Key v. Thomson.

otherwise take advantage of the death of the defendant, and that the present judgment should stand as security for another verdict, and that if the plaintiff recovered, judgment should be entered as of the assizes when last tried. He cited Pleydell v. Earl of Dorchester, (7 T. R. 529); Thwaites v. Sanisbury, (7 Bing. 437); Griffith v. Williams, (1 C. & J. 47).

S. R. Thomson, Q. C., shewed cause in the same term. The Court has no power to impose any terms on the representatives of the defendant. The plaintiff has put himself in his present position, by his own improper conduct in putting in improper evidence, and the defendant is entitled to a new trial ex debito justitia. Griffith v. Williams, (1 C. & J. 47), does not come up to this case. There, the application was made before the two terms after verdict had expired, but in this case that time has passed. Copley v. Day, (4 Taunt. 702), is an authority directly against the power of the Court to grant this application. Freeman v. Tranah, (12 C. B. 406). There is no case where such an application has been granted after the Court had prepared, and all but pronounced its judgment.

D. S. Kerr, Q. C., contra. The granting of a new trial is in the discretion of the Court. Here the Court has not yet granted a new trial, but merely submitted what it would be disposed to do. It is a rule of law that the act of God or of the Court shall injure no man

Cur. adv. vult.

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

No doubt when a new trial is granted ex debito justitiæ, the Court will not limit the second trial as to the mode in which the case is to be conducted, or impose terms affecting the trial, in the same manner as they might do where the new trial was granted on matter of a wholly discretionary character. But in granting a new trial under any circumstances, the Court must not act contrary to any well established principle of law, but so deal with the case as if possible to recognize it and give it effect. There is, applicable to this case, a rule based on a fundamental principle of justice, viz: actus curia nemini gravabit, which Creswell, J., says in Freeman v. Tranah, (12 C. B. 413), "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law;" while, as in this case to ignore this maxim, the practical result might to the plaintiff' be a cruel injury. Acting on the principle of this rule in Heathcote

*Ritchie, C. J., Allen and Fisher, J. J., Wetmore, J,, having been of counsel in the cause took no part.

Key v. Thomson.

v. Wing, (11 Exch. 355), the Court says: "We take it to be perfectly settled that judgment is never given nunc pro tunc, except on the ground that the delay has been occasioned by the act of the Court. This was most distinctly laid down in the judgment of the Lord Chief Justice Jervis, and Mr. Justice Maule, who strongly urges the propriety of administering justice on established rules, in the case of Freeman v. Tranah, (12 C. B. 413). In the case of Evans v. Rees, the Court of Queen's Bench laid down a rule which is no doubt perfectly correct, that though the Statute 17 Car. 2, cap. 8, requires a judgment to be entered up in two terms after verdict, yet the Court is not fettered by that Statute in its jurisdiction to enter judgment nunc pro tunc in a fit case. But the principle is still the same, it is only for a delay of the Court in doing justice, that the judgment can be so entered." And in Miles v. Bough, (3 D. & L. 108), Wightman, J., in delivering the judgment of the Court, says: "The cases of Lawrence v. Hodgson, (1 Y. & J. 308), in which all the older authorities are cited, and Bridges v. Smyth, (8 Bing. 29), appear to me to support the proposition, that wherever in such case as the present, the delay is that of the Court, and not that of the parties, the judgment may be entered nunc pro tunc. The case of Bridges v. Smyth is strongly in point with the present. The judgment was not signed for more than two terms after the verdict, and after the death. But the Lord Chief Justice Tindel says, the Stat. 17, Car, 2, does not apply to such a case as this, but depends upon a rule of the common Law, that where parties are delayed by act of law, neither of them loses his right, but eventually judgment is entered nunc pro tunc, as if the party were still alive." And in Griffith v. Williams, (1 C. & J. 47), it is said: "The plaintiff died after a rule nisi for a new trial had been obtained, and before it was discussed, and it was urged by Wilson and E. V. Williams for the plaintiff, that the setting aside the verdict would entirely defeat justice, as no new trial could be had, without error being assignable on the record. But the Court intimated, that they should have had no difficulty on this ground if they had thought that the case required further consideration, as they could have imposed the terms of the verdict being entered as of the Assizes when the case was first tried, or of the defendants undertaking not to assign error. And Garrow B. mentioned a case in which he had been of counsel, where the Court of King's Bench had imposed similar terms in granting a new trial on the application of the defendant, who, it was suggested, was likely to die before the cause could be tried a second time." Acting then, on the principle of the maxim that the necessary delay or act of the Court shall hurt no man, and on the authority of Griffith v. Williams, (1 C. & J. 47), we are disposed to make the rule absolute for a new trial in this

Key v. Thomson.

cause, only on the following conditions: 1st. That the personal representatives of the late R. Thomson enter into a bond, undertaking or agreement, that this verdict shall stand as security for the result of the new trial, providing it shall be in plaintiff's favor. 2nd. Undertaking that the second verdict shall be entered as of the Assizes when the cause was last tried. 3rd. Undertaking not to assign error. 4th. Notice of trial shall be served on the personal representatives of Dr. Thomson, and on the attorney on the record. If these conditions are complied with before the first day of Trinity Term, the rule will be made absolute for a new trial; otherwise it will be discharged.

WELDON, J.-I regret that I am unable to concur in the opinion of my brother Judges, in their judgment imposing terms upon granting a rule for a new trial in this cause. The grounds upon which the Courts grant new trials is, in their discretion, a legal discretion; but when evidence has been rejected which ought to be received, or when evidence has been received at the trial not warranted by the rules of law, it ceases to be a matter of discretion, and new trials are granted of right, ex debito justitiae. In this case, there have been three trials; two of which resulted in favor of the plaintiff, the first of which was set aside on the ground of rejection of proper evidence offered on the part of the defendant, the other upon evidence forced in by the plaintiff contrary to law; the third trial the jury could not agree upon a verdict and were discharged, so that I may say that there has been no verdict given which could stand. I am unable to find any case where conditions were imposed upon the granting of a new trial ex debit justitiæ. In Griffith v. Williams (I C. & J. 47), which was an action for breach of promise, the verdict was sought to be set aside, and it being intimated by counsel, that so doing would defeat justice, as no verdict could be given, the plaintiff having died. "But the Court intimated there would be no difficulty on this ground, if they thought the case required further consideration, as they could impose the terms of the verdict being entered as of the Assizes when the case was first tried, or of the defendant undertaking not to assign error. And Garrow, B., mentioned a case in which he had been counsel, where the King's Bench had imposed similar terms." I have examined all the reports, and I imagine it was the case of Pleydell v. Lord Dorchester (7 T. R. 529), where the verdict was set aside for excessive damages, it being a mere question of property, as Garrow was one of the counsel in that case. The authority cited in that case was, Wood v. Gunston, in Styles' Reports (466) and on reference to that case it was to the discretion of the Court in granting a new trial for excessive damages only. The

Clementson v. Hammond.

Court allowed the defendant to have a new trial on payment of costs, and judgment to be entered on this verdict, to stand as a security to pay what shall be recovered upon the next verdict. In these cases there were verdicts according to legal evidence, not upon verdicts given upon evidence not in accordance with the rules of law. I consider the verdict which is now set aside, given upon improper evidence, as no verdict; and therefore no conditions should be imposed upon the representative of the defendant on setting the same aside. If, however, I am wrong in this view, in differing from the rest of the Court, the plaintiff will suffer no injustice, as the majority of the Court make the rule for a new trial subject to conditions.

CLEMENTSON v. HAMMOND.

Ex Parte PEARSON.

A third party cannot apply to set aside an attachment issued under "The Insolvent Act of 1869," and under which property claimed by him has been seized, on the ground that the attachment has been irregularly issued. He must resort to his common law remedy.

This was an appeal from a decision of the County Court Judge of York. The application was made under the 50th Sect. of "The Insolvent Act of 1869," on behalf of William T. Pearson, to release certain lumber which he claimed to be his property, but which had been taken from him under an attachment issued against Hammond, under "The Insolvent Act of 1869," for compulsory liquidation, at the suit of Clementson. The grounds of the application were:-1. The attachment was irregular, as Hammonds were not residents of the Province, and not subject to the jurisdiction of the Court. 2. If subject to the Insolvent Act, they would only be so in the County of Victoria, where they had formerly resided. 3. No proof of debt to warrant the attachment. 4. No proof of any act of insolvency within three months. The County Court Judge decided that third parties could not raise these objections to the proceedings under the Insolvent Act; they could only be raised by the insolvents, and that the summary remedy given against the assignee by section 50 did not apply to a claim of this kind.

G. F. Gregory, for the appellant, contended that the Insolvent Act had taken away the party's common law remedy, and that these objections to the validity of the proceedings could be taken by a third party. The affidavit on which the attachment issued was in

18.

Patton v. Harding.

sufficient; it did not show sufficient facts to warrant it. No Act of Insolvency, within three months, was shown, as required by section The Hammonds had resided in Victoria, and absconded to the State of Maine in the fall of 1869. If within the jurisdiction of the Act they could only be proceeded against in the district where they had resided, and not in York.

Fraser, contra. The Act cannot take away the common law right of the party. Whether the proceedings are regular or not, no one but the insolvent can apply to set them aside. If the proceedings are void for want of jurisdiction, there would be no justification in an action of trespass. It is quite immaterial whether the insolvents were residents of the Province since September, 1869. Alexander v. Vaughan, (Cowp. 398); Ex parte Smith, (Cowp. 402); Allen v. Cannon, (4 B. & Ald. 418); Inglis v. Grant, (5 T. R. 530); Williams v. Nunn, (1 Taunt 270). If the party left a domicil in this Province and absconded, the Judge of any County Court has jurisdiction. Sect. 50, under which the application was made, only applies where the property seized is the property of the Insolvent, and not where a third party claims the property absolutely.

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

We cannot discover any error in the conclusion at which the Judge of the County Court arrived. If the property of Mr. Pearson has been in any way interfered with, either by the assignee or the sheriff at his instance, he has his common law remedy, to which we think he must resort. We cannot conceive that Mr. Pearson can have a right to interfere with the proceedings in insolvency, and to have them set aside, simply because he alleges his property has been improperly seized. We think, with the County Judge, he had no locus standi to warrant his making such an application.

Dismissed with costs.

PATTON (EXECUTOR OF HASTINGS) v. HARDING.

Where a cause was entered at the Circuit and afterwards referred to an arbitrator and an award made, the Judge on the Circuit can grant a certificate for costs.

This case was entered at the St. John Circuit Court, before ALLEN, J., and afterwards referred to an arbitrator, who made an award of $20 to the plaintiff. Application was then made to the Judge for his certificate to enable the plaintiff to obtain costs, and he refused