Prescott v. Walton.

now compelled to grant a new trial by reason of the improper admission of evidence, this point does not raise. It is sufficient therefore for us to say, that we adhere to the judgment pronounced by us in this cause on a former occasion upon the subject of damages (1 Hannay 297), and the duty of the jury in respect thereto.

As it has come to our knowledge in another cause in this Court, that the defendant has died since the verdict, and therefore as the granting a new trial now except upon terms might defeat the ends of justice, we shall refrain from making the rule absolute for a new trial until the next term, in order to afford the plaintiff an opportunity of making any application that he may be advised, as to the terms on which the new trial should be granted. On this point we refer to Griffith v. Williams (1 C. & J. 48), and Freeman v. Rosher (13 Q. B. 780).

PRESCOTT v. WALTON.

OCTOBER 29, 1870.

Where the evidence of a witness taken on a former trial in the same cause, and since deceased, was read from the Judge's notes, the defendant's counsel offered evidence to show a statment made by the witness, while giving his evidence in the presence of the plaintiff. Held, That the evidence was properly rejected.

Where in trespass there was conflicting evidence as to the quantity and value of tree■ taken from plantiff's land, the Court refused to disturb the finding of the jury, even though the damages appeared large.

In trespass, the plaintiff claimed under a license to cut timber, which was described as bounded on the west by a defined line, and in rear of J. V's grants on the Bay shore, containing two square miles. There was only one grant to J. V. in the vicinity, but there was a grant to J. & G. V. adjoining the grant to J. V. The distance mentioned in the plaintiff's license would extend across and beyond the rear of both their grants. Held, That the license included the land in rear of the grant to

J. & G. V.

Trespass for cutting timber on land licensed to the plaintiff by the Crown, tried before ALLEN, J., at the St. John Circuit in August last. The license, issued in July, 1864, described the land as containing two square miles; lying east of a line running north two miles from the north-east angle of lot No. 4, granted to J. Walton on Goose Creek; to be bounded on the east by the north-eastern prolongation of the north-western line of lot No. 24, in the grant to H. Johnston, and in rear of J. Vernon's grants on the Bay Shore. The grant to Walton, referred to in this license, issued in 1846, and fronted on the shore of the Bay of Fundy, extending back from thence on a north course seventy chains. The prolongation of the easterly sea-line of this grant formed the western boundary of the plaintiff's license.

Prescott v. Walton.

A grant from the Crown to James Vernon and Gideon Vernon, dated in 1856, was also in evidence, in which the land thereby granted was described as "beginning at a spruce tree standing on the northerly bank or shore of the Bay of Fundy, in the south-eastern angle of lot No. 15, granted to Moses Vernon; thence north one degree east, forty chains along the eastern line of the said grant and its prolongation; thence south eighty-nine degrees east, eighty-seven chains to the westerly line of lot X at Azor's Beach, granted to James Vernon; thence along the same, south one degree west, to a fir tree standing on the northerly bank or shore of the Bay of Fundy; and thence following the various courses thereof in a westerly direction, to the place of beginning."

This grant was generally known as "The Copper Mine Grant," and the question in dispute was the position of its rear or north line. This depended upon the correctness of a survey made by Arnold, a deputy surveyor, and whether he had commenced at the spruce tree described as standing in the south-eastern angle of the grant to Moses Vernon, and had measured out the number of chains specified in the Copper Mine grant. This spruce tree had been marked by Stiles, a surveyor who laid out Moses Vernon's grant; and it was contended on behalf of the defendant, that Arnold had not commenced his survey at that tree, but at a point some distance further to the east; and which, in consequence of the indentation of the shore, would alter the position of the rear line. The defendant claimed to a line run by Stiles, as the rear line of the Copper Mine grant, which was about seventeen chains further to the north than the Arnold line. The alleged trespass was the cutting the timber between these lines. The width of the Copper Mine grant between the east line of the Moses Vernon grant and the west line of the Azor Beach grant was one hundred and five chains, according to Arnold's survey; being considerably more than the distance specified in the grant. The grant to H. Johnston of lot No. 24, referred to as the eastern boundary of the plaintiff's license, was in evidence; but there was no proof of the lot having been laid out, or of its relative position with the Copper Mine grant or the Azor Beach grant; but in order to give the plaintiff's license its complement of two square miles east of the Walton grant, it would be necessary to extend across the rear of both the Copper Mine grant and the Azor Beach grant.

There had been a previous trial of this cause, at which one Godard, a surveyor (since dead), was examined as a witness, and his evidence was read from the Judge's notes on the present trial. On the cross-examination of one of the plaintiff's witnesses, the defendant's counsel proposed to ask him what Godard had said on the

former trial in the presence of the plaintiff, but the learned Judge rejected the evidence,

In leaving the case to the jury, the Judge told them that the question was, whether Arnold had commenced his survey at the spruce tree marked by Stiles, as the south-eastern angle of Moses Vernon's grant? If he did so, and measured from that tree north forty chains, and then ran east till he struck the west line of the Azor Beach grant, that would be the true north line of the Copper Mine grant; and if the defendant had cut in the rear or north of that line, he would be a trespasser on the plaintiff's license; which, in order to get its complement of two miles, would cover the whole of the land in rear of the Copper Mine grant.

Verdict for the plaintiff, $168.

On a former day in this term, Thomson, Q. C., moved for a new trial on the grounds of-1. The improper rejection of the evidence of Godard's statement. 2. Misdirection in telling the jury that the plaintiff's license abutted on the rear of the Copper Mine grant, which should have been left to the jury. 3. That the verdict was against evidence. 4. Excessive damages. He contended that as he showed that Mr. Prescott was in Court at the time, and heard what Godard said, and Godard being dead, evidence of what Godard said in the presence of Prescott should have been admitted. [RITCHIE, C. J.: The cases go to show that such evidence will not do, because the plaintiff's mouth is shut, and he cannot reply to it. ALLEN. J.: I rejected it on the ground that a statement made by Godard in the presence of Prescott was not such a statement as would bind Prescott.] The Judge was wrong in telling the jury that the land over which the plaintiff's license extended was in the rear of the Copper Mine grant; that question should have been left to the jury to find, even although that statement may in point of fact be right. It was not a matter of law, but a question of fact for the jury, whether the words "J. Vernon Grants" meant the one grant to hiin, or included the grant to Jas. and Gideon Vernon. The damages, $168, were entirely excessive; the logs cut were of inferior quality. The verdict was against the weight of evidence. The plaintiff does not appear to have known where his own lines were; on the first trial, he started on an entirely wrong line. It was eighty-nine chains between the Moses Vernon and Azor Beach grants; and it was so measured by Stiles, as specified in the grant. Arnold made the distance eighteen chains more, yet the jury found that they both took the same starting point.

Cur, adv. vult.

ALLEN, J., now delivered the judgment of the Court.

Prescott v. Walton.

We think there is no ground for a rule in this case. The evidence rejected was offered to show a statement made by Godard, a surveyor, in giving evidence on a former trial of the cause in the hearing of the plaintiff, and we think it was properly rejected. See Brickwell and Hulse (7 A & E. 454); Boileau v. Rudlin (2 Exch. 665); Richards . Morgan (10 Jur. N. S. 559;. 4 B. & S. 641). If the defendant's counsel intended by the evidence to show that Godard had made a statement which did not appear on the Judge's notes, (assuming that he could give such evidence), it should have been distinctly tendered on that ground. We cannot see how the evidence offered, if it had been admitted, could affect the question in dispute, and therefore the rejection of it, even if strictly it was admissible, would not necessarily be a ground for a new trial. As to the alleged misdirection, it was the duty of the Judge to put a construction on the license, and we think his construction was correct. The license is described as lying east of a line running north two miles from the north-east angle of lot No. 4, granted to Jacob Walton, and in rear of J. Vernon's grants on the bay shore, containing two square miles.

Now, although the evidence only showed one grant to J. Vernon alone, in rear of which the land described in the plaintiff's license could be located, it would have been impossible to extend the license. two miles easterly from the line of the Walton grant, without covering the rear of the grant to James and Gideon Vernon (the rear line of which was the dispute here), as well as the rear of the grant to James Vernon alone, which adjoined the other on the east side, so that substantially the plaintiff's license was in rear of J. Vernon's grants.

The next objection was that the verdict was against evidence. The matter in dispute was, the proper position of the rear line of the grant to James and Gideon Vernon (known as the Copper Mine grant), under which the defendant claimed. This grant is described as "beginning at a spruce tree standing on the north-east bank or shore of the Bay of Fundy, in the south-easterly angle of lot No. 15, granted to Moses Vernon; thence north one degree east forty chains along the easterly line of the said grant and its prolongation; thence south eighty-nine degrees east eighty-seven chains to the westerly line of lot X at Azor's Beach, granted to James Vernon; thence along the same south one degree west, six chains to a fir tree standing on the north-easterly bank or shore of the Bay of Fundy, and thence following the various courses thereof, westerly to the place of beginning."

The defendant, who was present at the original survey of the Moses Vernon grant, proved the spruce tree mentioned as the boundary at the south-cast angle, which tree, he said, was still standing;

Prescott v. Walton.

and Stiles, the surveyor who laid out the land, proved the same thing. The plaintiff's contention was, that the line he claimed by commenced at the same spruce tree, and ran the course and distances mentioned in the Copper Mine grant. The question left to the jury was, whether a line run by Arnold for the plaintiff to ascertain the rear line of the Copper Mine grant, commenced at the same tree which Stiles had marked, and whether Arnold had measured from that tree along the east line of the Vernon grant forty chains, the distance mentioned in the Copper Mine grant, and whither he had extended a line east from that point, as the rear line of the Copper Mine grant? The jury must have found on these questions in the affirmative, otherwise according to the Judge's direction, there would have been no trespass. We think there was abundant evidence to support the verdict, and to show the correctness of Arnold's survey, though the number of chains which he measured as the width of Copper Mine grant in the rear differs from Stiles' measurement, and considerably exceeds the distance mentioned in the grant, eighty-seven chains. It must be remembered that the Copper Mine grant is not limited to eighty-seven chains, but is to extend from the prolongation of the east line of the Moses Vernon grant to the west line of lot X granted to James Vernon, be the distance more or less than eighty-seven chains, both those grants being prior to the Copper Mine grant. There was no dispute as to the starting point from the Copper Mine grant, nor as to the course of the west side line, and the only question in respect to the survey was, whether Arnold had correctly measured the distance of forty chains. The line run by Stiles as the rear line of the Copper Mine grant, was not run in accordance with the grant, because he did not commence at the proper starting point, viz., the south-east angle of the Moses Vernon grant, and measured out the distance of forty chains, but at some point in the woods where he found a line running east fifteen chains which he continued on till he intersected the westerly line of lot X. Stiles had never measured the distance from the line which he found, and continued to the spruce tree at the south-east angle of the Moses Vernon grant, but in fact it was about seventeen chains beyond the distance specified, as the north-west angle of the Copper Mine grant.

As to the damages being excessive, the evidence was conflicting, both as to the number and value of the trees cut upon the plaintiff's license, and the price put upon standing trees by the plaintiff would seem unusually high; but these were proper questions for the jury, and we cannot say that the amount of the verdict is such as to justify us in interfering on this ground.

Rule refused.