1866. The ORIENTAL BANK Stephen in reply. It must be assumed, on these pleadings, that these drafts reached the payees' hands. The breach alleged is the payment to Renny. But it is CORPORATION not shown that such payment was right. If the recitals are true, Renny had a complete defence against any claim by these payees for wages. V. HART and another. STEPHEN, C. J. This is an action on a bond of indemnity, given by the holders of certain bills of exchange which were payable to the order of the persons named, but were severally unindorsed, against all claims on the bank "in respect" of those bills, or the money payable in respect thereof. On the face of the declaration, as it now stands, it must be assumed that the bills were sent to, and reached the hands of, the payees, and from them came lawfully (and therefore by delivery) to the hands of the defendants; and, on this assumption, the drawer could have no right afterwards, at any time, to get back these drafts, or (consequently) to require the bank to return to him the money which he paid for them. By amendment, it is possible that the bank may be able to show circumstances entitling the plaintiffs to recover. But this is by no means clear; for undoubtedly the only event contemplated by the parties to the arrangement, was that of the payees demanding payment of the bills; whereas now the bond is sought to be used for a very different purpose, that is, to indemnify the bank against the claims of Renny, the drawer, an event never dreamed of. CHEEKE, J., Concurred. FAUCETT, J. The declaration does not disclose a failure of consideration. It does not show (and we must not presume) that the drafts came improperly into the defendants' hands. The plaintiffs have acted on the recitals; and, as against the plaintiffs, the recitals must be taken to be true. The plaintiffs never contemplated a demand of payment by Renny. If a person purchases a draft of a bank, and the payee does not receive it, the purchaser is, I should think, entitled to recover the amount from the bank; but Renny is not in that position. Judgment for the defendants. 1866. THE GLASSON against EGAN. HE first count was for seizing, carrying away, and disposing of plaintiff's goods. The second count was for the conversion of the same goods. Pleas (1) To the first count, Not Guilty by statute, 11 G. II., c. 19, s. 21; (2) to the second count, that the plaintiff, before and at the time of the distress hereinafter mentioned, held certain land as tenant thereof to the defendant, at a weekly rent of £1; and because £2 of the said rent, before and at the time of the said distress, was due and in arrear from the plaintiff to the defendant, the defendant avers that he justly took the said goods on the said land, as a distress for the said rent. Averment, that the plaintiff did not, within five days next after the said distress, replevy the same; wherefore the defendant, at the expiration of the said five days, caused the said goods to be sold, under and by virtue of, and in accordance with, the provisions of the Act, 15 Vic., No. 11, which is the alleged conversion in the second count complained of. Issue thereon. At the trial before Stephen, C. J., at the August sittings, it appeared, the seizure and sale having been proved, that the question really in issue was whether there had been a tenancy by the parties at a fixed rent. It was contended on behalf of the plaintiff, that at all events he must recover on the first count, as the 11 G. II., c. 19, s. 21, was not in force in the colony. His Honor overruled the objection, but allowed the defendant to amend his second plea, if it was considered necessary, by applying it to the first count. found a verdict for the defendant, The jury having The twenty first section of the Land lord and Tenant's Act, 11 G. II., c. 19, enabling the defendant to plead the gene- Darley, for the plaintiff, obtained a rule for a new September 3. trial, on the grounds-that his Honor ought to have directed a verdict for the plaintiff on the first count; and that he had no power to direct the amendment (a). (a) A rule was also granted, on the ground that the verdict was against evidence; but the Court, in discharging the rule, intimated 1866. GLASSON V. EGAN. The Attorney-General and Butler showed cause. If the 11 G. II., c. 19, s. 21, be not in force, the defendant could not justify either the sale or the seizure without a December 19. special plea, whereas he only pleaded not guilty by statute to the first or trespass count. The special plea was pleaded to the second or trover count only. But it is submitted that this section is clearly in force. In Slapp v. Webb (a) it was decided that it was illegal to sell goods distrained on without appraising them, and the Distress Act (b) was passed to remedy the defect. But that statute did not take away the right, given by 11 G. II., c. 19, s. 21, to the defendant, of pleading the general issue, and giving a distress for rent, made on the demised premises, in evidence under that plea. clause is clearly applicable and in force. The provision is not limited to distresses made by virtue of that statute, but applies to all distresses for rent. It extends not only to all cases of distress, but to all things which the statute authorises to be done. At all events, the amendment, directing the plea to the second count to be applied to the first count, was properly made. For, obviously, the only question in contest, under each count and each plea, was the legality of the distress. Darley contra. That This plea is not under the 11 G. II., c. 19, s. 21. The first count in trespass is authorized by the 15 Vic., No. 11, s. 19, for "a distress made by virtue or color" of that statute. But the general issue pleaded by virtue of the 11 G. II., c. 19, s. 21, is only to "any entry" made "by virtue of that Act or otherwise;" and the provision, therefore, can refer only to some right of entry which existed under that Act, or at all events which existed at the time that Act was passed, but not to one which was created by a statute passed many years afterwards. [Stephen, C. J. They say that the entry was made at common law.] The amendment gave that even although the verdict had been manifestly wrong, they could not have granted a new trial, as it was clear that the plaintiff could not be entitled to more than £10 damages; and that, therefore, further litigation was unjustifiable. (a) 1 Sup. Ct. R., App. 54. (b) 15 Vic. No. 11. the defendant a new and complete defence, and did not merely cure a variance, and is therefore improper. STEPHEN, C. J. I have no doubt that I had power to make the amendment. My colleagues are of opinion · that I had power under the Common Law Procedure Act; at all events, I had power under Mr. Lowe's Act, 12 Vic., No. 1, s. 3 (a), as this was a matter, in my opinion, "not likely to mislead the opposite party on any point essential to the merits of the case." For both parties knew that they came to try the legality of the distress; and the same defence was clearly intended to be raised on each count. It is right, however, that the other point should be settled. I think that certain parts of the statute are not in force, and that in lieu of them there are certain provisions contained in the 15 Vic., No. 11. But, in my opinion, certain parts-and among them this 21st section -are in force. The 19th section has been acted upon in a great number of cases during the last thirty years. So also has the 18th section, which renders tenants holding over liable to pay double rent. The 12th section, which directs that every tenant, to whom a writ of ejectment is delivered, shall give notice thereof to his landlord; and the 13th section, under which the landlord may come in and defend, have always been supposed to be in force, and been acted upon and adopted. I do not see any reason why this 21st section should not be considered to be in the same position. In aid of this construction there is the 24th section of the Constitution Act, 9 G. IV., c. 83. If, by universal usage, a particular statute has been adopted, such statute must be considered suitable to the circumstances of the people adopting it. CHEEKE, J., Concurred. FAUCETT, J. The Judge, it is quite clear, had power to make the amendment. The question in dispute was the legality of the distress. That question was raised by the plea to the second count; and it was intended to be raised by the plea to the first count. (a) Sup. Ct. Pr. 13. 1866. GLASSON V. EGAN. 1866. GLASSON V. EGAN. It is, in my opinion, desirable that the other point should be settled. I had some doubt, but on consideration I think the section applicable. The sections that have been referred to by the Chief Justice have been considered to be in force. The practice, for many years, has been so to treat them; and I think it must be reserved for a higher tribunal to decide that such a uniform practice is contrary to law. The rule will be discharged on the terms imposed on allowing the amendment, namely, that the defendant, in consideration of the amendment, shall not have double costs. Rule discharged. December 22. SIR Ex parte BELLIFANTI. IR W. Manning, Q.C., moved to make absolute a rule nisi (granted on December 7th), calling on Daniel Wagner, upon notice to his attorney or agent, to show cause why a writ of certiorari should not issue— directed to F. W. Meymott, Esq., the Judge of the Northern District Court, holden at Grafton-to remove the plaint of the said Wagner against the applican t. The question in the cause was a question of mala praxis in the defendant, a surgeon at Grafton, in reducing a dislocation of the shoulder for one Wagner, who sued him in the District Court for damages. It appeared from the affidavits, which were voluminous, that there was evident bad feeling in the neighbourhood, and strong opinions expressed on the subject already by local rival practitioners and others who would seem to be partizans on one side or the other. But the plaintiff appeared to be a poor man, and there were necessarily witnesses on the spot whom it would be most inconvenient to bring to Sydney. On the other hand, it was contended that impartial medical testimony should be given, and this could not be obtained at Grafton, if within 100 miles of it. There was no doubt that the plaintiff's shoulder was still dislocated. But the defendant attributed the fact to a new dislocation, caused |