Hoyt v. Stockton.

decisions; but the terms are neither the same nor equivalent; and it seems to us that by the terms used by our Legislature (nothing being said either as to the rent being due or in arrears), we are not precluded from giving the Act that construction which would extend its provisions to cases, as suggested by Lord Ellenborough, that seem clearly to come within the mischief intended to be remedied, and that we are not precluded by any doubtful expressions from putting such a sense upon the words of the statute as will effectuate the intention of the Legislature, viz: that whenever in the plain words of the Act, goods are fraudulently and clandestinely removed from the land of any tenant to avoid a distress, the same may be followed by the landlord, within thirty days thereafter, and distrained, the gist of the matter being the fraudulent and clandestine removal with the wrongful intent, viz: to avoid a distress which might then be made, or which the landlord, within thirty days, might be in a position to make. As to the second point, the evidence was contradictory. The distress was for $48, a year's rent due on the 1st January, 1868. The plaintiff swore unequivocally that he leased the farm on the 5th May, 1866, at $48 a year, payable in work clearing and fencing the land, and that nothing was said about the rent being payable in January. He fortified his statement by producing a book containing a memorandum of the bargain to that effect, which he said was made at the time; beyond this there was no corroborative testimony. The defendant denied this allegation, averring that the land was leased for one year only for $48, payable in money on the 1st of January. The defendant's evidence was confirmed by Thos. Coates, who was present at the bargain, and who swore that plaintiff was to give $48 a year, payable 1st January; that plaintiff said he would as lief pay then as at any other time; that the rent was to be paid in money; that plaintiff asked witness to bear the bargain in mind; that he (witness) made a memorandum next morning, but it was not produced, witness stating that he was not aware that it would be required at the Court, and so did not bring it with him. It was also corroborated by Wesley Coates, who stated that he heard the plaintiff say he had leased the place for one year for $48 and that the rent was to be paid on the 1st January in cash; and by McAllister, the person to whose barn plaintiff hauled some of the hay, who swore that plaintiff told him between Christmas and New Year's, that "Stockton's rent was coming due in a few days, and he wanted to get the hay off the land for fear he would attach it as he did before." And Lester Stockton testified, that at the same period plaintiff asked him if he could help plaintiff to move the hay; he said there was likely to be some trouble between him and Stockton, and he was going to take the hay away out of Stockton's barn.

Carman v. McLeod.

Here there is a clear preponderance of testimony on defendant's side; but where there is testimony on both sides which it is the peculiar province of the jury to weigh and decide on, it requires a very strong and exceptional case to justify our interference. In this case in view of the legal construction of the statute presented, whereby the verdict would necessarily have been for the plaintiff, it may be that the question of fact submitted did not receive that consideration that it would have had, had the rights of the parties turned solely on that question. As therefore there is undoubtedly a very great preponderance of testimony in favor of the defendant's view, and as his case may have been prejudiced by the instruction that the jury received, that the plaintiff was entitled to recover for the distress on 1st January, 1868, however they might find on the question of fact, we think justice requires a further investigation. Costs to abide the event.

Rule absolute.

CARMAN . MCLEOD.

APRIL 25, 1870.

In trover for trees taken by the defendant from land covered by the plaintiff's license, it appeared that the trees had been cut before the license issued. Held, That plaintiff could not recover.

Trover to recover damages for certain trees taken by defendant for shingle logs, off land which plaintiff alleged was covered by his license. At the trial before FISHER, J, at the Kent Circuit, there was conflicting evidence in regard to the boundaries of the license in question. It appeared that the trees taken by defendant were old trees cut on the land before the license issued to plaintiff. The defendant's counsel moved for a nonsuit, on the ground that, assuming the logs to be cut on the land covered by the license, that the trees being cut before it issued, plaintiff had no property in them on which to maintain trover. The learned Judge expressed an opinion that the plaintiff could not recover, but reserved the point for the Court above, and allowed the case to proceed. A verdict having been found for the defendant,

Wetmore, Attorney General, in Michaelmas Term last, obtained a rule nisi for a new trial on the grounds: 1s. Misdirection, in that the learned Judge should have directed the jury to find for the plaintiff. 2. Verdict against evidence.

A. L. Palmer, Q. C., shewed cause in Hilary Term, contending that the license gave the plaintiff no right to any logs cut on the land before it issued, and therefore he could not recover.

Carman v. McLeod.

Wetmore, Attorney General, contra, contended that the plaintiff was entitled to recover, and that the Act 22 Vict. cap. 23 went further than the mere words of the license, enacting that the licensee shall be deemed to be in possession of the land.

Cur. adv. vult.

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

We think the plaintiff cannot recover in this case; the words of his license are :

in the County of

WHEREAS, G. C. Carman, of in this Province, has become the purchaser at public auction, of the right to cut timber, logs, and other lumber, on ungranted crown land, comprised within the following bounds, subject to the restrictions hereinafter mentioned:-(Not to interfere with lots located or lots improved). Kouchibouguacis, north half block 7, range 10, on the Kouchibouguacis River, containing three square miles, more or less, and the said timber, logs, and other lumber, to remove, take, and carry away, and appropriate the same to his own use: Now know ye, that license is hereby granted to the said G. C. Carman, his heirs, executors, administrators, and assigns, to cut timber, logs, or other lumber, on and within the bounds of the piece of ungranted crown land herein mentioned and described; and the said timber, logs, and other lumber, so cut by him on and within the said bounds of the said piece of ungranted crown land, under this license, and during its continuance, to remove, take, and carry away, and dispose of the same to his own use; reserving, however, a right of way and free liberty to haul timber or other lumber, or supplies, over the land and bounds above described; and also a sufficient landing place or places on the banks of any stream running through or bounding the lands or bounds above described, to the grantee, licensee or lessee of any other land, his or their heirs, executors, administrators, or assigns. Also, not to interfere with lots of land partly paid for, or reserved under applications for which Returns of Survey were received at the Crown Land Office previous to the 1st day of July, 1867. This license to continue and be in force from the date hereof, for and during and unto the first day of July next ensuing the date hereof, and no longer; after which time no timber, logs, or other lumber, to be cut or hauled from the said tract of crown land herein before described, under pretence thereof.

We think this cannot be construed to vest in the plaintiff any property in or right to logs, timber or lumber cut and made within the bounds of his license anterior to its date, though on the land at the date of the license. They may belong to a previous licensee or to the Crown, but do not pass to a subsequent licensee, who is entitled only to cut and carry away trees, &c., standing and growing on and not severed from the freehold at the time from which his license is to take effect. Had the case turned on the question as to whether the logs were within the bounds of the plaintiff's license, we should have thought the weight of evidence clearly in favor of that view; but as the plaintiff failed, in our opinion, to establish against the defendant a claim for the logs cut, secured and made unquestionably before the date of his license, the verdict of the defendant must stand.

Rule discharged.

STYMESTU. SOLOMON et al.

APRIL 26, 1870.

R., a broker, effected insurance with the plaintiff on account of the defendant; the policy was issued in the name of R., on account of "whom it may concern"; but plaintiff knew at the time, that the insurance was for the defendant's benefit, and that R. was only acting as his agent. The premium was not paid, and it did not appear that the plaintiff had charged it either to the defendant or R., thongh all the entries relating to the transaction in the plaintiff's books were in R's name. Νο claim was made upon the defendant till about a year after the insurance. Held, That the jury were properly directed that if the plaintiff, knowing that R. was only acting as agent for the defendant, gave the credit to R., he could not afterwards look to the defendant for the premium.

Assumpsit by the plaintiff, as secretary of the Society of Underwriters, to recover $390, premiums of insurance on goods, effected with the society, for the defendants.

At the trial before ALLEN, J., at the St. John Circuit in November last, it appeared that the insurances were effected for the defendants in 1864, by one Thomas F. Raymond, a broker, as their agent, who had general iustructions from them to keep them always insured. The applications for the insurances were made by Raymond in writing, and the policies were issued in his name, "on account of whom it may concern," though it was known to the Society of Underwriters at the time, that the defendants were the owners of the goods insured, and that the insurances were for their benefit. Raymond stated that when he effected the insurances, he neither paid the premiums nor gave his note for the amount, and could not tell whether he had charged the defendants with the amount or not; that he supposed his books would show; but he did not know where his books were, and that he had since settled all his transactions with the defendants, and passed receipts. The plaintiff stated that he had not charged the premiums claimed to any person; that premiums were payable either in cash or by premium notes, and if no premium note was given, or the premium was not paid at the time the policy was issued, the premium was not charged to any one; that when he made up the quarterly accounts of the transactions of the society, he showed the amount of unpaid premiums and the persons from whom they were due; that these accounts were given to the directors of the society, and that unpaid premiums were not charged anywhere except in a book, which he called the General Record. This book was produced, and contained several columns showing the number and date of the policy, the name of the person assured, the amount insured, &c. Opposite to the policy on which the premiums in the present case were claimed, and in the second column headed "assured," was the name of Thomas F. Raymond, but there was no other charge of the premiums. There was another

Stymest v. Solomon.

book produced, called the Day Book, but it did not contain any charge of the premiums on the policies effected by Raymond. The plaintiff's account of the mode of dealing by the society was not very clear, and some of his statements were not sustained by the entries in the books produced. At the time the insurances were effected the defendants carried on business in St. John, but they had since gone to New York. The plaintiff stated that he had rendered them an account there in 1865, claiming the amount of these premiums; that he saw Emanuel, one of the defendants, and demanded the amount; that Emanuel said they had paid the premiums to Raymond; that they then examined the defendant's Ledger, and that he (plaintiff) stated that they had not credited any of the premiums to Raymond; to which Emanuel answered, that the other defendant was absent from New York, and when he returned they would see about it. That he (plaintiff) had another conversation with defendants about the matter in, 1867, in which they said that Raymond owed them a large amount, and offered to compromise this claim. The defendants called no evidence.

The learned Judge left it to the jury to find to whom the Society had given the credit for the premiums at the time the policies were issued. If they had given the credit to Raymond they could not recover in this action, because they knew at the time that he was only acting as the agent for the defendants; and if they then made their election to give the credit to him, they could not now look to the defendants. He referred to the fact that none of the books or papers relating to the transaction, which had been produced, contained the names of the defendants; but said that this was not conclusive against the plaintiff's claim; that the defendants' offer to compromise was not an admission of liability.

Verdict for the defendants.

In Hilary Term last, C. W. Weldon obtained a rule nisi for a new trial on the ground of misdirection, and that the verdict was against evidence.

A. L. Palmer, Q.C., now shewed cause, and contended that the credit having been given to Raymond, the Society had made its election, and had no claim on the defendants. That was between the assured and the underwriters, the premium was considered as paid, the underwriters looking to the broker for payment. Power e. Butcher (10 B. & C. 329).

C. W. Weldon, Q. C., contra, referred to Heald v. Kenworthy (10) Exch. 739); Sancthurst e. Mitchell (5 Jur. N. S. 978, 1 E. & E. 623); Cotterall. Hindle (Law R. 1 C. P. 186).