ADMINISTRATOR
1. An administrator allowed a chose in action be-
longing to the intestate's estate to remain in the
possession of a third party, in payment of a debt
due by him in his individual capacity. Held,
That, at law, the administrator could transfer the
legal title of the chose in action, and that in the
absence of fraud, such a transaction as against
the administrator, was valid. Allingham v.
454
Daniel & Boyd.

2. Where money was deposited in a Bank, to be
withdrawn by either of two parties, or the sur-
vivor, on fifteen days notice being given, and one
of them three days before his death made a de-
mand for the money, which was not paid: Held,
That, an action would not lie against the Bank
by his adminstrator, as by his death the demand
became a nullity, and no right of action accruing
in his lifetime, the right to the money was in the
survivor. Condon v. Bank of British North
America.

AFFIDAVIT.

506

An affidavit to hold the master of a ship to nail,
for selling goods which formed part of the freight
of the vessel, and belonged to plaintiff, must
show affirmatively a complete cause of action and
that the sale was without justification. Nevins
398
v. Cole.

AGENT.

See PRINCIPAL AND AGENT.

ARREST.

1. In tre pass for false imprisonment, two of the
defendants who were constables, arrested the
plaintiff without warrant, by order of E, who
suspected him of having set fire to his house.
The Judge directed their acquittal, no notice of
action being given. Held, That he should have
directed the jury to find whether, when they
arrested the plaintiff, they bona fide believed in
in the existence of a state of facts which would
347
have justified the arrest. Murphy v. Eills.
2. To justify a private person in causing the arrest
of another for felony, he must show that a felony
has been actually committed. Ibid.

ACTION.

See PROMISSORY NOTE, 1.
AWARD.

1.

ABSCONDING DEBTORS ACT.
Proceedings were taken against S, a debtor,
under the Absconding Debtor's Act,-a Warrant
issued 27 November, and notice as required by
the Act, published in the Royal Gazette, Decem-
ber 2nd. The warrant was delivered to the
sheriff of York on the 10th February following.
On the 5th February, a creditor of S. having
obtained judgment against him in the Supreme
Court, issued an execution and recorded a memo-
rial of the judgment in the County of York.
Held-Weldon, J., dissentiente, That the publica-
tion of the notice divested S of the property and
vested it in the Trustees, without the issuing of
any warrant to the sheriff, and so defeated the
execution.

Per Weldon, J., That the notice in the Gazette
could not be imported into the case to prevent
the plaintiff from reaping the fruits of his judg-
16
ment. Kerr v. Scovil.

2. Notice was published in the Royal Gazette,
under the Absconding Debtor's Act, that unless
the debtor returned and discharged his debts
within three months, his estate would be sold for
Before the three months ex-
payment thereof.
pired, the debtor died. Held, That the proceed-
ings taken under the act did not abate. In re
Archibald.

30

See CROWN GRANT, 1. 2, 5, PRINCIPAL & AGENT, 2, 3. In trespass, the plaintiff claimed under a licence 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 licence would extend across and beyond the rear of both their grants. Held, That the licence included land in rear of the grant to J. & G. V. Prescott v. Walton.

CORONER'S INQUEST.

230

1. An inquest must be super visum corporis, and the body must be viewed by the jury in the presence of the coroner. Where the jury viewed the body at one time, and the coroner at another, the inquest was held void. Ex parte Wilson. 451 2. Where a coroner took an inqisition super visum corporis, and afterward another coroner took a second inquisition upon the same matter, the latter proceeding was held void. Ibid.

CHALLENGE.

See JURY, 2.

COMMON CARRIER.

The Commissioners of the E. & N. A. Railway, in the absence of any regulations approved by the Governor in Council Limiting their responsibility for the safe conveyance of goods and luggage, are subject to the same liabilities as common carriers. Willis v. The Commissioners of the E. & N. A. Railway. 157

COSTS.

See PRACTICE, 10.

1. Where a servant joined a count for trespass quare clausum fregit in an action for assault and slander, committed by defendant while plaintiff was in charge of his master's field, and recovered $100 damages for the assault, a certificate of costs was refused; the assault being within the County Court jurisdiction, and no title to land in question. Bradley v. Ferguson.

354 2. Where a cause was entered at the Circuit and afterwards refered to an arbitrator and an award made, the Judge on the Circuit can grant a certificate for costs. Patton v. Harding.

391

1. Where the side line of a grant to H. was desribed as north 107 chains, or to the north-westerly angle of A's grant, such angle being capable of being ascertained, controls the course and distance of the side line of H's grant. Hanson v. Marcheney. 2 2. Where a grant from the Crown to B. was descrided as "beginning at a stake standing on the bank or edge of Round Lake, and (after describing other courses), thence south, &c., to a stake standing on the westerly bank or edge of said lake, and thence following the several courses, of the said bank or edge, to the place of beginning.' Held, That the words "bank or edge" were intended to express the margin, and made the water's edge the boundary of A's grant. Burke v. Niles.

3.

4.

166

The defendants agreed to supply the plaintiffs with Albert coal from their mines, for the purpose of being made into oil, which was to be a good clean coal. Held, That under such an agreement plaintiffs were entitled to receive coal of a fair merchantable quality, and, where the coal supplied was not merchantable, the plaintiffs were entitled to damages. Spurr v. Albert Mining Company. 361

CONSTABLE. See JUDGE, 1. CERTIFIED COPY.

See EVIDENCE, 2.

CERTIORARI.

See INSOLVENT ACT, 2.

1. A party desiring to remove proceedings by certi orari, should obtain a copy of the proceedings from the Justice. Lord v. Turner.

13

Held, That as the operative part of the deed showed the recital was a clear mistake, it should not be allowed to defeat the deed. Doe ex dem. Kerr v. Jamieson. 446

See RECTOR. 1.

CHURCH WARDENS.

See RECTOR, 1.

CHANGE OF VENUE.

In an action for running down a vessel the venue was laid in Charlotte. The defendant applied to change the venue to St. John or Albert. On cause being shown the Judge changed the venue to St. John, allowing the plaintiff $80 for expenses of witnesses. It appeared that all the defendant's witnesses lived in Albert, which was nearer to St. John than to Charlotte, and the collision had taken place near Point Lepreaux, which was partly in St. John County and partly in Charlotte. The Court thought that, though it was not clear in which county the collision took place, as the Judge had exercised his discretion, taken the preponderance of convenience into consideration, and made a liberal allowance to the plaintiff, they would not interfere. Jackson v. McClellan.

323

CONTINUING SECURITY. Defendant, who, in December, 1868, owed plaintiff $1,800 for supplies, gave him a bond and warrant of attorney to confess judgment for $10,000. The defeasance stated it to be given to secure the repayment of the $1,800 due, and "such further advances in the whole not exceeding $5,000, as the said Eaton may advance to the said Lawrence." Plaintiff having entered up judgment upon the bond and warrant of attorney, in June, 1869, issued execution for $3,417. On a motion to set this execution aside, the defendant in his affidavit alleged that he shipped lumber to the plaintiff to satisfy the judgment, and had a settlement in 1867, when plaintiff was indebted to him, and that the bond, &c., was not given as a continuing security. The plaintiff alleged it to be a continuing security, and denied that there had been any settlement. From December, 1866, to December, 1868, the plaintiff and defendant had transactions to the extent of over $30,000. Held-per Weldon and Fisher, J. J. That it not being clear there had been any settlement, and nothing in the defeasance to prevent it being a continuing security, the plaintiff was entitled to his judgment. Eaton v. Lawrence. 85

DEATH OF PARTY.

See INSOLVENT DEBTOR'S ACT, 2. NEW TRIAL, 5, 8.

DEED. See INFANT, 1.

A sheriff's deed recited that for want of goods and chattels he had taken all the right, title, &c. that R. J. (the debtor) had in certain lands at the time of filing a memorial of judgment. At that time R. J. had no title to the land, but it was granted to him before the execution issued.

In an action for breach of an agreement to convey property to the plaintiff on payment to the defendant of a sum of money by instalments, and which agreement the defendant had disabled himself from performing, before the last instalment was due. Held, That the plaintiff not having paid the last instalment, could not recover it as part of the damages for breach of the agreement. Being part of the same transaction, the defendant is entitled to have the unpaid instalment deducted, and is not driven to bring a crossaction for it. Gilbert v. Campbell. 55

2. In an action against the Collector of St. John, for wrongfully detaining a quantity of Alcohol belonging to the plaintiff from September, 1867, till May following, when it was returned to the plaintiff short 408 gallons; the proper measure of the damages is the interest on the value of the Alcohol during its detention; the value of the 408 gallons with interest from September, 1867, and any depreciation in the value of the Alcohol during its detention. Kinnear v. Robinson. Where, in an action to recover insurance, the defendants witness contradicted the plaintiff as to the value of goods lost by fire, but the jury were properly directed as to the measure of damages, the Court refused to disturb their verdict, even though they might have given less had they been on the jury. Crozier v. Phoenix Insurance Company.

3.

73

200 4. Where in trespass there was conflicting evidence as to the quantity and value of trees taken from plaintiff's land, the Court refused to disturb the finding of the jury, even though the damages appeared large. Prescott v. Walton.

5.

230

1. Where goods are fraudulently or clandestinely removed without a distress, the landlord may follow them and distrain within thirty days thereafter, under 1 Rev. Stat. cap. 126, sec. 4, although the rent may not have been due, or in arrear at the time of removal. Hoyt v. Stockton. 60

2.

Defendant leased a house to P, who shortly af terwards give a bill of sale of his furniture to the plaintiff, and took from him a lease of the furniture for two years. A few days before the first quarter's rent of the house came due, P moved the furniture off the premises, the defendant followed it, and distrained it for the rent due. The plaintiff gave notice that he was the owner of the furniture, and forbade the sale, but the defendant, believing the bill of sale to be fraudulent, sold the furniture under the distress, as the absolute property of P. In trespass for taking the furniture, the principal question was whether the bill of sale was bona fide, but the Judge told the

jury that P had no distrainable interest in the fur-
niture, and that if the bill of sale was bona fide
the plaintiff must recover. A verdict having
been found for the plaintiff-Held, per Weldon,
Fisher and Wetmore, J. J. (Ritchie, C. J., hesi
tante) that the tenant had no distrainable inter-
est in the furniture. Per Ritchie, C. J.-That
even if he had a distrainable interest, the defend-
ant was liable for having sold the goods as his
absolute property. Per Allen, J.-That P had a
distrainable interest, and that as there was mis-
direction on this point there ought to be a new
trial, as it would materially affect the damages
whether the defendant was altogether a wrong-
doer or not. Pidgeon v. Milligan.
459

3. The plaintiff's attorney testified that he met de-
fendants' agent in the street, and said he had the
proofs ready except a certificate, which he feared
he could not get in the time required by the
policy; that defendants' agent said it made no
difference, but to get the proofs as soon as he
could. Defendants' agent denied this conversa-
tion. Held, This was evidence of waiver to go to
the jury. Crozier v. Phonix Insurance Com
pany.

200

4. A scientific witness cannot be asked a question,
the answer to which involves a determination of
the truth of the facts deposed to in evidence.
Key v. Thomson.
224

5. In an action against a physician for neglect and
non-attendance in a case of frost-bite, a medical
witness for the plaintiff, to whom the evidence
was read, was asked "From the evidence before
the Court to what do you ascribe the loss of the
plaintiff's fingers and toes?" Held, Inadmissi-
ble, as it involved the determination of facts
which should be decided by the jury. Ibid.

6. Where the evidence of a witness taken on a for-
mer trial in the same cause, and since deceased,
was read from the Judge's notes, the defendant's
counsel offered evidence to show a statement
made by the witness while giving his evidence in
the presence of the plaintiff. Held, That the
evidence was properly rejected. Prescott v. Wal-
ton.
230
7. In an action, brought by the proprietor of a coal
oil manuafactory, to recover damages against the
Albert Mining Company, for supplying him with
coal of inferior quality, which yielded less oil per
ton than a good article, evidence was offered, on
the part of the defendants, to show the number
of gallons of oil per ton Albert coal made at an-

8.

361

other oil factory. Held, That such evidence was
properly rejected, it not being shown that the
coal and appliances for manufacture were the
same. Spurr v. Albert Mining Company.
In giving evidence of damages, it is the duty of
a witness to state facts, from which the jury may
draw conclusions. A statement by the plaintiff,
that in consequence of the detention of his goods
he sustained damages to the amount of $3,000,
without giving any facts to show how this amount
was made up, is not evidence. Domville v. Kea-

1. A lease was made by A to B for fourteen years,
from 1st of May, 1849, with a covenant by A to
pay for improvements, or renew the lease at the
end of the term. A conveyed the reversion to
the plaintiff in October, 1869, at which time it
was alleged that $1,200 arrears of rent were due
from B, who had left the country. In ejectment
for a forfeiture for non-payment of the rent the
plaintiff claimed the arrears, and also $72 for half
a year's rent, due since he became the owner of
the reversion. The affidavit of the bailiff stated
that when he served the declaration there was
not sufficient distress on the premises to satisfy
the arrears of rent stated to be due and that the
value of the goods on the premises at that time
did not exceed $50 in his estimation.
Held-1st. That as this affidavit referred to the
whole arrears of rent claimed by the plaintiff, it
did not clearly show that there was not sufficient
distress on the premises to satisfy the half years
rent accruing due since the plaintiff became the