Maynes v. Mahoney & McLean.

tice Turner speaking of judgment creditors on appeal in Chancery, in Burnham. Keans, in regard to judgment creditors, as to priority between two judgment creditors, says: "Judgment creditors are certainly not purchasers or mortgagees, within the meaning of the Registry Acts; and when we look to the principle upon which purchasers and mortgagees are held to be bound by the notice of an immediate judgment, it appears to be this: that the purchaser or mortgagee has either a mere equitable title, or no title at all. The subsequent judgment creditor has not a mere equitable right but a legal right. He takes, it is true, what the other judgment creditor might take in the exercise of a legal right; he takes it under legal process adversely to the debtor, and he gets it only because the other judgment creditor has neglected to take it."

Now in this case before the Court, the plaintiff having obtained a judgment against the defendant, finds property in the County of York belonging to him; he issues his execution, and takes this property. The creditors of the absconding debtor issue their warrant under the Act, cap. 125, and place it in the hands of the sheriff of York. The priority is with the plaintiff, and his execution must have precedence; the rights vested in the trustees of the defendant are subordinate to the plaintiff's claim on the lands in the County of York. I am of the opinion, the notice in the Gazette cannot be imported into this case to prevent the plaintiff reaping the fruits of his judgment against the defendant, in priority to any warrant which may be issued against him as an absconding or concealed debtor, and therefore this application must be dismissed.

MAYNES . MAHONEY & MCLEAN.

FEBRUARY 19th, 1870.

Where part of the consideration for the sale of a vessel was the payment by defendants of a note outstanding at the time of the sale, which plaintiff had given for the amount of a premium of insurance of the vessel, and the jury found that defendants had jointly promised to pay the note, it was held to be immaterial whether defendants were joint or separate purchasers of the vessel.

Assumpsit for goods sold and delivered, with counts for money paid, and an account stated. Plea by defendant Mahoney, non assumpsit; the defendant McLean suffered judgment by default.

At the trial before ALLEN, J., at the last St. John Circuit, it appeared that in April 1866, the plaintiff was the owner of 16-64ths shares of a vessel called the "Mary Ann," which (as he stated) he agreed to sell to the defendant Mahoney for $2,000, of which sum

Maynes v. Mahoney & McLean.

$800 was to be paid in cash, and the balance by three endorsed notes, payable respectively in 6, 9, and 12 months. That on the 2nd May, he and Mahoney went to the Custom House to make the transfer of the vessel, when Mahoney stated that half the purchase was for McLean; that they went to McLean's office and talked the matter over, and it was agreed that a note for $232, which the plaintiff had given an insurance broker for the premium of insurance on the vessel, and which would fall due on the 12th July then next, should be taken up by the defendants; that McLean then by Mahoney's direction, made out and gave to the plaintiff the following Account:

Amount of premium reserved until expiring of policy. If vessel lost, you to take up premium note; if not, then another note to be given for said amount,....

$232 00

The $800 was then paid to the plaintiff, and the three notes given for the balance, drawn by McLean and indorsed by Mahoney, and the plaintiff then made the transfer of his interest in the vessel. There was no direct evidence of the policy of insurance on the vessel in the plaintiff's name, but it appeared that both defendants were aware of it, and that the practice of brokers was to take premium notes to fall due at the expiration of the policy; that if the vessel is lost, the amount of the note is deducted from the insurance, but if the vessel is not lost, the note is paid at maturity. This vessel was lost in December, 1866, several months after the note fell due. The defendants did not take up the note at maturity, and when the plaintiff called on Mahoney to do so, according to the agreement, he said he had nothing to do with it, and that the plaintiff must look to McLean. The plaintiff was then obliged to pay the note.

The defendant, Mahoney, denied that he had agreed to purchase the fourth of the vessel. He stated that he had only agreed to purchase one-eighth, and that McLean agreed to purchase an eighth; that he (Mahoney) had paid his share of the purchase money; that it was not a joint purchase; that he knew nothing about the account

Maynes v. Mahoney & McLean.

made out by McLean, and never authorized him to make it; and that he had never promised the plaintiff to take up the premium note. McLean was not called as a witness, and it appeared that he was insolvent. By a certified copy of the registry, it appeared that the plaintiff had transferred eight shares of the vessel to each of the defendants.

The learned Judge left it to the jury to find, 1st. Whether there was a joint sale to the defendants, or a separate sale of one-eighth to each of them, saying that the separate bills of sale were not conclusive on this point. 2nd. Whether the account was made out by McLean with the knowledge and consent of Mahoney? If it was not, the plaintiff could not recover in the joint action; but if it was, the plaintiff could recover on the account stated, for the amount of the premium note and interest.

Verdict for the plaintiff, $290, the jury stating that they found there was a joint contract.

F. A. Morrison, on a former day in this term, moved for a rule nixi for a new trial, on the grounds: 1. Improper admission of the plaintiff's evidence of a verbal agreement for the transfer of the vessel, and the terms of such transfer. 2. Misdirection of the learned Judge, in telling the jury that the bill of sale was not conclusive as to whether the sale was joint or several. 3. Verdict against law and evidence. He contended that the terms of the transfer could only be proved by the bill of sale itself. McLaughlin on Ship. p. 15. Cur. adv. vult.

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

The

We see no ground for disturbing the verdict in this case. plaintiff's right to recover does not depend upon the question whether the defendants were joint purchasers of one-fourth of the vessel, or separate purchasers of one-eighth each; but upon the question whether they jointly promised to pay the plaintiff the amount of the premium note outstanding at the time of the sale. This question was distinctly left to the jury, who found it in favor of the plaintiff. In addition to this, it is quite immaterial whether the defendants were joint or separte owners of the vessel; they were both interested in the insurance, and their promise to pay the amount of the note makes them liable, though each held a separate bill of sale from the plaintiff.

No question arises under the Merchants' Shipping Act, which was pressed on our consideration. The premium of insurance in question was a matter separate and distinct from the sale or transfer of the vessel, though it arose out of that transaction.

Rule refused.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF NEW BRUNSWICK

IN EASTER TERM,

IN THE THIRTY-THIRD YEAR OF THE REIGN OF QUEEN VICTORIA.

BELYEA v. HAMM.

APRIL 12th, 1870.

The Court refused without costs, a rule for judgment quasi nonsuit, for not proceeding to trial pursuant to notice, where the name of the Commissioner was omitted from the jurat in the copy of the affidavit stating the plaintiff's default, served on plaintiff's attorney.

Hannay moved on the usual affidavits, for judgment as in case of a nonsuit against the plaintiff, for not proceeding to trial pursuant

to notice.

H. B. Rainsford opposed the motion, reading an affidavit of the plaintiff's attorney, which set forth that the copy of the affidavit of the defendant's attorney, with which he had been served, which contained the particulars of the plaintiff's default, was defective by reason of the name of the commissioner, before whom the affidavit was sworn, being omitted from the jurat, in the copy. He contended the motion should be refused with costs.

Hannay, contra. The omission of the name of the commissioner from the copy of the jurat is a mere clerical error, and in no way misled the plaintiff, the substance and all other parts of the affidavit but the jurat being fully stated. Even if refused, no costs can be given where the motion fails from a defect of form merely.

RITCHIE, C. J.: This being a statutory application, the documents upon which it is founded must be in all respects complete, to enable the defendant to take advantage of the statute.

Per Curiam. Motion refused without costs.

BELYEA V. HAMM.'

APRIL 19th, 1870.

Where a defendant became the owner of a property with a dam on it which overflowed plaintiff's land, he was held to be entitled to notice before action brought.

The Court will not send down a case to a new trial to recover merely nominal damages.

This was an action on the case for overflowing the plaintiff's land by the erection of a mill-dam. The declaration contained counts for overflowing, by raising the dam higher than it had previously been, and for continuing the dam.

At the trial before ALLEN, J., at the last Queen's County Circuit, it appeared that the plaintiff was the owner of a lot of wilderness land, through which a stream called "Back Creek" flowed, and that several years after the plaintiff obtained the land, one Duplissy erected a mill and a dam further down the stream. In October, 1868, the defendant agreed to buy the mill from Duplissy, and shortly after had a conversation with the plaintiff (who was a millwright) about repairing the mill. The plaintiff swore that the defendant told him on that occasion that he had tightened the dam and raised it higher, or that he intended to do so; that he (plaintiff) told the defendant he hoped it would not overflow his (plaintiff's) land, and that the defendant said, there was no danger of that; that he (plaintiff) did not know till then that there was a dam on the stream. After this, on the 9th November, the plaintiff wrote a letter to the defendant, stating that he had been informed that the defendant's mill-dam overflowed his (plaintiff's) land; that he intended to go and see the land, and if it was overflowed he would commence an action against him. On the 22nd December he wrote to the defendant that he had examined the land, and found that the dam did more damage than he expected, and proposed to the defendant to buy the land. The defendant answered this letter on the 26th December, stating that he was willing to lease the plaintiff's land, or to leave it to three persons to say what damage he should pay for the overflowage.

On the 1st January, 1869, the plaintiff's attorney wrote to the defendant that he had been instructed to commence an action against him for the overflowage of the plaintiff's land, unless the matter was settled within a week. On the receipt of this letter the defendant went to Fredericton to see the plaintiff, when they talked about the defendant purchasing the plaintiffs land, and an adjoining lot owned by the plaintiff's father, which was said to be also overflowed by means of the dam. They could not agree upon the price of the land, the plaintiff stating that he wished to see his father. The parties