Black v. Hazen.

£87 Os. 11d., with interest, at the time of the registry of the said first and second memorial by virtue of the judgment and agreement, with interest from the 20th March, 1854, and that the land might be sold and the proceeds applied to the payment of the said judgment and costs. The bill contains no other averments.

In Godfrey v. Tucker, (9 Jur. N. S., 1188,) reported also in 33 L. J. Eq., 559, Sir J. Romilly, M. R., says: "The Court intervenes in relation to charges on land in two cases, one is where a mortgagee has only an equitable lien, there he proceeds entirely in Equity to enforce his claim, but where a judgment creditor has, by virtue of his judgment, a legal charge, the course for him to adopt is first to take all necessary proceedings at law, and then if he is unable to obtain at law all the relief to which he is entitled he can come to this Court to assist him in enforcing his claim." * * * This explains the observations made by Lord Cottenham in Neate v. Duke of Marlborough. It is true that this Court regards a legal lien on land irrespective of a Court of law in suits for foreclosure and redemption, but that is only because in dealing with the property it is necessary to regard and determine the rights of the various persons having charges upon it. But when a judgment creditor comes to this Court simply to enforce his legal rights, he must first show that he has done all that is necessary at law to entitle him to the assistance of this Court." * * * "The plaintiff was only a judgment creditor whose judgment had not become enforcible as an equitable charge, as he had not sued out an elegit. He was not therefore entitled to any relief in this Court.

In Smith v. Hurst, (15 L. & E., 527; 10 Hare, 30), Turner, V. C., says: "Independently of the remedies given by the Statute referred to (1 & 2 Vict. c. 110), the rights of judgment creditors are, I conceive, purely legal rights, and the interposition of this Court in their favor rests, as I apprehend, upon the principle of aiding the legal rights: thus the Court may be called upon to interpose its aid for the purpose of removing out of the way any impediments which may exist to the exercise by judgment creditors of their legal rights, or it may, as I apprehend, be called upon to interpose for the presentation of the property pending disputes at law as to the rights of judgment creditors, and the Court, in the exercise of its original jurisdiction in the administration of assets, may also have occasion to deal with the legal rights of judgment creditors, but then the province of this Court is to aid and not to supply or extend the legal rights. These principles were laid down by Lord Cottenham in Neate v. the Duke of Marlborough (3 Myl. & Cr. 407), and with the principles there laid down I fully concur. * "A further objection was raised on the part of the defendant to any decree being made in this cause,

Ames, and others, v. Carman, and another.

on the ground that no elegit had been issued; and, upon looking into the cases upon this subject, I think that so far as respects the freehold estate this objection is good." He then cites Lord Redesdale's treatise on pleading, and adds: "It was attempted to answer this objection by putting the case upon the ground of the jurisdiction of the Court to relieve against fraud; but the objection rests upon the plaintiffs' title being incomplete without the elegit, and the answer therefore does not meet the objection."

We think the learned Judge was perfectly right in allowing the demurrer. There is not the shadow of a ground alleged in the bill to warrant the interference of a Court of Equity. Not only has the plaintiff taken no steps to enforce his judgment at law, but he has not even alleged in his bill that he was without a remedy at law or that the personal property of George Anderson is insufficient, and until George Anderson's personal property is exhausted, he cannot even at law resort to his real estate.

Appeal dismissed with costs."

AMES, and others, v. CARMAN, and another.

The firm of C. & Co. consisting of C. L. F. & S., ordered goods from A. While in transitu L. absconded and the firm was dissolved, C. refused to receive the goods and they were stored. A. brought a suit against C. & Co. for goods formerly sold, and these goods were also included in the bill of particulars, but afterwards withdrawn from it and a confession given for the balance. Held, In a subsequent action against C. & Co., which then consisted of C. & S. only, and who afterwards bought these goods, that there was no evidence of a former recovery.

In an action for goods and delivered the defendant swore that he acted merely as agent and sold the goods to a third party. The Judge left to the jury two questions: 1. Whether there was an absolute sale to defendant. 2. If not, did he discharge his duty properly as agent or not? The jury found generally for the plaintiff, and there being evidence to support their finding whether they found the first question in the affirmative or the latter in the negative, the Court refused to disturb their verdict. Assumpsit for goods sold and delivered, tried before WELDON, J., at the last Kent Circuit. It appeared by the evidence that the firm of Carman & Co., the defendants, had originally consisted of four members, Carman, Fisher, Lingley, and Smith. They had been in the habit of receiving goods from the plaintiffs and were indebted to them for goods formerly purchased. The goods for which the present action is brought were ordered by Carman & Co. through the plaintiffs' traveller. They were shipped at Montreal and charged to CarAllen, J., being connected with the defendant took no part in this case.

Ames, and others, v. Carman, and another.

man & Co., but while the goods were in transitu, Lingley, one of the partners absconded, and the partnership was broken up. Carman then wrote to the plaintiffs that he would not accept the goods, but sent them to the store of one Girvan to wait the plaintiffs' orders. A suit was brought by the plaintiffs against Carman & Co. for the goods formerly sold to them, and the price of the goods now sued for was included in the bill of particulars. This item was afterwards withdrawn from the bill, and Carman gave a confession for the balance. The plaintiffs' traveller, Miller, afterwards returned to Richibucto and took charge of the goods which remained at Girvan's. The firm of Carman & Co. was at that time continued, and consisted of only two members, Carman and Smith. According to the evidence of Miller, he sold the goods to the new firm of Carman & Co., absolutely, and they accepted them. The goods were afterwards sold by Carman & Co. to one Sowerby, a man whom they were supplying, and who it appears was not then in solvent circumstances. The defendants' case was that there had been a former recovery, and that the goods sued for were included in the confession given by Carman in the former suit. Smith, the member of the firm who received the goods, swears that he did not purchase them, but that Miller placed them in his hands to dispose of on account of the plaintiffs, to a responsible person, and that he did so dispose of them. The learned Judge in his charge took no notice of the goods now sued for, being in the bill of particulars of the former suit, because they had been withdrawn from it and the confession given only for the balance. He told the jury that there was a conflict of testimony between Miller & Smith as to whether there was an absolute sale or not, which it was for them to decide. If they believed Miller that there was a sale they must find for the plaintiffs. If they believed Smith that there was no sale and that the goods were merely placed in defendants' hands as agents to be sold to a responsible person, did the defendants discharge their duty as agents properly, and sell to a responsible party? If not, they were liable for neglect of duty as agents or bailees. The jury found a verdict for the plaintiffs for the amount of their claim.

Fraser in Michaelmas Term last, obtained a rule nisi for a new trial on the grounds of misdirection in that the learned Judge should have told the jury that there was a former recovery for the same cause of action, and the verdict was against the weight of evidence.

A. L. Palmer, Q. C., showed cause on a former day in this term, contending that while the former action was for goods sold and delivered, these goods were not sold to the first firm of Carman & Co. They were stopped for the plaintiffs in transitu, and never

Frost v. The Liverpool and London and Globe Insurance Company.

came to their hands. The confession only covered the goods formerly sold. It was for the defendants to show that they had paid this claim before. The plainliff took this confession as a satisfaction of their claims against the first firm, but not against the second.

Fraser contra.

Cur, adv. vult.

RITCHIE, C. J., now delivered the judgment of the Court.

We think there was no evidence in this case of a former recovery. The items now sought to be recovered were not only withdrawn from the action against Lingley, Fisher, Carman and Smith, but the evidence showed very clearly that as against these four, plaintiffs had no legal claim. There was positive evidence by plaintiffs' traveller that he sold these goods to the defendants. This was contradicted by the defendants, and the question of sale or no sale was distinctly left by the learned Judge to the jury. The defendants' case was that the goods were placed in their hands by the plaintiffs to be disposed of by defendants to a responsible person for plaintiffs' benefit. The plaintiffs' answer to this was that if there was no sale, and defendants' contention was correct, they did not sell to a responsible party, whereby plaintiffs lost the value of the goods; this question was also submitted to the jury by the learned Judge; there were counts in the declaration to meet either view. The jury found generally for the plaintiffs, for the value of the goods; whichever proposition submitted to them, they may have found in plaintiffs' favor, there was evidence to sustain, and therefore we see no reason for disturbing the verdict.

Rule Discharged.

FROST V. THE LIVERPOOL AND LONDON AND GLOBE INSURANCE CO. A policy of Insurance against fire was executed in favor of G. E. F. & Co., by two directors of the Liverpool, London & Globe In. Co., under their seals, and signed by the agent, but without having the seal of the company attached. Afterwards, H. C. F. became owner of the goods insured, and the agent of the company, made an indorsement not under seal on the policy, "this Insurance is hereby continued in the name of H. C. F." Held, That the latter could not maintain covenant against the company.

This was an action of covenant on two policies of insurance brought in the name of Henry C. Frost and George E. Frost. The first policy was for $1500, and was dated the 5th June, 1866, and was issued to "George E. Frost & Co." for one year, and continued

Frost v. The Liverpool and London and Globe Insurance Company.

by payment of premiums to 5th June, 1869. The second policy was dated 5th March, 1869, for $1000, to George E. Frost & Co., to expire on the 5th June, 1869. On each of the policies was the following indorsement signed by Allison, the agent of the Company, "this Insurance is hereby continued in the name of H. C. Frost, dated 16th March, 1869." The fire took place 11th April, 1869. At the trial before ALLEN, J., at the St. John Circuit, it appeared that at the time the first policy was effected, and from that time until February, 1869, George E. Frost was owner of the goods. After February, 1869 Henry was owner. When the second policy was effected in the name of George E. Frost & Co., George had no interest in the goods.

The declaration was then amended by striking out the name of George E. Frost as plaintiff, and altering the averments in the declaration to correspond. This was done subject to a motion for a nonsuit. The policies of insurance were not under the seal of the company, but under the hands and seals of Ewart & Tobin, two of the directors, and signed by Allison, the agent.

A verdict being found for the plaintiff,

Jack, Q. C., in Hilary Term last, moved for a nonsuit pursuant to leave reserved, or for a new trial. For nonsuit on the grounds: 1st. That the plaintiff had no interest in the first policy, the last renewal receipt being in June, 1868, and that the contract was not assignable. 2nd. That the second policy was in the name of George E. Frost & Co., and that at its date (5th March, 1869), George E. Frost had no interest in the goods. 3rd. That there was no covenant between the plaintiff and the defendants, and that an action of covenant could not be maintained. The points for a new trial are not necessary to be stated.

A. L. Palmer, Q. C., shewed cause in Trinity Term, contending that the policy being issued under the seal of the directors and signed by the authorized agent of the company, covenant might be maintained upon it.

S. R. Thomson, Q. C., contra, contended that it was impossible to maintain covenant against a company, where no corporate seal was affixed to the deed, and that if it could, the agent had no right to vary the terms of the policy or the party in whose favor it should stand by the indorsement.

Cur. adv. vult.

RITCHIE, C. J., now delivered the judgment of the Court.