1858. Doe dem. PETERS against PELLETIER. CARTER, C. J. now delivered the judgment of the Court. The only question in this case is, whether there was evidence for the jury of a tenancy from year to year, between the defendant and the lessor of the plaintiff. If there was, the verdict is right. It appears that on 12th July 1848, Peters demised the premises in question to James Drake, for two years commencing 1st May 1848. This lease contained an agreement for a further demise of two years, with an option to Peters of taking the improvements at a valuation. No fresh lease was given. On the 20th July 1848, the lease was assigned by James Drake to Eliza Drake: it expired 1st May 1850. On the 4th August 1851, Eliza Drake assigned to the defendant all her right, title, interest, claim and demand whatsoever to the premises contained in the lease, subject to the payment of all ground rent then due or thereafter to become due and payable for the same. On the 13th November 1850, the defendant writes to Peters, stating that he is about to purchase Drake's store, and enquiring as to Peters' title to the land, and whether he would be safe in paying rent to Miss Drake, (the assignee of the lease). Peters replies to this on 28th November 1850, stating that he thinks he has a right to look to defendant for rent till the property comes into the hands of Perley, who, it appears, was negotiating for a purchase. To this the defendant replies on the 5th January 1851, admitting Peters to be the owner of the soil, and that he can come down on him for the rent, as stated in his letter of 28th November. It is after this correspondence that the defend ant takes the assignment from Miss Drake. Under all these circumstances, it seems to us that the defendant admitted himself to be the tenant of Peters, at a rent which must be considered the annual rent reserved in the original lease to James Drake. At all events, it was quite open to the jury to draw such an inference; and therefore the rule for a new trial should be discharged. Rule discharged. 1858. M'ALLISTER against DAY and ANOTHER. refuses an cision unless which would in new cause of action, The rule that final in sum NDEBITATUS assumpsit to recover the price and value of When a Judge land sold and conveyed by the plaintiff to the defend- at Nisi Prius ants. Plea-non-assumpserunt. At the trial before Wilmot, J., amendment, the at the last Queen's County Circuit, the plaintiff gave evi- review his dedence to prove that he had sold the defendants a lot of land they are satisfor £300, of which they had paid only £140; but it was has been done fied injustice doubtful on the evidence, whether he had not sold them by the refusal. Semble, that two lots, Nos. 4 and 5, for the £300, one of which lots, No. an amendment, 5, they never got possession of the plaintiff's son claiming troduce a it, and the dispute between him and the defendants having ought not to be been settled by arbitration. Evidence was given of an ad- allowed. mission by the defendants, that if lot No. 5 was taken as the verdict is payment of half the purchase money, they owed the plaintiff mary actions, will be applied about £15 on account of the land. The plaintiff's counsel to other actions applied for leave to amend the declaration (the particulars for mere money containing items of goods sold) by inserting a count for the verdict is goods sold and delivered; but this being objected to by the ant, and the defendants' counsel, on account of his being unprepared with only amount evidence to meet such a charge, the learned Judge refused tiff could have it. The defendants put in evidence the deed from the than £20. plaintiff, conveying to them the lots Nos. 4 and 5, for £300, ther one who and acknowledging the receipt of the purchase money. land, and achas conveyed They also proved that the plaintiff stated at the time of executing this deed, that his intention was to convey both lots to the defendants, and that they had paid him. demands, where for the defend which the plain recovered is less Quære, whe knowledged in ceipt of the pur the deed the re chase money, can recover a balance unpaid, on an admission ser that he owes The learned Judge was of opinion that the plaintiff was estopped by the acknowledgment in the deed, of the receipt by the purcha of the purchase money; but he asked the jury to find whe- it. ther the consideration had, in fact, been paid, and taking the price of both lots to be £300, whether the defendants had paid the full proportion payable for lot No. 4. The jury answered these questions in the affirmative, and gave a verdict for the defendants. A rule nisi having been granted for a new trial, on the ground 1858. M'ALLISTER against DAY. ground of the improper refusal to amend the declaration, and that the verdict was contrary to evidence, J. M. Johnson, Q. C., shewed cause in Michaelmas term last. An amendment is a matter altogether for the discretion of the Judge, and the Court will not interfere with his decision. To have allowed the amendment in this case, would have done injustice to the defendants. Wilkin v. Reed (a). [WILMOT, J. The parties lived sixty miles from the Court, and I thought the effect of allowing the amendment would be, to put the trial off altogether.] CARTER, C. J. You need not argue this point further. To entitle the plaintiff to recover, there should have been a written agreement-the parol evidence of the sale and conveyance was improperly admitted. [WILMOT, J. I allowed the case to proceed, on the agreement that the defendants should have leave to move to enter a nonsuit.] The deed should be looked upon as the plaintiff's evidence, for without it he failed in making out any case-it was the foundation of his action: on the other hand, it destroyed his right of action, because it admitted the payment of the money. It is not merely an estoppel-it is a release of the purchase money. Rosc. Ev. 39, Rowntree v. Jacob (b). [PARKER, J. The plaintiff did not rely on the deed to prove his case, but on the defendants' admission that they got this land and did not pay for it. That admission could not be shut out.] If admissions can be received to maintain an action for the price of land, it is a contravention of the statute of frauds. An admission under seal of the receipt of money is conclusive, and is not treated merely as an estoppel. Baker v. Dewey (c). [PARKER, J. The distinction seems to be, that if the deed is pleaded it is conclusive, but if it is not pleaded it is not conclusive.] Any matter which shews that the plaintiff never had a cause of action, may be given in evidence under the general issue in assumpsit. 1 Chit. Pl. 513. In the cases which will be relied on by the defendants, the deed had to be pleaded. S. R. Thomson, contra. The amendment should have been allowed: the words of the act are positive, that an (b) 2 Taunt. 141. (a) 26 Eng. R. 312. (c) 1 B. & C. 704. amendment amendment shall not be refused unless it appears that manifest injustice will be done to the opposite party. 2 Rev. Stat. 379. In order to prevent a failure of justice, amendments have been allowed even after trial. Crawfurd v. Cocks (a), Edwards v. Hodges (b). The power of amend ment under the act, is similar to that given by the CommonLaw Procedure Act, which would include the amendment sought for. Wickes v. Grove (c). There was clear and uncontradicted evidence of the defendants' admission that they owed the plaintiff, and upon which he was entitled to a verdict. The deed is no estoppel. The only effect of the admission in the deed is, that the grantor is estopped from saying there was no consideration in order to pass the estate; but he is not estopped from shewing that he has not received the purchase money. Read v. M'Clelan (d). What is the distinction between this case, and an action brought on a promissory note for the purchase money of land? If the deed is conclusive evidence of payment, it will destroy a promissory note as well as a verbal promise or acknowledgment. But it has no such effect: the admission of a debt due, entitles a plaintiff to recover as on an account stated, though it relates to a deed. If there is any estoppel, it should have been pleaded to make it available. 2 Smith's L. C. 458, Doe v. Wright (e), Matthew v. Osborne (ƒ). Cur. adv. vult. CARTER, C. J. now delivered the judgment of the Court. The first point raised in this case, namely, that the learned Judge was wrong in refusing to amend the declaration in the Nisi Prius record, by adding a count for goods sold and delivered, is settled by the case of Brennan v. Howard (g). From that case, it seems perfectly clear that where an amendment has been refused by a Judge at Nisi Prius, the Court will not review his decision, unless they are satisfied that injustice has been done by such refusal. In the present case, injustice would have been done by allowing, rather than by refusing the proposed amendment, which (c) 36 Eng. R. 504. (f) 20 Eng. R. 238. (a) 3 Eng. R. 594. (b) 30 Eng. R. 416. would 1858. M'ALLISTER against DAY. 1858. MCALLISTER against DAY. would seem, more the introduction of an entirely new cause of action, than the amendment of one already set out. On the other point, that of the verdict being contrary to evidence; we think a new trial ought not to be granted. Putting it in the most favorable light for the plaintiff, rejecting the estoppel, and giving effect to the acknowledgment of the balance of £15, due on the purchase money for the land, the case is brought to a mere money demand recoverable in a summary action, in which the law makes the verdict conclusive. Had the plaintiff recovered a verdict for that amount, he would only be entitled to summary costs, for there would be no ground for a certificate to increase the costs. Now it must be a very extreme case, one involving some important principle of law or justice, that would induce us to grant a new trial on behalf of the plaintiff, where the only point on which the verdict can be objected to, would shew that the action should have been summary, and therefore, that had he properly brought the action, the verdict would have been conclusive. Rule discharged. A warrant of at HUTCHINSON against WILLIAM JOHNSTON and A RULE nisi was obtained on behalf of William Johnston, to set aside a bond and warrant of attorney, and need not be un- the judgment, execution and subsequent proceedings there torney to confess judgment der seal. A bond and warrant of attorney under seal, were executed by A, in the name of himself and B, with a defeazance stating that the warrant of attorney was given to secure the plaintiff for advances made and to be made to A and B, in carrying on their shipbuilding operations, and that the plaintiff might sign judgment, and issue execution, from time to time, for whatever amount A and B, or either of them, should then be owing for such advances. Held: that as the warrant of attorney need not be under seal, a judgment signed thereon would bind B if he recognised it, though A had no authority to execute it. A recognition may be implied from the conduct of a party-as where, knowing of a warrant of attorney and judgment against him, he allows them to stand for three years without objection, and continues to deal with the plaintiff on the security of them. A party applying to the equitable jurisdiction of the Court, to be relieved from a judgment, must do what is equitable towards the other party. on, |