5. One Mosher conveyed a number of horses and colts to plaintiff by
bill of sale as security for an alleged debt. Plaintiff exchanged one of
the colts for a horse, which was delivered to plaintiff, but plaintiff
requested Mosher to keep him. He did so and fed the horse with the
hay transferred to plaintiff by the bill of sale. After the lapse of several
months the defendant, as sheriff, seized the horse under an execution
against Mosher, but before the sale the plaintiff asserted his claim,
and forbade the sheriff to sell the horse. The Judge of the County
Court considered the evidence of the debt which formed the considera-
tion of the bill of sale, unsatisfactory, but he negatived fraud in the
transaction. He also considered that the estoppel which could otherwise
be relied on against plaintiff ceased to operate after notification by
plaintiff to the defendant of his claim of property in the horse.

Held, that the decision of the Judge of the County Court for plaintiff
must be affirmed. (Per DESBARRES J. that the evidence of the deal-
ings between defendant and plaintiff did not show any fraud; per
JAMES, J., that there was no estoppel at any stage of the transactions ;
per MCDONALD, J, that, even assuming that the bill of sale was void,
the horse could not be levied on, as it had never been the property of
Mosher, but was the property of the plaintiff, however obtained)
WEATHERBE, J., dubitante.

FALSE AND FRAUDULENT REPRESENTATION.
See OVERVALUATION, FRAUdulent.

FIXTURES.

Plaintiff let to the defendant a dwelling-honse for the term of five
years with privilege of renewing, under a written lease, in which defend-
ant covenanted to surrender the premises in as good condition as
reasonable wear and use would permit, and the plaintiff agreed to per-
mit defendant to remove the lower front room windows, lower the floor,
substitute a shop front, and make such alterations as he might require
for the completion of a shop. Defendant made the alterations, and at
the end of the term quit the premises, having removed the counters and
shelving, and a lead pipe and sink. The Judge of the County Court
decided that the defendant had a right to remove these articles as trade
fixtures, and plaintiff appealed on the ground that it was again t law
and evidence. The rule for appeal was taken December 3, 1879, and on
December 14, 1880, defendant moved for leave to amend the grounds
so as to raise the question as to the right to remove these articles as
fixtures.

Ileld, that the amendmert conld not be allowed, and that the judg
ment below was correct. (Per MCDONALD, J, that the question as to
the right to remove the articles was one of fact, upon which the deter-
mination of the County Court Judge could not be disturbed, unless
upon an overwhelming preponderance of evidence; per WEATHERBE, J.,
that the Judge had rightly determined that the articles were fixtures,
which the tenant had a right to remove, and this was the point upon
which the case turned.)
Laidlaw v. Taylor

....

155

FORECLOSURE SUIT, PROCEDURE IN.

A writ of summons was issued commending defendants to appear in
the Supreme Court at Truro at the suit of plaintiffs, who alleged that
defendants were indebted for principal and interest on a mortgage,
reciting the proviso for redemption. The writ proceeded to set out an
an amount due on a promissory note of defendants for the same amount
as the mortgage, given as collateral security, and prayed that in default
of payment the equity of redemption should be foreclosed and a sale of the
premises made. Defendant treated the suit as one brought in the Supreme
Court under R. S., cap 103, and not as an equity suit, and pleaded
various grounds of defence. The cause was twice tried and the verdict for
defendants was in each case set aside by the Court in banco. Plaintiff
then took a rule nisi to rescind the rules setting aside the verdict on
the ground that the Court had no jurisdiction, the suit being an equity

case.

Held, that, although the writ was not in strict conformity with the
procedure pointed out in chapter 103, yet the Court had jurisdiction to
deal with the case, not as one brought for the foreclosure of an equity
of redemption, but as one in which, on non-payment of the mortgage
and note, an order of sale of the premises was sought, and that it was too
late to raise the question of want of jurisdiction grounded on an inform-
ality in the writ, which had been waived by defendants pleading to
and defending the cause as an action at common law.

Lynds et al. v Hoar et al......

FORFEITURE OF MINING AREA.

Proceedings were had before the Deputy Commissioner of Mines at
Halifax to obtain the forfeiture of a mining property at Montagu owned
by the defendant. The defendant resided at Londonderry and had
agents at Montagu, but no service of notice was made on either him or
them, and neither he nor they knew anything of the proceedings until
after the areas were forfeited. The notice was posted by a person who
appeared to be interested in procuring the forfeiture, and who swore
that neither Tobin nor any agent or person employed on the premises
could be found in the district, on whom personal service could be made.
The matter being brought up by certiorari,

Held, that, in order to dispense with personal service evidence should
have been given of a bona fide search, or that defendant was out of the
Province.

The parties applying for the forfeiture entitled the process below
"The Queen v. Tobin."

Held, that the applicant had a right to use the same title in the sub-
sequent proceedings in this Court.

A rule was granted to compel the parties sustaining the forfeiture to
file their affidavits on a day previous to the hearing, to be named by the
Court.

The Queen v. Tobin ....

FRAUDULENT CONVEYANCE.

An action was brought against one of the defendants, the son or the
other defendant, for breach of promise of marriage, in which a judgment
was recovered and recorded. Previously to the commencement of such
action the son had paid for and obtained a deed of certain land which
was not recorded, and it was alleged in plaintiff's bill or writ that,
fearing an adverse judgment in the breach of promise suit, the son had
destroyed the old deed and procured a deed of the property to be made
to his father, which was ante-dated so as to make it appear to have
been delivered before the commencement of the action for 1 reach of
promise, although in fact it was made afterwards. On being imprisoned
under the judgment in the breach of promise suit, defendant, the son,
was set at liberty on condition of his assigning his interest in the

237

305

property to the plaintiff in this action, as trustee for the plaintiff in the
breach of promise suit, which he did A suit in equity was then brought,
in which plaintiff prayed that the defendant, (the father,) should be
decreed to convey the land in question to him and account for the
profits. The Equity Judge, considering that the destruction of the old
deed and substitution of the new one was a contrivance between father
and son, granted the relief prayed for, and the full Court, having
arrived at the same conclusion on the facts, affirmed the decision of the
Judge in Equity.

Graham v. Chisholm et al.....

2. Plaintiff's father leased certain mining areas, with crushing mill and
crusher, to J. & T. Watson, in November, 1875, with proviso for re-entry
on certain conditions. In December, 1876, he conveyed all his estate,
including all his interest in the lease and the lease itself, to plaintiff, in
trust for certain purposes in the deed mentioned, and the trustee took
possession in February, 1879, for non-payment of the rent overdue. In
October, 1878, a distress warrant for poor and county rates was issued
against the lessor, under which the property in question was sold and
came into possession of defendant, from whom it was replevied by
plaintiff. Objection was taken to the want of registration of the lease,
and that the trust deed was not filed but only recorded. There was no
legal proof of the assessment, of the posting or service of notice, or of
the signature or official character of the officer who issued the warrant,
all of which were put in issue by the pleadings, but evidence was given
by defendant of conversations with plaintiff's father after he had parted
with his legal interest in the property.

Held, that the statute 13 Eliz did not refer to the case at all, as it
made the conveyances to which it referred void only as against certain
classes of persons, none of which could cover the case of the defendant,
and that the conveyance could be avoided at common law only as
against one who had a former right, title or interest, which defendant
had not; that the non-registration of the lease did not affect the plain-
tiff's position at all, or if at all, it only enlarged his interest; that the
trust deed did not require to be filed but only recorded; and that the
evidence of defendant was inadmissible, not being part of the res gestae.
The writ alleged only an unjust detention, and no unlawful taking.
Held, that, the possession of defendant heing wrongful, no demand
was requisite to sustain replevin. (See Inglis v. Greenwood, ante p. 2.)
Wallace v. Laidlaw ....

GARNISHEE PROCESS.

Plaintiff held a judgment against one George Cutten and was about
to sue Ryerson and Moses, whom he understood to be Cutten's partners.
Before doing so he consulted one of the defendants, by whom he was
informed that there was a balance of some $2,700 due from the defend-
ants to Cutten for work performed for the defendants on the Western
Counties Railway under a contract, and defendants suggested that this
amount might be made available to satisfy plaintiff's claim if there was
a garnishee law. Plaintiff's attorney, on the strenth of this representa-
tion, issued garnishee process, when defendants pleaded, denying that
there was any debt due.

Hele, that defendants were estopped by their representation from
denying their indebtedness to Cutten.

Previous to the garnishee process being isued Cutten had drawn an
order requesting defendants to pay all sums coming due to him under
the engineer's monthly certificates to one Killam, but there was no
evidence of any indebtedness of Cutten to Killam.

Held, that this was not such an equitable assignment as would pre-
vent the garnishee process from operating on the fund.
Fitzrandolph v. Shanly et al.

33

420

199

GROUNDS, IN RULE NISI FOR QUO WARRANTO.

GUARANTEE.

See PRACTICE, Quo warranto.

Defendant, in writing, requested plaintiff's firm to supply to F. R.
"the outfit for his boat then being built by F. R. and DR. jointly,
and promised to see that they got their money. The goods were first
charged to F. R. but afterwards to F. R. and D. R. jointly, to whom
other goods were sold, being supplies for a fishing voyage. Several
months after the date of the guarantee a balance was struck at $303 10,
for which a joint and several note was given by F. R. and D. R., who
also executed a bill of sale of the boat to plaintiff's firm, the considera-
tion mentioned being $400. The plaintiff stated that the note was
only taken as an acknowledgment of the debt and that both the note
and the bill of sale were held only as security.

Held, (JAMES, J. dissenting,) that the Judge was warranted, as the
bill of sale contained no release, in finding for the plaintiff for the value
of the goods supplied as outfit for the boat only.

Scott v. Crockett

HABEAS CORPUS.

A prisoner was convicted of larceny and sentenced to one year's
imprisonment in Dorchester penitentiary: The warden refused to
receive him on the ground that the shortest period for which prisoners
could be sentenced to or received at the penitentiary was two years.
Prisoner was then taken to the county jail. To a rule in the nature of
habeas corpus the jailer, in his return, set out the conviction for larceny
and also returned that the prisoner was detained under a warrant of a
Justice for attempting to escape by tearing up the floor of his cell. The
warrant annexed to the return was under the hand of two Justices.
The Court refused to discharge him and decided that he should be
sentenced to imprisonment in the common jail, for one year, inclusive
of the period for which he had already been detained.
In re Wallace Rice

.....

See also LIBERTY OF THe Subject.

HOUSE, SEVERED FROM SOIL

See TROVER FOR HOUSE.

HOUSE OF ASSEMBLY, ELECTION OF MEMBER.

See Rules of Court as to Petitions

HOUSE OF COMMONS, ELECTION OF MEMBER.

See Rules of Court as to Petitions....

ILLEGAL SENTENCE.

410

77

527

A prisoner was convicted of larceny and sentenced to one year's
imprisonment in Dorchester penitentiary. The warden refused to
receive him on the ground that the shortest period for which prisoners
could be sentenced to or received at the penitentiary was two years.
Prisoner was then taken to the county jail. To a rule in the nature of
habeas corpus the jailer, in his return, set out the conviction for larceny and
also returned that the prisoner was detained under a warrant of a Justice
for attempting to escape by tearing up the floor of his cell. The warrant
annexed to the return was under the haud of two Justices. The Court

refused to discharge him and decided that he should be sentenced to
imprisonment in the common jail, for one year, inclusive of the period
for which he had already been detained.

In re Wallace Rice

INDORSEMENT, IRREGULAR.

Defendant's two sons purchased a vessel from one Pettipas for which
they gave their note payable to Pettipas or order. The defendant
wrote his name on the back of the note in the same direction as the
writing in the body of the note inside, and it was afterwards taken to
Pettipas who wrote his name across the back of the note (in manner
described in the judgment of James, J., q v.). Pettipas then handed
the note to plaintiff to whom he was indebted and plaintiff sued the
defendant on the note, alleging that Pettipas endorsed the note to
defendant who endorsed it to the plaintiff.

Held, that the plaintiff could recover the amount of the note. (Per
JAMES, J., that plaintiff, not knowing the facts, had a right to assume
that the note was endorsed first by Pettipas and afterwards by defend-
ant; per DESBARRES and SMITH, JJ., that defendant, by placing his
name on the back of the note and allowing it to pass into the hands of
the payee to be by him transferred to whom he pleased, was liable to
the plaintiff as bona fide holder without notice.)

McLean v. Garnier

INFANT TRADER.

An infant trader bought goods from plaintiff, part of which were
found by the Judge to have been given by him to his boarding-house
keeper on account of his board.

Held, (reversing the judgment of JOHNSTONE, J.,) that the fact of
the goods being so supplied did not render them necessaries so as to
enable the plaintiff to recover, and that the judgment must be entered
for defendant with costs.

Jenkins v. Way......

INSOLVENT ACT OF 1875.

1. An action of trespass was brought by plaintiff as assignee of L. P.
Fairbanks under the Insolvent At of 1875. Defendants pleaded deny-
ing possession and title, and denying that the plaintiff was assignee, as
alleged. It appeared that the business of the insolvent had reference
only to the canal property, of which he had been the owner, and,
although on cross-examination the plaintiff stated that Fairbanks had
bought and sold all sorts of things, and had bought oats, wood and
iron, he added that there were no assets of that kind, that Fairbanks
had handed him no books of account, books of business or cash book,
and that his books had reference wholly to the canal property.

Held, that Fairbanks was not a trader within the meaning of the
Insolvent act, and Creighton was not his lawful assignee, and therefore
had no title to the land; that this defence had been sufficiently pleaded,
and that section 144 of the Insolvent Act, making the assignment
prima facie evidence of the regularity of all proceedings did not apply,
as the question was not merely as to the regularity of the proceedings.
Creighton, Assignee, v. Chittick et al.

2. Defendant and his co-partner became insolvent, and plaintiffs filed a
claim against the partnership estate for the notes declared on, made by
the partnership and endorsed by the defendant, without disclosing the
security of defendant as indorser, or their attempting to rank on the
individual estate. Defendant obtained the required number of signa-
tures to a deed of composition and discharge, and, very shortly before

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432

394

90