, and the judge of assize is required to exercise a discretion in such cases. In assumpsit, or tort, various defences under the general issue may .reduce the verdict from a primd, Jack claim far beyond, to a recovery much within the competence of the district court, in point of amount ; payment of money, into court— partial payments — accord and satisfaction to a certain amount a dis- pute how far the articles sold constitute necessaries recoverable from an infant — ^value — failure of evi- dence-^want of notice of dishonour, by which whole counts may fail— insufficient evidence to sustain some counts in other respects— conflicting testimony left to the jury, &c. In tort, trover for example, a re- turn of the chattels— opposing testimony as to value, &c. ; in short, a great variety of circumstances, in mitigation of the plaintiff's pvmcL facie case, might EASTER TEEM, 11 GEO. IV., 1830. 99 frequently weigh with the court or jury in reducing the amount to be recovered ; and as the act does not provide that the amount recovered is to be the cri- terion, but whether the case, being originally of the competence of the district court, was properly com- menced in the King's Bench, I do not think the con- clusion can be drawn from the verdict alone. I think the act only includes cases which by the plaiu- tiflf's own shewing, independent of the defence, were competent to the district court. If that appear con- clusively on the record, it is sufficient ; if not, it should be suggested. If it appear at nisi prius, the judge may certify or not, in his discretion. If in doubt, and willing to give costs, a certificate would end the matter ; but if in doubt, and not willing to give costs, the facts as elicited at the trial being sug- gested without leave to traverse, (but with permission to demur,) would bring the question before the whole court. It is questiouable what considerations are to be entertained in determining whether a suit is proper to be withdrawn from the district court ; that is, whether the merits of the case itself, as respects the intricacy of legal questions, &c., ought not alone to be regarded ; or whether extraneous facts — as the residence of the parties — the witnesses, &c., — ought to be admitted. Upon this subject I forbear ex- pressing any particular opinion, though I incline to think extraneous facts ought rather to be rejected than received. A contrary practice has, however, hitherto obtained, and perhaps the act requires amendment on this head. Bearing in mind that the district courts are courts of inferior and of local jurisdiction, I would enquire 100 EASTEE TERM, 11 GEO. IV., 1880. into the English practice in analagous cases. The right to costs, given by the statute of Grioucester, was first restrained by 43 Eliz. c. 6. The 3 Jac. 1, c. 15, makes a further exception in favour of citizens or freemen of London residing within the liberties thereof, when the debt to be recovered by the plain- tiff shall not amount to 40s. This act is extended by various subsequent enactments. The mode of taking advantage of these acts is by plea, suggestion, or motion. If the bringing a suit be absolutely prohibited, it may be pleaded ; otherwise the more proper mode seems to be an application to the court, by affidavit, for leave to enter a suggestion of the facts necessary to entitle the applicant to the benefit, which may be traversed or demurred to. There are various cases on the subject. — Str. 46, which case has been overruled by 2 H. Bl. 364, and 9 East. 322 ; Str. 50, 974, 1120, 1191 ; 2 Wils. 68 ; 3 Wils. 48 ; Barnes 354, 470 ; Sayer 273 ; 8 East. 239 ; 4 M. & S. 171 ; 1 Chit. Rep. 636, n. ; 1 Bing. 100 ; 5 Taunt. 36 ; 2 Taunt. 169 ; 1 Taunt. 397 ; 5 Taunt. 820; 3 M. & S. 591. As to the mode of entry, it might be alleged simply that it appeared to the court that the case was of the proper competence of the district court, or by the report of the evidence at the trial, which, being received under oath, is equivalent to an affidavit. Such a suggestion not being a fact, but a legal result from facts, could not be traversed. The facts themselves might be entered with a view to a demurrer, but not a traverse, after the same had been proved at nisiprius. — Cases Temp. Hardw. 126. The present is an action of covenant. — Breaches are suggested, by which it appears that the plaintiff goes EASTEB TE6m, 11 GEO. IV., 1880. lOl for unliquidated damages. The defendant does not deny the breach, but denies the covenant. The issue is upon non est factum of a deed involving in- terests on the face of it, liable to exceed the juris- diction in the contemplation of the parties ; and how can it be inferred from the amount of damages assessed, which are collateral to the issue, that a suit in which such issue was to be tried, was com- petent to the district court, or how could it be fore- seen what the issue would be ? The case is surely primcL facie, properly commenced in the King's Bench. The defendant denied his deed ; this is found against him. What evidence was received on either side, in support or in reduction of damages, we know not. Plaintiff may have given primd, facie evidence of much more than was recovered. Various mitigating circumstances may have been offered. There may have been much conflicting evidence as to the amount, and it may in fact be true, for all that appears, that the district court could not have dealt with the case. I cannot infer, that because the damages are only £2, therefore it was a case competent to the inferior court. I should desire to know the fact, in evidence, and the testimony ad- duced, to enable me to determine that question.' If it appeared to be so, I would approve of a sugges- tion to that effect ; but in the absence of any such suggestion, I do not think that the defendant is en- titled to reduce the plaintiff's, or to be allowed his own costs in taxation. Chief Justice.— ^This is an action of covenant, brought upon an agreement, by a tenant against; his landlord, for not putting premises in repair. The 102 EASTER TERM, 11 GEO; IV., 1830. claim for damages is left perfectly open by the agree- ment ; they are laid in the declaration at £500. On non est factum pleaded, the parties go to trial, and a verdict is rendered for the plaintiff, with £2 damages. Judgment is entered on this verdict in the vacation after last Michaelmas Term ; the master taxing King's Bench costs ; and now the defendant moves to revise taxation, in order that the plaintiff may be restrained to district court costs, under the provincial statute ; and he also prays liberty to enter a suggestion that the cause was within the jurisdic- tion of the district court ; conceiving, I suppose, that such a suggestion may be necessary, to entitle him to the benefit of the statute referred to. Though, as between the parties, this question merely involves the value of the difference of King's Bench and dis- trict court costs in this particular suit, the decision upon it is of considerable importance, if it is to settle the proper method of giving effect to the statute 58 G-eo. III. It is many years since that act was passed, and one would imagine, that the consequences of its provisions must have been so far ascertained and established by this time, as to have led to an under- stood practice under it.^But there seems to be doubts as to the real intention and sound construction of the act, and it is of consequence that they should be removed. It was suggested, when this cause was first men- tioned, that in construing the statute, attention must be paid to the words "fit cause to be withdrawn," , &c., and that those words seemed to restrain the application of the statute to such cases as, by the statement of the cause of action set forth in the EASTER TEEM, 11 GEO. IV., 1830. • 103 declaration, appeared to be such as the district court could have entertained ; because, it is argued, the judge could not certify with respect to any cause, that it was a fit cause to be withdrawn from the district court, when, by the record, it appears mani- festly that the cause was such as never could have been brought in that court. The judge consequently, it may be argued, cannot give such a certificate, whatever the cause of action might in fact be. * Upon consideration, I do not feel this diflBculty. I cannot suppose that the legislature meant by the term "withdrawn," as it is used here, a taking" from the district court suits that had actually been com- menced there ; because they doubtless knew, that such an expression would, in that sense, have been inapplicable to the course of proceeding : the word withdrawn is, I think, inappropriate. The intention of the act would have been better expressed by the term withheld from, than withdrawn from, the dis- trict court, and that is the meaning which I attach to it ; as if the legislature in other words required the certificate to be, that the cause was not a fit cause to be instituted in the district court. Then if no difficulty arises from the peculiar ex- pression "withdrawn," (and I think none does,) the statute is very similar in its intention to many that have been passed in England, for confining small causes to inferior courts ; and having considered the cases, of which there are many decided upon those statutes, and keeping them in view as far as they are applicable, I do not perceive a difficulty in giving to the statute the effect which the legislature intended. 104 EASTER TERM, 11 GEO. IV., 1830, Iq the first [place, to use the words of the statute, is this action " of the proper competence of the dis- trict court?" This question, I conceive, is now to be answered upon a full view of the case in this stiage — «'.«., after the verdict — when the evidence has disclosed the true circumstances of it, and the jury have reduced all doubtful facts to legal certainty. Knowing what is now known of this action, I am of opinion that in the first place, so far as amount is to be considered, it was within the proper compe- tence of the district court. In an action of covenant, unliqnidated damages may be recovered in that court, to £15. Here the jury have given £2 ; that ascertains that the damage to be recovered in this action did not exceed two pounds. It is true the plaintiff has laid his damages at £500, a sum far beyond what he could have recovered in the district court ; biit that is his assertion merely. It affords neither proof nor argument of the amount of dam- ages. He may have estimated his damages sincerely, at a large suin, or he may not, and his having laid them at £500 does not prove that in this action he could not have recovered in the district court his real damage, now ascertained to be only £2 ; but simply that he could not have recovered there, upon this declaration. The real cause of action, and the cause of action which the plaintiff chooses to state, are very different things. The statement of damages is not a traversable allegation. If the deed set out shewed that the inferior court could not determine upon it without exceeding its jurisdiction, the case would be different ; but here is no such difficulty. In England, when a debt is sued for, and the de- fendant's attdmey' makes oath that it is under 40s., EASTER TERM, II GEO. IV., 1830. 105 and this is not denied by the plaintiff, the allegation is entertained against the record, and the court stay the proceedings. So they do when the same fact appears upon the admission of the party. 4 T. R. 495 ; and 5 T. R. 64 ; and many other cases shew that the court of King's Bench receive proof of the true debt or damage to be recovered, in opposition to the allegation on the record, and upon ascertain- ing that the amount is really so small as to make it beneath the dignity of the court to entertain the suit, they stay the proceedings. Then, surely, in oMer to give effect to this statute, which in its na- ture is remedial, the coiirt must take the record and vei-dict together ,• and it caniiot be said that the finding of a jury is less satisfactory evidence of the true aniount to be recovered, than the affidavit of the defendant, though uncontradicted. The plaintiff's recovery is pot secundum alegata only, but secundum alkgaia et probata, 2kn6: it cannot therefore be left to himself to measure his own damages and entitle himself to the superior jurisdiction, by his mere statement of the' cause of action. Then if his laying his damages at £500 does not exclude the application of the statute, when they have been found to amount to no more than £2, what other reason is there why the plaintiff in this cause should not be confined to district court costs, having obtained no certificate, such as the statute directs ? I find no reason on the record., I see nothing in the statement of the agreement and the breach, that would take it out of the ; cognizance of the district court, and there is no reason why an action of cove- nant, in particular, should be e_xempted from the 10 6 lASTEB TERM, Jl , QM. IV., 1880. operation of the statUite. TJiera bare been easask ia England, and in tl^is praviace; iiii, w^biein the judges have considered actions of covenant fso frivoloas that they have certiied underr the, 43 ELk., whiea. tjfe damages were small, so as t© dep^^?e the plaintiff; of his costs. But then it maybe said that although there is no reason apparent on the record, why the: action ought to have been brought in the Riug's. Bendi, there may have been good reasons arising from Da^at- ters dehors^ the record; undoubtedly! there may have been ; and hence, in my opiniion^ arises the neceasity for the certificate which the statute authorises tiae judge to give. There may have been diflSculty in the case» or difficulty in bringing the defendantanto court, or in compelling the -attend9,ne^ of; witnesses from other districts, all furnishing good claim to the certificate. The plaintiff, however, has- moved for no certificate,, aud therefrom I infer thai he hadnone of these grounds fbr moving. The case, consequ^Jy, comes before the court upon a verdict of £.2, without certificate, and why is. not the statute to have its effect ? I see no reason. The officer, however, has taxed King's Bench costs, and to be relieved from them, the defendant prays^ to have the taxation revised. In my opinion it ougM to be. But then it has been eoijeeived that perhaps it sug- gestion is necessary in- order to give the defendiant the benefit of the- aet. It is plain^ no suggestion, can be entered after final jadgmeat-.^^ H; Bl. 352^ be- cause the record must be still open, the suggestion being traversable as to facts stated, and it may- be demurred tOr Bat if 'thie parties were still befoE© the court, the neoessify fer a suggestion doeg not strike EASTER TEEM, 11 om 'W,» 1880. 1 07 me. Iq tire nuttiermis easfes In wMeh s«i^6Bti6i»s h^ve been adtoitted to be enfferfed, for the purpfitee of giving defbnda/nteadi?dnfe«p of the eouft of eofl9di6ii*S6 aets. the necessity of b,rBUg|e§ti»h Is apjjarfeht. Those acts expressly state that 'thte inferibf eottrt 'hus jilf ig- diction wheh both partieB -i-eside within the county, abd in some of them, Uh^f eitfcunifetanees'are i^feqhifed tofgi-ve Juri^ietion. Theifete 'l^dts 'ape fiot appiarebt on the record, nof ascern5 these are 'mere Lprttcticalliaeonveni^nces, whidh, when "they occur, prei/'ebt the plairftiff froiii resorting to it, and when -they 'eat be sheWt to have eatisted, the|ilaintiff rirgesth^m at1he#ial, dr imfme* diately after, as his i'feasorts -for pteftiitiag the higher coui?t, and be obtainis his -eertiiojtte and fdll costs. He has but to be vigilant and ilDt to omit -to ask it. The fitcts are stated in thfe ,pre&en©e of both |)aMi€!s, 108 EASTER TEEM, 11 GEO. IV., 1830. and before a judge who has heard the merits. They can be discussed and determined at the trial with little trouble or expense, and it was then, that in my opinion, the legislature intended the point to be settled, and it is then that I have seen it settled in ordinary practice, since the passing of the statute ; and I do not see what the defendant has to suggest, or why he need be put to the expense of suggesting any thing. The cause of action and the ascertained amount constitute his case, and the plaintiff is to meet it by applying for a certificate at the trial. If he does not, the of&cer ought not, I think, to tax King's Bench costs. It may be said, that actions of covenant are in their nature proper for the cogni- zance of the King's Bench, and that it is unwise to force them into the inferior jurisdiction ; but they are unquestionably " of the proper competence of the district court;" and since the legislature has made the provision in question, we must give it the effect they intended. Doug. 246, Str. 46, 974, 1120, and 1 Ea. 352, are cases which have appeared to me clearly to point out, that suggestions were in those cases required, for reasons having no applica- tion here. It does not strike me that it is repugnant or insensible to require the judge to certify, in a case when the small amount of damages is occasioned by a large set-off, or by any other fact which, when disclosed, shews that the cause could not have been instituted in the inferior jurisdiction. That is pre- cisely what, in my opinion, the legislature meant should induce him to certify. This certificate is not wanted for his information ; it is the mode in which he is to convey to the court above, the information which he, and not they, have had an opportunity EASTER TERM, 11 GEO. IV., 1830. 109 of acquiring. His finding it clear that the cause could not have been brought in the district court, is surely no reason why he should not, and need not certify. It is simply his warrant for certifying. Sherwood, J., fully concurred with the Chief Justice. Per Curiam. — (Diss. Macaulat, J.) Rule granted. Ingraham v. Cunningham. In trespass de bonis aaporiatis an affidavit stating that defendant took pos- session of plaintiff's goods, and still keeps possession thereof, held sufficient to warrant an order to hold to bail. An application had been made to Macaulay, J., at chambers, for an order to hold the defendant to bail, in an action of trespass. At his request, and in order to settle the practice as to what an affidavit for such purpose should contain, it was moved by Draper, on an affidavit made by the plaintiff, setting forth that the defendant broke into plaintiff's dwel- ling house, and by force expelled him therefrom, and took possession of plaintiff's goods, to the value of £100, and still keeps possession thereof ; stating also generally, that defendant, at the same time, as- saulted and beat plaintiff. Chief Justice. — By the forms in use in England it seems, that in an action of trover no special state- ment is required ; biit arrest in actions of trespass seems to be very rare. If the taking possession of the goods were not sworn to, and the matter de- pended on the trespass to the person, I should think a more special affidavit necessary. But I see no 110 EASTER '9HEEM, 11 GEO. iV., 1830. material dififerfence ibetweem trover and trespass de bonis aspMntis. In either case the verdict would be ' r^ulated 'by th^ value > of 'the goods, Sherwood, J. — I should think this affidavit in- sufficient 'to wai-Wtit an arfCst for the aSisatilt' only. The forms require a much more particular statement. But for taking and keeping the goods t tbink this sufficient, as it is not to be presumed that defendant had a just cause for so doing. Macaulat, J. — In deference to the usual practice, I shall not object to ihe order going. I do not think the legislature inteiided tO ietiebu!fa;gie arrests, but left it to'the discretion Of'the judge 't6 decide ^Whether the case, afe disclosed, WaSr^'aWtfea such'fe prbeeeflii^. This disijretion cfen only be eKfer<5iSed Whefffe 'the facts are ifully'tttidceiftatiiily set fol-th in the affidavit. In 1 MMi. Pt. it fis Mid, "lb trespass defendant is Hot to be yia^n to bail, except on judge's order, in caseis bf'^epy tiolent ^nd cruel 'assaults." ft is in the diSCretibn of 'the court or judge, if the cause Of action be atteTided Wife li^PaVtited iJircttiiSTtahdilB, and it -is apparent the 'dafliapfeiwlM ^S^ccfeiJ JtlO. This, howwer, -is daly dotfe ^hbisg gooi cause is shewn, and upon an affidavit bf fa^lS. i Sell. W^. 36, Sid 307, 189. In 1 Mod. 2 and 6 Mod. 230, bail was dienied, ffhot^h 'in tgrbss balteJPies. In the note iilo Archbold's fotms -p. 14, jt-fenaid, " In affidavits of this deScriptioii, it is ihefely t«- quisite to ■■state the facts of the case specially as they really are, with certainty and precisibB, and Ihrft the facts so stated drscioHe a case B'tiffidieat to warrant BASETR 5>ERM, 11 GEO.. IV'., 1830. HI the judge ■ in , majlsmgi the order ■ required." I, think the ciroumstanoes should i Tim stated i as fiilly here as in Englauid, and the apppebension of departure from the province should ' even be more sitrongly; asserted, thaia in an aoition of assumpsit^ bjv disclosing) the grounds of 'the plaintiff's apprehension. Ord^ar te arrest *?r.*felOQ grant§^< McDouGALL V. Young. Iii,d«|b(:09.^oi^c^QQnf]v(i|()ned>for t])QP»};^;nt of, rent, a plea "-that before the rent became due, plaintiff assigned the premises to A. B., to whom 4^^(Jant ^fter-ward^ip^Vl tbe TentJ'"A;,2^good qn deji|iui;rer. Debt on bond, conditioned for the payment on gi'veB' days of th« rent of certain premises^ Itesed by plaintiff ta defendant, Breaeh, that the rent 'was not paid &c. Pl6aS"lst*-tbat plaintiff; befiSiPe th«breadi of the condition declared on, and 'before any rent be- camo due, soM the premisest in^question to another person. 2nd. A suprendep of tfe lease,' under which defendant held. 3rd.- That only one pay meat has becom^e-duey belbre which, plain tiff !assign«d the ppe- mises to another person, and that when SBcfe pay- ment became due, defendant paid it to the assignee. To these pleas the plaintiff demurred'. Judgment was-given on the last plea only. S'iliditor -General. —^ItL o-rder- to support the third' plea/,, the defendjini shoijld have shewn thiat the assignment on which he relies was in writing ; otherwise- it could take no «ffectv apd the. payment he pleads- would be perfeotly nag^toisy. Or he shoul4 have -plliBaded/ that on the^ assignment being 112 EASTER TERM, 11 GEO. IV., 1830. made, he attorned to the assignee ; for without this, the statement is incomplete, and does not constitute a legal defence. But independently of this, it is not competent to a lessee to dispute or deny the title of him under whom he went into possession. This plea is tantamount to nil habuit in tenementis, which would not be sustainable in such a case ; 5 T. E. 5 No- thing can discha.rge the tenant from payment but an eviction. E[e cannot set up the title of a mortgagee against the mortgagor, 1 T. E. 760, (n. a.) 3 T. E. 441, 7 T. E. 635. Spragge, contra. — The relit is incident to the re- version, and the tenant is entitled to it without attornment ; 1 Woodf. 206, '403. And although a defendant is estopped from denying his landlord's title, at the time of the demise, he is not estopped from shewing, that during the demise that title ex- pired ; 4 T. E. 682, 3 M. & S. 516, 8 T. E. 487, 2 Wills. 143, 3 Saund. 418, (n. 1.) If lessor grant his reversion, he cannot have debt for the rent, but his grantee may ; Bsp. N, P. 202. In this case, pay- ment to the grantee is pleaded, which is admitted by the demurrer. Chief Justice. — The third plea is clearly sus- tainable, and the defendant is therefore entitled to judgment without adverting to the other pleas. The condition of the bond is, that the defendant will pay the rent at four quarterly periods to the plaintiff, (the lessor,) his heirs or assigns. Defendant pleads that only one payment has fallen due ; that before it became due, plaintiff assigned the premises to one Joseph McDougall, and that when the first payment EASTER TERM, 11 CffiO. W., 1830. 113 became due, he paid it to th^ assignee. By law, the assigflee in sudi a case, would be entitled to the rent, the contract being entire, and no part falling due until after the plaintiff has p9,rted with i]\e re- version ; and it is consistent with the express con- dition of the bond decl^jC^ on, that the payment should be naade to his iassignee. The bond is not therefore forfeited ; pro. Ga,r. 188, Co. Lit. 152, a. By statute, an apportionment of the rent, as to time, is provided for in some caSes ; buit not upon an assignment of the reversion, and the whole rent was, in this case, properly paid to the assignee. Sherwood, J., and Macatjla,t, J., concurred. Per Curiam. — Judgment against the demurrer. Bbnham v. Shaw. In Michaelmas Term last, a rule nisi for judgment, as in case of a nonsuit, had been granted in this cause, for Jiqt .going to trial at the preceding assizes, pursuajnt to notice ; which rulejsfas discharged at the instance of tlie plaintiff, on ,the -term.s of his paying the costs and entering into a peremptory iinderta,k- ing, to go to tri«?l at i^e next assizes. — Apd the coijirt noyr, on pwtjon of K^, JWade tlve original rule absolute in the firpt instance, on the ground that .the plaintiff's owji laches had deprived ^im of the oppor- tunity of discharging the rule, (a) .^ule labso^ute. (o) See C. L. P. Act, 1850, 'sec. 151 ; Consol. Stat., U. C.,'ch. 22, sec. 227. 114 easter teem, 11 geo. iv., 1830. The King v. The Justices of Newcastle. A writ of certiorari will lie to remoTe orders of sesBionB relating to the ex- penditure of district rates and assessments ; and the Attorney-General, on behalf of the Crown, has a right to have it issued. The Attorney-General, on behalf of the Crown, applied for a writ of certiorari to remove all orders, rates, assessments, accounts, &c., had before the justices of the district of Newcastle, since the 1st of January, 1829, touching, or in any wise concerning the erection of any building as a new gaol or court house, within the said district, &c. Argued — that all orders respecting building a new gaol affect the public money of the district, and the King is inter- ested in its being legally expended. A certiorari is the first step to bring up the proceedings to see if they are right or wrong. — 4 Burr. 2458. There are many instances of removing orders of sessions, even when parties are concluded by statute ; for the Crown is not affected, unless particularly mentioned. — Ld. Eaym. 580 ; 5 T. E. 279 ; Doug. 116. The court would not, perhaps, interfere in any order, the sub- ject matter of which is left to the discretion of the justices ; but when they have no authority, the court clearly will control them. As this application is on behalf of the Crown, no notice is necessary. The general principle is, that whenever the Crown thinks necessary, it can remove proceedings, because that is the first step the Crown takes to litigate its rights. —1 Ba. 303; 4 M. & S. 447 ; 2 T. R. 89 ; 4 T. R. 691, 161 ; 2 M. & S. 321 ; 2 Ea. 244 ; 15 Ba. 333. After taking time to consider, the opinion of the court was delivered by the Chief Justice. — This application, with reference EASTER TERM, 11 GEO. IV., 1830. 115 to the nature of the order sought to be removed, is somewhat new in this province, though not abso- lutely without precedent. It is an important case, and we have so considered it. We have been made aware, from statements in argument, that great in- conveniences might follow our decision, whether we awarded or denied the writ.(o) Upon full examina- tion we have felt ourselves compelled to grant the certiorari. If the application were made otherwise than by the Attorney-General, and professedly on the part of the Crown, we should require to be satisfied that those statutory provisions had been complied with, which declare that no order of sessions shall be removed by certiorari, unless the writ be applied for within six months from the order being made, and unless six days' notice of the intended application be given to the justices, that they may be prepared to resist the motion in the first instance. But it is the King who applies for it, through his proper officer, professedly on public grounds, and in order to restrain a proceeding which, it is alleged, is illegal. This wholly changes the nature of the application, and our duty upon it appears to be plain and im- perative. The first consideration is, whether the order of sessions which the Crown desires to remove into this court is a proceeding of that nature that we can properly examine it here, in order to determine its legality. If it be of. that nature, then it is clear that upon the motion of the Attorney-General, it ought to be removed, in order that its legality may be discussed and settled. The cases upon this head (a) Draper had, on a former day, moved for the certiorari on behalf of private persons, and produced affidavits setting out the facts of the case at length. Bat the court denied the application, as being made too late, and -without the proper notice having been given to the magistrates: n 6 EASTER TERM, 11 GEO. IV., 1830. convince us that the order is one that is examinable here. There is, indeed, a case in Caldecot 309, in which Mr. Justice Buller expresses himself in a man- ner that would lead us to doubt whether, in his opinion, an order, such as the present, could be re- moved by certiorari; but the note of the case is short and unsatisfactory ; the decision does not stand upon the footing of a solemn adjudication of the court upon the question ; a,nd if it did, it is quite irreconcilable with other cases, decided after solemn argument, and in which the judgment of Mr. Justice Buller is en- tirely at variance with the opinion ascribed to him in the note of the case in Caldecot. Upon the authority of the cases in 1 Salk. 146 ; 1 Ld. Eaym. 580 ; 1 Str. 391 ; Burr. 2458 ; 5 T. R. 279 ; Doug. 116 ; 4 T. E. 591 ; and others, — we have no doubt that this is a case in which,; upon general principles, a certiorari may be awarded. Then, as to the want of six days' notice of application, and the lapse of six months after making the order — in any other ease than upon an application by the Attormey^Gene- ral, on the part of the Crown, the certiorari must be withheld on both these grounds ; but it is clear that these restrictions do not bind the Crown. Besides the well known general rule of law in this respect, in the case in 1 Ea. 304, there is an express autho- rity cited to the effect, at the end of the case. We abst-ain, at present, from all remark upon the legality of the order, or the proceedings of the jus- tices ; reserving the consideration of that question until both parties are before us. The time that has elapsed since the order was made, and the much gireater inconvenience that may ensue ffoin an inter- EASTER TERM, 11 GEO. IV., 1830. 117 fevence in this stage, than upon an earlier application, would have presented great obstacles^ if the matter were before us on another footing ; but these con- siderations rest with the Crown, who thus interferes by its officer, and not with the court. Certiorari granted. Dickson v. Crooks. FostAge on a letter carried by utiitnd navigation, froin one post town to anqther, most be charged according to the distance the letter is actually carried, and not according to the distance by the post road between the two places. Assumpsit for money had and received, brought against the defendant as deputy postmaster for the town of Niagara, A verdict was taken by consent for the plaintiff for 7d,, subject to the opinion of the court upon points reserved. The facts of the case were in sabstance as foUows : — York and Niagara are two post towns in this province, situate upon opposite sides of lake Ontario, There is a public road between the two places, leading round the head of the lake, whidi is practicable at all times, and by which road the mail is sent regolarly throughout the year, the disfepjice aiGoordiug to the mail route being 110 miles. Bj water, the distance between the two places is only 35 miles, and ej^cept during the winter months, when the navigation is closed, there are schooners and steamboats passing and repassing, and among them a steamboat caJled the Canada, on board which is a box for letters, kept and placed by order of the Postma^r-Gpejaeral, who has directed his deputies, and ilm defendant in pa»rtipular,, to make th^t arrasig^ment. X^etters put io^to the post office 118 EASTER TERM, 11 GEO. IV., 1830. at either place, directed to the other, would, accord- ing to the ordinary course of the post, be sent by land and not by the boat ; the latter mode of con- veyance being an accommodation offered to such persons as choose to take advantage of it by placing their letters in the box kept in the boat ; which let- ters, on the arrival of the steamboat, are taken to the post ofi&ce, and from thence distributed in the same manner as if they had been conveyed by the ordinary land route. The captain of the steamboat is paid by the deputy postmaster at the rate of 2d. for each letter conveyed by him and delivered into the office upon his arrival. The Postmaster-G-eneral has directed the same rate of postage to be charged upon letters so conveyed as if they had been carried by the post on the land route between the two places : the differerce of the distance, one route being 35 miles and the other 110, was admitted. A corres- pondent of the plaintiff being aware of all these facts, put into the box on board of the steamboat Canada, at York, a single letter directed to the plaintiff at Niagara; he did not take it to the post office at York, but took it himself to the boat. The plaintiff received this letter from the post office at Niagara, and a charge of 7d. being exacted upon it, he paid it to the defendant; but contending that such a charge is illegal, he brought this action to recover it back, and a verdict was rendered for him by consent, with 7d. damages ; subject to the opinion of the court upon the question, whether the defendant, as a deputy postmaster, had a right to exact the same rate upon a letter, conveyed in the manner described, by the steamboat from York to Niagara, as upon a letter conveyed by post on the land road. If he EASTER TERM, 11 GEO. IV., 1830. 119 had that right, then the verdict to be entered for* defendant. If the defendant had not a right to charge the same rate, but might legally charge a rate propor- tioned to the distance of thirty-five miles, according to the general scale of charge prescribed by law, then the plaintiff to be at liberty to enter a judgment for 2 ad. damages. If the defendant had not a right to make any charge of postage upon a letter so conveyed, then verdict to be for plaintiff, with 7d. damages. This case was argued in Hilary Term last, by the Solicitor-General for the plaintiff, and the Attorney- General for the defendant — and the opinion of the court was delivered this term by the Chief JasTiOE.---This is a case of some importance, as it involves a question of very general interest. We do not think it necessary to enter particularly into many considerations which may be very reason- ably urged on the part of the post office department, or to examine the deductions that may be drawn from them, because in our yiew of the case, the question lies in a narrow compass, and we do not consider ourselves at liberty to enter into any other consecration, than the right to impose the rate which ha^ been acknowledged in this case to have been exacted. The English adjudged cases, upon points relating to the post office, are not numerous. Those in Cowp. 182, 754 ; 3 Wils. 443, & Burr. 2149, 2709, and 2711, are the principal They do 120 EASTER TEEM, 11 GEO. IV,, 1880. ■BOt meet the circumstonces of tfeis case, \mt Ifeey are nevertheless decisive of the present qvtesstwa. ; because they recognise the application to this par- ticular department of the public service, of a general principle of law, which we are of opinion must govern in this and in all similai" cases ; which prin- cijile is, that tjfeaT legal aattority must be Shown for a rate exacted from ihe subject, the ratelseiag in the nature of a public imposition, and prcffessedly demanded under public authority for public pur- poses. "We are, therefore, to enquire whether the charge made in this case of 7d. for the conveyance of a letter 35 miles be warranted 'by any of the acts of parliament relating to the post office. If it be, there is no longer a question as to the right to exact it. If it be not, then we think it can stand on no other foundation, and the defence must necessarily fail, because, in the first place, we cannot loOk upon this question as raised upon a contract, express or im^ilied.i between the parties as individuals ; and, in the next place, it is not pretended that a regulation, inconsisteht with the acts of parliament, either has been made or could have been made "by any other authority. We ' have carefully examined the various acts relating to the post tffiee, and we find no pro- vision that in our opinion can be made to sustain the charge. Exceptor the purpose 6f illustrating the intention t>f some of the tlauses of 19 Ann, c, 10, and 5 '^deo. IIH., c. 25 ; no other statute neett, we think, be resorted to, in order to ascertain -the autho- rity for this charge. The most material general regulations respecting the post office still exist in ihe statute 9 Ann, and the scale of 6harge for the colonies whiiih that statute prescribed having been Faster term, il geo. iv., i83o. 1'21 superseded by tlie scale 'established by tfie 5 Geo. HI., those two statutes taken together, exhibit the footing upon which the (iepartmeht how rests in this colony. (The provisions of various Britisii s^atiites were here examined and commented upon by the Chief Justice.) For the inland cbuveyaiicie 'rif IfetterS, hb i-atie 'df chdrge can bd foUnd iri the stathtes, Except Siich as is pi-bportibned tb thfe distaiibe aloug wliich the lettet is coliVe'yed. Othei* tates bf pbsta^g, nbt hlbdelled l)y distaiice, are prfe^bi-ibed by vkribus ^i:aiiiteg,i)ut these arb expressly for the conveyance' bflett^r^ by sea, ahd, in every ihstatice, thb rates are decidedly less than those wHich at-e itit|)bsea accbrdihg to thfe distancb upbn ihe |)oSt i-bads by land, ^^esides the general prbvisibns on this head in the M ggc,,'o G-eo. III., thb 9th &e'c.,^ Ahnb, c. 10, 7 Geo. 111., b. 5b, 27 Geo. III., c. 9, contaih authority for bharges bii let- ters sent % sea; and the S^ G^6. 111., c. 76, is a statute pasgbd for the gbiiei*al rbgulation'o'f postage oh lettbrs conveyed in vessels hbt beiug j[)ogt-bfifiee packets, the pTbvisiohs bf A^liich, a^ \^ell ks of tlib others, seem to lis tttteriy itibbiisi^teiit with thb sup- jjositiori, that in this case bf a shbi-t tfatisii by water, between twb post tovi^iis, {te fatte of 7d. Ciuf be legally imposed. We do not find, in the seVbral ^taitiites which wfe have eiariiiried, that a disbi'etid'n is vested ih th^ Postmaster-General, of his di6|)tlti(Bs; to frairie a tki^ of charge between two pbst tbwhs, upbft sivty equiitfi- ble considerations bf circu^stanCel. In the Eibs^in'b'b of My exprbSs legislative |>ribvisi6n td the Cointifiary, ) 122 1 EASTER TERM, 11 GEO. IV., 1830. the actual port of the letter determines the charge. The 'discretion allowed in some cases by 41 Geo. Ill,, c. 7, sec. 5 , is for a different purpose and under dif- ferent circumstances. On the whole, we think it clear that a letter, con- veyed by the post from one post town to another, in this province, must necessarily be considered as having been conveyed by sea or by inland convey- ance. We do not consider it as having been carried by sea, although it has been conveyed by water, and df we did so consider it, we should then be compelled to decide that the rate would be limited to 4d., by the 5th G-eo. III. We regard it as having been car- ried by inland conveyance, and we consider that the rate is limited by the distance the letter has been carried ; that distance is admitted in this case to have been thirty-five miles, and it therefore becomes unne- cessary to consider the necessity of applying the cri- terion of actual measurement, which parliament may be thought to have indiscriminately required to be applied when the distance is in question. Whether even a rate proportioned to the distance may be im- posed, was another question made at the trial, and we have thought it necessary to give consideration to that poinjt.also; because it was contended that the letter, not having been put in the post ofi&ce, in the ordinary manner, no rate whatever could be legally exacted. We have not arrived at that conclusion, because we find it in several statutes contemplated, that collections of letters may be made by the Post- mastei'-General and his deputies, to be sent by vessels not belonging to the post office ; and because we find it no where enacted that letters shall be taken EASTER TEEM, 11 GEO. IV., 1830. 123 i' to the post office in the first instance. It is admitted in this case, that the Postmaster-G-eneral pays d Cer- tain charge for conveying the letters ; he therefore procures them to be carried, and ultimately they-are received and distributed by him or his deputy ;>nd a responsibility unquestionably rests with the depart- ment, from the time the letters are deposited in the box. Whatever, therefore, be the legal charge for car:?y- ing a letter thirty-five miles by inland conveyance, in this colony, that rate, and not more, we all think, ought to have been exacted in this case; and for the excess that has been charged, the plaintiff in this cause may enter up judgment, (a) Per Curiam. — Judgment for the plaintiff. Doe on the demise op McFarlanb v. Lindsay. The certificate of a commissioner for administering the oath of allegiance is evidence after his death, and that of the party taking it ; to prove it administered, as part of the transaction of a public ofScer, in the execu- tion of his duty. The 1st section of the Naturalization Act confirms the titles to real estates of such persons, who had taken the oath of allegiance and died before the passing of the law, so as to enable their grantees, as well as their children, to hold any real estate derived from them. Ejectment. — At the trial, a verdict was rendered for the plaintiff, with leave to defendant to move to set it aside, and enter a nonsuit on the following points — 1st. That it was not proved that John Gar- diner, under whom the lessor of the plaintiff claimed, and John Gardiner, who took the oath of allegiance, (a) According to the cases cited, to which may be added Jones v. Walker, Cowp. 024 ; Barnes v. Foley, 1 W. Bl. 643, and Rowning v. Goodchild, 2 W. BI. 906, a postmaster is iiound to deliver all letters to the several inhabi- tants within a post town or place, at their respective places of abode, at the rate of postage only as established by act of parliament. 124 B^^TEl^, TJEllltf. 11 X^ strictly formal,, EASTER TERM, 11 GEO. IV., 1830. lit if it h§id given to the legislature of this province, and to that branch of it whose powers are in qneatipn, the precise designations assigned by the Bj-itish statutes, which create ther|i. The term " parlia- ment," regarding merely the import of the wPfd, may perhaps be correctly applied in reference to the nature ajid functions of our legislature, as it is cer- tainly applied to councils of far inferior irappj^tance, and it is certain that the term has gypwn into use in this province, and has the direct sanction of many of thp acts of our legislature, but it would have been more technically proper, I think, on such an occasion as the present, to have preserved the precise namea assigned to our legislature q,nd its several branchea in pur written constitution— and in calling the re^ solutipns of the Assembly, which is but one branch of the legislature, the resolutions of parliament, as is ,dpne in one of the spepi^l pleas, there is certainly an inaccurapy which would have bee^ better avoided. The suljstantial defence, however, is before the court on this general demurrer, and it is hpon gene- ral principles of the law and constitution that the question has been argued. If, iu consequence of a similar commitment by th^ House of Commons, an action of trespass against the Speaker and a mem- ber of that House were dependiug iu the cpurt of King's Bench in England, it cannpt ppw be doubted for a moment, that it wPiJld not and pould not be sustained. Many authorities have settled that point conclusively, and whether the right to commit for such a cpntempt s>puld |)p questipiied upoB thu re:- turn of a habeas corpus, or q,a in the present case in an actipp of trespass, it is pert§,iB th&t the court pf King's Bench wpuld disclaim tfee. power, either to 148 EASTER TEEM, 11 GEO. IV., 1830. discharge the prisoner, or to examine into the par- ticulars of the alleged contempt, with the view of affording the party a remedy by action for his im- prisonment. They would decidedly hold, that for a contempt offered to the House in session, the offending party might be committed by order of the House. I cannot imagine that any distinction would be drawn between a contempt alleged to have been offered to a committee of the House, or a contempt offered to the House in a body, and I am convinced that when the House had resolved that refusing to answer questions proposed by a committee was a contempt of the House and a breach of their privi- leges, the court of King's Bench would not question the propriety of that decision. It is equally clear that no exception would be considered to lie to the warrant of commitment on account of the general nature of the charge, "that the party had otherwise misdemeaned himself before the committee." On the contrary, the court would disclaim, as they have always disclaimed, the power of enquiry into the particulars of the contempt — Ld. Raym. 1105 ; 1 Mod. 158. They would, therefore, hold it needless to specify a matter into which they could not examine, and as the charge that the party had "otherwise misdemeaned himself before the committee of the House " might include contempt of a very flagrant description, they would rather think it reasonable to infer that some such contempt had been commit- ted, than to presume that the House of Commons had gravely imputed an offence where none existed. The cases in 3 Wils. 190 ; and 14 Ea. 1, are most explicit and conclusive upon these points, and the judgment of Mr. J. Bailey, in the last case, shews in 'EASTER TERM, 11 GEO. IV., 1880. 149 very clear and strong terms how contrary it would be thought in England to reason and to law, that under such circumstances as are stated in this record the Speaker, who simply carried into effect the re- solution of the House, and much more an individual member, who merely voted upon it, should be held responsible as trespassers. It is unnecessary hero to reason upon the decisions adverted to, or the cases which are cited in them ; they establish nothing new with respect to the doctrines of contempt, either as applied to the House of Commons or the courts of justice, but the elaborate judgments of the court, and particularly of Lord Elknborough, in 14 Ea., are so full, and to my mihd so satisfactory, that notwith- standing the apparent danger of entrusting to any tribunal the power which is the subject of discussion, in these cases, the arguments proving its necessity seem to me unanswerable in every point of view. We are then driven to the question, whether there is, in the jurisdiction and constitution of this court, or in the nature ahd powers of the House of Assem- bly in this province, a sufficient reason for concludr ing, that in a case like the present, a control, which in England the court of King's Bench cannot exercise over the acts of the House of Commons, ought to be exercised by this court over the House of Assem- bly. Perhaps in favour of personal liberty, and considering the right to its enjoyment as a natural right, only to be abridged when the^autl^ority is manifest, the question ought rather to be reversed, and we should be held first to satisfy ourselves that the power exists to control this natural right. The' terms of the question, however, are immaterial, 160 EASTER TERM, 11 Q^O. IV., 1880. since the investigation must be the same. Ip a case then of conJ:ei](ipt, so clearly eiiid directly alleged on the pleadings, and resolved by the E[ouse, I cannot see upon what'sound principle the power of the As- sembly can be denied. If it were admitted that in Jlnglaqd the authority of the House of Commons to commit has, when questioned, been sustained by the courts, upon tljie ground of precedent and usage only, still it is msiterial to consider that this ^sage must have had a beginning, and that in the first in- stance, we must supppse the power to have been assumed, and acquiesced in irovd a conviction, that upon principle it might and ought fq be exercised. Although the precise era at which the House of Commons began to exist as a separate branch pf the great council of the nation is still a disputed point among historians and antiquaries, still a^ period is assigned by very general consent, which was long subsequent to the regular organisation of the great Oonimon Law Court of the Kingdopa, and th^ey mpst, therefore, have begun to exercise this power at a time when there was a tribunal to control them, if such control could in the nature of things come \yithiii the jurisdiction of that tribunal. But thp power of the Honse of Cojoamon^ to commit for ^ contempt has not been taken to rest wholly or even mainly oa the ground of precedent and immemoriaJl usage, and upon the imagination, or fiction built upon it, that an act conferring such a power must be presumed to have been passed, though the record can no longer be found. If it did in Bnglaiid rest on this ground exclusively, then it seems to me thg,!;, in prder to yiiidicate the assumption of such aft authority by the Assembly here, it Fou|d be nece§- EASTER TERM, 11 GEO. IV., 1830. 151 sary to rest the argument upon an adoption " of the laws of Eugland as the rule of decision in all matters of controversy relative to property and civil rights," and to reason thus. — 'By the law of England, the House of Commons, as one branch of parliament, may commit for contempt, therefore, as we have adopted the law of England, the House of Assembly of Upper Canada, as part of the legislature of Upper Canada, may legally exercise the same powers, without reference to the principles upon which such powers are assumed. 1 ani not prepared to say that upon that footing the argument can be maintained, and most of the objections, that in this case were very forcibly urged against the existencfe of the authority, have appeared to me to be appli- cable, only upon the supposition that it is endeavoured to be maintained simply upon the fact that we have adopted the laws of England. But the question is to be taken up on broader grounds, and I think upon the most convincing authoi-ity. In 14 Ea. Ld. EUenlorough expressly declares his opinion, "That independently of any precedents or recOgriised practice on the subject, such a body as the House of Commons must a priori be armed with a coiiipetent authority to enforce the free and independent exer- cise of its own proper functions, whatever those functions might be. On this ground it has been, I believe, very generally admitted in argument, that the House of Commons must be, and is authorised to remove any immediate obstructibns of its own proceedings." Then if, a priori, and independently of precedents, such a body as the House of Com- mons must be armed with an authority to commit foi- contempts, and thereby to remove any immediaite 152 EASTEE TERM, 11 GEO. IV., 1830. obstructions to its proceedings, I think the same power, for the same reasons, must be admitted to reside in the House of Assembly here : for that Assembly represents all the people in this province : it has, in conjunction with the other branches of the legislature, power to bind the lives, liberties, and estates of all the inhabitants of this country. Although the legislature of this colony is subordi- nate to the imperial parliament, it is the supreme power acting in this province ; its legislative autho- rity extends to the most important objects, and the instances in which it is restrained are, perhaps, not those of the greatest and most immediate conse- quence to the welfare of society. If a legislative body with such powers, and established for such pur- poses, had not also the power of giving effect to their consultations, by protecting themselves from insult, and removing obstructions from their proceedings, I am not certain that more injury than good might not be found to result from the constitution conferred upon us, and I cannot satisfy myself, upon any reasoning, that it is not as important for us as the people of England that our legislature should not be compelled to make laws in the dark, and that they should have power to enquire before they come to decide. When it is considered that this particular branch of the legislature is elective, and that the nature of its functions is such as occasionally and inevitably to raise up against its proceedings much excitement and opposition, and often much prejudice from various causes, it is obvious that it would soon become utterly helpless and contemptible, if it had not the power of deterring persons from menace. EA8TKB, TfRM, 11 GEO. IV., 1830. 15,3 ^efiai^ce, an^ insult, by the e^ert^oa pf such authority ^s ]^ cftijifided in all coijntries, ^n(3er our constitution, to the common courts. If once then it be established, that tl^ey may in such cases commit for contempt, th^n the law relating to all commitnients for con- tempts necessarily applies, and according to a series of authorities necessarily restrains us (rom interfer- ing in the present instance. It has beep contenc^ed that the contempt which is particularly specified, namely, the refusing to answer certain questions put by a select committee appointed tp enquire into the Hamilton outrage, and the alleged threatened relef^se of Francis Cpllins by force, could have been no cpntempt, inasmuch as the Assembly not having criminal jurisdiction or power to' try, or to enquire, were exercising functions that did not belong to them. Neither the premises nor the infer- ence can, I think, be admitted. How can we possibly know that the outrage spoken pf may not be con- ceived to lf3,ve implicated the pharaqt^y of one pf their own niepibers sp deeply, |;hat, for the honour pf the House, it was necessary tp relieve him frpm suspicion, or to expel him as unworthy. Again, the outrage and the threatened violence spoken of may havje been of a nature so sefipus as to jlemand sjtrong legislative ineapures, and surely it ^pijM be a very impepfect ponstitution that shoulci far^i^h those who liave tp act in such emergencies .w^th no authority tp acquire the necessary information. There is no occa- sipo for examining here intp tfip ipeans of conducting an impeachment in this province, but suppose for a moment tljig-t no sifch meps exist, jf tHp united repre- sentatives can)aojt th^refiarp bfing agr^at pu]t)lic offen- 154 EASTER TERM, 11 GEO. IV., 1830. der to justice in this province, there would seem to be very argent occasion for their representing to the King or to the imperial parliament the necessity of a remedy from another quarter. In making such representations, the assembly could not be said to be arrogating a criminal jurisdiction ; and if it be admitted that such representations are within the scope of their functions, which all usage would shew them to be, then there is certainly a rational object for enquiry, and a necessity for a power to punish such contempts as would obstruct its exercise. We can- not divine, and we ought not to presume to conjec- ture the specific object of such enquiry, much less can we entertain and act upon the presumption, that because such a powei" might be abused, it was there- fore in this case intended to abuse it. It is said that courts newly created cannot prescribe, and can there- fore have no other power than is expressed in their charter. The courts of Oyer and Terminer and Gen- eral Quarter Sessions in this province have their power defined by no act of our legislature, and yet I doubt not that upon the principle of reason and necessity they must be allowed powers to preserve and enforce their authority. Without discussing further the objections that have been or may be raised, I am on the whole of opinion that this action cannot be supported. I do not say, that because the British House of Commons has the power, therefore, under our adoption of the law of England, the same power is vested in the House of Assembly, as a body perfectly similar; but I consider the question in this way: — the fact that the House of Commons assumes and exercises the right shews, that EASTER TERM, 11 GEO. IV., 1830. l5g it is felt to be necessary in order to enable them to discharge their duties. I think the same necessity exists here, and, from principle, the same conse- quence in my opinion must follow such a necessity. It is plain that if upon this record this action could be sustained against one of these defendants, no one could venture hereafter to fill the situation of Speaker, and if it could be sustained against the other, cer- tainly there would be an end of an independent exercise of the will and judgment upon constitutional questions by the members of that body. Arguments were very ingeniously raised upon the possible abuses that might follow the recognition of the power exercised in this case by the Assembly, and some of them certainly were formidable, in appearance at least ; but every objection of this na- ture would equally be against the House of Commons. It is scarcely possible for such objections to be pushed to a greater length than they were by Sergeant /ejoA- son in 3 Wils. 190 ; and they cannot receive a more satisfactory answer than is given to them in the judg- ments of Ld. C. J. De Grey and Blachtone, J. The true point of view in which to regard the question is, that these powers are required by the house, in order to enable them to promote the welfare of their con- stituents; we are bound to suppose that they will use them with discretion and for good ends, and if we had the power, we should have no right to with- hold them, on the assumption that they desire to per- vert the objects of their constitution. Sherwood, J. — (After stating the case.) — Upon these pleadings it becomes necessary to determine the following questions : — 156 EASTER TERKt, 11 ©feO. IV., iSSO. 1st. Had tke House of Assembly a constitutional right to make the enquiry stated in the defendants' special pleas ? 2nd. Had the House of Assembly a lawftil right to imprison the plaintiff for refusing to answer the questions put to him by the special committee ? "1st. The House of Assembly is a co-ordinate branch of the legislature established in this pro- vince by 31st G-eo. HI., c. 31. The legislature so established are authorised and empowered by that statute "to make laws for the peace, welfar&, and good government of this province . " It is my opiMon that the right of enquiry for the purpose of enabling the legislature to exercise their constitutional func- tions is necessarily incident to both branches, for I do not see how they cotild join in ihiaking laws for the good government of the King's subjects, without obtaihing the information requisite to form' a correct opinion of the measures and alterations proper to be addpted. I think this is an inherent rightj essentiial to every legisfetufe. And 'the right of 'examination implies a right to compel the answering of all such questions as the law of the land will sanction. It d-oes not appear by the pleadings, what questions the plaintiff in this case refused to answer ; but I think it must be presaindd, they were lawful. Proper respect should be shewn to the proceedings of botli Houses, and they shohld always be considered as acting correctly, and agreeably t6 the rutes of law and natural justice, unless the contrary appear be- yond a doubt* 2nd. I am of opinion that the inquiry aUuEled to EASTEK tERM, 11 GEO. IV., 1880. 157^ was correcjtly made by the commitliee, beoaise their acts, when received and adopted by the House, be- come the acts of the House itself. This I believe to be conformable to the ordinary course of parlia- mentary proceedings. As the ri^ht of enquiry implies the right of compelling answers, so, it seems to me, it implies the further right of punishing for contumacy or wilful prevarication. If it should at any time evidently appear, in the manner required by law, that the Legislative Council, or House of As- sembly, had committed one of the King'^ subjedts for some matter which could not, with the least sem- blance of truth, be considered a breach of privilege according to the established principles of our con- stitution and the laws of the land, courts of justice would do their duty and grant such relief as the law prescribes. I am of opinion that the House of As- sembly had a right to punish the plaintiff for refusing to answer the questions put by the committee, and the only point., therefore, which remains ^o be dis- cussed, is whether they have exercised that right in a lawful manner. It appears to me that a breach of privilege can in no instance be considered to amount to a higher offence than a misdemeanour, and consequently that it ought to be punished in the same way. There can be no good ground for asserting the existence oif right in either House to impose or levy a fine ; and the only mode, therefore, of punishing an individual, not a member of the House, which can lawfully be exercised, is that of imprisonment. Every court, from the highest to the lowest, possesses the power to iiiiprison for contempts offereli in the face of the 158 EASTER TERM, 11 GEO. IV., ISSO. court. Upon as full a consideration as I have been able to give this case, I am led to the conclusion that judgment should be entered for the defendants, (a) Per Curiam. — Judgment for defendants. Gallagher v. Strobridgb bt al. In debt on bond conditioned for the limits, the plaintiff, in assessing dama- ges, took a, verdict for the penalty of the bond. Leave was granted him to amend by the judge's notes — altering the verdict to the endorsement on the ca. so. interest and sheriff's fees as proved. Damages must be assessed in such a case. Debt on bond, conditioned for the limits. Breach assigned, that J. G-. S. did leave the limits, and judg- ment by default. The damages were assessed at the last assizes for the Home District, and a verdict was taken for the penalty of the bond, and one shilling damages generally. Baldwin moved to set aside the verdict, for irregu- larity, alleging that the damages should have been assessed on the breach, and not taken for the penalty. The Solicitor-General moved also for leave to amend the postea by the judge's notes. Both these rales came on together. And a question was raised whether it was necessary to assess damages in a case of this kind. Chief Justice. — At the trial, the plaintiff proved that the damages on the breach amounted to £52 19s. Id. He then took his verdict for his debt, and one shilling damages. I think he*has a right to (a) See Beaumont v. Barrett, 1 E. F. Moore 69; Keilly v Carson 4 Moo: P. C. 63 ; Fenton v. Hampton, 11 Moo. P. 0. 347. ' EASTER TERM, 11 GEO. IV., 1830. 159 amend ihe postea by altering his damages to what he proved. As to the propriety of assessing the dama- ges, I am clear that it is a proper case to be referred to the consideration of a jury. Sherwood, J., concurred in amending the verdict. Macaulat, J. — At iirst I thought it unnecessary to go to the jury, but on looking into the matter, I am of a different opinion. When the bond is assigned by the sheriff, I take it for gcanted the plaintiff may recover the amount endorsed on the ca. sa. together with the sheriff's fees and interest, which are matter of uncertainty, and proper for a jury to compute. I have also no doubt but that the court can order the verdict to be amended. The judgment is always entered for the debt, with damages for the detention, and the plaintiff levies at his own peril the actual damage and costs. Per Curiam. — Leave granted to amend the postea. Bell v. Stewart. When a demnrrer has been argued, and judgment pronounced, the court refused to allow the demurrer to be withdrawn, a trial having been lost, although the plaintiff would have to assess his damages at the next assizes. Judgment had been given for the plaintiff on a general demurrer to the declaration in this case dur- ing this term, and the Solicitor-General moved for leave to withdraw the demurrer, which was opposed by Draper, on the ground that a trial had been lost, and that a similar motion had been made in this cause and abandoned before the demurrer was argued. 160 EASTER TERM, %l GEO. IV., 1880. Chief Justice. — I am opposed to allowing this demurrer to be withdrawn. The judge refused to allow time to plead, when appjication was made in the first instance, because it would throw the plaiii- tiff over the assizes. The demurrer was then put in, and if this motion prevail, the defendant will gain precisely what was refused him. It is laid down in the books that a demurrer cannot be withdrawn after a trial is lost, a principle, however, which I believe has some exceptions. In argument, no substantial cause of demurrer appeared, particularly to the third count of the declaration, which appears very unex- ceptionable. Such a precedent would be bad. It would encourage frivolous demurrers to allow this, which does not appear to have even plausible grounds to be withdrawn. Sherwood, J., differed. — I see no reason to sup- pose the demurrer in this case was entered wilth the intention of unnecessarily delaying the plaintiff ; but it seems to me it was filed, bona fide, under the sup- position that the declaration could not be sustained. The plaintiff, it is true, has lost a trial ; but it seems clear by the books of practice, t)iat leave is some- times given to withdraw a demurrer, and ple^d issuably, even after a trial has been lost. If judg- ment be^ entered on the demurrer, damages cannot be assessed before the next assizes, and a trial can be had as soon. The plaintiff would not be injured by delay in the one case more than the other. J think the defendant, in a case like this, (libel,) should have an opportunity of trying the facts before a jury, and I therefore think he should have leave to withdraw the demurrer and plead issuably. EASTER TERM, 11 GEO. IV., 1830. 161 MACAULA.T, J. — I cannqt consent to this motion. I entertain no doubt but that the matter complained of and set forth in the declaration is libellous. The ground of refusing time to plead, was the delay this would occasion. Delay was not asked for the pur- pose of demurring, as, if time to plead had been given, it must of course have been on the usual terms of pleading issuablj'', &c. Then a demurrer is put in which throws the plaintiff over the assizes. After the assizes, the defendant's counsel made a similar motion to the present, which was withdrawn before the court came to any decision upon it. The case is then argued — the objection overruled, and the decla- ration sustained ; and now this motion is made for the second time. The demurrer did not rest on sub- stantial grounds, nor does this motion. If the gen- eral issue were to be pleaded, the plaintiff would have to prove the publication, which is now admitted. Perhaps a . justification may be attempted, which would put the pla'intiff to proof much less accessible than it was at the last assizes ; or the justification may be bad in law, and still the plaintiff would suffer inconvenience and delay in shewing this. It is true the plaintiff cannot assess his damages till the next assizes ; but this is occasioned by the defendant's conduct, who ought not, therefore, to be allowed another opportunity of putting the plaintiff to further trouble, {a) Per CuriajJi.T-'M.otion refused. (a) See McLellan v. Rogers, 12 U. C. Q. B. 651. Deposit and General Life Insurance Company v. Aysoough, 2 Jur. N. S. 812, (note). Pianoiani v. Lqndon and S. W. Railway Company, 18 C. B. 226. l'Q2 EASTER TEEM, 11 GEO. IV., 1*30. DOK V. EOB. Court will not nllow a declaration in ejectment to be amended by altering the name of the township in which the land for which the action is brought lies. Baldwin moved to amend the declaration in this cause, by striking out the word " Elizabethtown," and inserting " Young," in lieu thereof, as the land for which the action was brought lay in the latter township. Notice of the intention to make this ap- plication had been given to the tenant in possession before term. The Chief Justicij; thought the altnendment might be allowed, both townships being within the same district, the venue would remain unaltered, and the trial take place at the same assizes. Sherwood, J., and Macatjlay, J., differed, think- ing the amendment prayed for went too far. A lot or concession might be amended, but not a township. In Adam's Eject. 201, an amendment of the parish of Gr. to the parish of St. John in Gr., was allowed ; but the cases are not parallel— the principal division (Gr.) remained ; but here it is not within the same limits. The affidavit of service shews it to have been made on the tenant in possession ; — of course that must mean of land in the township mentioned in the declaraition. (a) Per Curiam. — Motion refused. (o) See Doe v. Beck, 18 C. B. 229. EASTEa TERM, 11 GEO. IV., 1830. 163 Jarvis V. Washbuest, one, &C. An attorney is liable to a sheriff for tlie service of writs and other papers, ■without any particular undertaking on his part at the time of his putting them into the sheriff's hands. A VERDICT was taken for the plaintiff by consent, subject to the opinion of the court upon the foll6T?ring points : — 1st. Plaintiff, being sheriff, sues defendant, as an attorney, for the service of writs and subpeenas, for clients of the defendant, both in the King's Bench and the district court. 2nd. Plaintiff's demand is composed, in part, of items for the services of notices and other papers, not writs. 3rd. Plaintiff's demand also contains items for money paid for postages and swearing affidavits. 4th. The writs and papers were sent by the de- fendant, as attorney in the causes to which they relate, by post, in the ordinary way, with directions from him to the sheriff to have them served ; but with no particular undertaking on the part of the attorney to be personally liable. The court were clearly of opinion that the attorney is liable to pay the sheriff 's fees, and cited the fol- lowing cases :— 2 0. & P. 118 ; 5 B. & 0. 328; 2 B. & A. 562 ; 12 Tes. Junr. 349 ; 2 M. & S. 438. (a) Judgment for plaintiff. (a) See Mayberry v. Mansfield, 11 Jur. 60; S Q. B. 754; Seal v. Hudson, 4 D. & L> 760 ; Maile v. Mann, 2 Exch. 608. See also Davis t. Jenkins, 11 M. & W. 745 ; Lee v. Everest, 2 fl. & N. 285. 164 EASTER TERM, 11 GEO. IV., 1830. RoBiNBT V. Lewis, (a) The court refused to arrest the judgment in doirer, on an objection that the declaration stated the tenant had been attached to answer, instead of summoned. The Attorney-General moved in arrest of judgment. The declaration stated that the tenant (Lewis) was attached to answer ; but he should only have been summoned. All the forms agree that this is the correct mode in an action of this description. Then there is another objection : it is not stated that the tenant had possession, or was seized of any property out of which dower should be assigned ; although the demandant's right to dower is admitted and estab- lished, still, before the tenant can be 'charged, it should appear by the record that he has lands, out of which her demand can and ought to be satisfied. Sullivan, contra, insisted that the first objection came to latfe ; and if there were any weight iu it, the court would not entertain it at this stage of the case. The second he contended was answered, by con- sidering that the tenant by going to issue, only on the right of the demandant to claim dower, as not being a subject, had in effect admitted that he had lands out of which her dower should be satisfied, if she could establish her right to dower at all. Chief Justice. — I am of opinion that the judgment ought not to be arrested. The objection raised can- not, I think, be received now upon a motion in arrest of judgment. There has been a verdict, which not only cures statements of actions defectively made, but which, in many cases, is taken to supply (o) See page 44. EASTEK TERM, 11 GEO. IV., 1830. 165 statements wholly omitted. The case in 3 Burr. 1725, is a strong authority on that point; but here the objection not only comes after verdict, but after a demurrer by the defendant upon another objection, which demurrer was argued and with- drawn, after perceiving the judgment of the court to be against him. It is impossible, I think, that having abandoned his demurrer, after an argument in which he might have urged, though I will not say success- fully, the very objection he is now making, and having gone to a jury upon another issue, which in its very nature waives the objection now urged, the defendant can now arrest the judgment upon an ob- jection which he omitted to take upon his demurrer. Str. 425, is, I think, incompatible with such a course; although, 1 admit that the circumstances of the two cases are not the same. Then as to the merits of thQ objection itself, if it were not now too late to urge it, and if nothing but the verdict had inter- vened, I cannot say that I think it would be sustain- able. If the defendant had no interest in the premises in which dower is demanded, he might and should have pleaded non tenure; but aware, as I must take it, that he could not with truth make such a defence, lie rested his case upon an objection to the demandant's right, not disclaiming that he had the premises, but denying her right to dower, and putting her to prove it. The declaration corresponds precisely with the forms of declaration in dower, unde nihil habet; but it is contended that an aver- ment of the defendant being tenant is not intro- duced into the declaration in the English forms, because there it is necessary- that the defendant should have been previously summoned in his 166 BASTilR TERM, 11 GEO. IV., 1830. character as tenant, and therefore when, he appears he acknowledges his tenure, unless he disclaims, and the averment of his tenure is intended in the refer- ence to the process by summons contained in the declaration. But without determining whether our statute imposes an absolute impossibility of proceed- ing in this case, otherwise than by capias, and whether, if it do not, the allegation in this declaration, that defendant was attached to answer, may not mean attached after having been summoned, which is quite consistent with the form of proceeding in Eng- land, it seems to me that we are not called upon to assume that the capias, which is not set forth, did not in this case contain a command to summon Abijah Lewis, tenant of lot, &c. Such an addition would not have vitiated the process, and, for all we can tell upon this record, it may have run in that form. At all events, I consider that in any point of view the judgment ought not to be arrested on this motion. Whatever there might be in the objection, if urged in season, I should have been happy at all events to have seen such an objection raised when it might have been strictly entered into upon its legal merits, because it is desirable that the proper remedy for recovery of dower in this province should be clearly settled. Sherwood, J., and Macaulat, J., concurred. Per Curiam. — Eule nisi refused. EASTEE TEEM, 11 GEO. IV., 1880. 167 MBIGHAlir ET AL. V. BrOWN, Two plaintiffs of the name of M. The non-repetition of the surname, after each christian name in the bail piece, is not a sufficient irregularity to warrant taking an assignment of the bail bond. The defendant, in this cause, had been arrested and put in special bail. In the bail piece, the plain- tiffs were mentioned as Michael and Robert Meighan, not repeating the surname to each christian name. On this objection an assignment of the bail bond was taken, and also that the notice did not mention be- fore whom the bail was put in. The court set aside the proceedings against the sheriff's bail without costs — saying, however, the plaintiffs should have excepted to the bail. King for plaintiffs, Tayhr for defendant. OozENs V. Ritchie. When an affidavit to hold to bail was made, while defendant was in the United States, and was left in this province in readiness, in case he should come over, the court set aside the arrest. Sullivan moved to discharge the defendant from arrest — 1st. Because he had been discharged from the same debt by the insolvent laws of the State of New York — 2nd. Because the affidavit to hold to bail was made while defendant was in the United States, where he had been a long time resident, and was left in this province in order to his arrest if he should come over. Per Curiam. — It is clearly settled that being dis- charged by a foreign law, does not operate on the cause of action, only on the remedy ; nor does it 108 EASTER TEEM, 11 GEO. IV., 1830. operate so as to stop the plaintiff from suing accord- ing to the forms of law here. The defendant being discharged from all further arrest in the United States, cannot free him from being arrested here. But the arrest is bad on the second objection. To make an affidavit of an apprehension that defendant will leave the province when he is already out of it, and has been so for a length of time ; and when that affidavit is evidently made in the hope and expecta- tion that he will return to it, is contrary to the spirit of the laws of this province, and an evident abuse of the process of the court. On such an affi- davit the defendant should not have been held to bail, (a) Per Curiam. — Rule absolute. ViNOEiirT V. M'Lban. When a cause was referred to arbitration on a verdict taken by consent — and the award being made in vacation, final judgment was entered be- fore the first day of next term. The judgment was held irregular. A VERDICT had been taken in this cause by con- sent, subject to arbitration. The award was made formally in vacation. A rule for judgment was then put up and entered in the crown office, and at the expiration thereof, final judgment was entered. The court held the judgment irregular. If it were otherwise, a party would be barred from ap- plying to the court for relief from any injury or (a) Plaintifi" and defendant were foreigners, and came into this province intending to remain only a few hours; the plaintiff made the usual afadavit and arrested defendant. Held, regular, Raynor v. Hamilton, Mich. Term, '2 Vic. EASTER TERM, 11 GEO. IV., 1830. 169 injustice that might have been done him. The award stands on the same footing as if the verdict had been rendered at that time. Attorney-General tov defendant, Solicitor- General for plaintiff. Powell v. M'MARTm one, &c. In order to obtain an attachment for non-performantfe of an award, the afSdavit of service and demand should shew that the person making the demand was attorney for that purpose, and that the party on whom the demand was made, was apprised of that circumstance. On shewing cause against a rule nisi for an attach- ment for non-performance of an award in this cause, it was objected, that it did not appear by the affida- vit of service and demand, or in any other way, that the authority of the plaintiff 's attorney, for making the demand, was shewn to the defendant at the time, and Watson on Awards 187 ; Bl. Rep. 990, were cited. The court thought the demand insufficient, and the sum awarded, being payable to the plaintiff or his attorney, meant an attorney to be for that purpose appointed ; and of this appointment it should appear the defendant was duly apprised. They therefore refused the rule. Small for plaintiff, Spragge for defendant. 170 EA.STER TERM, 11 GEO. IV., 183(5. GENERAL RULES AND ORDERS. EASTER TERM, 11th GEO. IV. 1. It is ordered by the court that the 18th rule of this court be rescinded, and that henceforth the clerks of assize shall attend in court during the first four days of the term, immediately following the assizes in each district, with all indictments, records, and proceedings from their respective circuits, to- gether with the various exhibits filed in each cause, and not returned to the parties by order of a judge, and that they shall immediately after the rising of the court, on the fourth day of its sitting, return to the Crown office all indictments, records, proceedings and exhibits remaining in their possession, and shall at the same time deliver to the Clerk of the Crown a list of the same. 2. It is ordered by the court, that from and after this term of Easter, on every judge's summons or appointment, to be made by the master, (having been served on the day previous to that on which the attendance shall be required,) the person on whom the same shall be served, and who shall be required to attend, shall attend such summons or appointment without a second, or, on default there- of, the judge or master may proceed ex parte on the first. 3. It is ordered by the court, that, after this term, the practice of the Court of King's Bench in England, with respect to Imparlance, shall not be in use in this province, but that in all cases the party shall plead at the expiration of the demand of plea, unless he obtain an order for further time. EASTER TERM, 11 GEO. IV., 1830. 1*71 4. It is ordered by the court that, hereafter, no rule to plead, reply, or rejoin shall be necessary, but that a demand shall be sufficient, as in respect to a plea in actions by non-bailable process. 6. It is ordered by the court that, hereafter, it shall be sufficient to leave the consent and plea in ejectment at the office of the Clerk of the Crown and Pleas, and that no entry thereof need be made with any judge. 6. It is ordered by the court that, hereafter, it shall not be necessary to furnish issue-books or paper books in any case, and that the clerks, in passing the record, shall add the similiter as of course. I \ 7. It is ordered by the court, that the 5 th rule of this court, made in Michaelmas Term 4th G-eo. lY., be rescinded, and that in future no original declara- tion or other pleading, roll, or record shall be re- ceived in the office of the Clerk of the Crown and Pleas, or of any of his deputies, unless the same be engrossed or written in a plain and legible manner. 8. It is ordered by the court that, hereafter, any number of names may be included in one writ of subpoena. 9. It is ordered by the court that, in any action of the proper competence of the district court, in which final judgment shall be obtained without a trial, the Eiaster shall tax no more than district court costs, unless specially authoiised by order of the court, or of a judge in vacation. ^ 172 EASTER TERM, 11 GEO. IV., 1830. 10. It is ordered by the court, that fees shall not in any case be taxed to more than two counsel, upon any trial or argument to be had hereafter. 11. It is ordered by the court, that no counsel's fee on motions shall be taxed in respect of any rule which may be obtained, without filing a motion paper in court in term time. 12. It is ordered by the court, that no fee or other charge shall be payable for any writ to warrant a testatum, unless such writ shall be actually sued out by the party. 13. It is ordered by the court, that at the foot of every bill to be hereafter taxed, the attorney shall certify under his hand that every service and dis- bursement charged has been actually and necessarily rendered and made, which certificate shall, never- theless, in no case be taken to dispense with the requisite affidavit of disbursements, or to warrant any charge not otherwise taxable. 14. It is ordered by the court, that after this pre- sent term of Easter, in every case in which the costs taxed shall exceed £20, it shall be necessary for the attorney obtaining the taxation to leave with the master a fair copy of such bill at the time of taxation, which copy shall be furnished gratis ; and that the master shall deliver into court, during each term, all such copies of bills as have been furnished to him since the preceding term, on which shall appear the allowances as they have been taxed. EASTER TERM, 11 GEO. IV., 1830. 173 15. It is ordered by the court, that an order for revising taxation may issue as a matter of course upon a motion in court, or upon a judge's summons, and that all fees upon such motions or orders shall be taxed as on motions of course. A new table of costs was also settled and ordered by the court. In this term, James Doyle, Charles Oliver, GeoYge McDonell, John Wood, and William F. Murney, Esquires, were called to the bar. [174] TEINITY TERM, 11 GEO. W., 1830. Present : The Hon. John Beverley Robinson, Chief Justice. " Levius Peters Sherwood, Judge. Jambs Buchanan Macaulay, Judge. Small et al. v. McKenzie. In an action for libel, the publication given in evidence consisted of a report of a trial and defendant's comments thereon. The libellous matter set forth in the declaration was altogether contained in the comments. At the trial the defendant gave in evidence, in justification under the general issue, that the report of the trial was correct, and obtained a verdict. A new trial was granted without costs, on the ground that this evidence was improperly admitted. Case for a libel. The plaintiff was a candidate at the election for the town of York in November last, and defendant was an elector. The plaintiff is also an attorney, and this action was brought to recover damages for an alleged injury to his character, both as an attorney, and a candidate to be a member of the House of Assembly in Upper Canada. Some time before the election, the present plaintiff prose- cuted a man of the name of Hogg for defamation, and recovered damages. The present defendant, who then was, and still is editor of the Colonial Advocate, attended the trial of the suit against Hogg, at his request, and made a report of the evidence and of some other part of the proceedings in that cause, which he afterwards printed and published in the form of a handbill, accompanied with remarks and comments of his own on the tendency and bearing of TRINITlr TEEM, ll GEO. IV., 1880. ItS the evidence, and reflecting strongly on the plaintiff's character. The declaration set out the most offensive part of those comments, in which the character of the plaintiff was most severely reflected on. The defen- dant pleaded not guilty, and two special pleas, amounting in substance to this-^that the report of the evidence and transactions at the trial between the present plaintiff and Hogg was a true report, and warranted the comments of which plaintiff com- plained. The plaintiff took issue on the first plea^ and demurred to the two last; and at the last assizes for the Home District, the record was carried down to try the issue and assess contingent damages on the demurrer. At the trial, Sherwood, J., before whom the cause was tried, allowed the defendant to give in evidence^ that the trial of Small v. Hogg was truly reported, in justification of his commentSt though that report was contained iti a part of the handbill, dis- tinct from the libel set forth in the declaration. The jury found for the defendant, and in Easter Terra last. Draper obtained a rule nisi to set aside the verdict and grant a new trial on the following grounds :-^ 1st. That the defendant, under the plea of the gen- eral issue, could not legally prove in bar of this actioh the correctness of the report of the evidence and othet proceedings in the action against Hogg. 2di That the judge should not have directed the jury to take th« truth of the report into their con- sideration as forming a defence to this action. Sullivan shewed cause. The evidence given at the trial was, that a certain part of the libel was a true 176 TRINITY TERM, 11 GEO. IV., 1830. report of the trial between Small v. Hogg. The part set out on the record was only a commentary on the report. The whole paper was given in evidence, and the part complained'of was founded on the other part of the same handbill. This evidence came from the plaintiff, and defendant was therefore entitled to prove its truth. He could not plead in justification. Whenever a plaintiff proves extraneous circumstan- ces, which the defendant cannot justify on record, he may give evidence either to support or rebut them. The declaration states the commentary only, not the facts on which it is founded, and the defendant should be allowed to prove those facts. The defendant made the report of the trial at the instance of one of the parties, (Hogg,) and as plaintiff has not asserted its falsehood, it is to be presumed true ; and if so, to prove its truth, puts the plaintiff in no worse situa- tion. Stark on Slander, 230. At all events the evidence was proper to rebut the charge of malice. Draper, contra, argued that the doctrine contended for by the other side would do away the necessity of pleading specially altogether : that as the pleadings in this case stood, to allow this evidence to go to the jury, was taking the plaintiff wholly by surprise, for had the matter been properly pleaded, he might have come down prepared to rebut it. Had the action been founded on the report of the trial, then this evidence woyld have been proper ; but it is founded on the gratuitous remarks of the defendant, and admitting the trial to have been truly reported, this would have been no justification of those comments. The defendant should have gone further, and have proved the truth of the facts stated in the report of TEINITr TEEM, 11 GEO. IV., 18S0. 177 the trialj to have made his justifieatioti complete ; and safely it will not be said, this can be done under the general issue. The case reported in 3 B. & A. 702, shews clearly that the evidence was not admissi- ble on the issue joined. Shbkwoob, J., delivered his opinion this duy as follows, (after stating the case): — When the publica- tion was read at the trial of this case, it struck me that the defendant did not himself intend to cast any itopttfation on the plaintiff's character, but only to state what appeared to him would be the inevitable infea-enee likely to be drawn by the public, in case the evidence which he reported were true, and also to induce a belief that it was in the power of Hogg to bffer stronger evidence than he had, yet given : under such impression I allowed the defendant to prove that the report of the evidence published by bim^, asd which apparently formed the basis of his comments, was a correct statement of the evidence given at the trial of the suit against Hogg. I thought at the trial that such evidence was admissible under the general issue, as a defence to the action, but still I had some doubt of its legality for that purpose, and' allowed it to be given, because I think it best to receive evidence when there is merely a doubt attend- ing; its admission. The parties are not concluded by this course, for they have a remedy, if the evidence, upon! more mature consideralion, should be found improper. In my opinion, it is only in a case when a judge etitertains no doubt that evidence is to be wholly rejected. In the present case the jury found for the defendant^ and the new trial was moved for last term on two grounds. 2a 178 TEINITY TERM, 11 GEO. IV., 1830. 1st, The defendant, under the plea of not guilty, could not legally prove in bar of this action the cor- rectness of the report of the evidence, and of the other proceedings in the action against Hogg. 2nd. That the judge should not have directed the jury to take the truth of the report into their con- sideration, as forming a defence to this action. If the former objection be sustainable, the latter is of course. Since the motion for a new trial, I have examined and considered the publication of the defendant with more attention and scrutiny than the hurry of a trial generally allows, and I think the defendant has gone further than I at first supposed. I think the comments of the defendant, as stated in the declaration, contain an imputation against the plaintiff, of dishonourable and dishonest conduct. On shewing cause, the counsel for the defendant seemed to consider this in the nature of a privileged case, and contended that the comments of the de- fendant were justified by the occasion on which they were published, and therefore the evidence was pro- perly received under the plea of the general issue. If I could consider the case in that point of view, I should still retain the opinion of the evidence which I formed at the trial, that it was admissible, and should now think the verdict ought not to be dis- turbed ; although the evidence was admitted upon an entirely different ground. I consider the present case, however, as an ordinary case of libel, and not in the nature of a privileged case. Had the defen- dant confined his publication to the report of the proceedings which occurred at the trial of the suit TRINITY TERM, 11 GEO. IV., 1830. 179 against Hogg, he might have proved the truth of that report in justification of his conduct under the general issue. I do not wish to be understood, that the editor of a newspaper has a right to publish the proceedings which take place at every public trial. A case might happen, when it would be improper to publish the whole or some particular parts of the evidence or other proceedings at the trial. The evidence to which the plaintiff in this case objects was not given in justification of publishing a report of the judicial proceedings, but in justification of the defendant's comments on those proceedings. The remarks of the defendant and the report of the trial are distinct transactions, which essentially differ in their character and tendency. The correctness of the latter may be proved in way of justification under the general issue ; but the truth of the former must be specially pleaded, when they cast an impu- tation on the character of an individual for which an action will lie.— 3 B. & A. 702 ; 3 B & 0. 24; 3 Bing. 88. That part of the evidence given at the trial of this case, to which the plaintiff objects, was admitted in bar of the action, and for the purpose of leading to a verdict ; but I now think it was inad- missible for that purpose under the general issue, and consequently that there should be a new trial, I think the costs of the first trial should abide the event of the second, as was ordered by the court in 3 Bing. 88. It may be proper to subjoin tiiat, be- sides the general issue, the defendant in, this case has pleaded two special pleas 'to the whole declara- tion. A part of the matter alleged in the special pleas in justification of the supposed libel is substan- tially the sams as that which was given in evidence 180 TEINITY TERM, 11 GEO. IV., 1180. at the trial. The plaintiff has demurred to the special pleas ; but no argument has yet followed, and no judgment has been given. It appears to me, that I am bound to decide the question which the plain- tiff has raised to the propriety of admitting the evidence given at the trial, without any reference to the special pleas, or any anticipation of the result of the demurrer. This is my reason for not alluding to the special pleas in the first instance. The Chief Justice and Macmh'^, J., having both been concerned in the cause of Small v. Hogg, and being both liable to be called upon as witnesses as to what transpired at that trial, gave no opinion. Eule icfs new trial absolute. GrATEs V. Crooks. \Sftkere a i^I^iqtiff at (.he trial aljandoned all tbe conota in his cleclaF»ti<» liut one, and had a rerdict on that one, the defendant is not entitled to a v^iot on all the other connlfS,; and i,f ^i^ch a verdieli be. ];en(i%i!e(}, the court will, on application, discharge it, leaving t&e plaintiff to di^ose of the other counts at his own risk. The declaration in this ease contained several counts on different pFomissory notes. At the trial, the plaintiff proved one note of hand, and took a verdict on the count in which the note was set forth. The jury found for the defendant on all the other counts. In Easter Term last, the Soliciior-Gemrai obtained a rule nisi to discharge the verdict ren- dered for the defendant, and was opposed by The Attorney-Genial. — The courts have always set their faces against splitting aefeions.— 1 Ventr. IB, TRINITY TERM, 11 aEO. IV., 1830. ISl and this would have an effect exactly sitnilat. Par- ties are even frequently oMiged to consolidate ; yet here, where the different causes of action are joined, the plaintiff seeks, without any apparent reason, to divide them.— See 2 T. R. 639. He elected to take his verdict on the particular count. The jury con- sequently were obliged to find for the defendant on the other counts, for they cannot give a verdict on part of the record only, unless discharged from the other part by the consent of th© parties.-^S Bing. 381 ; 1 Wils. 300. Here no such consent was given, and the defendant insisted on his right to a verdict, which the jury have given. When a plain- tiff does not appear, and defemdant doeSj a nonsuit shaM be entered ; so by analogy, where he gives no evidence on part of his declaration, a verdict for so much shall pass against him. — Str. 844 ; Ld. Eaym. 1521 ; 1 S^und. 207, (note;) Doug. 376. A con^ trary practice would occasion gross injustice'. In an action composed of different claims, the defendant, meaning to contest somei of them, brings witnesses for that purpose only. But if the plaintiff's obJBct be to harrass and oppress Mm, he gives evidence of that alone which the defendant' never eontemplate# GomtestiHgj and brings a second action; thereby putting the diisfend'ant to the expense of two defences;, where one would be enough. A nolle prosequi i& only entered where a party ha® a general verdict, and some of the counts are bad. — 3 Smiths 1 1 3. This is a very different case. Solicitor 'General, c0M#a,— When there are several causes of actionv and a general verdict is given, a new actioamay be brought for thos© causes of whidt no 182 TRINITY TBEM, 11 GEO. IV., 1830. evidence was given at the trial of the first. It is no bar to a subsequent action ; it cannot, therefore, be a reason for the defendant to have a verdict. Courts will, after a general verdict, compel a plaintiff to elect on which count he will take judgment. — 5 Taunt. 36 ; and, after electing, the court in a penal action refused to allow him to change. — 2 Doug. 730; 16 Ea. 130. The plaintiff may enter a nolle prosequi to some counts, and take a verdict on one only; and a nolle prosequi may be entered at any time. — Str. 531. Judgment was delayed till this term. Sherwood, J. — The question for decision is one exclusively of practice at nisi prius. It is from analogy, general principles, and professional experi- ence only that any argument can be drawn in favour of either party, as there are no authorities bearing directly upon the point ; and I am free to admit that my present opinion is given with some doubt. The declaration in this case contains a number of counts upon several distinct causes of action, as well as the common counts. The defendant pleads non-assumpsit to all the counts jointly. At the trial, the counsel for the plaintiffs, in his opening, stated that he would give evidence in support of the fourth count only, and that he did not intend to proceed on the other counts. He did so, and there rested the case. The defen- dant's counsel offered no evidence, but insisted that if the plaintiffs took a verdict on the fourth count only, they had a right to a verdict on all the other counts. To this the plaintiff's counsel objected, insist- ing that defendant had not the right claimed. A verdict was however taken for the plaintiff on the TRINITY TERM, 11 GEO. IV., 1830. 183 fourth count, to which there was no objection, and for the defendant on all the other counts, subject to be struck out if the court above should be of opinion that he had no legal right to a verdict under the cir- cumstances. I have looked into all the cases cited by the counsel in argument last term, but it appears to me they afford nothing conclusive of the question. The right of either party to claim a verdict was con- tested. So far as I can collect from the law, and the cases at all applicable to this question, they go to establish the following principles : — 1st. The plain- tiff may elect to proceed on some counts of his decla- ration, and forbear to proceed on others. — 1 Saund. 207 b. 2d. The party on whom the proof of the issue lies has a right to a verdict according to the evidence.— 3 Oomm. 375 ; Doug, 376. 3d. If he fail in establishing the issue which he attempts to prove, the opposite party has a right to a verdict, unless the plaintiff elect to be nonsuited. In the present case, although the general issue is pleaded to all the counts jointly, I consider it in the nature of a several plea to each of the counts, be- cause each special count contains a distinct cause of action, independent of that contained in any other special count. It has been decided that each count in a declaration forms a distinct declaration of itself. —1 Salk. 133 ; 3 Coram. 295 ; 3 Wils. 185. I will now endeavour to shew how the principles which I have just mentioned apply to the present case. At the trial the plaintiffs abandoned every count in the declaration but the fourth, and gave sufficient evi- dence to entitle themselves to a verdict on' that count. " The jury were sworn well and truly to try 184 TEINIXY TERM, U 610. IV., 18SQ. the issue joined between the parties, and a trne yerdiet give according to the evidence. There were in effect several issaes joined, and the plain^ tiff 's counsel, before giving evidence, elected to> give evidence in support ol one issue alone. The proof of all the issues fey on the plaintiff. Now it seems to me that in a conscientious point of view, the jiury were restrained by their oath to give their verdict on one count only, otherwise, I cannot perceive how they would give a verdict according to, or in other words, agreeably to the evidence; when the counsel for the plaintiff elected to proceed only on the count to which that evidence applied, and made known his intention of doing so in his address to the jury. In ordinary cases, when the plaintiff does not elect to proceedi on any particular count, and the declaration contains several counts, the evidence is given on the whole declaration generally, and it is not the prac- tice for the jury to discriminate with nice precision the exact part of the declaration to which the testi- mony would apply. — 2 Stark. N. P. 442. The defendant cannot oblige the plaintiff to^ elect at the trial a particular count to enter his verdict on, al- though the declaration contain many counts, and the evidence of the plaintiff do not apply to all of them. —5' Taunt. 36 ; 1 B. & A. 161. The last two cases seem to me in principle to go a great way ia decid- ing- the present question. If the defendant have no right to insist upon a verdict, when the plaintiff 's evidence is- given on the whole declaration, but is insufflcicHt to maintain the issue on some of the counts, r cannot think he has a right to claim a ver- dict, when the same evidence is given on thecoimts only to which it is applicable, and th© plaintiff TEiNiTy tMm, 11 GEO. IV., ifeso. l85 formally abandons the other counts, and no evidence is given on them. There can be no good reason, in my opinion, for entering a verdict at nisi prius for the defendant, in any case without evidence, and as a matter of right, Unless the plaintiff refuse to be nonsuited, and insist upon a verdict being given. In such a case, the verdict is rendered against him of course ; but the verdict comes at his own request. In the present case, the verdict waS given without evidence and against the plaintiffs' will. The dis- tinction is obvious in my opinion, so far as regards the strict right of the defendant. A verdict may undoubtedly be entered in almost any way with the consent of the parties ; biit that is entirely a different consideration from the present, where each party dis- claims accommodation, and takes up a position on the high ground of summum jus. The principal reasons advanced by the defendant's counsel are the two following : — 1st, that as the jury Were sworn to try the issue joined between the par- ties, they could not discharge their consciences with- out giving a verdict on all the counts. I have already remarked on this head, and I think it unnecessary to make any additional observations. The second reason was, that the defendant had been put to expense in preparing for his defence. This is decidedly an argu- ment ah inconv&nienii, and if there were any thing in it, it would apply with equal strength to many parts of the established practice df this couyt. The defendant is not entitled to costs, when the plaintiff enters a noik prosequi at any stage of the proceedings to a part of his declaration, although such entry is continually made, and there is no doubt of its legality. 2b 186 TRINITY TEEM, 11 has prevailed. Where a party lies under a mistake, thinking he had made a good will, and then caacel!- ling another, this will was held not canceUedj The intention was to substitute one will for anather, not to die intestate, and as the second will was not) good, the first was held not revoked, but in force; So m this case the same principle would apply the; o^er way. The party evidently intended to Jj&voke, and- did an act which would have beea a complete can- celling, under the idea he was caiieelliilg his wiM. But supposing; this not sufficient, as the- will is actu- ally in existence ; under the circumstances proved, the will is revoked in law. "Where a paEtgr, after making his will, does any act to: aiteit his; estate, that act revokes the will. Even: a devise to an heiic at law though void, has the effect of revoking th& wilii 2 Atk. 324, 579. Now the agreement which was made to convey the land^ to the defendaat, on condi- tion of maintaining Carroll for his liffe; and Which: was proved to have been executed after thewill. Op- erated as a revocation. The will', therefore, was at all events revoked, and the defendant's title there- fore failed, and the jury have found by their -^rdict that the lessor of the plaintiff was Carroirs heir at. law. Draper, contra. — ^The case ia AtJiyris was a re- covery which altered the estate. So is the case of IfRlNITY TE'RM, 11 GEO. IV., 1830. 219 ^ b#fter enfeoffing another to his use. Every case ifi which a will has *bfeeii revoked, by any deed or tilte'ratibh 'of the estate, procgeds upon the principle, that the act done was inconsistent "with the devise. The dievise here is in no way affected by the agree- infent ; and that objection therefore fails. There are two ^^[Ueations to be cohgrdei'ed in this case ; 1st, was Ihere evidence to go to the jury of the heirship ? 2kd, was the will revoked ? As to the first question. — In a collateral claim, the heir must shew, that he and the deceased are both spriHig from the same common stock ; 2 Bl. Eep. 1099 ; and that all the branches interposed between the claimant and the ancestor, which, if in existence, would haVe a preferable title, are extinct ; 16 Ea. 294 (a). T%e evidence in this case, on these points, seems principally to consist in letters, which do not appear to have been written by ahy member of the feiaily ; and Which do not set forth on what authority the statenSrents they contain are founded. Surely, tills is too slight to bear the nalne of evideUbe, and should mot have been referred to the consideration of the jury at all. Tire second point turns on the construction of the Statute of Frauds. The words of &&t act aptplicable to the alleged revocation in th6 fpresen't case are ' ' Mrrtmg, cancieUii^ig, tearing or db- MerattTig." It is not pretended that the will in ques- tion was either burnt, cancelled, torn or obliterated ; but it is argued that the testator's intent was to burn, and that as this act was prevented by the fraud of the devisee, it opeMes as a revocation. 'Grreat strictli6ss is required by the statute in the execution of Wills to pass knds, and the decisioils shew that a 220 TRINITY TERM, 11 GEO. IV., 1830. rigid compliance has always been required with its terms — Show. 89. The words relative to a revoca- tion are equally strong with those referring to the execution of a will. The destruction of all the sheets but one of a will, under particular circumstances, was held no revocation — Eq. Oa. Abr. 409. It is a principle, that the execution of a second will revokes a former — 3 Atk. 798. Yet when a second will was executed, but the witnesses did not subscribe in, the testator's presence, it was held that the first will, though cancelled, was not revoked — 2 Yern. 742. So when there was a second will, but the contents were unknown — Sal. 592 ; 3 Wils. 497. Wherever the court have leaned to a liberal construction, it has been to support the will. Here they are asked by that means to destroy it. The most unequivocal intention to devise would not avail, unless done ac- cording to the statute ; why then should it to revoke, admitting that the fraud alleged was clearly proved, which was by no means the case. It is clear, that the mere intention to revoke, unaccompanied by the act, cannot affect the will — 3 Burr. 1244 ; 4 Burr. 2512 ; 3 B. & A. 489. As much perjury and fraud might be committed to revoke the wills, as to set them up ; and if evidence of a testator's intention to do that which he manifestly has not done, can be ad- mitted for the purpose of destroying the will, half the benefit of the statute will be lost. The court took time to consider, and this day their opinion was pronounced by the, Chief Justice. — This is an action of ejectment brought by John Magher, as heir at law to Thomas Carroll, deceased, to recover certain lands in the TRINITY TERM, 11 GEO. IV., 1830. 221 township of Toronto, of which Thomas Carroll died seised. It was tried at the last assizes for the Home District: — the proof of pedigree was by no means sa- tisfactory and conclusive, but I thought there was legal evidence of the relationship, sufficient to be left to a jury ; and it was accordingly left to them, with remarks upon its inconclusive and unsatisfactory na- ture ; and at the same time, with explanations, that the law relaxed much of its strictness in receiving evidence of pedigree ; and that it enabled claimants to recover, upon prima facie cases, though not free from doubt in all circumstances. Proceeding upon the . principle, that when the contest is not between two persons, both claiming to be heir, but betwfeen a person claiming to be heir, and a stranger to the deceased, the court may be satisfied with a prima facie case, it being at all times open to any person, having a better right to the inheritance, to appear and make good his claim. In this province, more especially, which is Inhabited principally by emi- grants from other countries, whose pedigree could not be strictly traced in most cases, without great delay and expense, and not without doubt and diffi- culty in many cases, from the obscurity of the claim- ants, there is need of all the liberality extended by the courts in England, to persons offering proof of pedigree. It was contended, however, that the plaintiff .must in this case be nonsuited, for that there was absolutely no legal evidence of heirship to to be left to the jury, and the point is again moved against the verdict. The case in 2 Bl. 1099 & 15 Ea. 293 were cited to support this position. The case in Blackstone, when it is compared with the pre- sent, is sufficient, I think, of itself, to shew that there 222 TEIINIT¥ TERM, U 0BO. 1^., liBO. was evidence !Qf pedigree, in this case, pirajt^ "fe b^e sabimitted to the jury, and that in stdh 'a 'mse as'tet cited, the oauTt should have been diTided in opiMcfti as they were, fuii-nished an authority in lavotir of 4^ pr,esenA- i an acknowledgment of a specific balance, due ^or wbilc aiid laiiour. 4-SPfiSiP^y )fe)r wQrJj: jSij^d j,a,l50f r, m^ ,tli,e niQiiey c©xip4s ^lik -9-0 i9.eco.init stated. J?le^ ,ii(:»Q-a,ssp,p;fP|it anj SQtioe of iSpMff. The plUrWtiff J?^.e itl\eghae& of tM Kifig, Tbut he merely said it wa's " beyond the seas" withiti the meaning of tlie Statute of Limit-atioHs, or iu offier words, such a ednstPtetiOtt' of the act was ne- ciessai'y i& cari^y the intenti(wi of the legislature inta ^fetJt. By a literal construction of our Statute of Limitations, it would clearly run agiaiusit all {)ergoo'S on the two ewatinents of North and South America, out ^f the limits of Upper Cauada, for such persons are not in fact "beyond the seas," afld still it is well known that most of them are foreigners and out of the afUegiaHoe of the King : such a coiftstrdctibn' would theresfore be in direct dppoBitioa to the decision in BfigMd. Adisordiag to^ the case in BI. Eep. 723, and 3 Wils- 145, *he cotfft say, "If the plaintiff is a foreigner and doth not come to EnglaAtf in fifty years, he still hath six years to britig his action after comtog to Eagland." Upon the whole' I am of opinion, that the phrase " beyond the seas," which haij^us to be found in our provincial law, can mean no&ing more than the phrase "out of the provmee of Upper Canada," and that a person who is out of the province when the cause of any action like the present accrues may commence an action within six years after he comes into the province, and if he neyer comes into the province the statute- does not run agsiiust him at all. As to the second point, no ease is found in the books whieh throws any light on the subject. One instance, however, is said tio have occurred in this province, in whieh a iflajority of th^e' jindges of tMB c0Wt entertained an opinion eoissiMiaM witii the d<)c* 300 HILARY TEEM, 1 WM. IV., 18S0. trine advanced by the counsel for the plaintiffs. Unfortunately for us the lapse of time has borne away all recollection of the remarks made by the judges on that occasion, and there was no' reporter then to note the arguments which must necessarily have followed a difference of opinion among the learned brethren. The result is stated, but nothing more, and yet there is one important fact admitted on all hands, which is, that the judges were not unanimous on that occasion. I probably entertain the same general views of the question which the learned judge did who then stood alone ; and after considering the case in all its bearings, I am con- vinced I shall not alter my opinion, unless the King in council determines it to be erroneous, and then it would be my duty to conform to the judgment of a superior court. That such an action as the present does not lie at common law need not, I think, be laboured at this time, because I take it for granted that such a pro- position would receive the immediate assent of all professional men. If the action, therefore, does lie at all, it can only be sustained by virtue of the statute 5 G-eo. II., c. 7, and before I proceed to make any remarks on that statute I will briefly pre- mise, that real estate situate in the plantations seem to have been considered, before the passing of that act, in the nature of personal property, and to be assets in the hands of the executor or administrator f jr the satisfaction of debts. — 2 Yentr. 358 ; 4 Mod. 226 ; 3 Ves. Jr. 118. The knowledge gf this fact may be of some assistance in forming a correct opinion of the real intention of the British legislature HILARY TERM, 1 WM. IV., 1830. 301 in passing that law, as it is not at all probable they were desirous of making any important change in the long established opinion, that real estates were assets like goods and chattels for the payment of debts in the colonies. It is quite clear from the preamble of the statute 5 Gi-eo. II., that the legislature were sin- cerely anxious to facilitate the collection of debts in the plantations, by giving a more ready and easy remedy to the creditor than was in use before that time, and by establishing one uniform mode of pro- ceeding. Britain, at that period, possessed many extensive and populous colonies on the continent of of North America, as well as in the West Indies, and almost every one of them had a separate legis- lature, and. consequently possessed its own municipal institutions, at least to a certain extent. In some, it is most likely, lands were assets for the satisfaction of debts; in others, most probably they were not; and this diversity in the laws of the colonies must have been productive of vast inconvenience, uncer- tainty and delay, to the English creditor. When the wealth and power of a nation depend on com- merce it will uniformly be vigilent to discover, and prompt to remove all obstacles to its free course. The legislature clearly express their motives in the preamble of the act. The words are the following : "Whereas His Majesty's subjects trading to the British Plantations in America, lie under great diffi- culties for want of more easy methods of proving, recovering and levying of debts due to them, than are now used in some of the plantations, and where- as it wiU tend very much to the retrieving of the credit formerly given by the trading subjects of G-reat Britain to the natives and inhabitants of the 302 HiLAftIr TERM, i WM. tV., 1830. said planlations, and to the advancing of the trade of this kingdom thither, if such inconveniences were remedied." The legislature then proceed to make some importtot and beneficial alterations, relative to the mode of proving debts sought to be recovered by an action instituted in the colonies, in which a person residing in G-reat Britain is a party; then they pass on to the present subject, and by the fourth section of the statute enact, " That from and after the said 29th September, 1732, the houses, lands, negroes and other hereditaments, and real estates, situate, lying or beiug within any of the said planta- tions belonging to any pei'Son indebted, shall be liable to and chargeable with all just debts, duties and demands of what nature or kind soever, owing by any such persons to His Majesty, of any Of his subjects, and shall and may be assets for the satfs- factton thereof, in like manner 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 remedies, proceedings and process, in any court of law or equity in any of the said plantations, respectively, for seizing, ex- tending, selling or disposing of any such houSes, lands, negroes and other hereditaments, and real estates, towards the satisfiaction of such debts, duties and de- mands, and in like manner as personal estates in atiy of the said plantations are seized, extended, sold or disposed of for the satisfaction of debts." The legis- lature expressly declare that creditors were placed under great difficulties by the method in use in some of the plantations for the recovery of debts, atid ex- press their determination to remove the inconvenien- ces complained of, and it appears quite evident from HILAJIY TBRJJ[, 1 WM. IV., 1830, gQB tie whjol^ terior of the act, tJiat they were quite aflxAous tp establish so»ie uniform system through the colonies, founded on better principles md calcu- lated to place the colonial trade, on a more adTiE).D.- tageous b3.sis. "With this view the parliament then proceed to make real estates in all the colonies liable to the p^iyment of all just debts, whether due by specialty or simple contract, precisely to the same extent, during the }ife of the debtor, as personal estates are liable for the same purpose, and they dis- tinctly give the like remedy, process and proceed- ings, and in like manner for seizing and selling the one species of property as the other while the debtor lives. Real ^d personal estates are therefore placed OH the same footing for the payment of debts during that period — ^the statute clearly makes them so, and gives one and the same remedy against both. The position to this exte»t seems indisputable : no doubt is now entertained on this subject, for a superior court has settled the question. Afteir placing real and personal estg,tes in the same condition for the payment of debts, while the debtor lives, what possi- ble inducement could the legislature have to paake any difference after his death ? "Would such a step give a more easy method of recovering debts as ex- pressed in the preamble of the act ? What method was in use before the 5 G-eo. II., I have not been able to learn, but it appears to me that no method of collecting debts could be more inconvenient and more liable to objection than the one which compels the creditor to resort to the heir for satisfaction. The heir might be an infant of the most tender age: he, might be in a foreign country, or he might be un- known for many years to the creditor, and in every 304 HILARY TEEM, 1 WM. IV., 1830. one of these cases the necessity of a resort to the heir would almost amount to a discharge of the debt. If the heir, however, might conveniently be sued, still he might not have sufficient assets to satisfy the debts, and then the personal property must be rea- lized through the medium of the personal representa- tive, and consequently two actions must be brought instead of one, which would be sufficient, supposing the real estate liable in the same manner as the per- sonal, because both could be sold under the same judgment. The necessity of a double proceeding under any circumstances, for the purpose of selling the real and personal property, would, in my opinion, destroy the pledge given by the legislature in the preamble of their act, and therefore goes a great length to prove the construction incorrect which forms its foundation. The plaintiffs allege that the part of the fourth section of the statute which de- clares that real estates shall be assets for the satis- faction of debts, means only as they are liable for debts in England, due by specialty, and that the heir must be sued in England before the real estate of the ancestor can be taken in execution. The plaintiffs further insist, that the allusion I have just stated necessarily implies this consequence, that the heir must be sued in the colonies, by virtue of 5 G-eo. II., before the real estate of the ancestor can be sold for the satisfaction of his debts. Now, it appears to me, the fallacy of the argument consists in this, that the right of the creditor to satisfaction from the real estate is confounded with the remedy to recover such right. I think this part of the fourth section clearly gives the creditor in the colonies an absolute right to satisfaction of all just debts, from the real estate of HILARY TERM, 1 WM. IV., 1830. 305 the deceased debtor. In my view, this part of the act fixes the liability of a deceased debtor's real estate to the satisfaction of all his just debts, but it was never intended to designate the remedy by which such debts might be recovered ; that important pro- vision is found in the subsequent part of the act. All that the legislature declare in this part of the statute is, "that real estates in the colonies shall and may be assets for the satisfaction of ajl just debts, in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other speciality," which is substantially the same, in my opinion, as if they had said, ''that real estate in the colonies shall constitute a fund to their full value, for the payment of all just debts, after the decease of the debtor, in the same manner as real estates in England constitute a fund for the payment of speciality debts due by a deceased debtor in his life time." When any description of property which belonged to a deceased debtor in his life time, is made liable to the satisfaction of his debts, it is styled " assets " in law ; and lands are assets in England, when the owner dies indebted on speciality, by which he has expressly bound his heirs, and therefore the contract made by the owner of lands is the sole cause of the lands becoming assets. This proposition is fully established by the following passage in 2 Bl. Com. 244 ; where Finch's Eep. 86, is cited as an authority. " If a man covenant for himself and his heirs to keep my house in repair, I can then (and then only) com- pel his heir to perform this covenant, where he has an estate sufficient for this purpose, or assets by 2:r 306 HILARY TERM, 1 WM. TV., 1830. descent from the covenanter; for though the covenant descends to the heir, whether he inherit any estate or no, it lies dormant, and is not compulsory until he has assets by descent." It appears, therefore, that lands are assets in Eng- land, independently of any proceedings against the heir, and consequently are assets without such pro- ceeding in this province, because the 5 G-eo. II. expressly makes them assets for the satisfaction of all just debts, in like manner as they are assets in England for the satisfaction of speciality debts. ^In England the creditor has a right to the annual value of the deceased owner's lands in satisfaction of his debt in certain specified cases only ; but by virtue of the statute he has a legal right in this province to their entire value in payment of all debts which shall appear to be just and legal. When the creditor in England wishes to reduce this right into actual possession by recovering the amount of his debt from the real estate of the deceased debtor, the law then requires him to institute proceedings, and to obtain judgment against the heir, when the estate has descended to him; but when the lands have been disposed of by will then the proceedings and judg- ment must be against the heir and devisee. The security, therefore, given to the creditor in England^ varies according to the existing circumstances of the case ; sometimes the devisee is joined with the heir, at other times the heir is sued alone; and if the British parliament had thought it expedient by 3 Wm. & M., Gh. 14, to change the common law remedy altogether, and to direct all proceedings to be had against the personal representative of the HIIiART TERM, 1 WM. IV., 1830. 307 debtor instead of the heiF and devisee, I think no one would have attempted to prove auehi a law un- constitutional. The power of the legislature to modify the right or remedy as frequently as occasion may require cannot properly be disputed, and the only (toubt in any case must be whether they have done so or not. As the law of England does not authorise an action on simple contract of the ancestor to be brought against the heir, and as it appears to me, the statute 5 G-eo. II. makes no alteration in the common law in this particular, either by express words or necessary intendment, I am of opiioion, that no action lies against the heir in thisi province on the simple contract of the ancestor. As to the third point. It ia contended by the counsel for the plaintiffs that we have the law of England in this province, and that according to that law the real estate is assets in the hands of the heir for the satisfaction of speciality debts; and the reason is, that he is the person most interested, and should never be deprived of his inheritance without an op- portunity of defence. It is alsoi urged, that when debts on simple contract are to. be satisfied from the real estate in this province, the proceeding, in prin- ciple, must be analagous to the other, and conse- quently the same necessity of proceeding against the heir here as in England, notwithstanding the differ- ence of the nature of the contract. That true it is the statute 5 Greo. II. subjects lands in the coloniea to tlie satisfaction of simple contract debts after the decease of the debtor, but yet the stiatute makes them^ assets in like manner as they are liable in England; for speciality debts> and therefore the proceedings to 308 HILARY TERM, 1 WM. IV., 1830. make them productive to the creditors must be the same as in England. The answer to these objections is obvious. Lands in this province are not liable to simple contract debts by the laws of England. Their liability to that end is created by a statute forming bo partof that code. When by the law of England real estates are assets to satisfy creditors in this province, then the heir is the legal representative of the ancestor, and may be sued if the creditor elects that course. The 5 Geo. II. gives a right to the simple contract credi- tors wholly unknown to the law of England; and the same act gives a remedy to recover that right to which the English law is a stranger; and if we are desirous of obtaining correct information of the mode of proceeding in such cases, we must resort to the statute. When the statute was passed, a debt on bond, by which the heir was bound, could have been collected in England in two ways — that is to say, either against the personal representative or the heir of the deceased obligor. The law of England there- fore provides two separate funds and two distinct remedies to enforce the payment of such a debt. If one of the funds is insufficient, recourse is had to the other, and often to both, by simultaneous suits, the inconvenience, trouble, and expense of which were most probably one of the chief inducements of the legislature for establishing a new system in the colo- nies. They distinctly enact that both the real and personal estate of a debtor shall be liable to the pay- ment of all his just debts, and that they may be pro- ceeded against and sold in the most convenient manner then in use — -that is to say, precisely in the HILAKY TEEM, 1 WM. tV., 1830. 309 same manner as personal estates are proceeded against and sold for the satisfaction of debts. The mode of proceeding by seizing and selling the goods under a writ oifi.fu. is in my opinion the most easy, and at the same time the most efficacious mode of proceeding against the lands which could possibly be devised, and the only one which offers a fair pros- pect of recovering colonial debts. The property in lands is acquired with more facility, and therefore to a greater extent in the colonies, than other kinds of property ; and most of the inhabitants have a suffi- ciency to produce satisfaction of their debts, especi- ally when the personal property is called in aid of the real. The remedy created by this statute unites all the advantages of the two remedies given by the law of England, without the delay and uncertainty which attend the one against the heir. By that mode of proceeding no. writ oi fi. fa. can issue against the lands; and those who entertain an opinion that the heir should be sued in this province, are compelled to admit that without the aid of the statute the lands would not be sold at all: an admission, I think, con- clusive against their opinion. The statute clearly gives no remedy partaking in part of the nature of the proceedings against the personal representative, and in part of proceedings against the heir; but the line, as appears to me, is distinctly drawn, by which the former is adopted and the latter is wholly re- jected; for there is an express enactment giving the like remedies, proceedings and process, against the real estate, as are by law given against the goods and chattels, and therefore a writ of Ji.fa.-'bj virtue 310 HILARY TERM, 1 YfM. IXT., 1830. of the statute may issue to sell the lands because it may issue to sell the goods. If the creditor proceed to the seizing and selling of the real estate as he does the personal, he finds abundant authority in the statute to support him; but if he pursue the course which the law of England directs against the heir, he finds himself driven to the necessity of placing a forced construction on the statute, which neither the words nor the general tenor of the act can possibly justify. The system he forms is composed of heterogeneous principles which appear irreconcileable, or at aay rate extremely difficult to reconcile. It may not be improper here to give a brief statement of the ordi- nary proceedings according to the law of England, against the executor as well as against the h^ir, in order the more clearly to show the difference between them, and the probability that the legislature in- tended to adopt the former and reject the latter altogether. "When the creditor on bond brings an action, in England, against the personal reprefienta- tive, the declaration must state that the defendant unjustly detains the debt, not that he is indebted? to the plaintiff, and final judgment is entered for the debt and costs, to be recovered against the goods and chattels of the deceased debtor. A writ of ^. fa. issues on the judgment, on which the goods' and chattels are sold for the satisfaction of the debt. When the bond expressly binds the heir the creditor may sue him if he has real assets, or as they are usually styled assets by descent. The declaration must state that he is indebted to the plaintiff- and • unjustly detains the debt; and final judgment is HILMIT TEBMj 1 WM. IV., 1880. 311 uSHAliy entered against the heir, to be levied of the lands and tenements descended to him. The writ of extent then issues, under which the yearly value of the lands is taken by the creditor, and the lands are held till he is satisfied the amount of his debt, after which the possession of the lands returns to the heir. This is the most beneficial mode of proceed- ing which the law of England gives the creditor against the heir, but the estate in fee simple in the lands is never sold, either on an extent or an elegit against the heir. Now it is quite evident that these two modes of proceeding are unlike each other, and distinguished by a marked difference at every step in each pro- ceeding. The object of each is the obtaining satis- faction of the debt, but that end is reached when the heir is sued by means of a proceeding and process entirely dissimilar in substance and in form from those which must be adopted against the executor or administrator, and consequently neither the whole of both, nor a part of one and a part of the other, dan be adopted consistently with the express words of the statute, which declare that lands shall be liable to the like proceedings and process for seizing, selling and disposing of them, and in like manner as personal estates are seized, sold and disposed of, for the satisfaction of debts. When two different roads lead to the saine point you cannot legally make use of both under a license to proceed on one j and when a statute enjoins the doing of a certain act, the per- formance of another act different in itself, but pro- ducing somewhat similar effects, can never be properly deemed a compliance with the law, even if 312 HILARY TEEM, 1 WM. IV., 1830. what the act directed to be done should be found on trial to be in some degree more inconvenient than the other. Arguments ab inconvenienti are admissible only when the intention of the legislature is doubtful, but when the words of a statute are explicit and the meaning plain, it is in vain to insist that the act is inconvenient to particular individuals, or class of individuals in society. If the 5 Geo. II. produces inconvenience to the heir, it is at the same time pro- ductive of incalculable benefits to the community at large, and its repeal would be followed by great public detriment, and therefore cannot legally be objected to on this ground. Lex citius tokrare vult privatum damnum quam publicum malum. Co. Lit. 152, b. In 4 M. & S. 261, Lord Ellenborough says, " The court is governed by the principle of law and not by the hardship of any particular case. What can be more hard than the common case in trespass, where a servant has done some act in assertion of his master's right, that he shall be liable not only jointly with his master, but if his master cannot satisfy it, for every penny of the whole damage, and his person also shall be liable for it, and what is still more, he shall not recover contribution." I am not convinced, however, that the statute 5 G-eo. II. can properly be said to occasion any in- convenience to the heir greater than what the law tolerates as respects the other children of the deceased. The heir perfectly well knows that when lands descend to him they come to his possession accompanied by the same liability to the satisfaction of the just debts of his ancestor, which is attached by law to all the personal estates. Now, suppose HILARY TERM, 1 WM. IV., 1830. 313 the heir to be the only child, and entitled to all the real and personal estate, and suppose the ancestor has appointed a stranger his executor, who has the sole possession and management of the. personal property, amounting to twenty times the value of the lands, what just cause of complaint can the heir have against a statute which sanctions the sale of lands to satisfy the debts by the same proceeding and process by which the goods and chattels of a much greater amount are disposed of, or at least liable for the same purpose ? After the payment of debts the heir will become the owner of both lands and goods, and yet he is dissatisfied with the law in regard to the former, and satisfied with it as respects the latter. There can be no danger of fraudulent practice between the creditor and executor in the case of lands more than of goods, and if fraud did actually occur, the remedy would be as open and effec- tual in the one instance as the other. If the creditor prosecute the executor when there are no lands to enforce payment from the goods, the heir is never allowed to become a party to the proceedings, al- though he may be entitled to a large surplus of the personal estate. Is not this as hard a case as the other? And yet this is the law. It may not be found irrelevant here to state, that the 5 Geo. II. was the law of this country for many years before the law of England superseded the law of Canada, as I have before stated. The 14 Geo. III., ch. 83, sec. 18, expressly declares all acts of the British parliament made concerning or respecting the colonies or plantations in America, should be in force in the late province of Que- 2s 314 HILARY TEBM, 1 WM. IV., 1«30. bee, which then comprised the territory now called Upper Canada ; and the 31 Geo. III., ch. 31, sec. 53, enacts, that all laws and statutes which were in force in the late province of QuelseC should he in force in this province till repealed or varied by the legislature. Since the substitution of the English for the Canadian law in this province, the highest court of appeal from the colonies has determined the 5 Geo. II. is in full force here, and the act must therefore be construed according to the common law rule in such a way as to give full effect if possible to the entire provision of the act, and the intention of the law makers. The great object of the statute is to facilitate the recovery of just debts, and this object must be kept steadily in view whenever a correct exposition of the law is expected. To attain this end I think the legislatuTe initended the very same proceedings which led to a sale of t^e goods should simultaneiously produce a sa,le of the , lands. This, in my opinion, is the keystone of the fourth section of the statute, which unites and sustains the whole. It is difficult for a professional man to -divest himself of the idea that when real estates are assets for the satisfaction of debts, the heir must exclu- sively form the medium through which such estat;es can ever become available to the creditor ; and yet this general principle is subject to some exceptions even by the law of England. Circumstances have existed in England capable of effecting a necessary alteration in the nature and quality of certain freehold estates to as great mLAM TEEM, 1 WM. IV., 1880. 315 an extent as the, measure is. carried by the 5 Geo. II. I allude to the estate pur outer vie. That is a freehold estate, and in no respect partaking of the nature of goods, and chattels., "It is given or confirmed b.y the same feudal rights and solemni- zation—the same investiture or livery of seisin, as estates in fee simple themselves are ;" and so rigid was the common law rule,, that until an occupant actually entered after the death of the tenant^ the freehold was said to be in, abeyance. The definition of this term is cited in Co. Lit. 362; b, and I will cite it for the purpose of shewing how extremely averse the common law was to allow real estates ever to assume the nature or qualities of personal, estates. The anxiety to keep the two descriptions of estates distinct, even against the dictates of jus^ tice, was carried so far almost as to border on the ludicrous. A kind of temporal and neutral estate was created and kept waiting; for some transient, occupant, rather than allow any circumstances; to- have the effect, of assimilating; the real to, the per- sonal estate. Lord Coke says — " If tenant: pur auter vie dieth,. the freehold is said to be in abey- ance until the 'occupant entereth, that is in expecr tation, in remembrance, intendment or consideration! of law. In cemsidemtione legis, because it is not in any man living] ; and the right that is in abey- ance is said to be iu; nttkibus — in the clouds, and; therein had a quality of fame whereof the poet speaketh, " Ingrediturque sohet caput inter nuMia eondit." The British parliament,, however, seemed to have entertained a less, exalted opinion of the doe- 31 6 HILAKY TERM, 1 WM. IV., 1830. trine of abeyance, and at once put an end to its existence in the case of estates jOMr autt,r vie, by an entire abolition of general occupancy. The statute 29 Car. II., c. 3, s. 12, and 14 Geo. II., c. 20, s. 9, make freehold estates pur auter vie like goods and chattels in some cases, and give them to the executor or administrator, although by the rule of common law a freehold estate could never vest in the personal representative. The first statute declares that estates pur auter vie shall be deviseable ; but if not devised, and they descend to the heir as special occupant, they shall be real assets, precisely in the same manner as lands in fee simple. The second statute enacts that such freehold estates, when not devised, and when there is no special occupant, shall go, be applied and distributed, in the same manner as personal estates of the testator or intes- tate. These statutes most judiciously make real estates of a certain description, and under certain circumstances, to assume the nature and quality of personal estates ; and can it with truth be asserted that the 5 Greo. II. does more ? By that statute real estates in the colonies are made quasi personal estates, for the satisfaction of just debts ; and at this point the innovation on the common law principle completely ends, and never after makes its appear- ance through all the multifarious changes incident to the transmission of real estates by descent, devise, conveyance or marriage. The honest debts of the deceased owner being fully satisfied, the diverging line marked out by the statute for the sole purpose of affording distribution and speedy justice, imme- diately returns to the ancient parallel of the com- mon law, and uniformly continues in the same HILARY TERM, 1 WM. IV., 1830. 317 direction without further deviation. In my opinion the more any oce reflects on the intrinsic jus- tice and moral obligation of making all kinds of property subject to the satisfaction of all just debts — the more he considers the great advantages of simplifying the proceeding for the recovery of debts in order to avoid a waste of the means — the more he will appreciate the provisions of the 5 Geo. II., and the wisdom and justice of the British parliament in making that law. Upon as full a consideration as I have been able to give the subject, I am of opinion that lands and tenements held in fee simple by a debtor at the time of his decease, may be legally taken, sold, and disposed of under a writ of fi. fa. sued out on a judgment recovered against the executor or admin- istrator of, such deceased debtor. Judgment must therefore be entered for the defendant in this case. The Chief Justice and Macaitlat, J., having been concerned in this cause when at the bar gave no judgment ; but after Sherwood, J., had decided, the Chief Justice said that he felt it right to state that he concurred with his learned brother in the conclusion he had come to as to the intention and effect of the statute 5 G-eo. II., c. V, in rendering lands liable to executions upon judgments against the executors or administrators, {a) (a) See Gardner v. Gardner, 2 Old Series 520 ; Seaton v. Taylar, 3 U. C. Q. B. 303 ; Doe dem. Lyon v. Legfe, 4 U. C. Q. B. 3B0 ; Bowes v. John- son. 6 Old Series 158 ; Ward v. McCormack, 6 Old Series 215 ; Sickles v. Asselatine, 10 U. C. Q. B. 203; Graham v. Nelson, 6 U. C. C. P. 280; Topping V. Yardington, 6 C. P. U. C. 347 ;, Mem. v. Short, C. P. U. C, decided 18th June, 1859. SIS' HHiARY TERM, 1 WM. IV.,. 1880, DoTiaArLL V. MidGLBAN. When natioe, of intention to move, on tlie ground of. irregnlarjty, isre^ qtiiired- in Sngland to be given two days prior to the execution' of thw writ of enquiry, a- aimilar notice shall bei given in thia court not later than the first day of assizes at which the damages are aseessedi In this case, which came before the court on a motion to set aside the interrocutbry judgment and subseq[tient proceedings, it was determined, that in all cases when by the English practice two days'' notitje of intention to move to set aside proceedings prior to the execution of a writ of enquiry was necessary, that the notice here might be given not later than the first, day of the assizes, for which any notice of assessment of damages was given, and they directed that such in future should be the practice. The Kikq- v. Thbaeb. On the traverse of office, the issue was whether Lane, an alien, was seised on the let July, 1812, of the lands in' question, the traverser having proved a primd facie title. A possession was proved in the alien about.20r years before the trial. No conveyance was produced, but a fflemopial of a mortgage for years from Lane to the .original grantee of the Crown, under whose heir traverser claimed. Held not conclusive evidence of a seisin in fee of Lane ; and the judge at N. P. having left it to the jury to find under the evidence whether the original grantee had conveyed in fee. to Lane, and they finding for the traverser, i. e., negatively; the court re- fused a new trial. The defendant had leave by a private act passed^ in the last session, of the provincial legislature (11 Geo. lY., G. 33) to traverse any inquisition or office found,,, whereby the real estate in lot number eighteen in the tenth concession of the township of Grantham, has been vested in his Majesty as forfeited, as having been the property of one Thomas Lane, who with* drew himself from this province during the late war; and he pleaded that the land in question was granted to George, Turney, the elder, who died seised there^ BlLAEY THEM, 1 WM. IV., 1831. of, whereupon -the same descended to George Tiir- ney, the younger, who conveyed to the plaintiff, traversing that Lane ever was seised in fee of the premises, and on this issue was joined. At the tfial the grant to Greorge Turney was proved, and that George Turney, the younger, was his heir at law, and the conveyance from him to the traverser, dated 6th January, 1825, was put in evidence. On the part of the Crown witnesses were called to prove that the lot in question had been known as " Lane!s lot " for upwards of twenty years, that one McMar- lane occupied it about twenty-two years ago, and made improvements on it, and represented himself at that time as tenant to Lane. That Turney the the elder, in 1810 or 1811, said Lane had paid him for 'the lot, but there was no proof that any deed had been given. The register of the county then pro- duced a -book. which he stated he believed to be a book of his registry ofi&ce — he received it from an attorney in Niagara — it was one of the books which was carried off by the enemy during the late war. This book was further proved to be in the hand writing of John Powell, Esquire, who was formerly register of the county. It contained an entry in Mr. Powell's hand writing purporting to be a memorial of a mortgage from Lane to Turney the elder, /to secure payment of a sum of money; it was for a term of years. And the Attorney-General contended this was conclusive evidence, and that Turney, and those who claimed under him, were estopped to deny a fee in Lane having received a mortgage from him. Sherwood, J. — Left it the jury to say whiether under all the widenoe they, believsed Tumey had 320 HILARY TERM, 1 WM. IV., 1881. conveyed the land to Lane or not ; and after retiring for a short time they found for the traverser. In Michaelmas Term last, the Attorney-General obtained a rule nisi for a new trial, and now Draper shewed cause. The court, however, thought the evidence properly left to the jury, and that there was no reason to dis- turb their verdict, and the Chief Justice intimated, that if it had been necessary to examine into the question, a good deal might be found in the objection raised by Draper, that this was not a case in which the court would exercise its power of granting a new trial. Per Curiam. — New trial refused. Yid. Cowp. 37; Show. 336 ; 1 Lev. 9; 1 Sid. 153 ; Willes 533. The Attornet-Gtbneral v. Spafforb. To an information for the condemnation of goods as illegally imported, the defendant pleaded that they were not imported modb etformd. On the trial of this issue the defendant was not allowed to prove that the goods were landed through stress of weather, and the jury found for the Crown. The court held the evidence should have been received, and granted a new trial. iNFORMATioisr for the condemnation of certain goods seized by the collector of the port of Broekville for having been landed without being duly reported. The defendant claimed the goods and pleaded that they were not imported modd et formd, on which issue was joined. At the trial at the last assizes for the Johnstown District, cor. Macaulay, J., the de- fendant offered to prov« that he reported in writing HILARY TEEM, 1 WM. IV., 1881. 321 to the collector of Brockville, that he intended im- porting certain goods on the day of the seizure, but no duties were paid. That he had directed his clerk to bring over from the United States those articles only, and to remove other merchandise from one place to another on the United States side, in- stead of which, the clerk brought all over to Canada,, arriving at 11 o'clock at night. That the weather being stormy prevented the clerk unloading on the other side the articles he was to have left there, and obliged him to bring them to this side. That the clerk landed the goods that night before the claimant knew of it, the wind being so heavy as to render it necessary. That as soon as the claimant was apprised of it he reproved his clerk for bringing them over, and told the clerk they had not been reported. That the clerk said they might be taken back, which claimant refused, and directed them to be left till morning, when he would see the collector on the subject. That the goods were seized in the morning before he had time to report them. Maoaulat, J. — Thought that the above facts, if proved, would not sustain the issue to be tried ; that the goods being imported and landed before entry, the facts alleged in the information as constituting a legal cause of seizure, and forfeiture, were admitted. A verdict was rendered for the Crown, and leave given to the claimant to move for a new trial on the ground of the rejection of the evidence offered. Last term Draper moved for a rule nisi to set aside this verdict and grant a new trial on the point reserved. 2t j3'2'2 hilahiY term, i wm. n., isai. Afld tliis iday Ae Mtormy-Bm&rci shewed ■cause. ■ The co\irt thought the fact of an absolute nficessiiiliy (tliTOugh stress af wejather) for landing the goods ^Qtrary to the will ;0f th^ party, WrQlld qppstit$ijtf. fi g-9qd defence ; aiad t:h,at as the question inv<^yed t* cpi^teraplated brqacfe of the law, no sjiecial plea wfVP i).ec,ess9,ry ;in this c?i,se. It woiuld he unre^ta&eafcte t9 say a 'party pust iooji on a#4 see his good§jde- strpyed for want of a report which he had m opportunity of making "H^e foljowing oases were meiitioned, 2 Wils. 257 ; 1 B- & P- 267 ; iG.ro. Eliz. $33 ; Reejpes on Shipping, 196, et seq. Per Qirmm. — Rule absolute for iiew trial- Jones, qui tapp, v. Chace. On debt g. i. on the imperial statute 6 deo. TV., c. 114, jrhich givps the p^p^ty j to tjie King, J to jth? Lf,. fitoy^nor, and i'tp tto pers(Si> ^Biag, tiie court refused to arrest .the judgment, on the ground thajt the pjain- tifF claimed the penalty for bimsaf apd the King only, aot namwig tfie Lt. Governor. An action of debt will lie on that statute to recover the penalty. Debt qui tarn by the Cjollector of the Port of Brockville, for a breach of the statute 6 Geo. IV., e. 114. The plaintiff sued as well for our sovereign lord the King as for himself, for £600. For that whereas o-n, &c., at, &e., certain persons unknown were employed with a hopse and cart removing goods illegally imported ; aod while so employed, two persons, deputies of plaintiff, seized the same, and that defendant, contrary to the statute, opposed an4 molested the said deputies, and rescued the said goods, whereby, and by force, &e., an action hath accrued to plaintiff, as collector as aforesaid, HILAto' TEHM, 1^ Wjft TV., iSSV. 3'^^ to deflteni df dfefe^iidant £200; parcel, &c. ; ^W&A and tteli*d coutitf eacli for J200', varyiilg' the sM^- Dttent^. Breach.^- Yet d'^fMdkW (ttougfe Often i»^- qu^St^d) Hatli not paid to our sovfereigtf Itff-d' tM' King a?ad plaiatiff; as' collector as a,fOitth& penalty can be recovered only by informatioQ. 2u6.. That the plaintiff prays the penalty for the Kingiand himself; contrary to the provisions of the statute- which gives one-third to the oOlleotor for" the Kitfg'^s use, one-third to the Governor of the colony, and the other one-thirdto ther person who ' shall inform- sshd sue for the same. This term the Solicitor'General shewed cause,' and Draper replied. CntEP JtrstiCJEi.— Tlife penalty for which this action.' is'brought isimposed by the imperial' statute 6'd-ed. W., c. 114, sec. 52, which^says; that' ''tlie pe'irson 324 HILARY TEEM, 1 WM. IV., 1831. committing such offence shall forfeit the sum of £100." The 57th section enacts, that all penalties and forfeiture shall and may be prosecuted, sued for and recovered, in any Court of Eecord having juris- diction in the colony where the cause of prosecution arises. The 59 th section enacts, that no suit shall be commenced for the recovery of any penalty under the statute, except in the name of some superior offi- cer of the customs or iiavy, or other person employed, (to seize and secure, &c.,) or of his Majesty's advo- cate or Attorney-General for the place where such suit shall be commenced. The 68th section enacts, that all penalties and for- feitures recovered under that statute shall be divided as follows: After deducting the charges of prosecution, one- third part of the net produce shall be paid into the hauds of the collector of customs, at the port or place where such penalties or forfeitures shall be recovered, for the use of his Majesty; one-third part to the Gov- ernor or Commander-in-Chief of the colony or planta- tion; and* the other third part to the person who shall seize, inform and sue for the same. The 69th section enacts, that all' actions or suits for the recovery of any of the penalties or forfeitures imposed by this act, may be commenced or prose- cuted at any time within three years after the offence committed, by reason whereof such penalty or for- feiture shall be incurred. The action is brought by the plaintiff, "who sues as well for our said lord the King as for himself in this behalf," and the record HILARY TERM, 1 WM. IV., 1831. 326 after the statement of the offence concludes thus, "whereby an action hath accrued to the said William Jones, who sues as aforesaid, to demand and have of our said lord the King and for himself the sum of £200, &c." It is objected in arrest of judgment, 1st. — That an action will not lie by the plaintiff (not being a party grieved) upon this statute, but that the penalty can be recovered by information only. 2nd. That the plaintiff prays the penalty for the King and himself, contrary to the provision of the statute. Upon the first objection. This action cannot be said to be brought by a common informer, but by an officer who is expressly authorised by the act ; and further, the words "action, sue for, recover," in the 59th, 68th, and 69th sections, if they were extended by the statute to common informers, which they are not, would undoubtedly enable such common infor- mers to bring debt, though they might not authorise him to proceed by iuformation. They clearly, how- ever, enable the present plaintiff to bring debt. Com. Dig. Debt E. and 5 East. 313, shew this clearly. Upon the second objection there may be more room for doabt. In support of it the authority most relied upon is in Hobart 245. The case is not re- ported as having been decided, but Lord Hobart intimates his opinion, and probably there have been few judges whose individual opinions would have more weight. That was an information for penalties under a statute which gives £b for each offence, and 328 HILARY Ti!RM, 1 WM; IV., 1831. diTidtes the penalty into three parts, one for the king, one to the poor of the parish, and one to the informer. The informer claimed the moiety for him- selfi Lord Hobart thought the information bad, an'dure Consol. Stnt. U. C, ch. 22, sec. 280, on attachment may issue in vacation on judge's summons and order. 333 HILARY TEBM, 1 WM. IV., 1831. KlLBORlf V. FOUESTER. A. having a claim on the government for Cel^tain wild iBnds, gave a bona to B. to procure the patent for the same in B's, name, on condition thftt B Blionld pay him a certain stipuliited sum, on afiiied day. He did -so obtain the patent, and informing B. of it, Teqnested payment. B. vithoitt refusing, put it 6ff, and afterwards an action of assumpsit was instituted to recover this money, in which the plaintiff declared, among other thinga, fbr the value of lands sold and for services rendered in procuring letters patent to B. granting bim certain lands in fee simple. iIeMtia,t A. could recover. Assumpsit. — The declaration contained several counts; one for the value of lands sold by the plain- tiff to the defendant; another for services rendered by the plaintiff to the defendant in procuring letters patent from the Crown, granting him certain lands in fee simple. At the trial the following facts ap- peared in evidence : Kilborn, who seems to have had a claim upon government foi" a lot of land which had not yet passed into a patent, stipulated with Forester to assign the lands to him, and executed a bond, dated 11th August, 1827, binding himself to procure the Kiug's letters patent for the lands in question, to be issued in the name of Forester, and to deliver him the patent on or before the 1st day of August, 1829, provided Forester should have well and truly paid him £101 4s. 7d. on or before that day. This bond he delivered to Forester, who pro- duced it at the trial upon a notice given for Ihat purpose. Kilborn further proved, tha^t withiin the period he did procure the letters patent in the name of Forester for the lands mentioned, and gave For- ester notice of it and offered to give him the patents; iForester, ho^wever, told him he might keep them till he sliould see him again. To this evidence the defen- dant's counsel took these exceptions — that the bond produced contained nothing binding on him, and does not bear his signature — that no other writing HILARY TERM, 1 WM. IV., 1881. ' 3$g was produced, and that he ^cannot be charged "upoa any contract or sale of lands, or any interest in or concerning them, nor upon any agreement not to be performed within a year from the making thereof," unless upon proof of an agreement in writing, or a memorandum or note thereof signed by him as the party to be charged, or by some person thereuntp lawfully authorised by him — that the action cannot therefore be sustained. In Michaelmas Term last the case was argued on these points, the verdict having been given for the plaintiff, sulgect to the opinion of the conrt upon them. Judgment was not given till this term. Chief Justice. — This case is one arising out of a description of dealing very common in this province, where, from the low price of real estate, the frequent transfers that are in consequence made and the bar- gains to which that kind of traffic gives rise, are not accompanied with the same cautious circumspection that attends such transactions in older countries. No ground a,ppears in evidence on the part of Forester for repudiating this contract — no failure is imputed to Kilborn — it is not pretended that Forester has not the full benefit for which he stipulated, and no reason is assigaed (besides the legal exceptions upon which the ease turns) why he should not pay Eilborn the sum agreed upon, or at least the fair value of the lands. Forester, it is j)lain, under the letters patent which were produced at the trial, holds a title by matter of record to the land mentioned in the bond. ^34 HiiiARY TERM, 1 WM. IV., 1831. The patent has the legal effect of giving him an abso- lute title in possession. No impediment to the enjoy- ment of the real estate is suggested, nor any fraud or unfairness on the part of Kilborn. Although the points raised are very important in their bearings upon a multitude of transactions in the country, this case is not one of very particular mo- ment in itself: the object in litigation is not large; for all that appears, Forester has received an estate for which he ought to pay, and the justice of the case as it stands before us is plain, and is evidently with the plaintiff ; but the remedy is sought in a court of law, and it is objected that in consequence of the Statute of Frauds certain legal evidence is necessary, without which the remedy cannot be obtained here, whatever may be the real merits of the case. If we find this to be so the objections must prevail how- ever hard may be the consequences, for we must en- force the statute with the same regard to its letter on the one side, and the same attention to its spirit on the other, as have governed the decisions of courts of law in England. -■o' If the facts which appeared on the trial were not made out by that description of evidence which the law requires in order to support a case upon such a claim, then we must discharge our minds of the facts as entirely as if they never existed, and if the plain- tiff for this reason is defeated of his remedy in this court, and having no other jurisdiction to apply to, shall remain without redress, the fault is in himself, in neglecting to take proper precaution in this busi- ness, though he may be regarded as unfortunate in HILARY TERM, 1 WM. IV., 188]. 336 there being no Court of Equity here which can afford redress. I make this observation because I disclaim the idea of venturing upon any consideration to deny to the Statute of Frauds whatever effect would, in my opiijion, be given to it by the courts of common law in England. "We are clearly to construe that act as strictly as it is there construed in courts of law — to carry its provisions into effect in this coun- try with more rigorous exactness, would, in my opinion, be exceedingly injudicious and unjust, as well as illegal. t To determine this case satisfactorily it is necessary first to consider, whether, if Forester had so recog- nised the bond by his signature as to comply with the Statute of Frauds, there is such an agreement expressed or implied in it as can support this action. It is true there are not in the bond any words ex- pressly obligatory upon Forester, for the bond was meant to be, and is the bond of Kilborn, and of him alone; the language consequently is such, that if Forester had sealed it no declaration could be framed on it charging him in debt on bond. To show a right to the penalty of an obligation the party must bring his case within the letter of the condition, with strict legal precision; but without reference at present to the question of signing, cove- nant will lie upon specialties, and assumpsit upon written agreements, whenever the fair understanding of what is written will raise or imply an undertaking. I take the fair and reasonable interpretation of the transaction disclosed in the bond to be this, that Kil- born bound himself to procure for Forester the pa- 336 HTLAEY TERM, 1 WM. IV., 1881. tents, on or before the 1st August, 1829^-thathe had until that time to obtain them— that it was not to remain optional with Forester whether he would accept them or not, but that the payment of the money was an act as much incumbent upon him as the procuring the patents was upon the other. In other words, I think that Kilborn was not bound to wait till Forester paid the money, from any uncer- tainty, whether the contract was mutually binding or not, but that he might proceed to enable himself to fulfil his part of the bargain, and that when he had done so he had an absolute right to enfore from For- ester the payment of the price agreed upon, though he could not bring his action to compel him until the 1st of August had arrived, that being the day men- tioned for the convenience of both parties. I think this point clear upon the authorities respecting con- ditions concurrent or precedent, many of which were considered and cited in this court in the case of Baker and Booth. If this case comes within the Statute of Frauds, and if upon adjudged cases the signature of Forester can be considered as supplied under the circumstances, then I think the nature of the contract raised by the bond given by the one and received by the other, is such as I have stated. If the Statute of Frauds should be thought not to apply under the circumstances of this case, then no agree- ment or memorandum, or note of any agreement in writing would be necessary, and it would remain for us to consider, whether upon all the evidence an im- plied assumpsit would not be raised against Forester, to pay for the estate he had received the sum men- tioned in the bond, or its fair value, to be allowed by the jury. I think an assumpsit would be raised. HILARY TERM, 1 WM. IV., 1881. 337 Now with respect to the Statute of Frauds. This case does not turn upon a part performance merely, which might have the effect of placing" the plaintiff in such a situation that he could not be restored to his original rights, while at the same time it left an agreement still open and incomplete on both sides, to which a recourse might be necessary in order to give either party the full benefit for which he stipu- lated. If the case were so situated, it might then be necessary to determine whether a court of law con- sider part performance as taking a case out of the statute. Upon that point, the case in Brown's Ch. Oa. 417, and the very strong language used by Lord Mansfield in the case of Simon and Moltivos, and by Mr. J. Buller, in Brodie and St. Paul, 1 Vesey, Junr., might be found to be contradicted by such a weight of authority as to make it unsafe to adhere to the doctrine they lay down, in its fullest extent. I do not, however, express any such opinion at present, for it is not necessary, and I should reluctantly bring myself to that conviction. In this case, how- ever, the plaintiff has done all he engaged to do — on his side the contract is executed. The defendant holds the laud, and why is he not to pay for it? The statute was made to prevent fraud. I do not conceive the legislature can be supposed to have in- tended that in consequence of its provisions one man ought to receive an estate from another and hold and enjoy it for nothing, and tell him it is true you have bound yourself to procure me a title to an estate, for £100, and that I accepted your bond, and that you have fulfilled it and given me the estate nevertheless, as you trusted to my honesty and took no undertaking in writing from me to pay for it I 2x 338 HILAKT TERM, 1 WM. IV., 1831. will keep the estate for nothing — I will not only not pay you the particular sum you demand, because you can shew no agreement in writing for that particular sum, but further, I will not pay yOu any thing be- cause you can shew no agreement signed by me binding me to do so. I do not so construe the Statute of Frauds. I admit that whenever either party can have no cause of action except upon an agreement, then he cannot prove his agreement otherwise than the statute requires ; but I conceive the circumstance may be such as to imply an assumpsit, without the necessity of any special agreement, and that in such a case the statute will not preclude a plaintiff from recovering the value of the estate he has transferred. Suppose by deed poll to which he only is a party, A. conveys an estate to B., and mentions in his deed that it is in consideration of £50 paid, and of £100 to be paid by B., in a year from the date, could it be contended that B. could take this conveyance and enjoy the estate, and that upon being sued for the jBlOO, he could produce this deed at the trial, as the bond Was produced hel^e, and yet say you can show no agree- ment signed by me the party to be charged. The Statute of Frauds protects me in this case in which there could be no fraud. I will hold the land and you shall loose your money. To say nothing of any distinction between contracts execatoi-y and not executory, there have been many cases in which courts of law have departed from the strict letter of the Statute of Frauds, grounding that departure upon the principle that the danger of fraud in those cases did not exist. xigain it is said, sales under the direction of a master in Chancery are not within the statute,' be- HILARY TERM, 1 WM. IV., 1831. 339 cause there can be no danger of fi*a,ud in a traiisaction under the sajiction of the court. Where then is the danger of fraud in the present ease? ]&ilborn has given Forester his bond to bind himself to his part of ib.Q agreement : under it Forester has received the estate. There can be no doubt as to the terms, so far as the bond exhibits them, nor any.dapger of fraud, as to the terms of that bond, because the de- fendant has sanctioned its authenticity by accepting it^ and by holding it as compulsory upon the opposite party. The only possibility of fraud in such a case, that I can see, is the possibility of Forester's defraud- ing Kilborn of the purchase money. He seems to thmk he can do it under cover of a statute made to prevent frauds; but he should remember that the statute (as great judges have said) is to be use4 not as a sword but as a shield, and that, as was observed by the court in 3 Burr. 1919, the statute being passed to prevent fraud, it shall never "be so turned, con- strued or used, as to protect or be a means of fraud." If the estate had not been conveyed by the one and received by the other, and if the parties were litigating upon an alleged agreement, either of them charging the other for not conveying, or for not ac- cepting and paying for it, then it is clear the Statute of Frauds would preclude any recovery upon such an agreement, unless it were in writing and signed ; but here the act is done ; the question is not as to the agreement about it, but the legal consequences of it, and the obligations arising from it. I do not however state it to be my opinion, that an agreement is not in this case supplied by the .evidence, suppos- ing an agreement necessary. 340 HILAEY TERM, 1 WM. IV., 1831. Because the title procured, which in its nature confers a title in possession, the bond is evidence of the terms on ■which it was procured. It is true it is not signed b/the party charged, but I have a strong conviction, that his acceptance of the bond, and re- ceiving under it the full benefit he stipulated for, ought to be taken as equivalent to his recognising it by his signature. Many cases might be quoted in which this principle is advanced, though not with particular reference to the Statute of Frauds. With reference to that statute, and upon this particular point, I will advert to what is said by the court in a case reported in LofiTt. 332. The case is obscurely reported, but the sentiments of the judges are clearly given upon that question, and they confirm the position I have stated. See also 4 Moore, 542 ; 6 More, 119. I have not yet felt it necessary to consider the objections on the two points of the 5th sec. of the statute separately, because the same reasoning applies to both; nor have I lost sight of the arguments, that the declaration might be sustained by considering the procuring the patent as a service rendered, if a remedy could not be obtained by suing, as upon a sale of land. If the plaintiff were driven to main- tain this construction, and if it were not open to the same exceptions on the statute, I should feel every inclination to support the verdict in that way, but I consider it legal on the other and more obvious view of the transaction. The examination of the various decisions on the Statute of Frauds has led me to deduce from them HILARY TERM, 1 WM. IV., 1831. 341 the principle I have stated. I have not been free from doubt, and am not now, but my opinion is, that the verdict is supported by the evidence, and as was well expressed by Mr. J. Buller, 1 Yes. Junr. 421, " I will only say, that if I err I will take care, as far as is in my power, to err on that side on which jus- tice lies." I must also add, that if under such cir- cumstances as these, the statute were to preclude a recovery in a court of law, any country which like this has not a Court of Equity, would, in my opinion, be much better without a Statute of Frauds, for I think it was truly said by Mr. Justice Wilmot, (Bl. Eep. 601,) sitting in a court of law, "had the Statute of Frauds been always carried into execution accord- ing to the letter, it would have done ten times more mischief than it has done good, by protecting rather than by preventing frauds." I am of opinion that MkQpostea should be delivered to the plaintiff. Sherwood, J. — I think judgment in this case should be entered for the plaintiff. In my opinion the intention of the legislature in making the Statute of Frauds was to prevent those fraudulent practices which are usually attempted to be supported by per- jury, -and in order to prevent them the statute requires, that the terms of contract shall be reduced into writing, or that some other requisite should be adopted to prove, beyond a doubt, that the contract was completed. I think it was the object of the statute to prevent a recourse to verbal testimony to prove the terms of the contract upon which the plain- tiff seeks to recover against the defendant. This 342 HlLARy TEEM, 1 WM. IV., 1881. objection must always hold good so long as the con- tract remains open and executory, but when the requisites of the contract have been complied with by both parties in all essential points, it is then e5;e- cuted, and I think no longer liable to the objection before mentioned. The case is then out of the statute, there is no danger of mistaking the terms of a con- tract, because the parties themselves, by their own acts, have recognised the contract and ascejrtained the terms.— Gow. N. P. C. 109. In the present case I think the contract was exe- cuted. The plaintiff procured a government 4^Qd for the defendant of the land, and the defendant ap- proved of it, and said he would take' the deed. The defendant was therefore the owner of the land and in legal possession of it by virtue of the King's deed. The anjount of the price of the land is fully proved by the bond given by the plaintiff to the defendant, and therefore the jury had sufl&cient to enable them to ascertain the measure of damages. Macaulat, J. — It would seem the plaintiff accepted of the defendant a bond, dated 11th August, 1827, conditioned, that if plaintiff should procure from the government of the province a patent, to be made out and issued for certain specified lands, on or before the 1st August, 18'29, providing defendant should have paid him £1 01 4s. 7d. on or before the same day, then the obligation should be void. That in pursuance of such bond the plaintiff did procure pa- tents for the lands in question, to be issued in tide name of defendant, such patents bearing date up- wards of a year subsequently to the date of the obli- HILARY TERM, 1 WM. IV., 1881. 343 gatioti, namely, the 11th October, 1828, and that by reason of the non-payment of the sum mentioned in the condition this action is instituted. The declara- tion is for a messuage and tenements bargained and sold, work and labour generally, the money counts, and an account stated. Without delaying the case till next term, which I am unwilling to do, my learned brethren being in farour of the verdict, I could not go at any length into the case, or examine in detail the arguments and considerations which suggest themselves. As at pre- sent advised, the matter appears lo me to lie within a narrow compass. The evidence, I think, imports a contract or sale of lands, or an interest concerning them, or an agreement not to be performed within a year from the making thereof, in either of which events it is required by the Statute of Frauds that such agreement, or some memorandum or note thereof, should be in writing, and signed by the party to be charged therewith, &c. At the trial, the plaintiff failed to shew any agreement, memorandum or note, in writing, signed by the defendant, and consequently, hbwpver in other respects the facts disclosed might be deemed sufficient to sustain an action, or however a Court of Equity might effectually interpose, I am of opinion that applying the evidence to the present record, a nonsuit should be entered for the foregoing reasons, did no objection exist to the form of the pleadings. I have not been able to satisfy myself that upon the footing of part performance, or any other princi- ple grounded upon the presumptive fraud of the party 344 HIIiAKY TERM, 1 WM. IV., 1831, charged, or upon the merits of the plaintiff's claim, the present suit can be legally sustained upon the evidence adduced, consistently with the terms of the statute. As the moral right to recover is to me, nevertheless, manifest, I am glad my learned brothers take a more favourable view of his legal resources. And it is not without much diffidence and great mis- trust of my own judgment that I feel constrained to differ from them, I shall be extremely happy if my future researches justify me in adopting an opinion different from that which I at present entertain. Per Curiam. — (Diss. Macaulay, J,) — Posiea to the* plaintiff. EASTEB TfERM, 1 WM. lY., 1831. Present ; The Hon. John" Beverley Eobinson, Chief Justice. " Levius Pbterb Sherwood,, Judge. " James Buchanan Macaulat, Judge. ROCHLEAU Y. BiDWBLL,. The lecognition of a bond in a letter from defendant to plaintifT, with prOof that a document purporting to be a cbpy or draft of such an in- strument, was shewn by defendant with the' title deeds of an estate to which it related, affords evidence to go to a jury in prtof thereof, after rtti&ee by d^fiendant to produce, and a failure to defblidant to produce any bond, copy or draft. SbV^af docume'ilis may be coiistriiied tbgether as evidence of an agreement or note iii writing under the Statute of Frauds. A conveyance in fee fi-offl plaintiff to defendant, With absolute covenants for title, but not for fjlither assurance; a bond to defendant for further assurance at a fixed period, on receiving an additional sum, and interest, with a Subsequent written offer from defendant to plaintiff, to purchase another property, on paying a portion down and the residue at a future period, receiving a b^iAl nom plaintiff like the former bond for a deed of confirmation as 'm tiie former bond, held under the facts proved and found by the jury to con- stitute an agreement, oriottb, or memorandum thereof, within the stfetiltei on defendant's part, to pay the sum specified in the bond and interest, on plaintiff's tendering a cOAfirinatibli' and dlem'anding the same. ' Semble, that when to pleas of no agreement or note in writing, and also an agreement not to be perforined within a year to the saine count of the dekal'iriliotl ; an agreement was replied to the first plea, and a note Or me- morandum replied to the second, and sufficient evidence of a note or memoranduB^ is giVeii, the plaintiff is entitled to jud^iii'eilt on the whole record, though such evidence might not- amount to substantive proof of an' agfefeineat. Assumpsit. — The declaration contained two special counts, on a sale by plaintiff to defendant of a house and land in the town Of Kingston, setting out in terms a special agreeiUent, that in consideration that plain- tiff had sold thfe estate to defendant, defendant under- took to pay plaintiff £265, with 5 pier cent, interest thereon, after tlie 13th April 1829, if plaintiff should, after the said 13th April, make and execute to de- 2y 346 EASTER TERM, 1 WM. IV., 1831. fendant a dedd of confirmation sufficient to confirm and secure to the defendant a legal title in fee to the premises; and that after the 13th April plaintiff did execute, &c., a sufficient deed, &c., and tendered the same to defendant, and required him to pay the said sum of £265 with interest: yet defendant refused to accept the deed and to pay the money, &c. 2nd count. — That it was agreed between plaintiff and defendant, that plaintiff should sell to defendant, for considerations thereinafter mentioned, a certain other house and land, and that plaintiff should exe- cute a deed of bargain and sale to defendant, for the consideration of £335, and that after 13th April, 1829, plaintiff, upon payment to him of £265, with 5 per cent, interest, should lexecute to defendant a deed of confirmation sufficient to confirm to defendant a legal title in fee, and that defendant should pay the said sum, and interest, on the delivery of the said deed. Mutual promises are then laid, and although the defendant in part performance paid the £335, and although plaintiff executed a deed of bargain and sale, &c., and after the 13th April executed a suffi- cient deed of confirmation, &c., and tendered the same and requested defendant to pay the £265, and interest, in all £423 15s., yet defendant did not nor would, &c. The common counts were added. The defendant pleaded, 1st, the general issue, and 2nd, the Statute of Limitations; 3rd, after reciting the Statute of Frauds requiring agreements respecting the sale of lands to be in writing, that there never was any such agreement, or any memorandum or note thereof in writing and signed by the defendant as in the first count, &c. EASTEE TERM, 1 WM. IV., 183]. 347 4th to 1st count, reciting the Statute of Frauds re- quiring agreements not to be performed within a year to be in writing, that the action is to charge defen- dant with an agreement not to be performed within a year, and that neither the said supposed agreement nor any memorandum or note thereof, nor the sup- posed promise of defendant ever was in writing. 5 th to second count similar to third plea. 6th to second count similar to fourth plea. 7th to first count that neither of the agreements were in writing, &c. 8th to second count similar to the last. Replication to first plea joins issue. To 2nd, that action did accrue within six years. To 3rd, precludi non, because the said agreenient, promise and undertaking, was made in writing and signed by defendant, concluding to the country. To 4th, precludi non, because a memorandum or note in writing of the said agreement, undertaking, and pro- mise of defendant, was made in writing and signed by defendant, concluding to the country. T9 6th and 6th same as to 3rd and 4th. To 7tb, precludi non, because although true it is neither the undertaking or promise of defendant in said first count mentioned, nor any memorandum thereof was in writing and signed by defendant, yet plaintiff says that at the time of making the said promise in the first count mentioned, plaintiff in part performance executed a conveyance or deed of bargain and sale in fee of the 348 EASTEE TERM, 1 WM. FT,, 1831. said land/ &c,, uuder whicli the defend,aqt entered into possession, and so continued from thence hitherto to the great loss of the plaintiff. To 8th plea, that there was a memorandum or note of the said agreement in the second count mentioned in writing, &c., conclud- ing to the country. The defendant joined issue on all but the replication to the seventh plea, to which he demurred and joinder in demurrer. The cause went down to trial and to assess contin- gent damages on the demurrer at the last Midland District Assizes, cor. Macaulay, J. The plaintiff proved a notice to produce bond, paper, &c., but no bond was produced. A paper, purporting to be a copy of a bond, was then produced and shewn to plaintiff's first witness; it was in plaintiff's hand- writing, and witness saw it in plaintiff's possesion in October or November, 1826. He never saw a simi- lar bond in defendant's office, but he saw a paper something like a copy which was ajsp in plaintiff's hand-writing. It did not appear to be signed or wit- nessed, Defendant, when lecturing witness on co:ii- veyancing, said in illustration of the deeds .essential to constitute a valid title, that on occasion of his pur- chase from plaintiff, plaintiff had tendered^jm a bond similar to the copy, but that he did not want it and rejected it — his title was perfect without it. ,Tha,t paper witness thought was signed by plaintiff, but it had no seal attached; never saw the, paper but once. It was a copy only, and .was handed by plaintiff to defendant, as defendant told witness. Defendia^t said -he never had assented and never would consent to such a bond. Is confident it had no seal, and was neither executed nor witnessed, Defendant sh,ew.ed witness other papers, receipts, &c. The,Bext witness recoUefited being pallet upon to witness papers in 1818, at Mr. Washburn's office, next door to which he lived — he witnessed .three ,or fopr papers — has seen the deed frO;ni plaintiff todp- f^nda,pt for the premises defejidaRt now lives on — could not say whether there was a jboiid. One jor two ! papers were read, but he had no recoHection of a bond being read, nor. of any paper being exhibited said to be a bond, nor had he since seen ^ny paper which he then witnessed that is a bond. None of the papers he witnessed were printed — he thought one paper was drawn up while he was in the office. The attorney for the defenda,nt was next called, and gav£ testimony only to his knowledge not ac- quired through professional and privileged communi- cations. He knew of no l>cfi.d — ^never saw a bond from plaintiff , to defendant, nor any agreement — uever heard of any arrangement such as th^^t sug- gested by the plaintiff— could. not :say there was any bond. Another witness who had been a clerk in defend- antls office was called. He knew of no boiad — ^had no impression ;0f any puch bo^nd, : .plaintiff o^ten told him there was a bond, and abused de^feiidant for cheating him, &c. The deed of confirmation was proved, and a tender of it to defendant, who refused it. It was then proved that plaintiff's father died in possession, and that plaintiff is hiSi eld^t son. The will of plaintiff's father was produced, but not re- ceived, Acre being no subscribing witness produced to prove it A note in the hand-writing of defejiuJ' ant wasiputin, date4:22nd May, 1818, a^dicesg^eji to 350 EASTEK TERM, 1 WM. tV., 1831. the plaintiff, in these words : " You said the other day you wished to find somebody who would buy your house, (the stone one I suppose you meant,) on the principle of paying about a thousand dollars down, and the residue when you should give a deed of con- firmation, at the age of 35, on which principle you said you would dispose of it very low, but did not name a price. Will you gratify my curiosity so far as to name your price." Other notes were produced, written by defendant about the same time, to the plaintiff, which shewed that he was in treaty for the premises, but contained no new proposition. A copy of the deed was pro- duced and admitted, dated 22nd June, 1818, con- veying the premises in question in fee simple abso- lutely, for £335. No receipt for the purchase money was endorsed, and it was executed by plain- tiff alone. The second witness called by the plain- tiff was one subscribing witness. The other is dead. On the back of the deed is a writing, signed and sealed by plaintiff and defendant, referring to the deed, and stipulating that a lease of the house which had been made till May next, should remain. That plaintiff should receive the rent, and that his wife should, within four months, duly bar her dower. In the deed, the plaintiff is described "as devisee of Francis X. Rochleau, deceased." Another note, written by defendant to plaintiff, was also put in, dated 29th October, 1818, from which it appeared that defendant having purchased part of the house and land upon the bargain which gave rise to this action, desired to purchase the remainder. The note is in these words — "Dear Sir—Upon calculating EASTER TERM, 1 WM. IV., 1831, 351 my means of payment, I have concluded to make you the enclosed offer for the purchase of the other part of the stone house, but would have it to be under- stood that I am not to be bound by this offer unless accepted and carried into execution this week, as I. have otherwise occasion for a different appropria- tion of the money." Inclosed was a paper in the same hand- writing, in these words — "A present ■ deed, from F. E. to B. B. of the other part of the stone house, with immediate possession, for the con- sideration of £200 to be paid as follows: — £50 to be paid down in cash to the said E. upon the execu- tion of the deed ; £150 to be paid in satisfying debts to that amount ; the said B. to satisfy such debts as soon as he pleases, but the notes or evidences of the debts satisfied and discharged not to be delivered over to ^aid E. until the bar of dower shall be ac- knowleged. A bond (like the former bond) for a deed of confirmation, upon the payment of £200, and interest, as in the former bond." This was the plain- tiff's case. The defendant moved for a nonsuit, on the ground that there was no evidence to sustain the case. Macaulay, J,, left it to the jury to say whether, under the evidence, they found that defendant ac- cepted from plaintiff a bond such as was suggested, or a paper of similar import, signed by plaintiff, though not sealed ; and if they found either, to say which ; and if they so found to give a verdict for the amount claimed, subject to the opinion of the Court of King's Bench upon two points, — first, whether there was evidence to go to the jufy to sustain the case, including all the facts material to be established. BAS*EU TBM, 1 WMP. IV.,- ifSSl. Siecondly, — ^^if so, whether thef fdet^ establis&e^ sug- taiii the aiction. Th€' bond (according to the copy produced) was dated 27th Jiine, 1818, M a penalty of £530, con- ditioned (M^r reciting the sale) that if plaintiff or his heirs after 1 3th April, 1 82&, il'pbn requesH 6f dtefendaiflti his heirs and' assighg, and.- n^on the payment or tefid'er of the sum of £265, with 5' per cent, interest, by de- fendant, his heirs or assign's', to pMntiff or his heirs-, shotild- execute to defendant, his he^irs of assign's, a- good aind sufficient deed of confirmation, sufficient to cbiifirm and secure to the said defendant, his heirs and' assign's; a legal title iii fee simple to the premi- ses, then, &c. The jury fotind iil favour of the plain- tiff, on the ground that they find a bond e'xeeuted' by plaintiff and accepted by defendant, similar in con- tents to the copy submitted. Damages £431. And in Michaelmas Tferm last, the cause Was argued on the point raised by Bethufte for the plaifl- tiff, and the Aftorney^Gerierali for the defendant. Bu* the opinion of the judges was not given till to-dasy. Chief Justice.— (After particularly exaifi'iiting and cotiamentin^ upon the evidence.)- — I cannot say that no' evidence was given to prove the existence of a bond of its contents, and as the surviving subscrib- ing witness Was called and exanained, and tha* re- qttisitidn of the laW Was complied with, the evidence which Was given was legal evidence. Whether the evidence altogether was such as the jury ought to have been satisfied With is not noW the question in discttsfeion. If it were, it Would' be necessary to de- EASTER TERM, 1 WM. IV., 1881. S63 clare an opinion on that point. In forbearing now to do so, I desire riot to prejudice thjit question by giving ground for any implication on either side. If the defendant had moved to set aside the verdict on the ground that it was contrary to the weight of evi- dence, and especially if he had strengthened that ap- plication by declaring on affidavit that no such bond had ever been given, that all the money had been paid, and that there was no justice in the plaintiff 's demand, it would have remained for us to have ex- ercised a sound discretion in determining whether the verdict of another jury should not be taken upon the ground that the evidence was inconclusive. At pre- sent we are not balancing evidence but giving judg- ment upon legal points reserved at the trial, the first of which (in the order in which I have considered them) is, that no legal ,evidenGe of a bond was given to the jury. Upon that I am, as I have already stated, ,of opinion against the objection. The defendant neixt objects that if a bond such as is set up, had really been executed by plaintiff and accepted by defendant it would constitute no suffi- cient evidence of a contract, on which to charge him in this action, since it would not (in the words of itfae fourth section of the Statute of Frauds) constituste an agreement or memorandum, or note of an agreement in writing, signed by the defendant, (the party charged,) or by any person by him thereunto lawfully authorised. Upon this objection it is to be consid- ered whether pecforraance can be relied upon, as taking the case out of the statute. It is also oour tended, that the requisites of ihe statute have hem complied with, that the feond .consliitutes a sufficient 2z 364 EASTER TEEM, 1 WM. IV., 1831. memorandum or note in writing of the agreement declared upon, and that the signing is answered by the defendant's note of the 29th October, signed by him, &c., referring to the bond which he had not signed. This objection involves several legal ques- tions, some of which seem to me to be not without difficulty, and to be placed upon grounds not per- fectly clear and satisfactory, by the various decisions which have taken place upon them. A constant struggle has been occasioned by the effort to maintain the general eflScacy of the Statute of Frauds, (which has been regarded as a very salutary act in the main,) and at the same time to prevent an unjust and unconscien- tious use being made of its provisions in any particular case. So far as we can find certain principles estab- lished with regard to the construction and application of the statute, I hold myself bound stare decisis, and to adopt them, although they might seem to me, as some of them have to individual judges in England, to intrench upon the strict letter of the statute, I do not know whether in this argument it was in- tended to urge the objection of the Statute of Frauds to such an extent as to maintain that no action could be supported for the purchase money of a real estate, unless upon an agreement in writing, or some note or memorandum thereof. It is very certain that without such evidence, nothing specific could be in- ferred in any action, either as to price or terms, no- thing in short that would necessarily imply an agree- ment. But it does not therefore follow, in my opinion, that when the contract is not executory, but has been wholly executed on one side, the Statute of Frauds must in all cases neverthless apply ; as for instance, when one party has made a title to another EASTER TERM, 1 WM. IV., 1831. 355 of a lot of land, and even placed him in possession without having received the purchase money, and sues merely for the value of the estate which the other has received, I do not at present admit, that in the total absence of evidence as to any particular agreement, it is in the power of the other party to retain the estate without paying for it, urging the Statute of Frauds as an objection to the possibility of recovering upon a quantum valebant. Groods may have been sold upon an agreement as to price and mode of payment that would bring the contract with- in that part of the fourth section of the Statute of Frauds which respects an agreement not to be per- formed within the year. If the vendor had delivered the goods no question could arise under the- seven- teenth section ; but if he should seek to avail him- self of the specific agreement, in order to obtain a stipulated price or a certain mode of repayment, he would be met by the fourth section, and be unable to recover upon his agreement, unless he could give that evidence of it which the statute requires, but would it therefore follow that the vendee could keep the goods for nothing, because an agreement had been entered into, though in such a manner that it could not be legally proved ? "Would it not rather follow, that in the absence of any specific agreement such as the vendor can sue upon, he may recover on a quantum valebant the value of the goods which the other has received from him ? I do not wish, how- ever, to be understood as expressing a settled opinion upon this point, especially as it respects the right of action for the purchase money of real estate, other- wise I should feel it necessary to consider the par- ticular words of the statute, and to advert to some decisions bearing upon this view of the subject. S66 EASTER TERJi, 1 WM. IV., 1831. What I have said arises froiia A convictioii upon my mind of the very important effect which such an application of the Statute of Frauds would have in this province, from the manner in which transfers of land have been frequently transacted. It does not seem to me that the question fairly arises in this case, for it is clear the plaintiff in the case before us cannot recover, unless upon an agreement. He claims an additional sum to that which he acknow- ledges to have been paid at the tiine of his executing the conveyance, and whether we are to regard the sum claimed as a part of the origiinal consideration yet behind, or as a sum to be paid as a separate consideration for the deed of confirmation spoken of, it is evident from the nature of the testimony, that it is only by setting up an agreement to pay this particular sum that the plaintiff can recover. It is only on the footing of stieh an agreement that he has sbUght to recover or can hope to sustain His case, aild that being so, the burden lies Upon him to shew an agreement in the manner re- quired by the Statute of Frauds, beeause I eoii- sider that ahy such agreeinent must necessarily fall Within the fourth sectioii of the statute. The part of that section to which I refer is not accurately worded, and indeed the want of precision and legal aceura,cy in the penning of this statute has been much noticed in decisions upon it. The words are, that no action shall be brought whereby to charge arij^ body " upon any eontraet or sale of lands, tenements or hereditaments, or any interest in oi- concerning them." From the word " contract" having a gram- matical connexion with the Subsequent wbrds "sale of lands," confining its relation to their subject mat- EASTER TfiUM, 1 WM. IV., 1831. 867 ter, it seeras natural to infer that tlie intention of the Statute was to apply to any contract tor the sale of lands, but, be that as it may, as the statute reads, and as it baS been construed, I consider the agree- ment set up in this case as coming within it. It is therefore to be determined, " whether the agree- ment on which this action is brought, di some memorandum or note thereof has been proved to be in writing, and sighed by the party to be charged thierewith." Nb question rises in this case aS to the signature by an authorised agent. After examining the different cases, I think the bond found by the jury may be regarded as if signed by the defehdaiit, in consequence of his recognition of it in the note of 29th October^ which was signed by him. The case in 2 B. & P. 238, is strong to this point ; 3 Br. Ch. Ga. 319 ; 1 fispl N. P. C. 105 ; bears upon the same question, and it shews alSb to what extent the courts have been willing to go in giving a liberal construction to this statute. In 2 M. & S. 289, is a case in which the court held that the printed name of the vendor at the top of a bill of parcels made a sufficient signing tb charge him with the bill of parcels, as upon an agreement, because he had filled up in his own hand- writing the .name of the vendee, which was looked upon as an acknowledgment by him of the printed name as his signature. That the signature to an aigreement which itself is not signed, may be supplied by a letter or other paper referring to it, and which latter bearS the signature of the party to be charged, is clear upon the authority of several cases. This is treated as an undoubted principle of law, in the respectable treatise on the statute, by Mr. Roberts, whose reasoning and obser- 358 EASIER T^RM, 1 WM. IV., 1831. vations show much research, and a familiar acquain- tance with his subject. Sugden, in his work on Real Property, and Evans, in his edition of Pothier on Obligations, treat this as an admitted doctrine, and the cases are numerous on that point, and some of them, I think, are grounded on facts less conclusive in their nature than were in evidence here. The next question that arises is, whether if the signature of the defendant to the bond be supplied through the medium of the subsequent letter, there is in that bond any agreement upon which the defendant can be charged: it contains, it is said, nothing obligatory upon him : it professes only to bind the plaintiff to do certain acts : it was given to secure the defendant, and how (it is asked) can there be derived from its language any stipulation binding upon the defendant? That objection, it appears to me, is ^answered by many decisions which have taken place in similar cases, and indeed the statute itself allows reasonable latitude on that point. It does not require that there shall be an agreement signed by the defendant, but a note or memorandum of an agreement, a re- cognition, in other words, under his hand that he did agree, no matter whether verbally or otherwise, to the stipulation which forms the ground of the action. It is clear from cases in law and equity, that it is not necessary the defendant should have signed a writing containing the language of an express undertaking on his part, such as covenant for instance could be maintained upon, if it were in a specialty. The case in 1 Wils. 118, and 3 Atkins 503, is a remarkable one upon this point, for there the defend- ant signed a deed as a witness, not meaning to exe- EASTER TERM, 1 WM. IV., 1831. 359 cute as a party, and not being a party to the deed, which was wholly between others ; and yet, as he witnessed it with a knowledge of its contents, it was held to be a suflBcient signing within the statute. So letters written to a man's own agent have taken a case out of the statute when they have contained a statement of certain terms to which he assented, or have referred to some other paper which contained them. The case in 3 Taunt. 169, is strongly in point to shew that the statute is not understood to require such an agreement in writing as would in its very language sustain an action against the defend- ant, and that it is not held to be an objection that the other party is not reciprocally bound by the agreement in evidence. I have met with another case in which a party having signed an arbitration bond, referring it to a third person to fix a value of an estate, was received as sufficient evidence of an agreement to bind him on a contract for the sale, although it is clear that the arbitration bond could in itself have constituted no contract of sale, nor have furnished any words of covenant or promise on which alone a declartion could be framed and sup- ported. I think, indeed, no question arises here as to mutuality of obligation in the agreement alleged to be made by the bond and letters ; for in the first place, the defendant has the lands, and declares himself content with his title ; and if he was not, the bond of the plaintiff as found by the jury obliges him to make the deed of confirmation; and this deed he did make and tender to the defendant. , There was another objection on which the defend- ant's counsel laid much stress. It was argued that 360 EASTER TERM, 1 WM. IV., 1€81. if the terms of the agreement can be taken as stated in the alleged bond, they are such as to defeat tte present action, because they made it necessary that the defendant should have required the deed of confirmation, and the plaintiff has not alleged any such request. That on the contrary he has proved expressly that tliere was none, and that the defend- ant declined even accepting the confirmation when it was tendered, and cannot therefore vbe held liable to pay the money which he was only to pay as a consideration for the plaintiff giving him that deed whenever he (the defendant) should request it. That argument appeared to me at the time in the same light that it does at present. Nothing is better established than that contracts are to receive a just and sensible construction ; it would be useless to cite cases to this effect ; I will only advert to 12 Ea. ' 4Y0, which turned upon the construction of a provi- sion in an indenture of lease, and in which the court say, " We think the true construction of this pro- viso is not according to the letter but according to the spirit, and that we may adopt the expression in Dyer, 15, a., that in every deed and condition which are private laws between party and party, a reason- able and equal intention shall be construed, although the words soupd to a contrary meaning." It ap- pears plainly on the face of the, bond, and by de- fendant's notes of May and October, 1818, that the sum behind was part of the purchase money of the value of the estate, and a very considerable part, which the defendant, not being quite satisfied with the title the plaintiff could then give, determined to withhold for the present, and until the plaintiff, should at his request give a deed of confirmation. EASTER TE^M, 1 \^. IV., 1881. 361 Indeed it would be a very strange and forced Sup- position to imagino, that defendant was to pay £265 more than the actual value of the property in Order to get a deed that he had a fancy to. The reason of the thing is apparent, atd the very stipulation in the bond, that interest shall be paid on the £265, shews thiat sum was not a mere consideration for a papei- to be ex:ecuted, when the jplaiutiff was thirty-five years old, but was a part of the value of the land withheld till that period, and upon which therefore it was rea- sonable defendant should pay interest, as he enjoyed the estate. The mention of request I consider as having been inserted in the bond for no other pur- pose than to give the defendant an opportunity of ha,stening the performance by plaintifiT, by making his r'eqiiiest, or, pierhaps, in order to shOw it Was the defendant who was to prepare and tender the deed, aiid it would be giving an iniquitous effect to those words, to allow the defendant to say, " I don't want your deed, I am satisfied with the title you have al- ready given me, and therefore I request -no other, and will keep the estate and pocket the remainder of the purchase money." His waiving the deed is, in my view, equal to accepting it, especially when he declares that he waiv-es it, because he is satisfied with his title as it is. What is said in Comyns Dig. Covenant, A. 3, and in the cases there referred to, has no application to the circumstances between these parties. I hiave had less doubt upon any of these points than upon the one which I will next proceed to meri- tion. The deed declares in the body of it, that the plaintiff conveys "in consideration of £335 to hiin 3a 362 EASTER TERM, 1 WM. IV., 1831. in hand paid, the receipt whereof is thereby acknow- ledged." It contains no words stating that to be the consideration to be paid, nor any words releasing the grantee or the land, and there is no separate receipt endorsed. Whether under these circumstances the plaintiff is absolutely estopped from proving that the consideration was a larger sum, and the excess is not yet paid, is a point on which T have had much diffi- culty in coming to a conclusion. The case in 2 T. R. 366, and 3 T. R. 474, are clear authorities to show that for other purposes and as between other parties such proof can be received, and that, even where a formal receipt has been endorsed, and in explicit language. They show also, that the allegations of an additional consideration, besides that expressed, is held not to be repugnant to the deed. The cases in 2 Taunt. 141, and 1 B. «& C. 704, however, are strong authorities to show that an express relea,se and receipt contained in the deed are binding on the grantor, though certainly in the case in 5 B. & A.. 606, the court got over the difficulty by ^ very forced construction. In Styles 462, the receipt in the deed is not considered to be conclusive evidence of pay- ment, and in 2 P. Wms. 295, proof from a letter of the grantor that the purchase money was not paid, was allowed to prevail against the receipt in the deed and the separate receipt endorsed. Upon the autho- rity of these and other cases Mr. Barton, a convey- ancer of much reputation and experience, comes to the conclusion, that the evidence of the deed and receipt endorsed is not conclusive. Mr. Stigden, whose opinion receives weight from his present high legal station, clearly comes to the same conclusion. In equity the cases are numerous to show, not only EASTER ITEKM, 1 WM. It., 1831. 363 that the' purchase money can be claimed as unpaid in the face of the deed and receipt, but that it forms a lien on the land, and when no separate receipt is endorsed on the deed, it is such a lien as may be en- forced against any purchaser, on the ground that the want of a receipt on the back is fair notice that the estate was not paid for. The case in 15 Yes. Junr. 329, is most satisfactory on this point. It is true, that with the exception of the case in Styles, these cases are in equity; but, I cannot bring myself to the conclusion, that when equity will give a remedy even against a third person, a court of law must, in the face of all evidence, inevitably regard the deed to be an absolute estoppel between the ori- ginal parties, and allow a purchaser to hold the estate without paying a shilling for it. If the case were one on the strongest ground in favour of a party seeking to take this advantage, such, for instance, when the deed expressly states the same to be in full for the consideration, and contains words releasing the grantee and the land itself from all further de- mand, and when the usual receipt is endorsed, and if this release were pleaded as an estoppel, I am not sure that, in the absence of fraud, it would be found possible to sustain an action for any part of the pur- chase money really unpaid, and indeed, few more important questions can be agitated in this province, where we have no Court of Equity, and where the practice which obtains in England is much more gen- eral of endorsing a receipt where in truth the money has not been paid. In this case there is not the usual separate receipt; the body of the deed acknow- ledges the £365 to be paid, but it does not say that 364 EASTER TERM, 1 WM. IV., 1881, it was the whole consideration, thpugli probably that is the fair inference, yet it does, not in modern cases seem to be so considered. Again, the case ha? gone to the jury on the facts: no estoppel by, deed, has been plea(ied, and the jury, it, is said, may in aU. cases where the estoppel is not pleaded and is not by matter of record, find the truth, notwithstanding, such estoppel. This doctrine is laid down in all boojis on the subject, particularly in Bull N. P. 298, and is recognised in 2 B. & A. 672. — (See Com. Dig. Estoppel C.) The plaintiff does not here claim any part of the £365, which the deed states to have been paid, but he claims a sum beyond that, as part of the consideration not yet paid or acknowledged to be paid. This, nevertheless, is the point on wliich I have had and stiU have the greatest doubt; my opi- nion upon it ig in favour of the, plaintiff, a,nd as that:, opinion accords with the justice of, the case, I have the less difficulty in inclining to it. There are other considerations which apply in thi^s case, and which, are not immaterial. There has been a part performance to say the least of it ;; the defen- dant has received the estate — both the title and the possession — as I understand to be admitted. The weight of authority seems to me to preponderate against that being sufficient in a court of law, and the opinion of the Lord Chancellor, in 6 Yes. 39, is stroiig to that effect.: There is, however, some weight due to the authority in 1 Br. Ch, Ca. 417, in which, it is stated to be the received doctrine in the Court of King's Bench, that a part performance would avail there to take a case out of the statute. In 1 Ves. Junr. Mr. Jpptice .Bw^/er expresses a\ strong opinion EASTER lEBMj 1 WM. IV., 1881; 366 to the same effect, and the language of Lord Mans- Jield, in 1 Bl. Eep. 600, is remarkable. " The ques- tion is. singly upon the Statute of Frauds, whether the contract is void by the provisions of that positive \a.w. The object of the legislature in that statute was a wise one, and what the legislature meant, is the rule both at law and equity, for in this ease both are the same, The key to the construction of the statute ife the intent of the legislature, and therefore many cases, though seemingly within the letter, have been let out of it. These insta,nGes have indeed occurred in Courts ,of Equity, not in courts of law, but the rule in both is the same." The language of the court; in 3 Taunt. 169, is similar. I do not however rely in this case on part performance, nor indeed on the entire performance on the part of the vendor, which makes it a sale of lands, and not an agreement for a sale, and seems to reduce the question to recompense for a thing done on the one side and accepted on the other. (See 1 Wils, 117.) I think it worthy of observation, also, that the de- fendant has in fact executed the deed of conveyance as well as the plaintiff, by signing and sealing the agreement endorsed on it, which expressly refers to the deed within. This, independently of the bond and other evidence, shows a sale of lands by a writ- ing: signed by both parties, and then it remains a question whether an additional consideration can be proved by parol. It has occurred to me, also worthy of some attention, that in q, case on the Statute of Frauds, in Lofft's Eep. 332, much stress is laid upon 366 EASTER TERM, 1 WM. tV., I83i. the party being in possession of the instrument on which he is charged, although he has not signed it. Lord Mansfield says, " I agree that every construc- tion of the statute which would be good in a court of equity would be good in a court of law, for equity cannot relieve against the legislature, and every court of law is bound to construe according to the intent of the legislature." The note was signed by the plaintiff only, but it was in possession of defen- dant, and in allusion to this Lord Mansfield says further, if it were necessary it is out of the statute, because a note signed by one and in possession of the other, amounts in this kind of case to the same thing as if the party had signed it. Here the jury have found that defendant accepted the bond signed by the plaintiff. " I do not however rest upon the authority of this case, nor am I satisfied that it strictly applies. The Statute of Frauds, it has been said by a great authority, is to be used as a shield and not as a sword; and Mr. Justice Wilmot, a very eminent judge, has observed, (1 Bl. Eep. 600,) "Had the Statute of Frauds been always carried into execution according to the letter, it would have done ten times more mischief than it has done good, by protecting, rather than preventing frauds." Against rigorous and unfair applications of the statute, courts of law and courts of equity have constantly leaned. Here, imfortunately, we have no court of equity. That circumstance would not justify us in advancing one step beyond the proper jurisdiction of courts of law ; but if we should fail in allowing to contracting par- ties the benefits of every principle which courts of EASTER TERM, 1 WM. IV., 1831. 367 law do recognise in England, it makes such failure productive of a hardship which there are no means of repairing. The more I have considered and examined the decisions which have taken place in England upon the several points which have been raised, I have found less reason to doubt that the law in this case is in accordance with justice, assum- ing what the jury have found — that such a bond as that described was given by the plaintiff and accepted by the defendant, and considering that such bond was subseqently referred to by the defendant in a paper signed by him. The terms of the contract expressed in writing, definitely, and without am- biguity, are thus recognised by the party to be charged, and the requisition of the Statute of Frauds is substantially complied with. It is said by Lord Hardwick, in 3 Atk. 503, "The meaning of the Statute of Frauds is to reduce contracts to a certainty, in order to. avoid perjury on the one hand and fraud on the other, and therefore both in this court and the courts of common law, when an agreement has been reduced to such a certainty, and the substance of the statute has been complied with in the material part, the forms have never been insisted on." We have felt it necessary to look particularly into the proceedings, to see whether they are such as to admit of the application of the evidence in a manner that will sustain the issue. Not that the court would in general be desirous of favouring any technical objection that had not been insisted upon in argument ; but from the peculiarity of the cir- cumstances, the learned judge was induced to reserve the case in terms so general, as tamake it incumbent 368 EASTER TERM, 1 WM. IV., 1881. on the court to consider the whole record and evi- dence minutely. I should therefore feel bound to give way to any legal objection to the plaintiff's recovery, if any appeared. Two or three questions have presented themselves upon the pleadings, which it is unnecessary now to state, because a full con- sideration of them has resulted in the opinion, that the action is sustained upon the whole record. Sherwood, J. — I think it unnecessary to add any thing to the statement of the Chief Justice, as to the material parts of the evidence adduced at the trial of this cause. I concur in the view which he takes of the Statute of Frauds, so far as regards the pre- sent case. This action, in my opinion, is sustained on the second count of the declaration ; and with respect to the other counts, it is not necessary to enter into a particular examination of each of them on the question now before the court. The demurrer is yet to be argued, and I take it for granted the counsel for the defendant is prepared to object to some of the counts. Macatjlat, J. — I entertained much doubt at the trial, whether in this case there was sufficient evir dence to go to the jury, in proof of the delivery and acceptance of the bond alleged to have been given by plaintiff to defendant, but further consideration has satisfied toe that the case was proper for their consideration. It would have been satisfactory had the existence of the obligation in defendant's hands been more fully and explicitly established; yet, as the finding of the jury is not sought to be disturbed on the ground of the testimony being slight in itself. EASTER TERM, 1 WM. IV., 1881. 369 or weighing against the verdict, but to be impugned as unsupported by any legal proof, the court is not called upon to' express any opinion upon the result, if it be determined that there was evidence in favour of it to be submitted to them. The instrument which the first witness saw, was not produced on notice, and it was competent to the jury not only to bear this in mind, but to weigh his testimony with the other circumstances, especially the unequivocal admission, under defendant's hand, in October, that a bond had been given. — 1 Phill. Ev. 423, 343; 2 Taunt. 142; 6 Taunt. 305; 3 Camp. 363; 2 Pothier 187; Doug. 788; 2 B. & P. 642, 8; 5 Taunt. 245. The letter and proposal of October were properly considered in the first place as affording proof of a bond. The bond being found by the jury, the court must now consider the whole of the documents together, as illustrating one transaction. Did the case depend upon the bond alone, I should hesitate long before I held that per se it contained evidence of an implied promise or agreement on defendant's part, to pay the sum and interest mentioned in the condition, at all events, the language being that of the plaintiff only, and not importing mutuality of contract, but a discretionary condition precedent on defendant's part. The bond, however, must be considered with all its concomitant circumstances ; and when the proposals in May, the deed in July, with the consideration and description of the property therein ; the bond and the proposals, &c., in October, are taken together, they seem to me to explain the 3b S70 BASTEK TERM, 1 WM. IV., 1881. bond, and to establish, by the occasion and nature of the transaction, that the ostensible condition pre- cedent on the face of the condition, was in truth the consideration promised on defendant's part, upon a reciprocal agreement. It is unimportant to enquire minutely whether the deed in July could estop plaintiff from disputing payment of the consider- ation. It is not pleaded as an estoppel, and the evi- dence shews that the money sought in this action forms no part of the sum acknowledged in the deed. The whole subject matter is laid before the court, from which it appears that a balance of the original price is now claimed, which was postponed till a confirmation should be delivered, after a named period — an arrangement consistent with the convey- ance of July.— 3 B. & P. 181 ; 2 P. Wms. 292 ; 1 Camp. N. P. 392, 3 ; 5 B. & A. 606 ; 1 Ea. 624 ; 1 B. & C. 704 ; 8 T. E. 379. A bond and condition may, by recitals or other- wise, contain ample proof of the consideration and agreement on the obligee's party and such instruments are often received in equity as proof of agreements. In other cases, they may be totally silent as to the obligee's promise. Again, they may partially shew it, and in combination with other matters, fully es- tablish it. The court must receive and construe the contents of conditions like other written evidence. It is clear too, from a review of the authorities, that although under the bond the plaintiff's became a specialty contract, still, in the absence of any sealed agreement by defendant, the agreement on his part amounts to no more than a simple contract. — 2 B. & A. 375; 3 B. & A. 587; 5 B. & 0. 602. EASTfiR T^RM, 1 WM. IV., 1831. 371 The Statute of Frauds being pleaded, I hiare de- voted much attention to that part of the case, aind am of opinion that the whole written matter amounts to a sufficient note or memorandum of the agreement within the statute. The proposals in May mention the premises, suggest the probable amount of the' immediate advance, and mention a confirmation. The deed includes the same premises; names a considera- tion not much greater than defendant spoke of, and no receipt is endorsed, and no covenant for further assurance inserted. The conveyance being' to operate permanently, sufficiently accounts for the other cove- nants which it does contain. The bond recites the deed, mentions a sum to be paid with interest, and guarantees a confirmation. The letter and proposal of October refer to the residue of the same premises; the bond, aiid a confirmation, &c. The last letter is signed by defendant, and refers to the enclosed pro- posal, with which it might be connected even by parol as well as by internal evidence beiQg referred to, and with which it *is connected by the verdict. The proposal is in defendant's hand-writing, and con- tains his initials; it refers to the bond, to a confirma- tion, to a sum to be paid at a future day, with in- terest, &c. The bond referred to is ascertained by the jury, and being found, the whole are connected together, either by such finding, or their internal evidence, the last of this train of documents, which by pursuing the references extends to and links the whole, being signed, and the Whole amounting to such note or memorandum as the statute requires, it fol- lows that a note or memorandum of the agreement signed by defendant is established. — 2 B. & P. 238; 5 Esp. 190; 3 Ves. Jr. 333; 1 Atk. 12; 9 Ves. Jr. 372 EASTER TEEM, 1 WM. IV., 1831. 252; 12 Ves. Jr. 471; 3 Taunt. 169; 6 B. &0. 438; 1 Bing. 9, & 196; 7 Moor. 219; 1 Price 64. The last objection is the application of the agreement to the record. I incline to think the consideration is incorrectly stated in the first count, but I conceive the second count sustained. The agreement is there- in detailed according to its legal import. I for a time thought the plaintiff should have stated the whole consideration to move from defendant, to entitle him to a confirmation, namely, a request as well as pay- ment, the latter of which only is set out, but as the plaintiff has set out the entire consideration on his part, and the entire act in respect of which he seeks redress, I deem it sufficient. Were defendant suing he would be bound to show a request, but plaintiff might anticipate it, there being no discretion in de- fendant to forbear indefinitely to make it. —2 Burr. 899. And in an action for the money only, after a tender of the confirmation without request, I do not think it incumbent on the plaintiff to notice it in his declaration. Then under this second count several issues are raised; I think all are supported in favour of the plaintiff, unless it be the third, which applies to the Statute of Frauds, and asserts that the agree- ment was made in writing, signed by the defendant. Now, though I think there was a sufficient memoran- dum or note thereof within the statute, I am not satisfied this issue is supported, though perhaps it might be properly held to be substantially proved by evidence, either of an actual agreement, or of a note or memorandum thereof. However, the fourth issue relating to the same section of the act, and the same act, and the same count and agreement, being found for the plaintiff, it follows, that upon the whole re- EASTER TERM, 1 WM. IV., 183]. 3.73 cord, plaintiff is entitled to judgment on the second count; the event of the third issue therefore is unim- portant; a compliance with the statute is established. It is not necessary to advert to the subsequent counts, if it were I could not say that I think the evidence supports any of them. I am therefore of opinion, upon the fullest con- sideration, though not free from doubt, 1st, that there was sufficient evidence to go to the jury to warrant them in finding the sealing, delivery and acceptance of the bond, &c. 2nd, that all the docu- ments constitute together sufficient evidence of the mutual agreement, and amount to a sufficient note or memorandum thereof, within the Statute of Frauds. 3rd, that the evidence sustains the contract as de- clared upon in the second count. 4th, that the first, second and fourth issues under that count are sus- tained in plaintiff's favour, though the third is doubt- ful. 5th, that upon the whole record the plaintff is entitled to judgment on the second count for the amount of the verdict. Per Cv/riam. — Judgment for plaintiff. See 5 Ea. Ill; 6 Ea. 56d; 8 Ea. 7 & 9; 2 B. & B. 359; 4 Taunt. 285; 7 Bing. 574; 6 B. & C. 216. 374 feASTER TEtlM, 1 WM. IV., 1831. Dob ex. dem. Howakd v. McDonnell. A. & B. received patents for adjoining lots. A. inadvertently occupied, fenced and improved a portion of S.'s lot, according to the mode of run- ning side lines prescribed by the 58 Geo. III., ch. 14. A. had so occupied in the belief that it formed part of his own lot. Some years afterwards B.'s lot was confiscated tinder the alien act, 54 Geo. III., c. 9, and sold under 58 Geo. III., c. 12. A. and those claiming under him, had held the disputed tract upwards of twenty years at the time of action brought, but not twenty years when B. forfeited the estate and the Crown became seised by inquest of office. Beld, that A.'s occupation did not work a disseisin of B. , and that B. continued seised so as to entitle the Crown to that portion of his lot in A.'s possession, and that the bargainee of the Crown commissioners could maintain ejectment against defendant, the occupier thereof. Ejectment for twenty- two acres and a half of lot No. 9, 12th concession, Lansdown. The Crown granted lot No. 9, to one Gralpin, by letters patent: he resided there until the late war, when he deserted, this province and withdrew to the United States. The lot was for this cause forfeited to the Crown, under the statute 64 G-eo. III., c. 9. An inquisition was returned finding that Gralpin was seised of No. 9, before July 1st, 1812, and withdrew, «fec.,ias in case of other inquisitions under that statute. The: land being sold by commissioners for forfeited estates, under the statute, Flint bought it and sold to Howard, lessor of the plaintiff. The adjacent Lot. No. 10, was also granted by letters patent to another person, under whom the defendant derives title. The owner of No. 10, meaning only to occupy what was compre- hended within the description of 10, and thinking that he was only occupying 10, inclosed and occu- pied twenty-two acres, which upon a survey made now, according to the statute 58 G-eo. III., c. 14, (which provides that the side lines of all lots shall be run parallel to the actual course of that side line of the township from which the lots are numbered) turns out to be part ol 9. The cause was tried at the last assizes for the district of Johnston, cor. Ma- EASTER TERM, 1 WM. IV., 1881. 375 caiiiay,5., and a verdict rendered for the plaintiff. The Attorney-General, in Michaelmas Term last, moved a rule nisi for a new trial on the following grounds: 1st. — That the deed from Flint to Howard was merely a quit claim deed containing no words of grant, but words of release only, and that Howard had no previous estate or interest on which such a deed could operate ; that the deed does not profess to grant the estate, but merely to release the right and interest of the grantor, which cannot thus be released to a stranger. 2nd. — That Flint being out of possession could not convey to a third person also out of possession, as such a conveyance would be contrary to the statute of maintenance. (This objection, however, was abandoned in Hilary Term last, the facts not appear- ing to sustain it.) 3rd. — That G-alpin, though he had been long in possession of No. 9, before his desertion from the province, had never been in the actual occupation of the specified twenty-two acres,' but on the contrary, these had been visibly and adversely occupied by McDonnell, the defendant, and those under whom he claimed, for thirty years; that by consequence G-alpin never was so seised of these twenty-two acres as that the Crown could be entitled under the 54 Geo. HI., ch. 9, and that the Crown or the purchaser of the estate forfeited by Galpin can make title to nothing more than Galpin was actually possessed of, or rather, that the latter cannot make title under the 376 EASTEE TEEM, 1 WM. IV., 1831. Crown. to these twenty-two acres, which at the time G-alpin went away, and long before, and since, were openly in the occupation of defendant, or those under whom he holds, and not in privity with Gralpin, and that the Statute of Limitations has therefore run in favour of defendant. Bidwell shewed cause. Judgment was not given till this day. Chief Justice. — So far as respects that part of lot No. 9, of which Howard could be considered as being in actual possession with Flint's consent, at the time Flint made the deed in question, there could be no ground for contending that the deed could not operate as a release. As to its operating as a covenant to stand seised to uses, that is of course out of the question for want of a legal consideration to support such a covenant ; but that Howard could take under it as a release, which it purports to be, is clear, because Howard being in by Flint's per- mission, was tenant at will to Flint, and being so, could take from him a release in fee, — ^Oo. Litt. 270, b. I am further of opinion, that upon the case before us, Howard being in possession of the lot generally, as tenant to Flint, and taking from him a release of the whole, is entitled to be regarded as seised of all that Flint could legally convey, or in other words, to stand in the place of Flint. Then the question seems to be inevitably brought within a narrow compass by the expressive provision of our pro- EASTEE TERM, 1 WM. IV., 1831. 377 vincial statutes 54 G-eo. III., ch. 9, and 58 Geo. Ill,, ch, 12. Under the former statute the inquisition which was returned against Galpin had the effect of vesting lot No. 9 in His Majesty, subject to the right of any person interested in the land to traverse that inquisition with- in a year. Under the latter statute, particularly the 7th and 12th sections, the commissioners of forfeited estates, and by consequence their vendee, must have acquired, for any thing that appears in this case to the contrary, indefeasible and incontrovertible title to No. 9 ; and I hold, that we are not now at liberty to enquire, whether by the operation of a disseisin and force of a twenty years' possession, or even by any direct title derived from Galpin, or from the King himself, a better claim to part of lot No. 9 can be made out by any person else. If the defendant in this action, or any other person, had in truth a better title than Galpin had, at the time when the jury found him to be seised, he certainly is pre- cluded from urging it now, and in this manner, or no faith can be placed in the express enactments of the legislature. What land No. 9 embraced could always have been ascertained and clearly shewn since the passing of the statute 59 Geo, III., ch. 14, and if a title ad- verse to that of the Crown and contradicting the finding in the inquisition, had been acquired in any part of it, it was incumbent on the claimant under such a title to have advanced it before the purchaser of this forfeited estate became absolutely confirmed under the statute, as I think he now is in all the lands that No. 9 comprehends. Being of this opinion, as to the effect which must 3c 378 BASTBE TERM, 1 WM. IV., 1831. be given to the statutes respecting forfeited estates, the points which were ably argued upon the opera- tion of the alleged disseisin and of the twenty years' possession by the defendant and those under whom he claims, could not be allowed by us to affect the decision in this case. I have, nevertheless, endea- voured to make up my mind upon them, as upon questions which have doubtless an extensive bearing upon real estates in this province, I mean chiefly in those cases in which boundaries are. in dispute, and I will only say here, that as at present advised, I do not think there is any thing in those points which would have brought me to a different conclusion if we were at liberty to have decided upon them. Sherwood, J. — (After stating the case.)— I am of opinion, the facts contained in the inquisition could not be legally disputed except by traversing the ia- quisition itself, conformably to the 2nd see. 54 Geo. IIL, ch. 9, or by making a claim before the com- missioners, according to the 7th sec. of 58 Geo. IIL, ch. 12. It is not alleged in this case that the de- fendant or any other person traversed the inquisition, or exhibited a claim to any part of No. 9, before the commissioners appointed to decide on claims of that nature, for which reason I think no claim to any part of the premises can now be set up against the King or those claiming under him. The words con- tained in the 7th sec. of the last mentioned statute, appear to me to be plain and conclusive on this point: "In default thereof," (that is of making a claim,) " every such estate, right, title, interest, use, possession, reversion, remainder, annuity, rent, debt, charge, or incumbrance, into, out of, or upon the EASSCEB, TERM, 1 WM. IV., 1«S1. 879 said premises, or mj part thereof, shall be and is heTeby declared to be nuJl atid void to all intfeiiats and purposes whatsoever, and the estate or estates as aforesaid, liai3le to atid charged therewith, shall from thence be freed, acquitted and discharged of afid from the same." By virtue of these two statutes add the prooeedmgs which were had under them, I think the legal estate in No. 9 Was wholly vested in the feoTlimissioners, and that they were lawfully pos' se^ed of the premises, atid held suffieifent right and authority to sell and convey them to Flint. It is adtnitted by both parties, as I understand, that Flint sold the premises to the Ife^or of the plaintiff, and gave him a bond 'conditioned to deliver him a deed at a future period, and at the same time gave him possession of the lot so far as he was in possession of it himself as grantor of the commissioners. After- WEil'ds, and while the lessor of the plaintiff was in |«»ssession, Flint for a valuable consideration exedu- ted a deed to him, by which he " remised, released and for ever quitted claim " to the lessor of the plaiii* tiff, his heirs and assigns, "all the estate, right, title and interest " of him the said Flint, to lot No. 9 aforesaid. The deed was duly registered. The counsel for the defendant objects, that the deed from Flint conveyed nothing to the lessor cff the plaintiff, because it can only be considered as a release. The lessor of the plaintiff had no estate in the premises upon which the deed is considered as a release, only it had the effect of vestiiag a legal title in fee simple in the plaintiff's ieseor ; I think that he was teiiant at will, and that his e&tate was enlarged by his having received a release of the ioberitance 3S0 EASTEE TEEM, 1 WM. IV., 1831. by virtue of the deed. If a man enters and enjoys land by the consent of the owner, although there be no express lease, he is tenant at will. — Co. Lit. 56, b.; Ro. Abr. 859; 1 Wils. 176. The deed might also operate as a bargain and sale, because it is not necessary in such a conveyance, to use the precise words "bargain and sell," for any equivalent words are equally valid. — 2 Inst. 672; Cro. Eliz. 166; 1 Vent. 138; 3 Leon. 16. When one man for a valuable consideration in money de- clares by his deed duly executed, that he has quitted claim of all his estate, right, title and interest, of, in and to certain lands, to another man, and to his heirs and assigns for ever, I think his intention is quite as well understood as if he uses the words " bargain and sell," and that such a deed is sufficient to convey the estate. C. J. Willis said, " the words are not the principal thing in a deed, but the intent and design of the grantor." — 3 Atk. 136. And the same judge said on another occasion, " by the word intent is not meant the intent of the parties to pass the land by this or that particular kind of deed, or by any parti- cular mode or form of conveyance, but an intent at all events that the land shall pass one way or the other."— 2 Wils. 78. In Cowp. 601, Lord Mans- field said, " the rules laid down with respect to the construction of deeds are founded in law, reason and common sense, they shall operate according to the intention of the parties, if by law they may." I think the whole estate in No. 9 was vested in the Crown by the inquisition, and was subsequently vested in the commissioners by the 58 Geo. III., ch. 12, arid that the King in the first instance, and the EASTER TERM, 1 WM. IV., 1831. 381 commissioners afterwards, were iu legal and actual possession of the whole lot by virtue of those acts. In my opinion, therefore, the Statute of Limitations, 21 Jac. 1., ch. IG, gave the defendant no right to possession, because the possession of those under whom he claims, prior to the return of the inquisition, was taken away and ended by that proceeding, and the registry of the extract of it transmitted to the commissioners under the subsequent act 58 Geo. III.^ ch. 12. It is therefo're unnecessary, in my view of the case, to enquire whether the possession of those under whom the defendant claims title to a part of lot No. 9 was adverse to the possession of G-alpin or not, or whether such possession constituted a disseisin, be- fore the premises were forfeited to the Crown. I think the defendant acquired no right of possession, since the estate vested in the commissioners, and consequently that plaintiff's lessor is entitled to judgment. Macaulay, J. — It was proved in this case that one W. 0. had possession of lot No. 10 thirty-two years ago, and that the land in dispute was taken possession of by him as a supposed part of that lot, and as such occupied ever since, being cleared, fenced and built upon. Lot 9 was occupied about the same period by Galpin, or those who claimed under him. Galpin was seised of lot No. 9, on the 1st July, 1812, and having left the province during the last war his estate was confiscated under the alien 54 Geo. III., ch. 9. An inquest of office was taken in 1817, finding lot No. 9 forfeited to the ^82 EASTER TEllM, 1 WM. IV., 18B1. King. In 1818, the act passed whick at preeeit regulates the manner in which side lines are to be run between lots, and at the same time was alfd passed an act for vesting in eommissionefs all the fotfeited estates, for the purpose of being sold. iiOt No. 9 became vested in th& commissionfers, aecofflittl to the provisions of the latter act, and was torM years afterwards sold and conveyed, according 46 the act, to Billa Flint, who sold to the lesgol- 0f plaintiff. The occupiers of No. 10 hav4 all abhg possessed the twenty-two and a-half acres claimed in this action, all parties nntil of late years soppos- ihg it to composie a part of that lot ; but under tli* system of survey established by the boundary act they are found to fall within the limits ©f -No. "9^ consequently Within a few years disputes have at^Ml on the subject, so much feo, that a teniant of ^b. !§ under defendant restored the lot: he had posj^felMote two years and then delivered it to another peKSMij on defendant's behalf, who had it for one year, and was the tenant in possession at the time of the tefeiL It appeared that Flint had not been in actaM visi- ble possession of the disputed part, nor in receipt of the profits and rents thereof, within the last three years. When the disputes first arose did not clmrly appear, and the survey which determined the tract in question to belong to No. 9 had been made about a year or so before the trial. The afcdavit admittJ^ since the trial shows, that the lessor of the plaintiff was in possession of No. 9, generally, under Flint, for two years before the release executed by the latter to him, and that the release was ^xecuteifl in the spring 1830. It is coiitMid^d, 1st, that under ti* EASTER TEKM, 1 WM. IV., 1881. E83 facts proved, the twenty-two and a half acres were not vested in the Crown by the inquisition in 1817, and consequently not in the commissioners, or Flint under their deed. 2nd, that the deed from Flint does not contain operative words to transfer the estate. The provincial statute 64 Geo. Ill,, ch. 9, enacted, that all persons therein mentioned who had received grants of land, or become seised of land within the province, by inheritance or otherwise, and should withdraw, &c., should be taken to be aliens and inca- pable of holding lands within the province; that com- missions should issue to enquire by inquisition under the hands and seals of twelve jurors, and of the cont- missioners, of all persons who seised of lands, &e., should have withdrawn, &c., and from and a,fter the finding of such inquisition his Majesty should become seised of the lands so found to have been in the seisin of such person, on the 1st July, 1812. It was assumed, that both lots had been granted by govern- ment about thirty-two years ago, and that thereby the grantees respectively became seised, and that they respectively entered into possession accordingly. In 1817, the King, by office found, became seised of the lot in law and in fact, as far as the same was vacant, that is as far as the freehold was vacant. He, of course, was seised of all except the twenty-two and a half acres now in dispute, and of them he acquired an equal seisin as forming a part of lot No., 9, if G-alpin was in law seised thereof, on the Ist July, 1812; in other words, if he had not been dis- seised before or upon that day. The authorities do not seem to warrant the inference, that the occupa- 384 EASTER TERM, 1 WM. IV., 1831. tion of the premises in dispute by the owners of No. 10, as proved, (being inadvertently embraced as a supposed part of the latter lot, without any view or apprehension of an encroachment upon No, 9,) con- stituted a disseisin. Consequently by the ostensible possession of the owners of lot No. 10, the proprietor of No. 9 was not disseised of the freehold of the twenty-two and a half acres, but continued seised thereof until the 1st July, 1812; that in short the possession was not adverse, that there was not ouster enough to bar an ejectment after twenty years, unless after the expiration of such a period a jury would be warranted in presuming an ouster, but the title of the King intervening excludes such presumption. The boundary act, and act for selling forfeited lots, were passed the same session. In the absence of claim, the latter seems to have vested absolutely in the commissioners lot No. 9, without exception, of which the twenty-two and a half acres formed part. I do not think the boundary act is meant to operate upon possessions so as to supersede the Statute of Limitations,but the question always should be, whether the occupier of a tract of land as composing part of one lot, found by the mode of survey therein pre- scribed to belong to another, so occupied as a dis- seisin of the owner of the adjacent lot, or adversely within the Statute of Limitations; if not, then the Statute of Limitations would not run; if otherwise, I should think twenty years' adverse possession would bar an ejectment, whether the period expired pre- vious or subsequent to the boundary act. After twenty years' undisturbed possession the usual legal presumptions would equally operate whatever the origin might have been. The 59 Geo. IIL, ch. 12, EASTER TERM, 1 WM. IV., 1881. 385 vesting in the commissioners the actual seisin of the whole of No. 9, they were seised of the freehold estate in the twenty-two and a half acres, notwith- standing the occupation by the defendant, who did not possess as a disseisor but by mistake. Being seised in law and fact they sold and conveyed to Flint, who, by entering into possession of No. 9 gene- rally, became possessed constructively of the whole and every part. It seems he afterwards sold to the plaintiff, who had entered into possession as much as two years previous to the release, and to whom, while possessed, he released in fee. The possession of the freehold being consistent with the occupation of the owners of No. 10, through mistake, and not as disseisors or adverse holders upon the ouster of the tenants of No. 10, the lessor of the plaintiff was capa- ble of recovering, and Flint was in a capacity to transfer an absolute estate. As neither Gralpin, the King, the commissioners, or Flint, were, by reason of the inadvertent occupation of the owners of No. 10, deprived of their possession of the freehold, so as to have a right of entry only left, any of them could convey without making entry, only requisite when a disseisin or an ouster of the freehold has been effected. Had G-alpin been disseised, which I was at first disposed to think was the case, the King would not be in possession by office, without seisin by his offi- cer or a scire facias; but the doctrine of disseisin as laid down in adjudged cases, constrains me to hold that G-alpin was not disseised, no such intention or object actuating the owner of No. 10, in assuming or continuing the occupation of the premises in dispute. 3d 386 EASTER lERM, 1 WM. If .» mi. The possession of the Crown being once established, it appears to me the parties deriving title undeir the CroWn are to be regarded as equally seised, for all purposes of tranfer, &c. The fact of Howard's possession previous to the release, seems to me to obviate the second objection, for the deed purporting to be a release, might well operate upon such possession so as to vest a fee sim- ple estate in him. (a) Per Curiam. — New trial refused. Phblan v. Phelan. A. ea. re. is iiot the first aod ori^nal process in a real tuition, as dower. An infant detnandatt may sue for dowier. If an infant he tenant the parol is not allowed to demur. Costs of motion discretionary. DowEB. — The demandant issued a ca. re. against the tenantj commencing in the common form — "We command you, that you take, &c., to answer to (de- mandant) widow, who was the wife of W. W. P. now deceased, of a plpa that he render to her the said (demandant) her reasonable dower which falleth to her of the freehold which was of the said W. W. P. her late husband, in the township of South wold, whereof she has nothing, as she says, and whereof she complains that the said (defendant) deforceth her, and have then there this writ, &c." The affidavit of service states that a copy thereof, on which was endorsed a notice of the intent and meaning of such (if) 8e6 Doe V. Servos, 5 IT. C. Q. B., 285 ; Doi v. Rattray, 7 U. C. Q. B., 321 ; Doe v. Gander, 1 U.C. Q, B., 3 ; Doe y. Simpson, 5 Old Series, 335, 555 '; Doe v. Nightingale, 5 U. G. Q. B., 6l8. EASfER TOERM, 1 WM. IV., 1833. 3ST pFooesa, was persoiially seirvei on defeBdaut, subser quently to, which a guardian has been appointed' for demaqdant, (an infant,) and steps adopted for the. apr- pearanije of defendant, also an infant, as im a per- sooal aotion. The-Be is not fifteen days between the testti and return of the writ. The Attorney-General mqyed tq §ftt aside this writ, for irregularity, Baldwin shewed cause. Chief Justice,^ — In one or two actions of- dower which have been conducted- to a termination in this court, no occasion arose fbr considering either the legality of the process issued dr the regularity of the service, for the tenant appeared and- pleaded, and the attention of the court has hitherto been called only to the later stages of the proceedings in dower. It has now become necessary, for the decision upon this motion, to determine upon the kind of pro- cess upon which the action is to be commenced in this court, and in. what manner it must be served^ In England, the action of dower unde nihil haht was commenced originally in the Curia Regis, other^ wise more commonly called Aula. Regis, which was the supreme court of judicature established by William the Conqueror, and which, before the: erec- tion of the Court of Common Pleasi, exercised an original jurisdiction in all pleas, civil and criminal. The writ issed out of that court, in the name of the King, but with the teste of the Gi-rand Justiciar. It was under the seal of the King, and was obtained 388 EASTER TERM, 1 WM. IV., 1831. from the Chancellor, who was necessarily a member of the Curia Regis. It was an original writ of sum- mons, and was returnable into the Curia Regis, and issued under the great seal, because the King was properly head of that court, and might, and did pre- side in person, and the Chancellor, who had the custody of the great seal, was a member of that great court, of which his office formed a branch. Upon the erection of the Court of Common Pleas, this action of dower properly belonged to it, for it did not fall within any of those of which the King's Bench took cognisance, either originally and directly, or by the fiction upon which so great a part of the jurisdiction of that court in England rests. The jurisdiction of the Court of Common Pleas, however, in cases of dower tinde nihil hahet, was not, and is not original, but upon an original writ issued out of Chancery, and necessarily made returnable into the Court of Common Pleas, according to the provision in Magna Charta. There can be no doubt that in England such pro- cess as in the present instance has been issued and served in a case of dower, would be void. — 1st. Because it professes to proceed from a court having original jurisdiction, whereas the Common Pleas derives its jurisdiction in dower from a writ out of Chancery. 2nd. Although appearing to be an original writ, it is in form a capias, which is not an original writ, but one adapted to enforce obedience to a real or supposed original writ. A capias is grounded on a contempt of the original process, and this is not one of those actions in which it is used at EASTER tEEM, 1 WM. IV., iSSl. 389 all, the process subsidiary to the original in dower being grand cape or petit cape— the former, when the tenant has in the first instance neglected to ap- pear — the latter, when he has made default after his first appearance ; but both these are writs againt the land, not against the person. 3rd. This writ in England would be void, even though it had been a summons, and not a capias, on account of its depar- ture from the established form, in omitting the direction, "quod juste ei sine dilatione fadat habere, It remains to be considered whether, although irregular and illegal in England, it may not be the proper process here. Upon the remedy for the re- covery of dower, our provincial statutes are wholly silent. We are therefore left to enquire, what there is to affect the question in the constitution of this court, in the law by which it is bound, or in the practice which it has established. The constitution and jurisdiction of this court rests upon the firmest and broadest basis, and appear clearly in the provincial statute 34 G-eo. III., ch. 2, sec. 1, by which act it was created. There is no question of jurisdiction of this court upon questions such as that before us. It has power to adopt the "proceedings of the common bench in actions real, personal or mixed," and its jurisdiction is original, therefore no writ under the great seal of the province is required — ^but the writ is to issue from this court, under its seal, and returnable into this court. What- ever process or proceeding the Court of Common Pleas in England can adopt in a case of dower which 3^0 EASTER TEEWt, 1 WM. IV., 1831. has been brought into that court by original writ out of Chancery, the. same process and proceeding this court can adopt without any such original writ, th§ statute giving jurisdiction iu all, such cases. SsQ far is cje^tr ; and now as thd process used in the case in judgment is not the same as that u§ed in Eflglaud, the question is, what then is in tfee law Qi this province, or the practice of the court, to compglj or authorise a different description of process. For the law which governs the right and the principles of the remedy, (our own statutes being, as I have said, wholly silent on the subject,), we must look entirely to England, according to the third sjec- tion of our first statute, which provides, "that in all matters of controversy relative to property and civil rights, resort shall be had to the laws of England, as the rule for the decision of the same." ThiSr legislative adoption of the law of England has, no, direct application, however, to the form of process in this or other cases. This court has not, under the authority conferred upon it, prescribed any par- ticular form of process, or mode of proceeding in the action of dower, and therefore we must carry the enquiry further, and see whether the legislature, by any general provision, or this court, by mj general ruje or system of practice, has given occasioii and authority for. issuing such process as this de- mandant has sued out. And first, as to the legis- lature. In the, first act already referred to (34 Geo. III., ch. 2) it was provided, (seCi 6,) that the original and first process of tHis court should be by writ of capias ad respondendum; and in order that^ the defendant or defendant^ might be immediately ea'stM tMm, 1 #M. iv.j Ml. Ml Apprised of the cause of cotnplaint against him or them, the said Writ should State the catiSS bf action, and refer to the declaration, Which should alMyS be annfexed to aiid served with the Writ. And it W^s fur- ther enacted, that no process should issile at the suit of any plaintiff, when tho defelidant is not to be holden to Special bail, until the deelaratioii on which it may be founded shall be filed iii the office. By 37 G-eo. III., ch. 4, the process of this court was placed on a very different footing, and it was provided, that in cases which do not require special bail, the first and original process of this court should be by writ of summons, to which the declaratioa was also annexed. This coittintied to be the form of pro- cess in all cases to which, in the nature of things, it was applicable, until the 2nd G-eo. lY., when the legislature..repealed these enactments, and provided, "that the original process for compelling the appear- ance of any defendant or defendants in any suit here- after to be btought in this court, shall be a wfit of capias ad respondendum, tested iil the name of the Chief Justice or senior Puisne Judge of the said court for the time being, a copy of whifeh process,' in actions not bailable, shall be personally served on the defendant or defendants, by the sheriff to whom the process shall be directed^ or his lawful deputy or bailiff, being a literate person; and that upon every copy of such process to be served upon any defen- dant, there shall be written a notice to such defen- dant, of the intent and meaning of such service, &c." This, So far as I am aware,' is all the legislature have done which can affect this question. Then as to the aict^ of thr^ fcoiirt. No ^articuldr 392 EASTER TERM, 1 WM. IV,, 1831. direction has ever been given as to the form of pro- cess or proceeding in dower, unde nihil habet, or in real actions of any kind. In regard to its practice generally, it has been declared by rule of court, Hilary Term, 1824, "that the practice, where not otherwise provided for, is to be governed by the established practice of the Court of King's Bench in England." And further, with respect to process, that no less than eight days, inclusive, shall intervene between the teste and return of all mesne process to be sued out in any personal action. Upon this pro- vision of the legislature in statute 2nd G-eo. lY,, ch. 1, and upon these rules, the question turns. There has been no decision of this court, within jny know- ledge, upon the process in dower, nor can it be said that there has been a course of practice in dower such as could give a sanction to the form of writ used in this case, or to any other form. From the premises I have stated, I come to the opinion, that the process sued out by the demandant is not warranted, and must be set aside. 1st, it has not fifteen days between the teste and return, which it ought to have clearly, upon the authorities in England. This requisition is not, I think, inter- fered with by the rule of this coijrt which I have quoted above; it is not dispensed with by our statutes; and, on the other hand, the conformity to the English practice in unprovided cases, to which we are bound by the rule, renders it necessary. 2nd, it omits the command to the tenant to render to the demandant; and if (which I am not prepared to ad- mit) it were within the competence of the suitor, as our statute prescribes no form of the capias, to devise EASTER TEEM, 1 WM. IV., 1831, 393 one suited to his purpose, possessing the essential character of the writ, still he had no power to deviate from the principle of the law, which prescribes that the process shall contain this altiernative. Without looking further, therefore, I think this writ must be set aside, and that the demandant may be allowed to sue out a writ according to the form which the, court have ordered by rule of this term. — {Vide post.) XJpon consideration of the general practice in cases of dower, the court do not find that they can properly lay down any system which shall dispense with the writs of grand and petit cape used in real actions generally, and which form parts of the proceedings in England in the actions of dower unde nihil habet, which is in the nature of a writ of right. The pro- ceeding in England for the purpose of obtaining dower, is almost obsolete, and the forms seem so little adapted to the present condition of things in this country, that the court would willingly endea- vour to devise a system more simple, by which the same end might be obtained; but upon mature con- sideration, we apprehend that such an improvenient must be left to the care of ^ the legislature. If the single object of the grand cape were to bring the tenant into court, we might venture to prescribe for the same purpose a process more in accordance with modern forms, but under the writ by the laws of England, the land of the tenant making default may be seizied into the King's hands, and in consequence of such seizure the demandant obtains a retnedy, although the tenant wholly makes default. This, is a sutistantial remedy of which she must not be deprived 3b 394 EASTER TERM, 1 WM. IV., 1831. by any new regulation of practice; and it is a right of that nature that we think we must leave it to be acquired and used as the law gives it, until the legis- lature may think fit to devise another course, since we will not attempt to interfere with the freehold of the subject by any process not expressly sanctioned by the common law or by statute. Since we deem it necessary, in the actual state of the law, to retain the process by grand and petit cape, it appears on the whole better to allow the pro- ceeding throughout to preserve the distinctive cha- racter of a real action, and therefore, instead of commencing by a capias, we have preferred the summons, as in England, since it is more in accord- ance with the principles and object of the action; it would be rather incongruous to adopt the proceed- ing by capias, because it accords with our general practice, when the steps which immediately follow must be different from those taken upon a return of a capias. Confusion will best be avoided by not blending these different systems of proceeding. Sheewood, J., concurred as to setting aside the process and service for irregularity. He conceived sufficient cause had been shewn to warrant such a step. Macaulay, J. — Upon much consideration, I feel bound to hold that the ca. ad re. prescribed by our provincial act being only adapted to, was only intended to apply to, ordinary personal suits, and not to real actions, which should be regulated by the principles which would have governed the court uni- EASTER TERM, 1 WM. IV., 1831. 395 versally, had no provision been made for tlie usual process in ordinary cases. I conceive the true con- struction of the provincial statute to be, that the ca. re. is enjoined in all cases where the party may be arrested, or where, after a personal service, an ap- pearance or common bail may by the English prac- tice be entered by the plaintiff for the defendant, upon affidavit of such service, but not in suits of a different description. The act is directory and affir- mative — not negative and exclusive in its terms. — 1 Burr. 447; 7 B. & C. 12. Eeal actions have fallen into disuse j and it is difficult satisfactorily to trace many points respecting them ; but with regard to process generally, the use and object of it should be looked to, and if those ends are secured, it can be of no great moment (unless the court can be held down to prescribed forms) what course is adopted. Though in form a caption is commanded, yet in substance and effect the ca. re. is but a summons in non baila- ble cases ; so that when no incongruity attended it, a process meant to operate exclusively as a summons might assume the shape of a capias, if absolutely im- posed by the statute. But when the course of pro- ceeding in dower is looked to, and the reasons duly weighed and considered, I think the inapplicability of a capias as the first process, is apparent. The English original contains a mandate for the assign- ment of dower, and a summons to answer in default thereof — yet the one is not bound to tender, nor the other to accept, dower in pais, but in court. The mode of service varies, and though it may be per- sonal, still it is not indispensable. The same obser- vation applies to ejectment. I at first thought the form of the ca. re. might be preserved with propriety, S96 EASTER TERM, 1 WM. IV., 1831. and now think that if the court was restricted from" proceeding in any suit except by capias, the form of such writ might be moulded as effectually to answer the object as a different process in England. But the more I consider the subject, the more I am cbh- vinced that the capias was not intended to form ex- clusively the only process, even to the obstruction of the due administration of justice in those cases to which it is not adapted. In real actions, by original and grand cape, I think both writs may emanate from, and be returnable in this court, which posses- ses original jurisdiction, and consequently may issue original as well as judicial process : in other words, process either founded upon a previous record or upon the original jurisdiction of the court, undei" the statute. Of course an original out of this court cannot in all respects be considered a King's original writ, but it may answer the same object in suits between subject and subject. The process being similar, the service and subsequent proceedings must of course accord with the practice in England in dower unde nihil hdbet. It follows that the pre- sent process wanting,- first, the mandatory clause; 2nd, the command to summon the tenant; Si-d, fifteen days between the teste and return— must be set aside for informality. The mode of service may be also objectionable ; although, without expressing any positive opinion, I am disposed to think that a personal service, on or off the land, will be found sufficient, and that pro- clamations are only requisite when there has been merely a service on the land not personal, and where there is a church either in the township or Faster tMm, i wk. iv., mi. S97 county within the meaning of the statute of Elizabeth. Should any suitor be advised to obtain a return of due summons without actual service, as usual in England, and to proceed at once to the grand cape, it will be for the court to decide upon its regularity if excepted to. The grand cape, at all events, forms the second step, subseqtient to which, I believe, the way to final judgment may be traced in the practical works on the subject. Per Curiam. — Rule absolute. Baldwin then prayed that as this was the first instance in the province, and no practice had been hitherto established, that the rule should be made absolute without costs. iParties being also infants. Sed. per Curiam. — An infant defendant is liable to costs as other defendants, and an infant plaintiff is not exempt. Crenerally in dower — that is in the action, costs are not taxable, but in all actions and cases, costs, on application to the court, are in the discretion of the court. We think they ought to follow here, beciause the not allowing fifteen days between the teste and return, is a clear irregularity. Our statute law in that respect could hot have misled the demandant ; and our rule of court adopting the English practice, pliainly made a longer return ne- cessary, (a) (a) See Consolidated Statutes, V. C, ch. 28. 398 easter term, 1 wm. iv., 1831. Prentice v. Hamilton. A continuance roll found in the proper office, and entered and filed there by the proper officer, is a record of this court, although not compared with the papers filed in the cause. Parol testimony cannot be received to contradict the roll. Case for slander, in saying to the Eeceiver- Greneral of Province, "He (the plaintiff) has stolen " three hundred dollars from you." The defendant pleaded — 1st. The general issue. 2nd. The Statute of Limitations. Issue joined on both pleas: In order to prove the issuing of the first process within two years from the time the slafider was spoken, the plaintiff offered in evidence an examined copy of a continuance roll, entitled of Hilary Term, 10th Geo. IV., and filed and entered and docketed by the clerk of the Crown, setting out a writ of capias, a recital of an alias and pluries, and are turn of the sheriff of no?i est inv. on the two first writs. A verdict was taken for the plaintiff, subject to an ob- jection on motion for nonsuit, that the continuance roll in the office was no record, and consequently an examined copy of it could not form legal, evi- dence of the facts of issuing the writ of capias or its return. The deputy clerk of the Crown proved that the roll of which a copy was produced had been brought to the office of the clerk of the Crown, by the attorney for the plaintiff. That it was docketed, numbered, and filed, without comparing it with the original papers filed in the office. That writs of capiat, alias, and pluries, had issued in the cause. That the capias had been taken out on the 26th November, 1829, and was made returnable the first day of Hilary Term then next. The witness did not know whether, the continuance roll corresponded with the original papers filed in the office or not, BASTEU TERM, 1 WM. IV., 1831. 399 and he did not know in what kiiid of an action the first writ issued. He could not say whether the first writ was taken out in this action or not, although he knew it had been issued, and had been returned into the office. The continuance roll had been docketed by some clerk in the office, and had been filed in the name of the clerk of the Crown, as other rolls had been filed. To prove the slander, the plaintiff called the Ee- ceiver-Greneral, who proved that, the plaintiff and defendant were clerks in his office at and before the time of the alleged slander stated in the plaintiff 's declaration. That to the best of his recollection, in the spring of 1828, the defendant told witness the plaintiff had embezzeled £75 of the public money, and the witness thought, made use of the following words: — "Mr. Prentice has stolen three hundred dollars from you " — meaning that he had feloniously stolen them. The defendant made a similar accusa- tion to the witness before the time to which the witness alluded in his evidence, and repeated it to the witness after that time. To the best of the wit- ness' knowledge, the plaintiff conducted himself with integrity while he was employed as a clerk in the office of the witness. That from defendant's frequently repeating the charge against the plaintiff, without any variation, and from the apparent sin- cerity with which it was advanced, the witness was impressed with the belief that defendant thought it true'; the witness himself did not give credit to the statements of the defendant, but thought the plaintiff might have told the defendant some stories in a jesting way, which had led him into error. The witness, however, did not state that the defendant, ov any other person, allegeti tha,t the plaintiff l^ad told the defendiant stories of the kind. Previously to the defendant's inaking t^e a,ccusatiQn against the plaintiff to the witness, the parties were not on gpo.d terras, frequent disputes having occurred betweeu them. On this evidence, which formed the plaintiff 's case,.the defendant's counsel contended that thiis wag a privileged communication from a clerk to Ijj? employer, and that in such a case malice was not to be presumed, but expressly proved. Sherwood, J., who tried the canse, charged the jury that the words proved imputed the crime of felony, and in the total absence of any circumstances to. shew the defendant had reason to believe that money had been stolen at all, arid therefore was acting in the discharge of his duty, aud for the ex- press purpose of putting their mutual employer on his guard against being defrauded, the law would presume malice. Tl^e jury found fpr the plaintiff. In Michaelmas Term last, the Solicitor-General moved to set aside the verdict, and grant a new trial. Baldwin shewed cause. Sherwood, J., this day delivered his opinion.— (After statipg the case and the evidence.) — The only objection to the validity of the roll is that it was not compared with the original papers |n the office, when it was entered and filed : when the examined copy of the roll was obtained the roll itself was in the custody of the proper officer, and in the office where all the rolls and records of this court should be kept. EASTER TERM, 1 WM. IV., 1831. 401 When a roll is found in the proper office the law intends that it has been regularly made up, and parol evidence is not admissible to destroy this presump- tion — 1 Bl. Eep. 664. If fraud were allejged and proved it would be different. Although the officer did not compare the continuance roll with the original papers in the office at the time he filed the roll, still he might have previously examined those papers, and might have known that they satisfactorily ac? corded with the roll; and if the defendant had dis- covered any material discrepancy between the documents, he should have produced a copy of the writ filed in the office, which of itself is a record. The defendant wishes this court to presume against the regularity of the roll, merely from the fact of the officer not having compared it with the original papers when he filed it ; but I am inclined to think no such presumption is allowable, and that the parol testimony adduced at the trial in support of it ought not to have been received. I am therefore of opinion that the continuance roll being found in the proper office, and being entered and filed there by the proper officer, is a record of this court. The next question to be considered is, whether the examined copy of the continuance roll produee^ in evidence at the trial was sufficient in law to estabr ligh the fact of the issuing and return of a wj-it of capias in this cause. When a writ has been returned into the office it becomes a record, and a sworn copy of the record is a good testimony, and is usually given in evidence to prove the fact of issuing the ^rit.— Bull. N. P. 234; 1 Phill. Ev. 370,; 1 Stark. Ey. 285 — and the return of a sheriff upon a writ 3f 402 EASTER TERM, 1 WM. IV., 1831. which has been duly returned and filed is prima facie evidence of the acts stated in such return, for full faith ought to be given to the official act of a public officer like a sheriff even when third parties are concerned — 11 East. 297. In order to establish the affirmative of an issue like the second in this case, I believe it is the usual course to produce in evidence a copy of the writ and of the sheriff's returns; but it does not thence fol- low that no other course is legal, or that you cannot prove the issuing and return of a writ in any other manner. In 2 M. & S, 565, the plaintiffs proved at the trial an examined copy of the> record against a third person, containing the judgment, the award of the elegit, and return of the inquisition ; and it was objected that a copy of the elegit and of the inqui- sition should have been produced, but the learned judge overruled the objection, giving the defendant leave to move for a nonsuit if he were wrong. In the succeeding term a motion for; that purpose was made, and the counsel in support of it cited G-ilb. Ev. 9; Bull. N. P. 104; 2 Saund. 69, 0. in notes. .The court decided that a copy of the judgment was good evidence, and Lord Ellenborough said "the judgment roll imports incontrovertible verity as to all the proceedings it sets forth, and so much so that a party cannot be admitted to plead that the things which it professes to state are not true." There is a later case still more in point in 3 B. & B. .SI 2 — trover brought by the plaintiff against the defendant his assignee in consequence of an order of the Vice- Chancellor to try the validity of a commission pf bankruptcy issued against the plaintiff. The plaintiff EASTER TERM, 1 WM. IV., 1881. 403 relied on the Statute of Limitations to shew that there was no legal debt by which the defendant could sus- tain the commission. At the trial the defendant, in order to shew that the debt was not barred by the statute, produced an office copy of a roll in the court of King's Bench containing entry of a writ of capias, alias, and pluries, and brought down to the term next before the trial, and these proceedings the de- fendant insisted took the case out of the operation of the statute. It appears that the Court of King's Bench had considered the continuances regularly entered. The counsel for the plaintiff did not ob- ject that the roll was not legal evidence, but insisted that, as the proceedings were stated to be in the Court of King's Bench, they could not have the effect to take the case out of the statute, when the action was brought in the Common Pleas. The court decided the proceedings sufficient to take the case out of the operation of the statute, and the defendant had judgment. In the last case a copy of the con- tinuance roll was admitted to prove the issuing and return of the writs without any objection, and it strikes me the roll was properly admitted to prove a similar fact in the present case, although the issuing and return of the writ of capias might have been regularly proved in another way. I am, therefore, of opinion that the plaintiff should not be nonsuited on the objection taken at the trial. As to the motion for a new trial for misdirection, I told the jury that I thought the case established by the evidence produced could not properly be con- sidered a privileged case, because the words were clearly slanderous, and in my opinion stood unex- 404 JEASTEB, TEKTSi, 1 WM. W:, l«al. plained by any collateral evidence indicative of tie intention of the party who uttered them. At the trial the counsel for the defendant insisted that the rule of law which applies to a master when giving the character of a servant must always prevail in favour of a servant when, making any communication to the master, and consequently that malice will- not be presumed against a servant under any circum- stances whajtever, but must be expressly proved in every instance. In support of this position many cases were cited, all of which I have since examined, together with others on the same subject, but I am not yet convinced of the correctness of the doctrine. When a master gives a character of his servant, whether he is requested to do so or not, malice will not be presumed', but must be expressly proved to sustain an action — IT. R. 110. The superintending authority of a master and the subordinate situation of a servant necessarily imply a right in the master to express an opinion of the conduct and moral prin- ciples of a servant. The interests of society sanction this right, and the policy of the law supports it, but it seems to me no good arguments can be found in lixvour of a right in the Servant to impeach the cha- racter of a third person to his master whenever he may feel disposed, without any apparent cause for his assertions. I am inclined to think the communi- cations of a servant to his master stand on the same footing as other communications made from one indi- vidual to another in society, aiid may be con&dential, and consequently privileged or not, according to the lacts and circumstances which attend them, and the occasion on which they are made. When the words are spoken in the discharge of any duty, the perform- aAS(fiE.K TERM, Ir Wjjf. IV., 1:^1. 40S aiice of which is required by the ordinary exigencies of society, although the party was under no absolute and legal obligation to perform it, the occasion oper- ates in the nature of evidence, and supplies a prima facie justification. When a person is himself inter- ested in any business or traiisaction, and in support of such interest makes a confidential communication to a third person, hona fide, the law does' not imply malice, nor d^es it when such communication is made by a disinterested person to another who is interested in the affair in question, and requests information on the subject. 1 Camp. 267, sustains this principle. The defendant wrote a letter to his bankers charging the plaintiff, a solicitor, with misconduct in the man- agement of their affairs, and it appearing in evidence that the letter was wi^itten confidentially, and that the defendant himself was interested in the same concern, Lord EUenborougk nonsuited the plaintiff, and his lordship at the same time referred to a case tried on the northern circuit. That was also a case of alleged libel contained in a letter from the defen- dant to the Bishop of Durham, wh^o had employed the plaintiff as a steward on his estates. It was proved that the letter was written confidentially to inform the Bishop of some supposed malpractices on the part of his steward, the plaintiff, and that the defendant had acted bom fide, upon which the judge who presided nonsuited the plaintiff. It does not appear by the case what was the nature or extent of the malpractices alluded to in the confidential letter, nor does the case state whether the Bishop had made enquiry of the defendant respecting them', but I rather infer that he did, because the case states that the letter was written on the subject of supposed? raal^ 406 EASTEft TEEM, 1 WM. IV., 1831. practices on the. part of the plaintiff. Admitting, however, that no enquiry had been previously made by the Bishop, and that he had no suspicion of any improper conduct on the part of the plaintiff, before he received the letter from the defendant, still I think that letter must have contained a particular statement of facts and circumstances sufficient, of themselves to create some suspicion of malpractices, otherwise the learned judge who presided at th^ trial would never have declared himself of opinion, as he did, that the defendant had acted bona ^de. In 1 C. «& P. 279, in a case of slander, when the decla- ration stated a colloquium between the defendant and one B. II., in which the defendant said of the plain- tiff, " he is a rogue and a thief, and has robbed me," and as special damage it was said that B. H. being the under sheriff of Middlesex, would have nominated the plaintiff a sheriff's officer, but in cpnsequence of these words he refused to do so, whereby the plain- tiff lost great gains which would have accrued to him from such nomination. The defendant pleaded, 1st, the general issue; 2nd, a justification, which stated that the plaintiff had been a servant to the defendant, and received certain sums of money for him, and that he had secreted and embezzled the money. It ap- peared in evidence, that the defendant had been a sheriff's officer for many years, and that the plaintiff, who was his follower for several years, had sent an application to the sheriff's office, to be appointed a sheriff's officer. B._H. the under sheriff saw a person named C. of whT)m he made enquiries, and afterwards on meeting with the defendant said to him, " C. tells me that (the plaintiff) who formerly lived with you is a thief, and has robbed you many times," on which EASTER TERM, 1 WM. IV., 1881. 407 the defendant replied, " what 0. has told jou is very- true." The under sheriff further stated that he had made these enquiries of the defendant in order to ascertain whether the plaintiff was a fit person to be appointed a sheriff's officer. It was proved by other witnesses that the plaintiff was charged with having kept defendant's moneys, and he said upon being ac- cused, " that he was sorry for it, and must work it out." Under these circumstances, Best., 0. J., was of opinion, that the conversation with the under sheriff was confidential, and entitled to just the same protection as communications relative to the charac- ter of servants. I have looked into the case on which the counsel for the defendant seemed to place great reliance, in Bull, N. P. 8, which appears to be an action of slan- der brought by a tradesman against the defendant, for saying of the plaintiff, " He cannot stand it long, he will be a bankrupt soon ;" and the plaiijtiff laid in his declaration by way of special damage, that by- reason of speaking these words a certain person would not trust him for a horse. This person was the only witness called by the plaintiff, and it ap- peared by his testimony that the defendant spoke the words to him, and in consequence of the commu- nication he did not trust plaintiff with the horse. It further appeared that the words were spoken in friendship and confidence to the witness, by way of warning, and not maliciously. C. J. l*ratt left it to tli3 jury to determine whether the defendant spoke the words out of malice to the plaintiff, or whether he spoke them through friendship to the defendant. This case comes within the class of cases which are ^08 RASTER TEBJI, 1 WM. IV., ,1661. protected by the laws, on the ground of friendship, and the communication of the defendant is similar in principle to those which are made in a confidential and friendly manner to a person for his own advan- tage, fof the purpose of reclaim ing him from somie vicious habits, as by writing to his parent or guardi- an to acquaint him with the fault of his child or ward. In the last case the defendant's remarks were alto- gether prospective, and alluding to a contingency which he thought was probable, and they were de- signed for admonitory suggestions to his friend, and for prevention of a' loss of his property. The case is reported in a very concise manner, and it does not appear whether the remarks of the defendant were made in answer to enquiries of his friend, or whether they originated altogether with the defendant, but at all events no positive allegation was made, and the entire observations were altogether coujectural. The friend to whoin they were made was undoubtedly interested, and he most probably reaped an advan- tage from the advice. " And if a communication of this sort," to use the words of Lord Elleniorough, " which was not meant to go beyond those immes^i- ately interested in it, were the subject of an action of damages, it would be impossible for the affairs of mankind to be conducted." In the case now belore the court there is no evi- dence to shew that the defendant aeteid in the char- acter of a friend to the Ecceiver-G-eneral, or that the witness was at all interested in the communication which thei defendant made to him, because it was not proved that any public money had been embezzled, that any money had been stolen from the witness, or BASTBR TERM* 1 WM IV., 1881. 409 tbat %M Wituess had ever entertained a suspteiofi of sueh & faet. On the contrarj^ it was pfoved he dis- credited ibe' repeated charges of the defendant, and believed the plaintiff had condueted himself with in^ tegrity. It does not appear the defendant was cog- nizant of any such occurrence of his own knowledge^ or from the information of any other person, or that be had the slightest grounds to suspect the plaintiff of stealiHg or embezzling money. It does not appeatir that the Reeeiver-G-eneral ever Blade any enquiries of the defendant respecting the conduct of the plain- tiff, when he was employed in his office, or that the defendant made any statement to the witness of the time", place, or manner of committing the alleged (Jrime. The defendant merely asserted the existeuce* of the feet unaccompanied by a&y concomitant or ex- planatbry circumstances. The evidence does not show *srhat time elapsed between the committing of the alle^^^d offenecy and the period when the defeild* a^t corn'miiinicatcd the oeeurrenoe t'O the/ witness. The evidence therefore which was given at the trial throws no light On the eas©,. with regard to the motives and; inten'tion of the defendant, but the words them'selves unexplained by any extritsto evi- dence clearly ifij'port mali^. It appeared, indeed, by the e^iden^e of the Receiver-Geiieral, Iha't fee was^ impressed.1 with a belief, that the defendant thought ih© charges which h'©' brought agakst the pkintiff' tvcro true,, and the reason given is,« that tb^ charges w^erc' frequeMly repeated withotrt any varia- tion,, and- tliiey were advanced with apparent sin-* G&fiiy. If the def-endant did really bfelieve when' h-o mad*- the ok'Av^m that- they were substantially tx^aey 3o 410 EASTER TERM, 1 WM. IV., 1831. and if he considered that fact material to his defence, it was incumbent on him to disclose the grounds and reasons of his belief to the jury, by sufficient testi- mony to enable them to determine whether his inten- tion was pure and honest or not. If it were once admitted that the mere circumstance of frequently repeatiiig a criminal charge with apparent sincerity were alone sufficient to remove the legal presump- tion of malice arising from the nature and import of the words themselves, then the question of malice would depend on individual perseverance and man- ner of speaking, which it must be obvious to any one, might be varied by existing circumstances, at the pleasure of the agent, and consequently would form a very unstable basis for the support of any legal principle. Such incidental circumstances may some- times be admitted as auxiliaries to facts of impor- tance, but it seems to me they never can be pr^erly substituted for 'such facts, and were insufficient in this case to prove whether the defendant thought the charges true or false. In my opinion, however, if that fact had been satisfactorily proved by explanatory and indubita- ble evidence of collateral circumstances connected with the transaction itself, it could not have con- stituted a valid defence to this action. There ap- pears to be no occasion to warrant the publication of the words; the defendant was not acting in the discharge of any duty which the convenience or exigencies of society required him to perform, and I think, if one man of his own accord voluntarily makes use of deliberate expressions which directly impute to an innocent person a felonious offence, EASTER TEEM, 1 WM. IV., 1881. 411 except he do so with a bond, fide intention and for the purpose of public prosecution, there can be no legal presumption in support of his conduct, even if he honestly thinks the charge is true — 3 Esp. 33. The policy of the law originating in the public good, will not allow an action to be brought for any mat- ter disclosed in the common course of criminal pro- secutions, but the unfortunate party who has been harassed by a groundless and malicious proceeding, must seek a remedy by writ of conspiracy or by a special action on the case — 3 Bl. Com. 126; Stra. 691. Had the words stated in the declaration been used in that way they must have been considered iimoxious in law as being necessary for the support of public justice, but it does not appear that they were spoken for any such purpose. What has been proved to have been said by the defendant has been likened by his counsel to the ordinary communica- tion of a servant to his master, and the remarks which I have made on that head might seem ito imply an admission of analogy, without further ex- planation. I do not consider the two cases alike. The de- fendant in this action was a clerk in one of the public offices in this province, and I understand, these sub- ordinate officers are uniformly appointed by order of the person administering the government, and consequently are the servants of the public, and it seems to me they are bound to disclose to the government, without unnecessary delay, all felonies committed by other individuals while actually em- ployed in the same department. If such information! be made, it should always be accompanied by a par- 412 EASTER TERM, 1 WM. IV., 1881. ticujar statement of all the facts composiHg the tran I WM. Wv 1831. 466 the general account, such paynients both at law and in equity are to be applied in reduction of the earliest in preference to any subsequent items ; but no case is found in which the effect of such entries is deter- mined when the earliest charges consisted of item? upon which a credit was running, not expired when the payments on account were introduced, though subsequent items were at such periods due and pay- able. Autl^prities, however, were produced to shew (if it could be doubted) that a creditor (having a- right to elect the application) cannot, contrary to or without the assent, express or implied of the debtor, appropriate any advances in reduction of demands not due in preference to others subsisting and pay- able at the time, yet no case would seem ^o hold, that with the assent of the payor the payee might not apply the er^it to one as well as the other. The present case differs in some of its features from all that I have seen in the books, inasmuch as in liem all the items were due, while here the first item of the accounts current was not payable, by reason of an extension of credit under the bond, but, nevertheless, it has been included in account as if it formed a subsis|fcing balance due presently, and has been placed at the head of, mingled with and in a-U respects placed upon the same footing wiUi other demands actually payable ; and the credits have been entered promiscuously in tjtie general ^account cur- rent, without specific application, notwithstanding such accounts embraced the old balance not payable in common with later charges for subsequent ad- vances upon which the credit }xsi^ expired, still the defendant did not dissent from tl^e course adopted by the plaintiff? ; and previoijs to the commen,cement 3 4i66 EASTER TEEM, 1 WM. IV., 1881. of this suit the item in question became payable, arid the defendant is now willing and desirous to abide by the rule of construction that would have pre- vailed had it been due from the beginning, an object which the plaintiffs desire to avoid. The bond declared upon merged the simple con- tract debt, yet it is obvious how the plaintiffs happened to include the same demand in the accounts current. The debt was originally contrai3ted for mercantile advances of goods, moneys, &c., by the plaintiffs' house to defendant and his brother, and was payable and had been bearing interest before and at the time the bond of defendant alone was taken and substituted for it ; and as defendant after assuming this balance continued, on his sole account, a course of dealing with the same house similar to that previously carried on by the partnership, and as by the course of mercantile dealing and of the dealing between these parties, annual rests were made ;and the arrears of interest turned into prin- cipal at each yearly rest, it is obvious, that without regard to the bond bearing interest from the 4th December, 1822, merely, the plaintiffs conceived it open to them to continue the old ba,lance in account, charging interest from 31st March, 1822, at which period it was struck, and after the rendition of a series of such accounts, unexcepted to by the defen- dant, I think it may be fairly presuriied, that if not expressly agreed to, it was mutually conceded or understood that the order of accounts observed by the plaintiffs was regular, approved of and acquiesced in, so that it would not lie with the plaintiffs at least to dissent from the accounts rendered with a view to EASTER TERM, 1 WM. IV., 1831. 4^7 an evasion of the legal consequences, as respects the balance in 1822. Had the plaintiffs been constrained to rely on the accounts rendered, in support of their action, the defendant could unquestionably avail him- self of the usual application of the credits, but as the accounts, even if affording sufficient evidence of an account stated, would not merge the bond, (1 Burr. 9,) it was competent to plaintiffs to sue upon the specialty, however the accounts transmitted in or- dinary and due course of dealing would of them- selves have amounted to prinia facie proof of an ac- count stated, (2 Atk. 252 ; 2 Vern 276,) in action of assumpsit and in absence of the bond. The inde- pendent remedy in the plaintiffs' hands obliged the defendant to resort to and introduce the accounts in evidence, with a view to establish partial payments. I think it was competent for him to do so, but he shews at the same time, that independent of the bond a large balance upon subsequent dealings re- mains due the plaintiffs on the same accounts, after deducting all credits. It has been determined, that had the defendant been allowed the benefits of all the payments credited in these accounts he could not sustain the issues created by his pleas, and the plain- tiffs having obtained a judgment for the whole pen- alty, as they legally might do, and issue execution without any further suggestion of breaches, (6 Moore 198 ; 2 Chit. rep. 697 ; 3 Price 219,) it becomes a question whether it is the rigid duty of the court now to interfere, upon motion to restrain the levy, or merely discretionary, according to the equitable cir- cumstances of the case. I have no doubt of the power of the court to interfere even now, and per- haps^by additional pleaat the defendant might have 468 EASTER TERM, 1 WM. IV., 1831. emitted himself to a strict legal adjudication on the point, but I incline to believe, that a sommary ap- plication is to the equity and discretion of the court to be exercised with a view to substantial justice. The plaintiffs by prosecuting the bond seek to take the first item out of the accounts cUrtent, and waive aU right to compotind interest thereon, and I have not discovered that the defendant, either at the trial or on the present occasion, hats sought to restore it, so as to be governed in all respects by those accounts ; but en the contrary, it seems to me, the defendant likewise desires to withdraw the first item, in order to ascertain the amount at simple interest, and then to restore it at that reduced rate in order to meat the credits of the opposite side. I am miich disposed to think the accounts must in all respects subsist entire in their present shape, on the debit side^ if the defen- dant desires atiy advantage in construction from the credits. It would seem just, that if he exercises a right of review in one respect the plaintiffs might claim a similar right in another,- that if the defendant is not concluded neither should the plaintiffs be so; and that if the accounts are to be femodelled on the one side, an equal privilege should hold on the other; still as the debit side is merely exceptionable in respect to the mode of reckoning interest, and since a revision in that behalf could not effect the applica- tion of the erfedits, it is not perfectly clear that the amount of the first item at simple interest might not be ascertained without abstracting it from, or opening the accounts, though at the same time plaintiffs might reasonably be allowed to say, we only made stich an application of the credits in consideration of the first item being eontiuued from the old account, as due EASTEB TEEM, 1 WM. IV., 1831. 469 presently, and as a mercantile balance liable to ac- cumulate at compound interest, to Which defendant has hitherto assented, tacitly at least, and if he now desires abatement with a view to be charged with simple interest only, we will specify anew the appro- priation of the credits, in order to apply them exclu- sively to the other mercantile transactions embraced in the same set 6f accounts, a course to which the defendant should not object, as we thereby reduce a debt at compound interest in preference to one. at simple interest merely. Upon the most deliberate consideration of the authorities, I am led to the con- clusion, that although the first item was not payable until after the period of the last account rendered, yet the credits in the accounts rendered being all along acquiesced in as made, it is not in the election of either party to dissent from them now that it has become due; but that whatever the rule of law on the subject of interest might be, the application of the payments must be governed by the rule fully established both in law and in equity, viz., that the earliest items are to be first paid; and if the present application depended merely upon the construction of the accounts, with a view to the application of the credits, even admitting that under the bond the first item did not accrue payable uijtil December, 1826vl should be obliged to hold, that the principle to be extracted from Clayton's case, 1 Mer. 5T2, 623, and 2 B. & A. 39, must govern. But this is an application to the discretion of the court, to be exercised soundly, and subordinate to the true ends of substantial justice in this partietrlar case. TM court cannot fail to see the nature aid 470 BASTEE TERM, 1 WM. IV., 1881. origin of this debt, the way it came into the accounts current, and that the ultimate balance has yearly in- creased instead of experiencing diminution by the intermediate payments. Were it apparent that the defendant would have to pay twice over the sum now prayed to be abated in the levy, unless a restraint were imposed upon the plaintiffs; in other words, if the debit side of the accounts contained no items but the one in controversy, or none unliquidated, then, while it would confirm my view of the rule of appli- cation, it would be manifest injustice if the defendant were not protected to the extent of the credits; but when he himself shews on the face of the same ac- counts" that he has contracted a large debt on simple contract, for advances on the bond bearing compound interest, according to mercantile usages, and that after allowing full credit for all payments a balance would still remain due the plaintiffs, independent of the bond, and that applied to the items of simple contract, a debt accumulating at compound interest would be reduced, while by detaching the first item from the accounts, a large sum included therein, by a similar computation is reduced to simple interest, it appears to me that there is no merit in the defen- dant's object, if prejudicial to plaintiffs, which does not appear. On the contrary, as far as disclosed to the court, it would seem that the course pursued by the plaintiffs is most beneficial for the defendant, as exonerating him from compound interest on one large sum, and to the full extent of all his payments redu- cing in his favour other demands liable to accumulate by the conversion of arrears of interest into princi- pal, at each annual rest ; and upon the whole, in the exercise of a sound discretion, I think the present EASTER TERM, 1 WM. IV., 1831. 47X rule should be discharged, and more especially as there is not a unison of opinion in the court upon the main question— a question not free from intricacy and doubt, and though liable to affect to a large ex- tent the interests of the plaintiffs, not in a shape to be by them carried in appeal to a higher resort in the event of an adverse decision. Per Curiam. — Rule discharged. Dob ex. dim. Pell v. Mitchbnbe. Where A. being seised of real estate oonveyed to B. and died, and A's. heir conveyed the same premises to C. who had his deed registered immedi- ately, Beld, that under the provincial act the deed last registered is fraudulent and void, as against the deed first registered, though C. had notice of this deed when he purchased. Ejectment for premises in the district of Niagara. The facts vfere — the lessor of the plaintiff claimed under a registered title : his father being seised of the premises by such a title, in 1820, conveyed to him. Some years ago the heir at law of the father recovered in ejectment from the lessor of the plain- tiff the premises in question, and afterwards con- veyed the same for a valuable consideration to the landlord of the present defendant, whose title, under such heir at law, was duly registered, before the conveyance from the lessor's father, under which he claims title, was registered. The purchaser had no- tice of the prior deed. At the trial a verdict was rendered for the lessor of the plaintiff subject to be set aside and a nonsuit entered, if the court above should decide in favour of the defendant, upon points reserved. The case was argued in Hilary Term by Draper for the plaintiff and the Attorney-General for 472 EA8TBE TEEM, 1 WM. IV., isei. the de&mdant. The decisixm of the court was con- fined to tke last point, which was in substance as follows : that the deed from the father to the les- sor of the plaintiff having been registered subsequent to that given by the heir at law, was fraudulent and void, under the Registrj Act, 35 Greo. III., eh. 5, sec. 2. The Chief Justice, having been retained for the defence when at the bar, gave no opinion. Sherwood, J. — The provincial statute, 3^ Gjreo. HI., enacts in substance, that after the conftrmation of land to any person, by grant fropi the Croiirii, under the great seal of the province, a memorial of any deed or conveyance of such land may be registered, and that any deed or conveyance made after a me- morial is so registered, of any part of the land con- tained in such registered memorial, shall be ad- judged fraudulent and void against a subsequent purchaser or mortgagee, for valuable consideration, unless a memorial thereof be registered in the man- ner described by the act, before a memorial of the deed or conveyance under which such subsequent purchaser or mortgagee claims, shall be registered. This act, generally, in its most important provisions, and particularly in the part to which I have alluded, is substantially to the same effect as the registry act in England ; many parts of it indeed are copied ver- batim from the 2d and 3d Anne, ch. 4. Neither the registry acts in England nor the one in this pro- vince make the registry of deeds imperative on the grantee ; he may cause a memorial to be registered or not at his election. No deed unregistered is de- BAXTER TERM, 1 WM. IV., 1831. 473 dared, void by this statute, except against a subse- quent purcbaser, for valuable consideration of land mentioned in some prior registered memorial ; and, therefore, in the absence of such subsequent convey- aupe, a deed of feoffment or lease and release might btj valid. As our registry act is in strict analogy ■with the statutes %,& S Anne, ch. 4 ; 5 Anne, ch. 18 ; 7 Anne, ch. 20, and 8 Geo. II., ch. 6, the de- cisions in England on the present question wou,ld be deemed conclusive. Mr. Sugden, in his learned treatise on vendors and purchasers 587, speaking of the relief to which the first purchaser would be entitled in a court of equity, in case the subsequent purchaser had notice of the prior conveyance before he bought, makes the following remarks, '" It will occur to the learned reader, that although the prior purchaser would in a case of this nature be relieved against the subsequent sale, (that is in equity,) yet the legal estate would be vested in the subsequent purchaser by force of the statute." In support of the equitable position, he cites among other cases 3 Atk. 645, Scho. & Lef. 821i But the doctrine at that time rested entirely on his own opinion of the proper construction of the Registry Act, as no de- cision in a court of law had yet occurred. About eight years afterwards the case in 5 B. & A. 146, was decided in the Court of King's Bench, in com-; plete accordance with Mr. Sugden's opinion. The court determined, that where there were two deeds executed iq the county of Middlesex, affecting the same premises, and the one executed last was registered tirst, the deed last registered must be considered iti a court of law as fraudulent and void, in consequence of 7 Anne, ch. 20. Abiiot, C. J., 3p 474 EASTER TEKM, 1 WM. IV., 1831. said on that occasion, " A court of law is now called upon, for the first time, to put a construction on the words of this statute, by which it is enacted, that every deed or conveyance which shall, after the 29th September, 1709, be made and executed, shall be adjudged fraudulent and void against a subsequent purchaser or mortgagee, for valuable consideration, unless a memorial thereof be registered before the registering of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim. Now it is impossible that plainer words could be used, and I think, that sitting in a court of law, we are bound to give effect to them, and we cannot say that this deed is not fraudulent and void, within the meaning of the act, because possibly it may turn out on examination that the defendant is entitled to some relief in equity." I see no material difference between the 7 Anne, and the Register Act in this province, so far as relates to the question now before the court, and feel compelled to follow the authority which I have just cited, and say, that the deed last registered must be adjudged fraudulent and void, conformably to the enactment of the Register Act of this pro- vince. The statute applies, in my opinion, to every description of deed and conveyance affecting real, property, and executed after a memorial comprising or containing such property has been registered, because such a proceeding is considered in law a sufficient notice, that all deeds of the same premises executed afterwards must be registered. Under such circumstances, if two deeds are given of the same premises, the last, if registered first, will hold EASTER TERM, 1 WM. IV., 1831. 47,5 them, although the first may also be registered, because the act of registering the first deed comes too late to authenticate the instrument : it is no more valid as respects the second deed than if it never were registered. The court is not clothed with authority to modify the strict rule of law, established by the words of the Eegistry Act, although the equitable circumstances of the case might possibly be found, upon an examination by an equitable tribunal, to warrant such a measure. In all such instances resort must be had to a court of equity, I am, therefore, of opinion, the present verdict must be set aside and a nonsuit entered. Macaulat, J. — It appears to me the case in 5 B. & A. settles the question, and that as a court of law we are here constrained to abide by that de- cision. There is certainly room for much argument in favour of an extension of the rule in equity to courts of law ; but the tendency of several cases is to establish a distinction, and the only adjudged case in a court of law is positive. Until that de- cision is reversed I conceive the point determined. It follows, that notwithstanding notice of the lessor's claim, the registered title of the landlord of defen- dant under the deed of the heir at law of the party under whom the lessor claims, is conclusive against the deed of the latter not registered, until after that of the former, even if since duly registered according to the provisions of the statute. It is unnecessary to enter upon the 'other points reserved, and if the parties interested are not satis- fied with the present result, I see no alternative, except a special verdict in which all the questions 476 EASTEE TERM, 1 WM. IV,, 1831. may be carried by appeal to the kst resort — the King in Council. Vide. 1 Ves. 67 ; 1 Eq. Ca. abr. 356 ; 9 Ves. -107; Str. 66i ; 3 Atl£. 646; 2 Atk. 275 ; Amb. 624; 3 Ves. 478 ; 19 Ves. 439. Per Curiam. — Nonsuit entered, {a) "WaSHBUHN v. FOTHERGIEL. Apartyhns the same time to plead after partionlarS are delivered on a judge's order, as he had after the sutDmons was returnable. King moved to set aside the interlocutory judg- ment and assessment of damages in this cause, for irregularity on the following objections : 1st. That the plaintiff sued by attachment of privilege, while the King's Bench Act, 2 Geo. IV, ch. 1. enacted that the original writ should be a ca. re. 2nd. That there was no rule to plead, which he contended was necessary, if the mode of suing by attachment of privilege is sustained. 3rd. That the interlocutory judgment was signed too soon. The judgment had been signed at the opening of the Crown Office, on Monday morning. On the Friday previoiis the de- fendant took, out a summons, returriEl.ble before a judge in chambers the following day, for particulars of the plaintiff's demand. The same day the plain- tiff's attorney, having been served with the sum- mons, delivered a bill of particulars. On the return of the summons the defendant got a judge's order for particulars, -and served the same immediately on the plaintiff's attorney, who, after the closing of the (a) See Ube y. Meyers, 2 Old Series, 424; Doev. AtbinBon, 401d Series 14() ; Neeson v. Eaeiwood, 4 U. C. Q. B. 271 ; Doe v, Smith, fU. C. Q.B. 876 ; atid see the Ktgisuy Act,' CunsoUdated-Statutes U.-C, cb. ^8. EASTER lERM, 1 WM. IV., 1831. 477 Crown Office on that dsff, ((Saturday,) delivered a second bill of particulars to the defendant's attorney. The court after hearing Washburn, dedided that the mode of, proceeding by attachment was saved by the statute, or if not, that the defendant had waived the objection by appearing. That a rule to plead was dispensed with in all cases by the fourth rule in Easter Term last ; but that the judgment was prematurely signed, as rthe defendant had till Monday; to plead, for the plaintiff was not bound by the particulars voluntarily delivered on the Fri- day, (Peake's N. P. C. 229 ; I Taunt. 353,) especi- ally as by dfilivering other particulars when the order was served, he shewed he did not rest on the first, -If the plaintiff could have signed judgment on the Monday at all, he certainly could not do so till the closing of the office ; but as the objection was one of very i strict practice, and as an application to set aside this interlocutory judgment might have been made before a judge in chambers, before the assizes, -Svhereby^the plaintiff Tnight-still have gone to trial, they refused to give the defendant his costs. , Per Jduriam-. — Rule ; absolute . Tide 13;Ea..508 ;-3.,B.,&.P.-319 ; .2.N.:R. 161 ; 2MooEe655;.4,T.Jl..657. 478 EASTER TERM, 1 WM. IV., 1831. Chisholm V. Ward and Terry. When the plaintiff, in his affidavit of debt, swoTe that two personB, trading under the name and firm of T. & Co., were indebted to him, and sued out process against one only, the other being at the same time within the ju- risdiction of the court, the arrest was set aside for irregularity. The affidavit of debt in this cause, stated that Ward and Terry, trading under the name and firm of Terry & Co., were indebted to the plaintiff in £ , &c., and that plaintiff was apprehensive Ward would leave the province, &c. A ca. re. was issued against Ward alone, who was arrested and held to bail. No proceedings were taken against Terry. Draper moved to set aside' these proceedings for irregularity, and to order the bail bond to be deliv- ered up to be cancelled, producing an affidavit that Terry was living within the jurisdiction of the court at the time the suit was commenced, and might have either been served with process or held to bail. Barn. 70 ; 6 T. E. 688 ; 16 Ea. 159. The SoUcitor-Generai shewed cause. 1 Bing. 48, 68. The court all agreed that the writ was irregular and should be set aside, and Macaulat, J., added, he considered the process here a part of the suit— a step in the cause ; and that it should therefore con- tain the names of all the defendants. As to costs, Sherwood, J,, thought this case stood on the same footing with any other irregularity, and that the rule should be made absolute with costs, but on terms of bringing no action. The Chief Justice and Maoaulay, J., held, that EASTER TERM, 1 WM. IV., 1833. 479 as this was a summary interference of the court to relieve defendant, and made for his benefit, costs should not be allowed. Per Curiam. — Eule absolute. See 4 M. & S. 360 ; 1 Chit. rep. 282 ; 1 T. R. 782 ; 1 B. & P. 481 ; 2 B. & P. 109 ; 1 Marsh. 477 Macakaby v. Foster, one, &c. Where a bUl is filled against an attorney in vacation, he hag till the nest term to plead, notwi^hstiuiding the rule of this court dispensing vith im- parlances. Spragge obtained a rule nisi on a former day to set aside the proceedings in this case for irregularity. A bill had been filed against the defendant, an attor- ney, in vacation, and a copy thereof with a demand of plea were served at the same time. Eight days after such service the plaintiff signed judgment by default. Baldwin shewed cause. Chief Justice. — If this is regular, then attorneys instead of having privilege may be more rigidly pror ceeded against than other defendants. Process must be returnable in term, and no defendant therefore could upon a writ sued out in vacation have judg- ment signed against him before the next term. Here this bill is in the place of process, but surely the de- fendant must have a day in bank, without craving an imparlance. The case in Doug, 312, and the note thereto, confirms that view of it, and that you 48i& EASTER TEEM, 1 WM, IV;,. tSSL can go^ no liartlier in vacation. By the geneisal prac- tice of the' court, 1 conceive nothing, can be done on a bill filed in vacation, till the nest term. The error, it seems to me, is in demanding the plea before the term, the bill being in the nature of process. Shbewood, J., concurred. Macaulat, J., differed, thinking the rule of court included all cases, and applied as well to attorneys as other defendants. Ver Curiam, — Rule absolute without costs Ives v. Hitchcock. After a demurrer had been decided against the plaintiff, which admitted the facts vbich had been found by the jnry on a trial of the issues joined- The court refused a new trial, which was moved for on the alleged ground that the verdict was against evidence. The pleadings in this cause are stated in the re- port of the judgment of the court upon the demurrer. (Ante p. 259.) After that the Solicitor -General' moved for a new trial, on the ground that the ver- dict was against the evidence of the fence viewers, appointed according to law, who stated the sufficiency of the defendant's fences ; which evidence being given by persons appointed by law for the purpose of determining the sufficiency of the defendant's fences, he contended was conclusive. Draper objected, that this very question was ex- pressly raised by the plaintiff's replication to the third and fourth pleas, which had been determined against him. EASTER TERM, 1 WM. IV., 1831. 481 Chief Justice. — ^Upon looking more particularly into the point, I am confirmed in the opinion, that the principle that a demurrer admits all facts well pleaded, has such an application in this case as would render it repugnant to grant a new trial on , the ground on which it is prayed. The defendant does not deny that the plaintiff 's recovery at the trial was supported by the evidence, so far as it respected taking the horses, but he contends that he gave sufficient evidence to the jury that the horses were doing damage at the time he seized them in . his close, and that " that close was surrounded with a lawful fence, as the statute of the province re- quires." That they were doing damage to the de- fendant was not a point questioned in the evidence, nor is it pretended that upon that point there was any conflicting evidence, or that the jury in that respect committed any error ; but the defendant urges that the jury went against the weight of evidence in this respect, namely, that they came to the conclusion that his, the defendant's fence, was not a sufficient fence under the statute, so as to entitle him to distrain cattle damage feasant, whereas he conceived he proved by the best and most conclusive evidence that the fence was law- ful and sufficient, and because the verdict was on that ground against evidence, he prays a new trial. Without considering at present, whether this finding of the jury is so well founded that the court in ordinary circumstances would grant a new trial, it is to be seen whether the defendant is not precluded, by his own admission, from denying this very fact on which he wishes to take the verdict of another jury. He has pleaded the general issue, and three 3 Q 482 EASTER TEKM, 1 WM. TV., 1831. special pleas; the plaintiff has replied specially to all the special pleas ; and in all his replica- tions he avers that the defendant's fences were not of sufficient height, and were ruinous, broken down, and in great decay. The defendant takes issue on this averment in his rejoinder to the replication to his first special plea : his fences, he says, were of the proper legal height, and were not ruinous, pros- trate, and in decay, and upon this the parties are at issue. To the third and fourth replications he de- murs generally, and therefore quoad those pleadings, at all events he admits that his fences were insuffi- cient and ruinous, that is, he admits all the facts stated in those replications demurred to, provided they are well pleaded. The plaintiff has judgment on the demurrer, and therefore the facts are adjudged to be well pleaded ; and it follows, that quoad the third and fourth replications the fact in question is conclusively admitted. Can the defendant now call in question before a jury on the trial of the general issue, and of the issue upon the first special justifi- cation, the very fact that he has admited upon the record by demurrer to the two subsequent replica- tions ? I have been perplexed by considering that at nisi prius the ordinary practice undoubtedly is, to try the general issue, and any one or more special issues, quite independently and upon their own merits, as made out in evidence, without regard to any thing the defendant may be said to have admit- ted in any other special plea, whether that plea is followed by an issue of fact or of law upon the re- cord ; but I think this does not affect the present EASTER TERM, 1 WM. IV., 1831. 483 question, because at nisi prim it would certainly be out of the sphere of duty of the judge to determine whether the demurrer to any other pleading is well or ill founded ; that waits the judgment of the court, and until that judgment is given it cannot be said that the facts in the plea demurred to are well pleaded, and consequently, whether the defendant can be held to have admitted them or Hot. Again, if the special pleas have not terminated in demurrers, but in issues of fact, it would seem, unjust to take such parts of them, merely, as make against the de- fendant, to be admitted, without admitting also the justification to which they are only introductory, that is, the motives and purposes for which the de- fendant alleges he did the act. In either case there seems good reason, while all are depending and before the judge at 7vi$i prius, why the jury cannot mix the issues, and take as proof of the one the admissions of the other. The parties are now before us under different circumstances. The case of Broadbent v. Wilks, in Barnes 266, though short, is expressly in point, to shew that the defendant can- not now dispute the insufficiency of the fences, having demurred to a replication averring that fact, and that demurrer having been determined against him and in favour of the replication. But it is said, Barnes is an authority not to be trusted, his notes of points are short and often unsatisfactory, and I am aware they have been frequently found to be incorrect. On the other hand, many decisions of the court will be found to rest mainly upon the authority of some case reported by Barnes, especi- ally on points of practice. He was (though he may 484 EASTER TERM, 1 WM. IV., 1831. not have been a profound lawyer) long secondary of the court, and this is precisely one of those points on which an error on his part would be least ex- cusable and least probable ; nor would it be likely, one would think, to stand without correction in the several editions of his book — besides, I find nothing to contradict it in any other case. That same case is reported in Willes, Wilson, and Strange. Wilson and Strange report it chiefly for the other point involved in it, as to the legality of a custom stated in the plead- ings, but they notice also the point of practice stated by Barnes, unless we are to infer from their silence that the general issue was not pleaded in the action, as Barnes says it was. We ought not to infer, that because they do not profess to give the pleadings entire, or to recapitulate them — ^but Willes 364 does, and a report of higher authority cannot be, because he delivered, in the name of the court, the very judgment which he reports : he states the pleadings precisely, and fully confirms Barnes. Not guilty was pleaded to the second count, and a special jus- tification to the first, and the issue was found for him ; but inasmuch as the justification to the second count was found to be no justification, and the de- fendant had in that justification admitted the trespass which thus stood not justified, the court gave judg- ment against him, notwithstanding the judgment which he had obtained upon the issue. This case clearly shews, I think, that when the defendant is concluded upon a point that goes to the whole action upon any pleading, he cannot treat that as a point still open on which he may have a verdict and judgment on another issue. EASTER TERM, 1 WM. IV., 1831. 485 The first count here is special trespass, for seizing plaintiff's cattle depasturing in a close, driving them to the pound, selling them and converting the money to defendant's use. The evidence we must look into, on this application for a new trial, as it turns on the evidence. Then, we see that all the evidence, in fact, related to one act of trespass, and tended to prov-e the first or special count. We could not grant a' new trial to allow the plaintiff to go into a second trespass under the second count. Then, in the pleadings to the first count, it stands admitted by defendant's demurrer to the replication lo one of the pleas to that count, that the fences were defective. The fact, therefore, is established quoad that count, for by judgment on the demurrer the facts are found to have been well pleaded. I have had so much difficulty in coming to a satisfactory opinion on this point of practice, that if it were the only matter to be considered, I should even yet hesitate to look upon the defendant as absolutely concluded from going to trial upon the issues ; but the truth is, he has already gone before a jury upon it, and upon full hearing and the testimony of many witnesses on both sides, the jury have found against him upon the express fact of the sufficiency of the fences. Now, admitting the evidence to have been questionable or doubtful, I certainly would not direct a new trial in order to try a second time, as disputed, a fact that he has admitted on record. Sherwood, J., and Macaulat, J., concurred. Per Curiam. — Eule discharged. 486 EASTER TERM, 1 WM. IV., 188X. VaEBT V. MUIRHBAD. Covenant for title. Breach, want of seisin, and an eviction by B. alleged in the declaration. Flea, seisin in fee. JSeld, that upon proof of eviction by B. it was incumbent on defendant to prove seisin without proof of title in B. by plaintifF, as though iiverred in the declaration it was not denied, except indirectly by defendant's plea of seisin, in himself ; at all events that defendant going into evidence of his title cured the objection. That a judgment on sd. fa. against B. the. heir of the deceased owner of the land, aud a fi. ^a. thereon awarding {he sale tif lands, of which the party' deceased was seised on a specified ixj, previous to which he died, could not sustain a purchase, and that a sheriff's deed under such judg- ment and^./a. could give no title. Qatere. Whether in order to sell the lands of a deceased debtor against whom judgment was obtained in his life time, the proceedings should, under 5 Qeo. II., ch. 7, be against his heir or personal representative. Covenant. The declaration alleged, that by in- denture the defendant in consideration of £112 10s. did grant, &c., to plaintiff, his heirs and assigns, for ever, lot No. 110, in the town of Niagara, with a covenant that defendant then was the true, lawful, and rightful owner of the said lot, and then was law- fully and rightfully seised in his own right, of a good, sure, perfect, absolute and indefeasible estate of in- heritance, in fee simple, of and in the said land, without any limitation of use or uses, or any other matter or thing to alter, charge, change, incumber or defeat the same. Breach protesting that defend- ant hath not kept, &c., that defendant was not the true, lawful and rightful owner, ,&c., and was not lawfully or rightfiilly seised, &c. 2nd count. — Simi- lar to the first down to the breach^ that defen(fent was not lawfully or rightfully seised, &c., by reason whereof plaintiff hath not been able to have and to hold the said premises, to him, his heirs and assigns for ever ; but one J. M. had lawful right and title, and was seised as in fee of the said premises, and did enter into the same and ejected the plaintiff by due process of law, by reason whereof the plaintiff hath not only lost the premises and divers large sums EASTEK TERM, 1 WM. IV., 1831. 487 of money, tot, wit, £500 laid out by him in and upon the said premises, in repairing and improving the same, but hath been obliged to pay the coats ex- pended by the said J. M. in prosecuting his eject- ment, and hath undergone costs in endeavouring to defend the same, to plaintiff's damage, &c. Pkas.^lst. After oyer, non est factum. 2nd, to the first count. — That defendant at the time of mak- ing the indenture was the true, lawful, and rightful owner, &c. 3rd, to the first count. — That defen- dant at the time of making the indenture was law- fully and rightfully seised, &c. Similar pleas to the second count. At the trial at the last Niagara assizes, cor. Sherwood, J., the plaintiff proved the execution of the deed, and then proceeded to shew, that an action of ejectment had before that time been brought against him by one J. M., who recovered and turned him out of possession. He then proved his damages, the price of the land and interest, the value of im- provements erected by him, and the costs he had paid on the defence was proved a judgment in this court of Trinity Term, 1820, entered on a cognovit against one C. M. in favour of defendant. In the margin of the roll there was an entry made, and signed by the clerk of the Crown, shewing that the judgment was in fact entered on the 11th December, 1820. The defendant also gave in evidence a sci. fa. roll The writ of sci. fa. contained an allegation of the death of 0» M., stating the exact time he died, and also alleged that a writ oifi.fa. against the goods of C. M. had issued, and been returned in part satisfied, 488 EASTER TERM, 1 WM. IV,, 1831. and that a writ of jfi. fa. against the lands of 0. M. had issued for the residue of the debt and costs, directed to the sheriff of the District of Niagara, who had returned thereon that 0. M. had no lands in his district. The writ of set. fa. further com- mands the sheriff to make known to J. M., heir at law of 0. M., and to the tertenants of the lands whereof C. M. on the 11th December, 1820, being the day on which judgment was given against him, was seised in fee simple, to shew cause on the first day of Trinity Term then next ensuing, why the residue of the debt and costs recovered against C. M. should not be made of those lands. At the re- turn of ,the set. fa. the heir and tertenants made default, and judgment was given in favour of the present defendant, that he should recover the residue of his debt and costs of the lands owned by 0. M. on the 11th December, 1820, upon which a writ of f.fa. was awarded against the lands and tenements which were of C. M. on the 11th December, 1820, and upon this writ the sheriff sold and conveyed the lands in question to the present defendant, who was plaintiff in the suit against C M. The defendant sold the lands afterwards to the present plaintiff, and gave him the deed on which the action is brought. It appeared that 0. M. died between the 15th and 20th November, 1820. The plaintiff's counsel ob- jected to the validity of the judgment against 0. M., urging also that the f. fa. against the lands was void, as on the 11th December C. M. had no lands. The defendant's counsel contended, that no objection could legally be made at nisiprius to that judgment, and if it were defective at all, advantage could be taken of it by writ of error only. The judge ruled EASTER TERM, 1 WM. IV., 1831. 489 that the plaintiff, being neither party nor privy, but a stranger to the judgment, might adduce evidence to shew it void ah initio, and a verdict was rendered for the plaintiff. In Michaelmas Term last. Draper obtained a rule nisi to set aside the verdict, on the ground that the parol evidence adduced, to avoid the judgment, ought not to have been received. The Solicitor-General shewed cause. Judgment was this day given ; the Chief Justice expressing no opinion, as he had been concerned in some of the proceedings when at the bar. Sherwood, J. — I think the opinion I formed at the trial, that the plaintiff, being neither party nor privy, but a stranger to the judgment, might adduce parol evidence to shew it void ah initio, correct, and that it is supported by the principle established in 2 Mod. 308. It is true, the judgment objected to in that case is avoided by special plea, but the doctrine advanced by the court is general and applicable to every mode of defence adopted by a stranger to the judgment, Many subsequent cases prove, that a final judgment may be shewn to be void under the plea of the general issue. — T. Eay. 404 ; Gowp. 640. I thought at the trial that the judgment against 0. M. was void, and I still incline to that opinion, but I have not made up my mind fully on that point, because it does not appear necessary to do so in the present case. Other obstacles to the defendant obtaining a new trialpresent themselves, upon which 3 B 490 EASTEB TERM, 1 WM. IV., 1831. there is no doubt. I will, therefore, briefly state the objections to the judgment, which occurred to me. A judgment is uniformly entered of some term. By intendment of law a judgment entered during term, or during the succeeding vacation, has relation baqk to the first day of the term. The pre- sent judgment was entered in the vacation after • Michaelmas Term, and consequently its legal rela- tion extends back to the first day of Michaelmas Term, but no further.— 1 Wils. 39 : 7 T. E. 21; Willes 427. — The judgment, however, was entered as of a term before Michaelmas Term, and the roll is entitled of Trinity Term, and therefore the record itself shews it cannot be a judgment of Mic- haelmas Term. Now, it appears to me, a judgment entered on a cognovit or warrant of attorney, in vacation, after the death of the defendant, cannot be considered as entered of his life time, without the aid of legal intendment already mentioned ; and as the record itself clearly proves the judgment to be entered of a term not within the scope or protection of this legal fiction, it necessarily follows, as I am inclined to think, that it is no judgment at all, in the technical sense of the word. I am not aware of any established intendment of law by which it can be supported. It might be urged that this court, upon a proper application, would order the record to be amended, by entering the judgment of Michaelmas Term, but as such a step is never a matter of course, after the term in which the judgment is entered, it must be more problematical after a lapse of ten years, as in this case. I give no opinion, however, cm the subject of amendment ; all I wish to intimate is, that you consider it a matter of pourse for the purpose of supporting the judgment. EASTER TERM, 1 WM. IV., 1831. 491 It appeared in evidence on the trial by the sci. fa. roll and the proceedings thereon, that a writ of Ji. fa. for the residue of the debt and costs was awarded against the lands and tenements which were of C. M. on the 11th December, 1820, a day which was after his death. The f. fa. itself was not produced at the trial, but the deed from the defendant to the sheriff was, and it contained a recital of the execu- tion, shewing it to have issued in the same form in which it was awar4ed on the roll. Now, it appears to me, the award of the execution and the writ itself were void. Whether either could be amended or not is altogether another question. The sheriff was commanded to sell the lands which 0. M. owned on the 11th December, 1820. The authority of the sheriff to sell was consequently limited to a descrip- tion of lands which had no existence ; in fact, 0. M. was dead and owned no lands on or after that day. The plaintiff in that action chose to sue out an un- usual kind of writ, and I think the sheriff was bound by the special terms of it, and could not sell the lands which had then descended and become the property of J. M. thie heir at law, even if they had been liable to be sold under the proceedings under the sci. fa. I am also inclined to think the proceed- ings under the sci. fa. were insufficient to warrant the issuing of a writ of elegit for the purpose of ex- tending a moiety of the lands descended to the heir, if the plaintiff in that action had been inclined to collect his debt according to the course in England. If he were desirous of obtaining his end in that way he should, in my opinion, first sue out a sci. fa. against the personal representative, and upon the return of nihil against the executor or administrator, 492 EASTER TERM, 1 WM. IV., 1831. he might then have recourse against the heir and tertenants, but not before. — Carth. 107. In this instance the plaintiff did not elect to take his remedy according to the English law, but pro- ceeded, under the statute 5 Geo. II., to sell the land itself. I have already said I thought the terms of the execution made the writ void, but if it were in other respects unobjectionable, I think it could not be sustained as a legal proceeding under that act. I consider the remedy given by that statute against the lands to be exactly like the remedy given by the laws of this province against the goods. The latter part of the 4th sec. appears to me to contain the en- actment in so many words : the first part makes real estates in the British plantations in America liable to, and chargeable with all just debts, dues and de- mands, of what nature or kind soever, and the latter part expressly enacts, that they shall be subject to the like remedies, proceedings and process for seiz- ing and selling the same, and in like manner as per- sonal estates are seized and sold for the satisfaction of debts in any of the plantations respectively. Wten the parties in a suit are changed by the death of a defendant, after the entry of final judgment, be- fore the plaintiff can proceed he must sue out a sci. y«. against the personal representative of the defend- ant. If he follows the words of the statute he must also proceed in like manner before he can sell the lands. The writ of Ji. fa. against the lands in this suit, issued more than twelve months after the entry of final judgment, and after the death of the defend- ant, so that the case in that part is precisely parallel to the one I have before stated respecting the goods. EASTER TERM, 1 WM, IV., 1831. 493 Now, as the 5 Geo. II. clearly designates the remedy which the creditor shall have against the real estate of his debtor, it might be sufficient to say, that in the present case the remedy mentioned in the act has not been pursued ; but I am inclined to go further and endeavour to shew, that the legistature could never have intended to pass by the personal repre- sentative altogether, and allow such a remedy as has been attempted in this case : such a deviation from the plain and obvious terms of the law would pro- duce delay to the creditor and injustice to the debtor in many instances. According to the law of England the tertenants are not to be charged on a judgment till the heir is summoued, or it be returned that there is no heir, or that the heir has no lands to be charged ; for the heir may have a release to plead, or other matter to bar the execution. — 6 Bac. Abr. 114. If the heir be a male and under age the parol may demur till he is of age, and if the land descend to several females the parol may demur during the mi- nority of any of the co-^parceners. — Eol. Abr. 140 ; Co. Lit. 290, a.; 2 Salk. 598. If any one of the co- parceners should die, and the share of the deceased descend to several females, the embarassment and difficulty of the creditor would be greatly increased ; and the residence of the heir in a foreign country, when his lauds in this province are entirely unoc- cupied, presents an obstacle altogether insurmount- able. On the other hand the heir himself might be injured ifnosci./a. should issue against the personal representative. There are many just and legal pleas which the executor might readily make and effectu- ally sustain for the benefit of the heir, because the facts and proofs would 'be peculiarly within his own 494 EASTEE TERM, 1 WM. IV., 1831. knowledge and power, but which the heir might not be able to make for want of information, or if he could make them, he might find it extremely difficult, or perhaps altogether impossible to prove. For in- stance, a release to the testator himself, or to the executor ; payment of the judgment by the testator or executor ; or that goods and chattels of the testa- tor, in his life time, sufficient to satisfy the judg- ment, had been seized in execution. I am of opinion that all these, and many other similar obstacles to the attainment of justice by cre- ditors as well as debtors, might be surmounted by following the simple and well known remedy against the personal property in all proceedings for the sale of the real estate. The statute, in my opinion, directs this course, and the interests of society seem to require it. I am quite aware the cases I have cited to shew a sci. fa. according to the law of England should issue against the personal representative before recourse can be had to the heir and tertenants, may be met by the case in Dyer 208, in support of the contrary opinion. That case, however, was reported more than a century before the one in Carthew ; and the reporter himself seems to have doubted its accuracy, by subjoining a quere at the conclusion. Bacon, Tidd, and Bingham, evidently consider the case obsolete, because they take no notice of it in their treatises on issuing the writ of sci. fa., where the parties are changed by the death of the defendant, of the entry of final judgment. I am inclined upon the whole, to think, that whether the defendant had in this case been desirous of extending one moiety of EASTEE TERM, 1 WM. IV., 1831. 495 the real estate by the writ of elegit, or of selling the whole by writ of^. Ja. the proceedings on the sci. fa. would be insufficient to sustain him. I think no legal sale of the premises in question has yet been had, and am therefore of opinion a new trial ought not to be granted. Macaulay, J. — The first question relates to the sufficiency of the plaintiff's prima facie proof of the defendant's breach of covenant, which consisted in shewing that the plaintiff had, since the conveyance and covenant made, been ejected by the heir at law of 0. M. upon the usual demise, &c. Independent of the consideration that title in J. M. and eviction are alleged in the second count of the declaration, and only denied indirectly by assertion of title in defendant, on whom lies the affirmation of the issue,' this objection seems obviated by the evidence of title adduced by the defendant giving rise to several other points, the result of which must establish whether the covenant were broken or not. It ap- pears the defendant's judgment against CM. was actually entered on the 11 th December, 1820, in Michaelmas vacation of that year, a day subsequent to his death. The roll being entitled of Trinity Term preceding and no continuance is entered, the first question is to what day such judgment relates, the said C. M. having died in Michaelmas vacation, but previous to the entry, as against purchasers, judgments relate only to the actual entry and docket.— 29 Car. 2, ch. 3, and 3 & 4 W. & M., ch. 14; By purchasers are meant purchasers indepen- dent of the judgment, not those buying at sheriff's sale and claiming under it. But between the parties 496 EASTER TEEM, 1 WM. IV., 1831. and their privies, judgments relate to the first day of term in or of which they are entered, as I think is fully shewn in the following authorities : — Willes 136, 427 ; 6 T. R. 368 ; 7 T. E. 20 ; 7 Ea. 297 ; 1 B. & P. 571 ; 5 Bing. 1 ; 3 P. Wms. 399. And a mere irregularity in the proceedings cannot be urged at nisi prius. — 4 Camp. 68 ; 4 Price, 13. I there- fore think that the present judgment must be taken to relate to the first day of Michaelmas Term, at latest, (when C. M. was living,) if not of Trinity Term, in the absence of a continuance which, if important, might now be entered by leave of the court. And as the plaintiff and defendant claim title under the judgment, such relation applies to them equally with C. M. and his heirs. The judg- ment subsists as of the first day of the term, and proof of the defendant's death in the ensuing vaca- tion cannot invalidate it. Owing to the relation of the judgment, the fi. fa. against goods tested in the I life time, ss. the last day of Michaelmas Term appears to me to have issued regularly. I, however, do not conceive its regularity important. If it were, I must sustain the writ. Although our provincial statute declares that the same process shall not include lands and goods, and that a writ against the latter shall precede that against the former, still the lan- guage of the legislature being directory and not restrictive, I am by no means inclined to think that the validity of a sale of lands depends upon a com- pliance with the act in this respect. A failure to observe them might induce the court, upon appli- cation, to set aside the execution against the lands previous to a sale, but when acted upon it could not, I apprehend, be treated as void, and EASTER TERM, 1 WM. IV., 1831, 497 that no relief could be afforded to the prejudice of a bona fide purchaser, unless under peculiar circumstances, still less could the whole proceeding be treated as nugatory at nisiprius. If therefore the sale of lands on the present occasion could be sus- tained on all other grounds, I should not think the want of a return of nulla bona against the personal representatives of the said C. M., in addition to the return of the writ that went against his chattels, tested in his life time, but executed after his death, a valid objection to destroy the defendant's title. The plaintiff seeks to impugn the legality of the sale on other grounds ; and it is objected that he cannot avail himself at nid prius of the exceptions urged, but as he is a stranger to the proceedings, and in- competent to impugn them by direct application, I think he may.— 2 Mod. 308; Salk. 600; G-il. Eq. rep. 220 ; 4 M. «fe S. 20 ; Garth. 107 ; 2 Saund. 72 ; 4 Campb. 58; 4 Price 13; 1 B. & A. 40; 3 Taunt. 543. The main objections are two fold. 1 st. That the judgment with a view to lands is revived by set. fa. against the heir and tertenants, instead of the personal representatives, through whom alone, it is contended, the lands could be sold, however liable to elegit or extent by the course pursued. 2nd. That the judgment on sci. fa. even if sus- tainable, is special, to levy the residue of the debt of the lands of which C. M. was seised on the 11th December, 1820, a day subsequent to his death. ^ The first point involves the important enquiry, by what course of proceeding lands may be sold as 3 s 498 EASTER TEEM, 1 WM. IV., 1831. assets for the satisfaction of debts. But the opinion I have formed supersedes the necessity of pronoun- cing any decision of the general question. I would remark, that the judgment recovered by the defen- dant against 0. M., though in debt upOn bond, can have no greater or Other effect than a judgment on simple contract. It does not appear on the recOird whether the obligation bound the heir or not, and if it did, the security being merged in the judginent would exonerate him ; that is, he would be no fur- ther bound or liable than under a similar recovery in assumpsit. So' that this case would have pre- sented nothing peculiar, had it been the duty of the court to decide the proper judicial course to be pur- sued in enforcing a sale of the lands of a party dying indebted, against whom a judgment had been obtained in his life time, and remained unsatisfied at his death. The judgment relating to a time antecedent to the death of 0. M., I deem it competent to. the present defendant to sell the lands of which he was seised on the day of his death, if not, upon the day to which the judgment has relation ; and the set, fa., if in other respects regular and effectual, should have fixed the remedy to one of those periods, in- stead of which it recites the judgment as entered on 11th December, 1820, and that 0. M, died after such judginent, and, then commands the citation of the heir and tertenants to shew cause why the sum should not be revived against them, and the plaintiff in that suit have execution for the residue of his debt, to be levied of the lands whereof C. M. on the 11th December, 1820, or ever after, was seised in fee. Upon the return of the service, and the default of the heir, the plaintiff recovered on the scu fa. JEASTER TEEM, 1 WM. IV., 1831. 499 accordingly, to have execution for sucii residne, of the lands of C. M. deceased, on the 11th December, 1820, the day of the aforesaid judgment. A fi. fa. conforming to the judgment of sci. fa. issued under which the lands in question were sold. It now turns out that 0. M. was dead before the 11th De- cember, and therefore could not have been seised of any lands on that day or afterwards. The judg- ment specifies no lands in particular, and the facts do not seem to warrant the sale of any real estate whatever. — Plow. 441. The defendant, therefore, would fail on this ground, and independent of the •ulterior considerations. Whether admitting the propriety of the proceed- ings adopted, the court could amend the sci. fa. judgment and execution, so as to obviate the peculiar objection, it is unnecessary to enquire — (6 T. R, 1 ; 2 B. & P. 275 ; 9 Ea. 316)— but as the interests of third persons might be materially affected, obvious difficulties present themselves. It is to be lamented that the doubts and conflicting opinions entertained as to the construction, 5 G-eo. II., should entail em- barassment upon suitors, and the present is, perhaps, an instance. Every case that arises will, probably, more and more evince how desirable it is that the legislature should interpose to modify and regulate the bearing and application of the statute. In the meantime, the court can only dispose of questions that occur as the law, in its subsisting shape, shall seem to warrant and require. It was intimated by the court that there was an- other point which had not bf en spoken to, and upon 500 EASTER TERM, 1 WM. IV., 1881. which they felt some difiBculty, namely, the general damages which had been given — including as well the price paid for the land as money expended upon improvements, &c., and Draper then moved to en- large the rule till next term, in order to argue this point, which the court, after some hesitation, G-ranted. Falls bt al. v. Lewis. The plaintiff lecovered a verdict trithia the jurisdiction of the district court, and as soon as the verdict had been recorded the court adjourned. RM, that the plaintiff's counsel was too late in moving for a certificate to carry costs at the opening of the court nest day. Trover. — At the last assises for the Home Dis- trict, the plaintiff obtained a verdict for £15. Im- mediately after the trial the court adjourned, when at the opening of the court on the following morning, the plaintiff's counsel applied for and obtained a cer- tificate to entitle him to King's Bench costs, under the statute 58 Geo. III., ch. — . The counsel for the defendant had leave to move to set aside this certifi- cate, as the Chief Justice granted it, subject to the opinion of the court as to its legality, and accord- ingly, on a former day, Washburn obtained a rule nisi to set aside the certificate, on the ground that it was moved for and obtained too late. The statute provides that in a suit brought in the King's Bench, which is of the proper competence of the district court, no more costs shall be taxed against the de- fendant than would have been taxed in the district court in the same action, unless the judge who tried the cause shall certify in open court at the trial, that it was a fiit cause to be withdrawn from the district EASTER TEEM, 1 WM. IV., 1831. 50l court, and commenced in the King's Bench. The Attorney-General shewed cause — cited 2 B. & C. 580, 621 ; 3 Camp. N. P. C. 316. The Chief Justice and Macaulat, J., held that the application for the certificate was too late. They considered the expression " at the trial " as pointing out distinctly the time when such certificate must be moved for ; and if the plaintiff should omit moving for it in due time, this court could not aid him by giving a construction to the statute calculated to change its terms and meaning. — 2 Wills. 21 ; 7 T. E. 448 ; 6 Ea. 686, 7 ; 4 D. & E. 147. Sherwood, J., difi'ered. — In my opinion every act of parliament should receive such an exposition as would effectuate the evident intention of the leg- islature, which intention must be ascertained from the subject matter, and the context of the statute. Now it appears to me self-evident, that the trial must be finished and the verdict of the jury recorded, before the judge can properly certify ; because he should be properly acquainted with all the circum- stances of the case to enable him to certify correctly, and he must know the amount of the verdict before he can ultimately determine, whether in fact a certi- ficate is necessary. There is another consideration which inclines me to think that the legislature never intended the words "at the trial" to denote the very identical time the trial was in progress. Doubtful expressions are often explained by antecedents or subsequent phrases, or by both, and in this statute I think the words immediately preceding tend very much to define what the legislature meant by the g02 EASTEK TEKM, 1 WM. IV., l83l. words "at the trial" — I allude to the words " iii open court." If the words " at the trial " must ne- cessarily be construed to mean the time of the trial, then there could have been no necessity for the words " in open court "^ — ^because every body knows the court must be open when the trial is going on. The words " at the trial," therefore, cannot consis- tently with the intention of the legislature, be read accordingly to strict grammatical construction, and the certificate, from the necessity of the case, must be granted after the trial. This, in my opinion, is the sound construction of the act, and agrees with the principle so far as relates to the granting the cer- tificate after and not during the trial, established in 4 D. & E. 147, 156. If it be conceded, therefore, that the certificate must be granted after the trial, it seems to me to relieve the case from all embarrassment ; because I think it impossible to assign a good reason for say- ing the judge must grant it immediately after the trial, when the statute itself does not expressly re- quire it. When an act leaves any thing to be done according to the discretion of a judge, I think it but reasonable to intend the legislature meant he should be allowed a convenient and sufficient time for con- sideration of the subject, in, order that his discretion might be properly exercised. There is a substantial reason for saying the certificate should be granted in open court, because the defendant should have an opportunity of objecting, the legislature have ac- cordingly enacted it to be done in that manner. In my opinion the words " at the trial" were intended to designate the court at which the trial was had, EASTER TERM, 1 WM. IV., 1831. 503 afld as the certificate was granted at nisi prim, when the cause was tried in open court, I think it is valid and should be sustained, particularly as the facts of the case leave no doubt that the plaintiff was justly entitled to it. Per Curiam. {Diss. Sherwood, J.) Rule absolute, (a) In re. Sheriff op Newcastle. Sale of lands under the assessment law (for non payment of taxEsS) on Ist March, 1830. On Ist March, 1831, the treasurer being absent from the district, payment of the purchase money and 20 per cent interest was made to the deputy sheriff, who was in the habit of receiving taxes for the treasurer. The court refused a mandamus directing the sheriff to convey the lands to the purchaser at the sale. Boulton, G. S., moved for a mandamus nisi to the sheriff of the Newcastle district, to execute a con- veyance of certain lands sold by him, according to the statute, for non-payment of rates. The sale took place on the 1st March, 1830. On the 1st March, 1831, the amount of the purchase money, and 20 per cent, on it, was paid to the deputy sheriff, who frequently acted for the treasurer in receiving taxes. The treasurer himself was absent from the district, and did not return for some time afterwards. The sheriff refused to convey the land to the purchaser, on the ground, that the money was not paid in due time. Boulton contended that the time for payment expired on the last day of February, and that the payment to the sheriff was a mere^uility, the statute requiring it should be made to thetreasarer. — 1 M. &S. 32; 2M. &S. 80. (ffl) See Mahoney v. Zwiok, 4 Old Series, 99 ; MoKea v. Irwine, 1 U. C. Q. B. 160. Mallochv. Johnstonj 4 U. 0. Q. B. 352; Handcock v. Bethune, 2 U. C. Q. B. 386. 504 EASTEK TERM, 1 WM. IV., 1881. Chief Justicis. — In the first place, as to the time allowed for redemption, the words of the statute are "within twelve calendar months from the time of such sale." The sale was on the 1st March, 1830. If no fraction of a day is to be reckoned, as we must begin to compute from, that is after the sale, then the reckoning must be begun on the 2nd March, and the twelve months would not expire before the night of the 1st March, at all events. However, it is not an inflexible rule that the fraction of a day should not be reckoned. For the purposes of justice the court will divide a day or an hour, and it is not shewn that twelve calendar months had expired upon that minute calculation. To save a forfeiture, if in any case, the court would give a party the benefit of every moment of time. But I think this question not worthy of much consideration in the present instance, because certainly the court would not interfere by granting a mandamus, if the question were only whether the taxes had been paid a day too late to save the forfeiture. The strict letter of the law may leave the sheriff no power to shew indulgence, and the purchaser may be so rigid as to authorise none ; but in that case I think the court would be satisfied to leave all parties to the effect of the ordinary legal remedies. Here another question is raised. The payment it is said was made, not to the treasurer, but to the deputy sheriff, which I look upon as if had been made to the sheriff. It is admitted, that about the time the twelve months expired the treasurer was absent from his district, and that the sheriff and his deputy were in the habit of receiving taxes from EASTER TERM, 1 WM. IV., 1831. 505 others. The act certainly says, that if at the expi- ration of twelve calendar months from the sale, the land shall not be redeemed by the proprietor of the lot, or some one on his behalf, paying to the trea- surer of the district the amount levied, the cost of such levy and 20 per cent, in addition, the sheriff shall, on demand, execute a conveyance. I see nothing whatever in this part of the case to warrant an interposition by mandamus. What is it to the purchaser to which public officer the money be paid ? The sheriff is an officer who, by the statute, has a great deal to do in carrying its provisions into effect. He kpows the amount levied, and better than any one else the expense of the levy, and therefore, can have no doubt as to the amount to be received. To be sure, a payment to him instead of the treasurer is informal, but when the treasurer was out of the district, and other persons were in the habit of leaving with the sheriff the money necessary to re- deem — what so natural as for the proprietor of the land in this case to take his money to the sheriff, and say — " I am anxious to redeem my land — the treasurer is not here ; to prevent all risk I leave it with you. It is you alone who can make the deed to the purchaser, and of course you will not do so after receiving the whole amount from me necessary to redeem my lot." It is not negatived that the sheriff may have been authorised by the treasurer to receive moneys for him in his absence, and the court should not infer it, and grant a mandamus on such an inference. It may be paid to the treasurer through the sheriff, as well as immediately to him- self ; and certainly the sheriff, knowing all the facts and receiving the money himself, would act a most 3t g06 BASTES TEEM, 1 WM. IV., 1831. unjust part if he did not as much as possible en- deavour to prevent the hardship of the proprietor losing his estate by an informality of this kind, to whieh a public officer was party, and of which he might, in fact, be justly charged with' being the principal occasion — for it was his duty, as he took the money under these circumstances, to have paid it immediately to the treasurer. It may be said that from the payment not being made to the trea- surer, the purchaser finding, upon enquiry there at the end of the twelve months, that it stood A,s unre- deemed, may have felt himself safe in commencing improvetuents, and that he is injured if he afterwards loses his land, so improved, in consequence of a payment having been made, within the period, to an officer who had no right to receive it. That is true ; and there may be cases where the irregularity is so clearly intentional and inexcusable on the one hand, and the hardship so great ou the other, that this court might feel inclined to use any power they possess for giving to the purchaser the bene- fit of his legal right. This, however, does not stand before us in any respect as one of those cases, and at all events, for any such damage the party would have a legal remedy, which, in such a case as the present, I think quite sufficient. It is alleged that the payment here was made by a person not privy to the estate, nor having any authority or consent from the proprietor to make the payment, and that it has been made officiously and in order to prevent the purchase at sherifi" 's sale from taking effect— which purpose, it is said, was made for the express purpose of confirming a title in the pur- chaser, which before was equitable, but which was EASTER TEEM, 1 WM. IV., 1831. 50^ subject to some legal doubt or difficulty. If the latter statement is correct, it quite justifies the party makiug this application in desiring to urge what he claims as a legal right to the utmost, and it relieves him from the appearance of acting harshly towards the former proprietor of the land. I thought at first the court might be a good deal influenced by this, in extending the desired remedy, but on consideration, I do not think we can safely or properly give any weight to it. The single object of the legislature, in authorising the sale, was to insure the payment of the tax. In that point of view it is of no more moment to the state who pays it, than it is to the creditors of insolvent debtors who sometimes receive their debts from the pockets of charitable indi- viduals, whose only motive is to relieve against the miseries of a gaol. To the purchaser, however, at the sheriff's sale, I can easily conceive it may be a grievance that his object in confirming a previously equitable title should be frustrated by the interposi- tion of a stranger, or perhaps of some person who interferes from mere ill-will, or from a desire to give effect to some contrivance against the justice of the title. But if we look beyond the mere fact of the tax being paid, and interfere, from a desire to protect or defeat any alleged claim of an individual, we may soon find that we have been doing great in- justice when we meant only to prevent it. We shall be trying causes without the proper means and with- out the proper authority. I do not think, therefore, that we can enter into the views of the applicants m this instance, however just they may be. As to the general question— *the right to grant a 608 JEASTBR TERM, 1 WM. IV., 1831. mandamus to the sheriff in a case of this kind. My present inclination is in favour of the right where the refusal of the sheriff to do his duty is such as to give rise to no question but that he wilfully disregards the provisions of the statute. If such an interposition can be maintained it must be upon the footing that it concerns the court to see that an individual, who can have no other specific relief, is not deprived of its legal right from the wilful disobedience of a pub- lic officer to the direct provisions of an act of par- liament. I think, however, that this general question affords much room for argument, on the ground that the subject matter is a mere private right. Sherwood, J., and Macaulat, J., agreed that this was not a proper case' for granting a mandamus. Per Curiam. — Mandamus refused. Bergin v. Whitehead. Rule for judgment as in case of a nonsuit baving been discbarged on a peremptory undertaking, and payment of costs— tbe court on affidavit that tbe costs were not paid made tbe original rule absolute, in the first instance. A rule for judgment, as in case of a nonsuit, having been discharged on a peremptory undertaking to .go to trial, and payment of costs, during last term, the court were now moved to make the first rule absolute, on an affidavit that the costs were unpaid. This was opposed on the ground that the costs had not been demanded of the plaintiff. The court said, that it rested with the plaintiff to get the costs taxed, by making an appointment, as in EASTEK TEEM, 1 WM. IV., 1831. 509 cases of new trials, 2 Arch. pr. 228, and demand on the plaintiff was unnecessary — as it was his business to get them taxed and pay them, and that a personal demand was only necessary when the object was to attach for non-payment. If the plaintiff resided in another country, that part of the rule would become nugatory if a personal service were necessary. How rigid the court is in enforcing the condition appears from 13 Ea. 186 — where the plaintiff, who had been nonsuited and obtained a new trial on payment of costs, went to trial without paying them, had a verdict. The court set all aside and made a rule that unless the costs were paid in ten days, judgment of nonsuit should be entered up. As to making the rule for judgment (on account of the failure) absolute in the first instance — that is the practice where the failure is in not going to trial, according to the peremptory undertaking — and the court saw no reason why the same consequence should not follow a failure in the other part of the condition, (a) Per Curiam. — Rule absolute. The following form of a Writ of Dower was settled and approved by the court during this term — Sher- wood, J. dissenting, on the ground of want of autho-. rity in the court. William the Fourth, &c. &c. To the sheriff of G-reeting: Command 0. D. that justly and without delay, he render to A. B. widow, who was the wife of E. B.^ (a) A new practice dow obtaios, see Consol. Stats. U. C. ch. 22, sec. 227« 510 EASTER TEEM, 1 WM. IV., 1831. her reasonable dower, which falleth to her of the freehold which was of E. B. her late husband, in whereof she has nothing, as she says, and whereof she complains that the said 0. D. defor- ceth her, and unless he shall do so, then summon, by good summonses, that he be before us in our Court of King's Bench, at Toronto, on the day of Term, to shew wherefore he has not done it, and have there the summonses and this writ. Witness (as in other writs issued from this court.) RBGULiE GbNERALES. It is ordered, that in real actions generally, a writ of summons may issue from this court, corresponding with the form usual in England, and tested in the same manner as writs of capias ad respondendmn issued from this court. The time of return to be conformable to the English practice in such cases. It is ordered, that when by reason of any privi- lege, the proceedings are not commenced by writ of capias ad respondendum, a demand of plea may be served at any time when, by the practice in England, a rule to plead might be served, and not before; and that the service of such demand of plea shall suffice as in other cases, without the necessity of taking out any rule to plead. EASTER TEEM, 1 WM. IV., 1881. 511 (Statement of facts referred to ante 456.) Maitland bt al. v. SecorI). Debt on bond, dated 4th December, 1822, con- ditioned to pay £1337 on the 4th December, 1826. Plea& — after oyer, solvit ad diem, and solvit post diem —on which issue was taken. The following were the facts of the case: — the defendant and one E. S., co-partners and merchants in Upper Canada, were indebted to the plaintiffs, merchants in Montreal, in the sum of £1337 18s. 5d. on the 31st March, 1822. The plaintiffs instructed their agent to take a bond and mortgage for this debt, and the bond in suit was thereupon given. On the 31st March, 1823, the plaintiffs rendered an account in which the first item on the debit side was the balance of £1337 18s. 6d. Sundry debits and credits Were contained in this account, and the balance struck at the foot of it as due the plaintiffs was £1643 4s. Accounts were rendered to the defendant yearly afterwards down to the 31st March, 1826— carrying forward this balance of £1043 4s. Divers debits and credits were entered in such account — the balance in favour of the plaintiffs increasing at each annual statement till the last, when it amounted to £3070 6s. The defendant had also consigned some flour to plaintiffs to be shipped to Halifax, and the proceeds accounted for ; and it did not appear to have been credited in their accounts. The jury found the value of this flour, with interest, to be £740. A verdict was taken for the plaintiff, subject to the following ques- tions : — 1st, Whether there was sufficient evidence to go to the jury to entitle the defendant to claim credit for this flour. 2nd. Whether the amount of such claim could be applied as a credit in favour of 512 EASTER TERM, 1 WM. IV., 1831. the defendant, and given in evidence under either of these pleas. 3rd. Whether by reason of the partnership debt of defendant and E. S. being carried forward, and incorporated in the accounts current between plaintiffs and defendant from March, 1822, to March, 1826, defendant was entitled to apply those credits in liquidation of the bond on either of the pleas. The bond and interest amounted to £1925 5 10 The credits in the account, with in- terest 1329 10 5 Balance due from defendant and E. S. independent of subsequent advances to defendant alone . . £ 595 16 5 And if the defendant could avail himself of the credit for the flour, the bond would be overpaid. But the court held that the flour could not be set u^ as a payment — it could only have been evidence under a plea of set-off ; and being divided in opinion as to whether the defendant could avail himself of these credits in liquidation of the bond, and not of the subsequent advances to himself, the plaintiffs kept their verdict. A DIGEST ALL THE REPORTED CASES DEOIDKD IN THE COURT OF KING'S BENCH, FROM MICHAELMAS TERM, 10 GEO. IV., TO EASTER TERM, 1 WM. IV. ACTION ON THE CASE. 1. *rhe Cburt will, not grant a new trial on the ground of smallness of damages in action for slander. Atkins V. ThornMh 239. 2. Action on the case lies as well as trespass for seduction. Gavati V. Wekh, 2i6. 3. No action lies agdinst an heir in this province on the simple con- tract dtjht of his ancestor. F&rsyih V. Hall,^^^. ,4. In case for disturbing plain- tiff's ferry, it is not necessary to prove that defendant claimed or received hire. Burford v. Oliver, 9. AFFIDAVIT. See Practice, 41. 1. An affidavit made in 'this pro- vince against a party then in the United States, with a view to arrest him on his comiiig into the province, irregular. Cozens v. Eitchi'e, 167. 2. An affidavit on a promissory note, stating it to be madfe by defen- 3 TJ dant to B. W. & Co., omitting to say "payable" to B. W. & Co. is defective. Andruss ir. Ritdhie, 6. 3. In trespass de bonis aspertatis, an affidavit slating that " defendant took possession of pla,intifl's goods and chattels, and still keeps posses- sion thereof," is sufficient to war- rant an order to told to bail. Ingra- Tiam v. Gunnin0idm, 109. 4. In an affidavit sworn by an illiterate person, the Jurat must state that he appeatfedto understand it. Moore v. James, 233. ADMINISTRATORS AND EX- ECUTORS. See Evidence, 12. On a return of devastavit, a ca. sa. does not issue as a matter of course without enquiry. WtUard V. Wookutt, 201. ADVERSE POSSESSION. See Disseizin. 514 DIGEST OF CASES. AMENDMENT. See Practice, 3, 31 . 1. The court allowed a verdict for the penalty of a bail bond to the limits to be amended by reducing it to the sum endorsed on the ca. sa. with interest and sheriff's fees, as appeared on the judge's notes. Gallagher v. Strobridge, 158. 2. The court will not amend a declaration in ejectment by altering the name of the township in which the land for which the action was brought was expressed to lie. Doe V. Roe, 162. 3. After issue joined on nvZ tiel record, the court permitted plaintiff to amendhis declaration, on payment of costs, though there had been a trial. Church v. Bamhart, 443. 4. Judgment on sci. fa. against an administrator amended in the name of the intestate, by making it correspond with the original judg- ment. Willardv. Woolcuit,^l. ARREST. See Pbacti'ce, 5, 41. An arrest founded on an affi- davit to hold to bail, which was made while defendant was in the United States, in readiness in case he should return to this province, held irregular. Cozens v. Ritchie, 167. service of a rule for payment of costs — demand — and non-payment. Rowsell V. Hartieell, 90. 2. To obtain an attachment for non-payment of an award, the affi- davit of service and demand should shew that the person making the demand has a power of attorney for that purpose, and that the party of whom the demand was made was apprised of that circumstance. Fowellv. McMariin, 169. 3. An attachment against a sheriff for not obeying a rule cannot be granted by a judge at chambers. Rex V. Sheriff of Niagara, 331. APPRENTICE. An indenture of apprentice- ship, though contrary to stat. 5 Eliz., c. 4, is not void, but voidable only. Fish v. Boyle, 328. APPEARANCE. If defendant's attorney file common bail for him it is a suffi- cient appearance. Grace v. Meig- han, 187. ATTACHMENT. See Practice, 10. 1. An attachment goes absolute in the first instance, on affidavit of ARREST OF JUDGMENT. 1. It is no ground to arrest the judgment in an action for use and occupation, that the declaration does not shew that A. B. who occupied the premises was tenant to the de- fendants, or that the defendants held under the plaintiffs. Moffatt v. McCrae, 11. 2. On the return of a rule nid to arrest the judgment, though no cause be shewn, the court will not make it absolute unless the party moving shew some substan- tial objection to the record. Ibid. 3. The court refused to arrest the judgment in dower on the ground that in the declaration the tenant was said to have been at- tached and not summoned. Rohinet V. Lewis, 164. ASSESSMENTS. Sale of lands under the as- DMBST 01' CASfiS. 515 sessment law, for non-payment of taxes on 1st March, 1830. On 1st March, 1831, the treasurer being absent from the district, payment of the purchase money, and 20 per cent, was made to the deputy- sheriff, who was in the habit of receiving taxes for the treasurer. The court refused a mandamus to the sheriff to convey. In re. Slieriff of Newcastle, 503, reciting that submission, only no- ticed two, but referred to the rule by which the submission was made, as annexed to the award, in which rule the three defendants were named. Held, that the variance be- tween the submission set out in the declaration and that recited in the award, was immaterial, as the sub- mission itself agreed with the decla- ration. Hale v. Matihison, 63. ASSUMPSIT. 1. An attorney is liable in aS' sumpsit to a sheriff for service of writ, without any undertaking at the time the writs are put into the sheriff's hands. Jarvis v. Wash- hum, 163. 2. Assumpsit lies for value of lands sold, and for services ren- dered in procuring letters patent for a man, by which lands are granted to him in fee simple. Kil- borne v. Forrester, 332. ATTORNEY. ^"■ee Assumpsit, 1. — Evidence, 19. 1. The court refused to order an attorney to pay the costs of a suit on a bond to the limits, he having signed one of the obligor's names thereto, and executed it on his be- half on a mere parol authority. Leonard v. Glendennan, 232. 2. Where a bill is filed against an attorney in vacation, he has four days in the next term to plead. Macanady v. Foster, 479. AWARD. " See Pleading, 5.— Pkactice, 15. Submission to arbitration as set out in the declaration, mentioned three defendants, and the award, in BAIL. 1. Court will not order an exone- retur where bail have surrendered their principal, without the sheriff 's certificate is produced. lAnley v. Cheeseman, 53. 2. In trespass de bonis asportatis, an affidavit stating that defendant took possession of plaintiff's goods, and still keeps possession thereof, is sufficient to warrant an order to hold to bail. Ingraham v. Cvm- ningham, 109. 3. Where two plaintiffs are of the same name, the non-repetition of the sirname after each christian name, is not a sufficient irregularity to warrant an assignment of the bail bond being taken. Meighan et al. V. Brown, 167. BAIL BOND TO THE LIMITS. See Debt, 1. — Consolidating Actions, 1. 1. Damages must be assessed on a bail bond to the limits. CaU la^her v. Strobridge, 158. 2. Order for particulars of breach- es will be granted in debt on bond for the limits. Church v. Barn- hart, 213. 3. The court refused to order an attorney to pay the costs of suit on a bail bond to which he had signed 516 DIGEST OJ CASES. one of the obligor's names, on a mere parol authority. Leonard v. Glendennan, 232. 4. A blank had been left at the time of executing a bond for the limits in the conditio);), which was aftervyards, with the obligor's con- sent, though not in his presence, filled up with the sum endorsed on the ca. sa. Held no ground of non- suit. Leonard v. Merritt, 281. BOND. Where defendant gave a bond, payable at a distant period, and plaintiffs continued their dealings with him, rendo^ing accounts coti- taining debits and credits, and in- cludipg as the first items in those apcounts a sum for which the bond was giver), though the last of their accounts was rendered before the bond became due. Qricere— -Can the, defendant apply tbe credits contained in these accounts a^ pay- inents on the bond? Maifland v. Secord, 456. — ♦ — CERTIORARI. This writ lies to remove orders of sessions relating to the expendi- ture of district rates and assess- ments, at the iijstance of the Attor- ney-Geiieral, witho)it notice. Rex V. Judices of 'Newcastle, 114. COMMISSIONER. The certifipate of acoinmissioner for administering the oath of alle- giance, is evidence (after his death and that of the party taking the oath) that such oath was adminis- tered. Doe McFarlane v. Lind- say, 123. CONCURRENT ACTS. See Pleading, 5. COMPUTATION OF TIME. See Assessments. CONSIDERATION. A debt due to a bankrupt estate is a good consideration for notes for that debt, given to the trustees and assignees of the estate. Gates v. Crooks, 446. — • — CONSOLIDATING ACTIONS. The court granted a rule to con- solidate several actions brought on a bond to the sheriff for the gaol limits. Leona,rd y ■ Merritt, J 90. CORPORATION. See Distringas. 1. A stockholder, as such merely, has no right to inspect the stock or other books of the bank, nor will the court grant a mandamus for that purpose, although they have the power, unless soine special ground be disclosed to warrant it. Jn re. Bank of Upper Canada, 55. 2. Process to compel an appear- ance by the Canada Company can- not be served on their attorneys here, as the directors and common seal are in England. Cooper v. The Canada Company, 413. COSTS. See Practice, 10. 1. Rule for costs for not proceed- ing to trial, pursuant to notice, is absolute in the first instance. Chh- hol/m v. Simpson, 2. 2. Qucere. — Under what circum- stances the court w^^ aiUow costs to a defendant under the provincial, statute 48 Geo. Ill, ch. 4. Beard V. Orr, 40. 3. When a plaintiff in an action of covenant recovered only ^2, and DIGEST OF CASES. m the judges did' not certify, held, that he was only entitled to district court costs. Gardner v. Stoddart, 94. 4. It is not necessary for defend- ant to apply for leave to enter a suggestion to deprive pra,intiir of King's Bench costs. Ibid. 5. On putting off the trial of an information fqr penalties, at the in- stance of the d,efendan.t, the cpiirt will i^ake the payment of costs a condition in like manner as in civil cases. Rex v. Ives, 440,. 6. The plaiptifi recovered a ver- dict vifithin the jurisdiction of the district court, and as soon as the verdict was recordgd the court ad- journed ; a mption for a certificate, made at the opening of the court on the following morning, held too late. Falls V. Lewis, 500. DAMAGES. 5ee Action, 1. — Practice, 29, 3Q. — Evidence, 9. In trespass for mesne profits, defendant ijiay prove, in mitigation of damages, the value of buildings erected on the premises by him. Lindsay v. McFarling, 6, DEPUTY SHERIFF. To charge the sheriff with the acts of his deputy done colore officii,, it is enough to prove the authority of such deputy by general reputa- tion. Holt V. Jarvis, 190. DEBT. 1, In debt on bond to the limits by the assignee of the sheriff" a voluntary return, surrender or re- caption by the sheriff" before ac- tion brought and before assignment made is no bar. Mans v. Shaw, 14. 2. Debt lies on the imperial statute 6 Geo, lY., ch. 114, to re- cover the penalty, though claimied by the informer for himgelf an,d the Ring, omitting to name the Lieut- enant-Governor. Jones, qui tarn v. Chase, 322. DISSEISIN. A. and B. received patents for adjoining Jots ; A. inadvertently occupied, fenced, and improved part of B.'s lot, in the belief that it formed part of his own. Some years after B.'s lot was confiscated under the Alien Act, and sold by the Commissioners for Forfeited Estates. A. and those claiming under him had held the disputed tract upwards of twenty years, at the time of action brought, but not twenty years when B. forfeited the estate to the Crown, became seised by inquest of office. Held, that A.'s. occupation did not work a disseisin of B., and that B. con- tinued seised "so as to entitle the Crown to that portion of the lot in A.'s possession. Loe v. McDonnell, 374. DISTRINGAS. This writ is not the proper process with which a suit against a corporation aggregate shouldcom- mence. Cooper v. Coinada Com- — ♦ — DOWEE. See Practice, 22, 29, 30.— Plead- ing, 3. 1. Demandant in dower may assess as damages her taxable costs on obtaining judgment of seidn, ex- ecuting the writ of hah. fdic. seis. and her necessary travelling ex- penses incurred in prosecuting her suit. Robinei v. Lewis, 260. 518 DIGEST OP CASES. 2. An infant demandant may sue for dower ; and if an infant be tenant the parol is not allowed to demur. Phdom v. Phelan, 386. EJECTMENT. . See Disseisin, 1. — Registry, 1. The count will not allow a decla- ration in ejectment to be amended by altering the township in which the lands, for which the ejectment is brought, lie. Doe v. Roe, 162. EVIDENCE. See Award. — New Trial, 4. — Practice, 28. — Disseisin, 1. 1. In trespass for mesne profits defendant may give in evidence, in mitigation, the value of buildings erected on the premises by him. Lindsay v. McFarling, 6. 2. In case for disturbing plain- tiff's ferry, it is not necessary to prove that defendant claimed any payment. Burford v. Oliver, 9. 3. In trespass the defence was rested on acting under the Rideau Canal Act. Held, that defendant should be prepared to prove not only his authority, but that the act complained of was in pursuance of the powers given by that statute. PhiUips V. Redipaih, 68. 4. The certificate of a commis- sioner for administering the oath of allegiance is evidence, after his death and that of the party taking the oath. Doe v. Lindsay, 123. 5. In case for libel the truth of defendant's remarks on a report of a trial and the evidence given thereat, is not admissible under the general issue. Small v. Mackenzie, 174. 6. In an action against a sheriff. for seizing goods, it is sufficient to prove that they were seized colore officii, without proving a writ of execution. Holt v. Janis, 190. 7. And general reputation is sufficient to prove the party seizing deputy-sheriff. lind. 8. Under a bill of particulars for work and labour, plaintiff'may give in evidence an acknowledgment of a specific balance due for work and lab o ur. Drummond v. Bradley, 243 . 9. In dower, demandant's resi- dence on the premises at the ex- pense of the heir-at-law for part of the time between the death of her husband and the bringing her ac- tion, cannot be given in evidence as a set-off to her damages for the detention, though proper to go to the jury in mitigation. BoMnet v. Lewis, 260. 10. Evidence may be given of a parol agreement to discharge an agreement within the Statute of Frauds. Mulgrew v. Pringh, 269. 11. A. agreed to pay B. for a lot of land upon receiving a deed. When B. offered the deed A. de- clared his inability to pay, and proposed new terms, which were accepted. jHeJc?, that B. was thereby relieved from the necessity of prov- ing a tender of a deed to enable him to sue. Ibid. 12. Where the plaintiffs declared, as executors, laying promises to the testator in his lifetime, also to the plaintiffs as executors since his death, and an account stated with the plaintiffs as executors, and proved an acknowledgment of the debt to plaintiffs, Held, unneces- sary to produce the probate of the will to establish their representa* tive character. Dicleson v. MarUe, 286. DIGEST OF CASES. 519 13. On a traverse of office, a memorial of a mortgage for years, from an alien to the original grantee of the Crown, under whose heirs traverser claimed, is not conclusive evidence of seisin in fee in the alien at the time of the mortgage. Rex V. Theale,Zl8. 14. Under of a plea of " not im- ported in manner and form," &c., to an information for the condemna- tion of goods, as illegally imported, evidence may he given that they were landed through stress of wea- ther. Attorney/- General V. Spafford, 320. 15. Evidence of a hond signed hy A. and delivered to B., who had received the consideration, is suffi- cient to take the case out of the Statute of Frauds, although nothing was signed hy B., and the action was hrought against him on an agreement relating to lands. Kil- borne v. Forester, 332. 16. The recognition of a bond in a letter from defendant to plaintiff, with proof that a document pur- porting to he a copy or draft of such an instrument was shewn hy defendant, with the title deeds of an estate to virhich it related, affords evidence to go to a jury in proof thereof, after notice by defendant to produce any such bond, copy or draft. Mochleau v. Bidwell, 345. 17. A continuance roll, found in the proper office, and entered and filed there by the proper officer, is admissible evidence as a record of this court, although not compared with the papers filed in the cause ; and parol testimony cannot be received to contradict the roll. Prentice v. Hamilton, 398. 18. When a bill of exchange was endorsed by a firm, one of the partners of which resided out of the province, and the endorsee, conformably to the statute 59 Geo. III., ch. 25, sued the partner resid- ing here ; the other partner, al- though released, is not a competent witness to prove the bill not due to the plaintiff". Ferrie v. Starh- weaiher, 413. 19. In an action for money had and received against an attorney, evidence that the judgment under which the money was collected was fraudulently confessed : held not admissible. Williams v. King, 439. FORCIBLE ENTRY. See Restitution. FRAUDS (STATUTE OF.) See Evidence, 15, 16. An agreement in writing within the Statute of Frauds, may be waived or discharged by a subse- quent parol agreement. Mulgrew V. Pringle, 369. HEIR. 1. Action does not lie against, on the simple contract debt of his ancestor. Forsyth v. EaU, 291. 2. In ejectment between a party claiming as heir and a stranger, slight evidence of pedigree is al- lowed to go to the jury. Doe v. Chisholm, 216. HOUSE OF ASSEMBLY. See Imprisonment. INFANT. See Dower, 2. IMPRISONMENT. The House of Assembly have the power of imprisoning persons 520 DIGEST OT CASES. guilty of contempt, in answering or refusing to answer befdie a select committee. McNab v. Bidwell, 144. INSOLVElNrT DEBTORS. See Practice, 8, 18. Payment of the weekly allow- ance to a person acting as turnkey is good. Eyde v. Barnhart, 53. INSPECTION OF BOOKS, See CoiipoRATioN, 1. INFORMATION. Debt, 2. — Evidenck, 14. Costs, 5. INTEREST. Se? Usury. JUSTICES OF THE PEACE. Cannot apply the funds of a district towards building a new gaol and court-house, without an act of parliament specially con- ferring that authority on them. — Rex\. Justices of Newcastle, 204. KING'S BENCH COSTS. See Costs, 3. — Practice, 23. LANDS AND TENEMENTS. Held in fee simple by a debtor at the time of his disease, may be legally taken in execution on a judgment agaiinst his executor or administrator. Forsyth v. Hall, 291. LIBEL. See Evidence, 5. — • — LIMITATIONS (STATUTE OF.) Does not run against a plaintiff absent from the province at the time the cause of action accrues until he comes here. Forsyth v. Sail, 291. MANDAMUS. See Assessment. The court will not grant a man- damus to permit a stockholder to examine the books of a bank, unless some special reasons be assigned. In re. BdnJe of Upper Canada, 55. MESNE PROFITS. In trespass for, defendant niay give in evideiice in mitigation of damages, the value of buildings erected on the premises by him. Lindsay v. McFarlane, 6. NEW TRIAL. 1. New trial refused in case for slander, where damages were com- plained of as too small. Athins v. Thornton, 239. 2. The court will not grant a new trial because the defendant's attor- ney had omitted to give a notice to produce a deed, 'by which omission defendant was pirecluded from going into one branch of his defence, when the facts, if proved, would not have formed a legal bar to the action. Gates V. Crdoks, 446. 3. Quoere.— Where the judge, who tried a case, has omitted to note the evidence of an important fact'^ which he charged this jury was proved, and upon which their ver- dict was founded — whether, after affidavit that such fact was actually proved, though it did not appear by the judge's report of the evidence, the court will grant a new trial? Winchester v. Cornell, 60. 4. After a demurrer had been DiaSST OP CASES. 521 decided which admitted the facts which were found by the jury on a trial of issues, the court refused a new trial, which was applied for on the ground that the verdict was against evidence. Ives v. Hitch- cock, 480. NON-SUIT. See Bail-bond for the limits, 4. Where a cause was called on for trial at nisi prius, neither counsel or attorney for plaintiff appearing, a jury may be sworn, and a non- suit ordered. FaMs "v. Lewis, 269. NUL TIEL RECORD. After issue joined on nul tiel record and a trial, the court per- mitted the plaintiff to amend his declaration. Church v. Barnhart, 443. ORDERS OF JUSTICES. Orders in session, relative to the expenditure of district rates, may be removed by certiorari. Rex v. Justices of Newcastle, \\4:. PARTNER. See Evidence, 18. — Practice, 41. PARTICULARS OF DEMAND. See Practice, 40. In debt on bond to the limits, particulars of breaches will be or- dered to be given. Church v. Barn- hart, 213. PEDIGREE. See Heir, 2. PLEADING. 1. In an action for use and occu- pation, an averment that one A. B. occupied at the special instance and request of defendant, held a sufficient allegation of a permission by plaintiff to occupy. Moffatt v. McCrea, 11. 2. In an .action by the assignee of the sher.i.ii of a bond to the limits, a voluntary return or a surrender, or a re-caption by the sheriff, before action and before assignment of bond, no plea in bar. Eoans v. Shaw, 14. V ■ 3. In dower tlie replication to a plea of alien ne need not lay a venue as to the place of birth within the allegiance, nor state of what parent, or when the demandant was born, and is properly concluded to the country. Alien ne may be pleaded in bar. Edbinet v. Lewis, 44. 4). In an action on a promissory note, the declaration must aver pre- sentment for payment at the place where the note is made payable. Ferrie v. Rykman, 61. 5. In debt on award, an award that defendant should pay to plain- tiff £149 on 5th January, and plain- tiff should deliver up a house in his possession on 5th January, hdd con- currentacts,and plaintiff's readiness to fulfil his part is a necessary aver-' ment. Baker v. Booth, 65. 6. In covenant, plaintiffs agreed to deliver 200 toises of stone for the building of a wall — defendant to pay 6s. 9d. per toise, i. e., for every 216 feet, cubic measure, when the wall was erected ; plaintiffs averred delivery of 195 toise laid in the wall, but oriiitted to aver how many toises at the rate of 216 cubic feet to a toise in the wall. Held bad on demurrer. Howe v. Newman, 90. 3x 522 DIGEST OF CASES. 7. In debt on bond conditioned to pay rent ; a plea that before rent became due plaintiff assigned to A. B. to whom defendant paid: held good on demurrer. McDaugaM v. Tovmg, 111. 8. Trespass for taking, impound- ing, and selling plaintiff's horses ; plea, that horses were damage fea- sant. Replication, that by town meeting regulations fences should be five feet high, and that defen- dant's fences not being that height, but ruinous and out of repair, plain- tiff's horses escaped out of his close into defendant's close, without the knowledge and consent of plaintiff. Hdd good on general demurrer. Ives V. Sitchcock, 247. 9. Debt on bond to gaol limits, a blank had been left at the time of execution in the condition, which was afterwards, and with the obli- gor's assent (though not in his pre- sence) filled up with the endorse- ment on the ca. sa. ; plea, non est factum. Defendant held liable. Leonard v. Merritt, 281. 10. A plea to an information for the condemnation of goods as being illegally imported ; that "they were not imported »»o(fo«t/or?wa" is sus- tained by evidence that the vessel put into port, and that the goods were landed through stress of wea- ther. Attorney General v. Spaffbrd, 320. POSTAGE. On a letter carried by inland navigation from one post town to another, must jbe charged according to the distance the letter is actually carried, and not according to the distance by the post road between ■ the two places. Dickson v. Crooks, 117. PRACTICE. 1. Where plaintiff appears by statute for defendant, a rule to plead cannot be dispensed with. Bergin v. Thompson, 1. (Rescinded by rule of courts Easter, 11 Geo. 4.) 2. No paper is properly filed until marked " filed" by the proper ofiicer. Cam^eU v. Madden, 2. 3. Where a writ is bailable the court will not amend an original ca. re, by making it a testatum, though a prcecipe for a testatum is filed. CampbeU v. Hepburn, 3. 4. The master is not to refuse to tax K. B. costs, merely because the verdict is within the district court jurisdiction, although the judge who tried the cause has not certified. McMurray v. Orr, 3. 5. The word '^payalle" being omitted in an affidavit to hold to bail on a promissory note, the arrest was set aside. Andrvss v. Ritchie, 6. 6. The court will not grant leave to enter an exoneretur when bail have surrendered their principal, without a certificate from the sheriff. I/mley v. Cheeseman, 53. 7. Payment of weekly allowance to a person acting as turnkey is a good payment to the debtor. Hyde V. Barnhart, 53. 8» After a rule for weekly allow- ance, plaintiff cannot file fresh inter- rogatories, and suspend the pay- ment, although he hear of property supposed to have been made away, of which at the time of filing the first interrogatories he had no know- ledge. Semble, ibid. 9. The court revived a lapsed rule nisi, upon affidavit that it had been served and transmitted but BIGEST OF CASES. 523 mislaid, and did not arrive until after term. Johnson v. Burand, 63. 10. An affidavit made of a rule for payment of costs served, and demand, the court will make the rule for attachment for non-pay- ment absolute in the first instance. RowseU Y. SartweU, 90. 11. Rule nisi for judgment in case of a non-suit for not going to trial discharged on peremptory un-| dertaking — ;plaintifi failing to go toj trial, rule nisi made absolute in thej first instance. Benham v. Shaw,] 113. 12. Indebtonbondtothelimits — ; damages must be assessed. GaIla-\ gher v. Strohridge, 158. | 13. When a demurrer has beenj argued and judgment pronounced,! it cannot be withdrawn if a trial: has been lost, although plaintifl! would have to assess his damages. j Bell V. Stewart, 159. 14. Two plaintiflfs named M.' The non-repetition of the sir-name after each christian-name is not a sufficient irregularity to warrant the taking an assignment of a bail- bond. Meighan v. Brown, 167. 15. When a cause was referred to arbitration, on a verdict taken by consent, and the award being made in vacation, final judgment was en- tered before the first day of next term ; the proceedings were held irregular. Vincent v. McLean, 168. 16. When a plaintiff abandons all the counts in his declaration but one, and obtains a verdict on that on the defendant, is not enti- tled, as of course, to a verdict on the rest. Gates v. Crooks, 180. 17. Several actions brought on a bond to the limits, may be con- solidated. Leonard v, Merritt, 190. 18. When a defendant, after ob- taining his weekly allowance, takes the benefit of the limits he must give notice of his return to close custody, before he is entitled to further payment. Hyde v. Barn- hart, 201. 19. The court allowed a judg- ment on sci. fa. against an admin- istrator, to be amended in the name of the intestate, by making it cor- respond with the original judgment. Willardv. TTooZcwt, 801. 20. On a return of devastavit, a ca. sa. does not issue, as a matter of course, without enquiry. Ibid. 21. The court will not, on mo- tion, setaside special pleas, amount- ing to the general issue, but leave the party to his demurrer. Truax V. Christy, 213. 22. In dower a suggestion may be entered after final judgment, that the husband died seised of lands, and enquiry shall go con- cerning the damages since the period of his death, though the tenant is the alienee of the heir. Rohinet v. Lewis, 228. 23. Where defendant resided in one district, plaintiff in a second, and a material witness in a third, the court allowed ;K. B. costs, though the cognovit was given for a sum within the district court juris- diction, issue being joined. Mtgiil V. DriscoU, 334. 24. A rule to return a fi. fa. cannot issue out of the office of the deputy-clerk of the Crown in an outer district. Anonyimus, 234. 25. According to the old prac- tice, a bail piece must have been transmitted from the country tt> a judge K.B. Whitney v. Stone, 235. 26. Aftqf, service of a demand of 524 DIGEST OF CASES. replication, rejoinder, &c., a party desirous of having further time must obtain a rule of court or judge's order for that purpose. Small v. Mackenzie, 241. 27. The court will not discharge a prisoner in execution when the plaintiff died, and the weekly allow- ance was tendered by a person who had usually paid it, although no ad- ministration was granted for some time. Beard v. Orr, 40. 28. A demand is necessary be- fore suing a sheriff for overplus of money levied under an execution. Buggies v. Beikie, 244. 29. On a writ of enquiry in dower, the mesne value of the premises, between the death of the husband and judgment obtained, should be assessed. Robinet v. Lewis, 260. 30. The demandant may assess as damages her taxable costs, on obtaining judment of seisin, of exe- cuting the writ of hah. fac. seiz. and her necessary travelling expenses incurred in prosecuting her suit. lb. 31. After verdict for plaintiff and contingent damages assessed, judg- ment was given for defendant on demurrer. The court refused to allow the plaintiff to amend his replication. PMllipsi). Smith,290. 32. Lands and tenements of a deceased debtor may be taken in execution on a judgment against his executor. Forst/th v. Hall, 291. 33. When notice of intention to move on the ground of irregularity is required in England to be given two days before the execution of the writ of enquiry, a similar notice shall be given in this court not later than the first day of the as- sizes, at which damages are to be assessed. Dmgall v. McLean, 318. 34. When defendant had an at- torney on whom service of several papers had been made, the court set aside an assessment of damages, the notice having been served on defendant only. Ferrie v. Tanna- hill, 327. 35. A ca. re. is not the first and original process in this country in real .actions, as dower, Phdan v. Phelan, 386. 36. In dower fifteen days must intervene between the teste and return of the summons. Ibid. 37. An attachment against a sheriff for not obeying a rule to bring in the body, cannot be granted by a judge at chambers. Rex v. Sheriff of Niagara, 331. 38. A writ of replevin with a justicies clause is irregular. Cor- nell V. Quick, 427. 39. The court will not interfere to reduce the sum endorsed to levy on &fi.fa. on a strict legal ground, unless the defendant has an equital.le ground to sustain his application. Maitland v. Secord, 456. 40. A party has the same time to plead after particulars delivered on a judge's order, as he had after the summons was returnable. Wash- hum V. Fothergill, 476. 41. Where .the plaintiff in his aifidavit of debt swore that two per- sons, trading under the name and firm of T. & Co., were indebted to him and sued out process against one only, the other being within the jurisdiction of the court. The ar- rest was set aside. Ohisholm v. Ward, 478. 42. If a bill is filed against an attorney in vacation, he has the four first days of the following term to plead. Macanadi/ v. Foster, 479. 43. A rule for judgment, as in DIGEST OF CASES. 525 case of nonsuit having been dis- charged, on the terms of entering in- to a peremptory undertaking, and paying costs, the court in the follow- ing term, on affidavit that the costs were not paid, made the original rule absolute in the first instance. B&rgm v. Whitehead, 510. PREROGATIVE. The Attorney-General, on behalf ot the Crown, has a right to remove orders of sessions relative to the expenditure of district rates, by certiorari at any time. Rex v. Jms fices of Newcastle, 114. PROCESS. See CoEPORATioN, 2. 1. A writ of distringas is not the proper process by which a suit against a corporation aggregate should be commenced in this pro- vince. Cocker V. Canada Com- pany, 189. 2. The process of this court can only be served by the sheriff or his ofiicers. Whitehead v. Fothergill, 200. 3. Process to compel the appear- ance of the Canada Company can- not be served on the Commissioner here. Cooper v. Canada Company, 413. PRIVILEGED COMMUNI- CATION. Where defendant, a clerk in the Receiver-General's Office, told his principal that the plaintiff, another clerk, had robbed him (the R. G.) of money ; there being no proof that any money had been stolen, or that the Receiver-General had ever suspected it, held that such communication was not privileged. Prentice v. Eamilton, 398. PROMISSORY NOTE. See Pleading, 4. — Usury, 1. A debt due to a bankrupt estate is a good consideration for promis- sory notes given to the assignees and trustees of the estate, Gates V. Crooks, 446. aUI TAM. In debt for penalties on the im- perial statute 6 Geo. IV., c. 114, which gives the penalty one-third to the King, one-third to the Lieu- tenant-Governor, and one-third to the informer ; the court refused to arrest the judgment, because the plaintiff claimed the penalty for himself and the King only. Jones, q. t. V. Chace, 322. REGUL^ GENERALES. 89, 170,230,512/ REGISTER. Where A. being seised of real estate, under a registered title con- veyed to B. and died, and A.'s heir- at-law conveyed the sameipremises to C. who had his deed registered immediately. Held that the deed last registered is fraudulent and void, as against the deed first regis- tered, though C. had notice of this deed when he purchased. Doe v. Mitchiner, ill . • RIDEAU CANAL ACT. If defendant rest his defence on his acting under this , statute,, he should be prepared to prove that the act he justifies was regularly done under the statute, and not rely merely on his being employed in the construction of the canal. Fhil- lips V. Eedpath, 68. 526 DIGEST OP CASES. REPLEVIN. See Practice, 38. RESTITUTION. The court refused a writ of resti- tution after a conviction of forcible entry and detainer, where the pre- mises were a Crown reserve, the lease of which had expired. Rex V. Jackson, 50. SECURITY FOR COSTS. Defendant's attorney entering common bail is a igood appearance to sustain a motion for security ior cost. Grace v. Meiqhan, 187. SCIRE FACIAS. See Amendment, 4. Judgment on sci. fa. against B. the heir of the deceased owner of land, and a yj. /a. thereon, awarding the sale of lands of which the de-| ceased was seised on a specifiedl day, previous to which he had died, will not sustain a purchase, and a sheriff's deed under such judgment and_^. fa. gives no title. Varey v. Muirhead, '486. SLANDER. See Action, 1. — ^Evidekoe, 5. SHERIFF. See Evidence, 6, 7. 1. Process can only be served by a sheriff or one of his officers. Whitehead v. FothergiU, 200. 2. In an action against a sheriff for overplus of money levied on a fi.fa. a demand before commencing the suit is necessary. Euggks v. Beikie, 244. STATUTES. Senible 5 Eliz. c. 4, is not in force in this province. Msh v. Doyfe, 328. SUGGESTION. In dower a suggestion may be entered, after final judgment, that the husband died seised of lands. Rdbinet v. Lewis, 228. TRIAL. When neither plaintiff's courisel or attorney appears at nisi prius, when the cause is called, sl jury may be impanneled, and the plain- tiff non-suited if the defendant ap- pear. FaUs V. Lewis, 269. U&URY. Notes given, bearing interest from a period antecedent to their date, are not usurious on that ac- count, when it appears that the debt for which such notes were given was due at the time from which interest is computed. Gates V. Orooh, 446. — • — VARIANCE. See Award, I. VENUE. See Pleading, 3. VERDICT. If a; plaintiff at a trial abandons all the counts in his declaration but one, on which he obtains a verdict, the defendant is not entitled to a verdict on the other counts. Gates V. Crooks, 180. WEEKLY ALLOWANCE. ' See Insolvent Debtor, 1. WITNESS. iSeeBviDKNCE, 18. / !i? f < i^