that the lands vested in the Assignee subject to
the lien created by the memorial. McLeod v.
Thomas.

284
5. A third party cannot apply to set aside an attach-,
ment 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. Clementson v. Ham-
mond.
390
6. An insolvent who has made a voluntary assign-
ment under "The Insolvent Act of 1869,' cannot

move to set aside a fi fa. issued by a judgment
creditor against his property. Jones v. Des-
Brisay.

403
7. Where compulsory proceedings are taken against
a debtor under the Insolvent Act of 1869, and
an attachment is issued, money in the hands of
the sheriff realized from a sale of the debtor's

5.

and by his consent, he indorsed on the policy that
he thereby assigned it to A., having sold him the
goods. This assignment was entered on defend-
ant's books, but not made under seal, and A. was
not informed of it. The first note being unpaid,
plaintiff by consent of A., took back the goods,
and possession of the store. They were after-
wards consumed by fire. Held, That the assign-
ment on the policy was invalid, and that plain-
tiff could recover under the policy for the loss.
Weldon, J., dissentiente; Fisher, J., dubitante.
Crozier v. Phænix Insurance Company. 200

In an action on a policy of insurance against fire,
the plaintiff who was mortgagee of the premises
insured, after delivery of preliminary proof, re-
ceived from the agent of the defendants a promise
in writing to pay the loss within sixty days.
There was conflicting evidence as to the value
of the property destroyed, and of the plaintiff's
interest.

nee under the 59th section of the Act.
Harding.

INJUNCTION.

Bullen v.

499

A. issued an execution against B. and under it the
sheriff advertised to sell lands of B., which C.
claimed to have purchased at a former sale. C.
obtained an injunction to restrain the sheriff from
selling the lands under the execution of A. Held,
That the injunction must be dissolved, as with-
out a sale A. could have no locus standi to con-
test the title of C. to the lands, whether the sale
to C. was valid or not being a question of law.
Case v. Palmer and Vanwart.
183

See PLEADING, 3. DAMAGES, 3. INTEREST, 1.
PRACTICE, 8.

1. Where it was proved on the trial of a case against
an underwriter on a policy of insurance for a loss,
that the defendant had promised to enquire as to
the particulars of the loss, and if correct, pay it;
and that after several days he did promise to pay,
the Court refused to disturb a verdict for the
plaintiff, although there was evidence of a devia-
tion, which otherwise would have avoided the
policy. Reed v. McLaughlin.
129

2. A vessel was insured for a voyage from Dundee,
Scotland, to St. John, thence to a port in the
United Kingdom. On her arrival at St. John she
was placed on the blocks, repaired, and re-classed,
being detained 17 days. Held, in an action to re-
cover the amount of the insurance, that in the
absence of any evidence of the vessel having sus-
tained damage on the voyage from Dundee to St.
John, such detention for re-classing was a devia-
tion, and avoided the policy. Reed v. Philps.

172

although this was not conclusive to bind the de-
fendants, if there was no mistake of fact or fraud,
this adjustment would be evidence of the amount
of the loss. Thomson v. Liverpool and London
and Globe Insurance Co.

259

6. The plaintiffs' mill was insured by the defendants
in plaintiffs' names, the sum insured in case
of loss to be paid to M., the mortgagee of the
premises. This policy was renewed on paying
the premium, but shortly before renewal the
plaintiffs gave a third party, P., an absolute con-
veyance of the property, P. entering into an
agreement to reconvey to plaintiffs on compliance
with certain conditions.

Held, That this conveyance to P. was intended to
operate as a mortgage only, and that the plain-
tiffs had an insurable interest. Kelly v. Liver-
pool and London and Globe Insurance Co.

266

7. Where a policy of insurance contained a con-
dition that it hould be void in case of any other
insurances being effected on the same premises
elsewhere, unless notice was given to the com-
pany issuing the policy, it was held to apply only
to insurances effected by the holders of the policy,
or for their benefit or with their knowledge and
consent. Ibid.

8. A policy of insurance against fire was executed
in favor of G. E. F. & Co., by two directors of
the Liverpool and London and Globe Insurance
Company, under their seals and signed by the
agent, but without having the seal of the com-
pany 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.
Frost v. Liverpool and London and Globe Insu-
rance Company.

INFORMATION.

See FINES AND PENALTIES, 2.

JUDICIAL NOTICE.

278

JUSTICE OF THE PEACE.

See WITNESS FEES, 1.
JUDGE.

See EVIDENCE, 1. JUDICIAL NOTICE, 1. PARTNER-
SHIP, 2. PRACTICE, 14.

n an affidavit to prove the loss of a deed for the
purpose of admitting secondary evidence, the fig-
ures "1869" and the word "Before" in the Jurat
had a line drawn through them. The affidavit
was sworn before one of the Judges of the Su-
preme Court of Nova Scotia, with the seal of that
Court attached. The Court were of opinion that
the line thus drawn was not intended as an oblit-
eration, but had been made by the Judge before
whom it was moved by a flourish of the pen in
signing his name, and the secondary evidence
Doe cx dem
was held to be properly admitted.
Trider v. McIntosh.

JURY.

See PROMISSORY NOTE, 6.

293

LIEN.
The St. Andrews and Quebec Railway Company and
its Class A shareholders, separately incorporated,
were authorized by statute, with a view to secure
the completion of the railroad to Woodstock, to
agree with any company properly authorized for
the transfer to such company of the undertaking
of the St. Andrews and Quebec Railroad Com-
pany. The New Brunswick and Canada Railway
and Land Company were incorporated and by
statute authorized to accept such transfer, and by
an agreement made with the St. Andrews and
Quebec Railroad Company, and the Class A share-
holders the undertaking and control and manage-
ment of the railway, and all the lands, goods,
&c., and property, present and future or in ex-
pectancy, which included subsidies of land grant-
ed from time to time as the construction of the
road progressed were transferred to the trans-
feree company, upon condition inter alia that
the transferee company should forthwith dis-
charge the liabilities of the transferrers, one item
of which, as specified in the schedule annexed,
was described as "liability, if any, to the con-
tractors in New Brunswick." The plaintiff, B,
was a contractor with the old company, and be-
fore the transfer had filed a bill against them for
an alleged liability due him and after the transfer
obtained a decree in his favor. Held, on his
filing a bill praying that it might be decreed that
he had a lien upon all the lands and goods of the
transferee company, that the statutes and agree-
ment created no such lien or charge, and that the
plaintiff's bill should be dismissed with costs.
Brookfield v. New Brunswick and Canada Rail-
409
way and Land Company.

LUNATIC.
See FRAUD, 1.

MEMORIAL OF JUDGMENT.
See INSOLVENT ACT, 4.

1. A judgment creditor who has obtained a lien on
the lands of the debtor by registering a memo-
rial of judgment, cannot enforce his lien in a
Court of Equity until he has exhausted his lega!
remedies. Black v. Hazen.

272

ance of testimony on defendant's side, and the
Court were of opinion that in consequence of
the ruling of the Judge on a point of law, under
which the plaintiff would recover in any case, the
question of fact might have received less consid-
eration than it was entitled to, new trial was or-
dered. Hoyt v. Stockton.

60

4. Where two defendants trespassed on plaintiff's
land, but it did not clearly appear whether they
were acting jointly, and the Judge on the trial
declined to compel the plaintiff's counsel to elect
between the defendants, directing the jury to find
a verdict against one or both of them, as they
might consider the trespass to be separate or
joint, and the jury acquitted one defendant.
Held, That even if the plaintiff's counsel ought
to have made his election, no injustice was done
by the direction to the jury, and there was no
ground for a new trial. Hendricks v. Titus. 77 ¦
5. Where the defendant died after verdict, and
pending the determination of a motion for a new
trial, the Court refrained from granting a new
trial until the plaintiff had an opportunity of ap-
plying to have terms imposed. Key v. Thom-
224

son.

The

6. In an action for goods sold and delivered the de-
fendants 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.
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. Ames v. Carman. 276
7. In trespass quare clausum fregit, where the
plaintiff claimed by possession for twenty years,
and the jury so found, the Court granted a new
trial on payment of costs, the evidence of posses-
sion being very slight, and the plaintiff himself
not having been examined as to the time when
his possession commenced. Shepherd v. Shep-
herd.
382

8. Where a verdict was given for the plaintiff, and
the defendant applied for a new trial on the
ground of improper admission of evidence but
died before judgment was delivered, the Court
acting on the maxim actus curiæ nemini gravabit
(Weldon, J., dissentiente) in granting a new trial
imposed terms on the defendant's representa-
tives, to prevent them for taking advantage of
his death. Key v. Thomson.
386

See CERTIORARI, 1, 2. EJECTMENT, 1, 2. FINES AND
PENALTIES, 1, 2. APPEAL, 1. PLEADING, 4.
NEW TRIAL, 5, 8. NONSUIT, 1.

1. To obtain judgment against the casual ejector,
where the premises are vacant and six months'
rent in arrear, the affidavit should state that the
party had searched for property on the demised
premises on a particular day, and that there was no
sufficient distress, and such facts should be stated
as will enable the Court to judge whether there
was in fact an absence of sufficient distress. Doe

ex dem Gilbert v. Roe.

5

2. The Court refused without costs, a rule for judg- |

3.

4.

5.

Where the title of a cause described the plain-

tiff's as "trustees for all the creditors of the es-
tate and effects" of an absconding debtor, and
the affidavits served on the plaintiff with a view
to the discharge of bail, in their titles described
the plaintiffs as "trustees for all the creditors,"
&c., omitting the words "of the estate and ef-
fects," held sufficient. Allison v. Robinson. 161

Where at the trial, the Judge ruled that the
plainliff could not recover, an application to have
a nonsuit entered at the close of his argument on
a rule nisi for a new trial was held to be too late.
Traris v. Glasier.
215

The Court sent down a feigned issue to be tried
at the York Sittings. At the first trial plaintiff
was nonsuited, at the second a verdict for de-
fendant, which was set aside. A term elapsed
without notice of trial by the plaintiff, but the
Court refused to allow the issue to be taken pro
confesso, but ordered it to be tried at the next
sittings, either party to give notice of trial. Dan-
iel & Boyd v. Miller.

246

6. The principal on a limit bond broke the limits,
and the plaintiff, having taken an assignment of
the bond, called on the surviving surety for pay-
ment, who obtained an order from the County
Court Judge and rendered the principal to the
custody of the sheriff. The surety afterwards
was sued by the plaintiff, and applied to a Judge
at Chambers for relief. Held, That the defend-
ant was entitled to have proceedings stayed on
payment of costs up to the time of his applica
tion to the Judge. Bartlett v. Glasgow.

8.

248

7. Where two Circuits have elapsed since issue
joined, at either of which the plaintiff might
have tried his cause, and he has given no notice
of trial, the defendant may move for judgment
as in case of a nonsuit. Oliver v. Campbell. 251
Where the agent of an Insurance Company was
served with a summons in an action against the
company, it was held that the affidavit of service
should state that the company was a foreign cor-
poration; if on a company incorporated in the
province, service on the agent would be insuffici-
ent. Gillmor v. Liverpool and London and Globe
Insurance Company.

253

9. Interlocutory judgment was signed against a
corporation for want of appearance, but it ap
pearing that the summons stated the cause of
action as a plea in debt, while the declaration
was in covenant, held to be a fatal variance, and
the Court ordered the declaration, bail-piece and
interlocutory judgemnt to be set aside. Ibid.
10. Where a declaration contained three counts,
and the plaintiff after verdict elected to proceed
on one only, he is not entitled to costs on the
others, though found in his favor by the jury.
Burke v. Niles.

256

11. It is not necessary to make a Judge's order a
rule of Court before moving to set it aside, but
it is otherwise where the party wishes to act upon
it. Jackson v. McClellan,
323
12. Where a decree of the Court of Equity dismiss-
ing the plaintiff's bill was reversed on appeal the
case was remitted to the Court below for further
proceedings. McLeod v. Thomas.
385
13. It is no objection to an application to the Court,
to recind a Judge's order to hold a defendant to
bail, that an application is pending before a Judge

14. A County Court Judge died after a stay of pro-
ceedings had been obtained in a case appealed
from his decision, but before the papers in the
case certified by him were returned to the Supreme
Court. His successor forwarded a copy of the
papers certified as a true copy. The appellant
had entered the appeal, but given no notice to the
opposite party. The Court refused either to dis-
miss the appeal or to hear it; but ordered the
original papers to be returned next term, with
liberty to either party to bring up the appeal.
Ryan v. James.

407
15. Where a party had given notice of appeal from
the Probate Court, but the papers had not been
sent up, nor the case set down on the appeal
paper, the Court refused an ex parte application
of the other side to dismiss it. In re McLeod's
Estate.

409
16. Where a County Court Judge granted a rule
niki for a new trial, on the ground of misdirec-
tion, but died before the argument of the case,
his successor may receive affidavits to show what
the charge to the jury was, in the absence of any
minutes of the charge. Kinnear v. Calhoun. 83
17. Where the defendant gave notice of trial by
proviso, but the case was entered for trial by
both parties, the trial should be had on the
plaintiff's record; and where the trial was press-
ed on by defendant on his record and the plain-
tiff not appearing, was nonsuited, the Court
ordered a new trial. Meyer v. Gardiner.

PARTNERSHIP.

505

1. D., who resided at Fredericton, had dealings in
lumber with F., who resided at Providence, R. I.
D. wrote to F. asking him to join with him in the
purchase at a price named, on joint account, of
certain laths to be manufactured by M., F.
telegraphed in reply, "Take the laths." M. was
unable to manufacture without supplies; and I.
at a meeting of E. M. and I., agreed to supply M.,
the laths cut by M. to belong to I. from the time
they left the saw. I. being shown the contents
of the letter and telegram, agreed to furnish the
laths to D. at the price named therein. The laths
were delivered to D. and shipped by him to F.,
who sold them on joint account.
Held, Fisher, J., dissentiente, in an action against
D. and F. for the price of the laths, that D. had
authority from F. to purchase from I. on joint
account, the laths purchased being those cut by
M. and referred to in the letter. Inches v. Fogg
& Dowling.

149

3.

4.

it was held to be immaterial whether defendants
were joint or separate purchasers of the vessel.
Maynes v. Mahoney.
23

A note made in this Province, payable here in
U. S. currency, is a promissory note, and may be
recovered on as such. Fisher, J., dubitante. St.
Stephen Branch Railway v. Black.

139

In an action on a promissory note payable at a
Bank to the order of the maker, and indorsed by
him, there was no proof of presentment for pay-
ment at the bank. Held, That a subsequent
promise to pay made by defendant, admitted all
had been done by plaintiffs to entitle them to
recover, and rendered defendant liable. Ibid.
5. The St. Stephen Branch Railway Company may
take and recover on a promissory note given for
the amount of assessments due by a stockholder
on his shares, Fisher, J., dissentiente. Ibid.
In an action by the holder against the maker of
a promissory note, the defence was want of con-
sideration, and that the note came into the pos-
session of the plaintiff by fraud. Held, That
whether there was fraud or not, was a question
for the jury. Smith v. Fleming & Humbert. 147
Where no stamps were affixed to a promissory
note when made, and only stamps sufficient for
single duty affixed when produced at the trial,
it was held to be void under 31 Vict. cap. 9.
Travis v. Glasier.
215

6.

7.

8.

1.

S.; who was indebted to the plaintiffs, who were
bankers, deposited with them as collateral secu-
rity for certain bills of exchange, a promissory
note made by defendant in favor of S. and in-
dorsed by him. The note was not then due, and
it was agreed that if the bills were not accepted
or paid, the note was to be applied to payment
of their amount; but if the bills were paid, the
plaintiffs were to collect the notes, and place
them to his credit S. failed, and the plaintiffs
had to take up the bills. Held, That the plain-
tiffs were bona fide holders for value, against
whom any equities that existed between S. and
the defendant could not prevail. Commercial
Bank v. Page.

PRINCIPAL AND AGENT.

326

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 agent. The pre-
mium was not paid, and it did not appear that the
plaintiff had charged it to the defendant or R.
though the entries relating to the transaction in
the plaintiff's books were in R's name. No 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. Stymest v. Solomon.
68

2. The agent of a company pointed out to a defend-
ant a line as the boundary of the company's
land, telling him not to cut lumber over it. The
defendant, who had a Crown license, cut up this
line, which was afterwards found to be 15 chains
from the true line and within the company's land.
Held in an action of trespass against defendant
that the agent had sufficient authority to point
out lines to excuse the trespass, the defendant
having acted bona fide. Vernon Mining Co. v.
Prescott.

3.

The agent of a company has no authority to
agree upon a boundary which would affect their
title to land.

Ibid.

PLEADING.

See DAMAGES, 5.

1. In replevin, the defendant pleaded, (2nd) that
before the alleged taking, he was master of a
ship, and that the goods had been shipped on
board at London, by D., on which occasion de-
fendant, as master, signed bills of lading to de-
liver the goods at St. John, to the order of D.,
and that no bill of lading indorsed to the plaintiff
by D. was produced by plaintiff to defendant,
wherefore he refused to deliver the goods to
plaintiff.

Replication.That D. had sent the bill of lading to
the plaintiff to enable him to receive the goods,
and the same was then in plaintiff's possession,
with full power from D. to receive the goods from
defendant, but D. had not indorsed the bill of
lading to the plaintiff; that he requested defend-
ant to deliver the goods; that defendant repre-
sented that R. was the owner of the ship, and
that he (defendant) would do whatever R. agreed
to; that the plaintiff applied to R. for the goods,
who informed plaintiff that C. was the agent of
D, that his indorsement of the bill of lading
would be satisfactory; that the plaintiff then
procured C's indorsement of the bill of lading as
the agent of D., and produced the bill of lading
so indorsed to the defendant, who refused to de-
liver the goods.

Rejoinder. That the plaintiff never produced to de-
fendant any proper authority from D. to receive
the goods; and that before the bill of lading in-
dorsed by C. was produced to defendant, R. had
forbidden the defendant to deliver the goods to
plaintiff, under the bill of lading so indorsed.
Held, on demurrer, per Allen and Fisher, J. J.
(Weldon, J., dissentiente), that the plea admit-
ting the Property in the goods to be in the plain-
tiff as alleged in the declaration, was no answer
to the action, because the plaintiff was not
bound by the bill of lading, and was not deprived
of his right to the possession of the goods as
owner, by the undertaking of the defendant to
deliver them to the order of D.; and though the
defendant having received the goods from D,.
could not voluntarily set up a jus tertii, that was
no answer to a claim by a third person, who was
the real owner.

Held, per Weldon, J., that the plea was good; and
that the plaintiff should have shown by replica-
tion his right to the goods, and that D. had no
title to them, and was wrongfully in possession
at the time he shipped them.

Held also, That the replication was bad, as the
agreement of the defendant to abide by what R.
did, was without consideration, and not binding;
and it did not allege that C. was the agent of D.
That the rejoinder was bad, in stating that the
plaintiff produced no "proper authority" from
D. to receive the goods, which was a question of
law; also, because it both traversed, and con-
fessed and avoided the allegations, in the replica-
tion.

Fourth plea, Alleging the shipment of the goods at
London, by D., to be carried to St. John, accord-
ing to the terms of a bill of lading (as in the 2nd
plea); that freight was due on the goods, and
that defendant detained them for non-payment
of the freight Replication, That the plaintiff
tendered to the defendant all money due for
freight, according to the bill of lading, and that
he refused to receive it, and to deliver the goods
to the plaintiff. Rejoinder, That the plaintiff
had no authority to receive the goods, or to make
a tender of the freight; wherefore the defendant
refused to accept the tender or to deliver the

3.

73

2. Where a declaration contained several counts, on
some of which only the Court, on a special case,
held the plaintiff entitled to recover. Quære,
Whether the whole declaration should be set
out in a writ of inquiry of damages. If so, the
writ is amendable. Kinnear v. Robinson.
Declaration in covenant on a policy of insurance
for loss by fire, damages $4,000. Plea that the
amount which plaintiff was entitled to receive
was settled and adjusted at $3,500 between plain-
tiff and defendants, and that the defendant after-
wards pa d the plaintiff the said sum of $3,500 in
full for the loss and damage. Replication, That
the defendants have not paid and satisfied the
plaintiff the said sum of $3,500. Verdict for de-
fendants on this issue. Held, That the plea was
good, on a motion for judgment non obstante
veredicto. McLean v. Phænix Insurance Co. 179
4. Where notice of trial has been given, matter of
defence which arises in vacation should be pleaded
before the end of the term next following. Vit-
tum v. Stevens.

5.

217

The

Notice of trial was given for October 26.
defendant obtained a certificate of discharge
under the United States Bankruptcy Laws, Sep-
tember 23rd. He pleaded bankruptcy puis
darrein continuance, which was delivered to
plaintiff's attorney, October 21st, and filed Octo-
ber 26th. The case was tried October 30th, and
verdict for plaintiff. In answer to an application
to set aside the verdict, and for leave to plead
nune pro tune, it appeared by affidavits that the
certificate was obtained by fraud. Held, An
answer to the application. Ibid.

6. In an action of debt on a policy of guarantee un-
der seal, which had been renewed agreeably to
its terms by payment of the premium and the
giving of a renewal receipt, the defendant plead-
ed non est factum. Held, That this merely tra-
versed the making of the policy, and not the
renewal receipt. Commercial Bank v. European
Assurance Company.

219

7. In an action on a policy of guarantee, the dec-
laration averted general performance, and the
defendant, in addition to a plea of non ext fac-
tum, gave a notice of defence which set forth that
plaintiff did not well and truly perform and ful-
fil all things contained in the said policy of guar-
antee and the conditions thereon indorsed, on
their part to be performed. Held, That this no-
tice being a traverse of a general averment of
performance was bad. Ibid.

8. To an action on a policy of insurance against fire,
the defendants pleaded that the plaintiff's deed
of the premises insured was obtained by fraud
and without consideration from one Coll, who
was a lunatic, and so continued until his death,
and that the plaintiffs had no insurable interest.
Held, That the plea was bad. Hickman v. North
British and Mercantile Insurance Company. 235
9. In an action upon an alleged warranty of owner-
ship upon the exchange of wagons, the defendant
pleade the general issue, and also in abatement
the pendency of another suit for the same cause
of action. Held, That he could not avail himself
of the latter plea. Mercer v. Cosman.

QUO WARRANTO.

240

The granting of a quo warranto is discretionary
with the Court, and it refused without costs a
quo warranto against the Mayor of Fredericton,
for having moneys of the city improperly in his
hands at the time of his re-election, where no