SUPREME COURT. WARREN V. ROUNSEVELL. COMMON LAW. Another answer was that the question of who was in possession was one for the jury. The facts as admitted were that Mr. Warren, sen., was an old man of 87 unable to manage his own affairs, which were managed for him by Mr. John Warren, jun., who enjoyed the benefit of the timber and other produce in common with his father. The question was whether the son was living with the father, or the father living with the son, and the jury had found that the son was living with the father. As to the tenancy of the defendant and Josiah Smith, there was no evidence given with respect to the defendant except some accounts, in which he was charged £10 for rent of section for grazing from the 2nd April to the 2nd October. That might be evidence, but very slight, of a tenancy existing, and the jury had found the contrary. Even if it were let for grazing, the landlord could maintain an action of tres pass for injury to the trees— 4 Co. Rep., 62A Cox v. Glue, 17 L.I., C.P. (N.S.), 162. The evidence showed that the property belonged to Mr. Warren sen., and that the only position Mr. Warren, jun., had was that of a sort of bailiff, or at most a tenant-at will. (GWYNNE, J.—If he was tenant-at-will, would not the very fact of his entering into such an agreement as that which was made be a determination of the tenancy?) Undoubtedly. If there was a tenancy-at-will such tenancy only endured so long as both parties agreed to it. It could be terminated by either of them, and whether the agreement was made by the son for himself or as agent for his father, it was a determination of the tenancy. The defendant, having dealt with Mr. Warren on the assumption that he had the right to the trees, could not turn round afterwards and say that he had no right to bring an action Evans v. Evans, 2 Camp., 491. Mr. Rounsevell went with Mr. Warren on the land to mark the trees, and it certainly would not lie in his mouth to say there was such a lease as would preclude the plaintiff's right to the trees Edmondson v. Machell, 2 T.R. 4 Mayfield v.. Wadsley, 3 B. & C., 357. SUPREME COURT. WARREN V. ROUNSEVELL. COMMON LAW. It is perfectly clear there can be no verdict entered for the defendant; and being driven to the misdirection alone, if the Court saw that substantial justice was done, they would not interfere. Stow, Q.C., in support of the rule, submitted nothing could be more clear with regard to Smith's section than that there was a reversionary interest only. The evidence of John Warren, jun., was that he (Smith) paid £10 a year, and that he was a tenant. The plaintiff's counsel sought to show that in land let for grazing purposes there was an exception of the trees; but they appeared to have entirely lost sight of the difference which there was between a lease of the herbage and a grant of the land itself to be used for certain purposes. A lease for grazing purposes only was a lease of the land itself, but there was a limitation as to the uses to which it was to be put. Still he was entitled to everything upon the land which could aid or assist him for the purpose of grazing, and surely the use of the trees for the shelter of cattle either from the heat or the inclemency of the weather was a use which he was entitled to Ashmead v. Ranger, 1 Raym., 552. Unless trees were excepted they passed with the land, and the landlord, if they were cut, could maintain an action for injury to the reversion, and that only. Then as to the other section leased to Mr. Rounsevell, what could be stronger evidence than the docu ment which was put in- -a claim in respect to a lease of which the number of the section was given, also the rent, the names of the parties, and the dates? Then the evidence showed that there was a tenancy-at-will. It was not as to the house, but the sections of land, and it was proved that they were exclusively used by John Warren, jun., for many years. If there were any misdirection, however slight, the defendant was entitled to a new trial, as of right. Cur. ad. vult. 28 August HANSON, C.J.-In this case a rule was obtained pursuant to leave reserved to enter a verdict for defendant on the first count, and for a new trial on the ground of misdirection The declaration con SUPREME COURT. WARREN V. ROUNSEVELL. COMMON LAW. tained counts in trespass case and trover, and it was contended on the part of the defendant that the plaintiff had not such a possession of the locus in quo referred to in the count in trespass as to entitle him to maintain that form of action, and with regard to the count in trover that there was no evidence whatever as to one item left to the jury. We have felt no doubt that the direction at the trial was right, excepting in one particular, that of Section 967 let to Josiah Smith. The evidence of John Warren, jun., with regard to that section is that it was let to Smith as tenant from year to year at the rate of £10 per annum, but let for grazing purposes only. And the question is whether the letting of land for grazing purposes only gives to the tenant a right to anything but the grass, whether it is not in effect a lease merely of the herbage or pasture of the close, in which case it is clear the owner of the freehold might maintain trespass for cutting down and removing trees. The evidence in the present case is scarcely precise enough to enable us to determine this question; and if it were necessary we should send it to a second trial, in order that we might have further evidence upon that subject. But as there was only one tree cut down upon this section, we should regret to find ourselves compelled to occasion the expense of a new trial for so small a matter, and the plaintiff has intimated his willingness to consent to a reduction of the damages in respect of that tree. It was pressed upon us that if there was a misdirection upon any point, however small, the defendant was entitled to a new trial as a matter of right; but that is not the case. We think the law is rightly laid down by Tindal, C.J., in delivering the judgment of the Court in Moore v. Tuckwell, 1 C.B., 607 :-"It is not the practice as stated at the Bar that in all cases where there has been a misdirection a new trial must be granted de jure, because a bill of exceptions might have been tendered, for when the Court can see that real and substantial justice has been done or may be done without a new trial the rule has been refused;" and for this he cites Edmondson v. Machell and Twigg v. Potts. The judgment just cited is so applicable to the circumstances of the present case that we cannot do better than express our views in this respect in the language of the learned judge: "If at the time the rule was moved for we had seen the whole of the facts of the case as clearly as we now do we SUPREME COURT. REGINA V. NUTT. COMMON LAW. should not have granted the rule in its present shape, but as it often occurs a rule would have been granted with a condition attached for a new trial unless the plaintiff consented to reduce the damages." The highest value placed upon any single tree was £5, and that tree did not stand upon the section in question; and the average value fixed by the jury for each tree, even supposing that no portion of the damages was given as compensation for the violence complained of, was very far below this. But we think that the deduction should be £5. We therefore treat this as a rule drawn up in the alternative, and as the plaintiff consents that the damages shall be reduced by the above amount, we make the rule absolute for that purpose, and discharge it as to the new trial. The examination of a debtor before the Commissioner of Insolvency, under a deed of assignment made in pursuance of Division VI. of the Insolvent Act, 1860, is admissible against him on a subsequent criminal proceeding. A charge under the Insolvent Further Amendment Act, 1870, against such debtor for concealment of estate after the execution of such deed, is supported by proof of possession a day before the execution of the deed of the property charged to have been concealed, without evidence that such property was in his possession at or after the time of the deed having been so made. THIS was a case reserved by GWYNNE, J., at the August Criminal Sittings. The information charged that the defendant on the 6th of January, 1871, being a debtor within the meaning of the Insolvent Further Amendment Act, 1870, and having executed a deed of assignment for the benefit of his creditors, did conceal part of his estate of the value of £10 and upwards, to wit, a sum of money of the value of £43, a sewing-machine, and four pigs. The first item was the only one that was material. The grounds upon SUPREME COURT. REGINA V. NUTT. COMMON LAW. which it was sought to set aside the conviction were-first, that the evidence of the defendant before the Commissioner of Insolvency was not admissible as evidence; and, secondly, that such deposition showed no removal or concealment within the meaning of the Statute. At the examination, according to the evidence of the Registrar of the Insolvent Court, the defendant's counsel was allowed to attend, but not to take any part in the proceedings, and was not allowed to have a copy of the deposition. The evidence applicable to the point was that he gave the £43 to his wife for housekeeping on the day before he made the assignment. He said the trustees knew he had the £43, as he told them so at a meeting of creditors after the deed was signed. J. Downer, for defendant, in reference to the first point, contended that the provision for examining a debtor was for the purpose of obtaining information in reference to his estate, and not to enable the rule of the law to be infringed, that no man should be compelled to criminate himself. (HANSON, C.J.-Is there anything to limit the effect of this as to admission ?) Nothing whatever. (HANSON, C.J.-You would not contend, if the defendant had sworn an affidavit, that it would not have been evidence against him.) The distinction would be that swearing an affidavit was a voluntary act, and this is under duress. But there is another proposition, that supposing they had a right to bring the defendant up and examine him, then he ought not to have been sworn and examined upon oath. The proper way would have been to examine him upon a declaration. (HANSON, C.J.-Then does a man's swearing to anything make it less binding upon him?) In this way that in the one case he would be doing what he could be lawfully compelled to do; in the other he would be under unlawful duress— Rex v. Britton, 1 E. & F., 354. (HANSON, C.J.—It seems to me the Act was passed for the purpose of enabling the Commissioner to ascertain whether a man had or had not concealed any portion of his property; and to say the examination is not to be used for one of the purposes of the Act seems to me to require some language in the Act itself to that effect.) With regard to the second point, to convict the |