1861.

TAYLOR

in the possession of the defendant in replevin, which may on the trial turn out to be the defendant's property; and against such bond, the Sheriff might have taken by the common BURPEE. law, but could not have assigned to the defendant, so as to give him a right to sue on it in his own name. The object of the assignment of the bond, given by the Statute, was to give the defendant (who had been deprived of the goods by the writ of replevin) a summary mode of redress, if the plaintiff (who had obtained possession of the goods) did not proceed without delay to try the right to the goods; or if he did, and failed to establish his right, did not return the goods, and pay all damages and costs awarded to the defendant. The sufficiency of the sureties who join in the replevin bond, is a matter which does not in any way affect the plaintiff in the replevin suit, but is a matter entirely between the Sheriff and the defendant in that suit. There can be no doubt that the Sheriff might refuse to deliver up the goods unless a bond with two sureties were given; or, that the defendant in the replevin suit might decline to take an assignment of a replevin bond with only one surety, and seek his remedy against the Sheriff. But if the Sheriff and the defendant are both satisfied with the security of one surety, one does not see how it can be open to the plaintiff in the replevin suit to object to it.

66

In the case of bail bonds taken under 23 Henry VI, c. 9, the Statute says, "that the Sheriffs shall let out of prison all persons arrested, &c., upon reasonable sure"ties of sufficient persons,”—the use of the plural number necessarily implying more suretics than one, but it was decided in Cro. Eliz. 808, 852, and 862, that a bail bond taken by the Sheriff with one surety only was a good bail bond under this Act, so that the Sheriff could sue on it; on the ground that the introduction of the provision as to sureties was entirely for the benefit of the Sheriff, and if he was satisfied with one, when he might have insisted on more, it would not make the bond void. It is true, those were cases in which the Sheriff himself sued on the bond, and indeed they occurred before the assigument of the bond could have been made, which was by the subsequent Act

of

of 4 Ann, c. 16, § 20. But as that authorizes the Sheriff to assign the bail bond, and the bail bond is only authorized by 26 Henry VI, c. 9, it would follow that that which, under the 26 Henry VI, c. 9, was a good bail bond in the hands of the Sheriff, might be assigned under 4 Ann, c. 16, § 20; and, therefore, as a bail bond with one surety would be good in the hands of the Sheriff, it might be by him assigned to the plaintiff. We have not been able to find any reported case, in which an action was brought by the assignee of a bail bond taken with only one surety. Austen v. Howard (a), though it decides that the Sheriff may sue on a replevin bond taken with one surety only, and such bond would be good as regards the Sheriff, independently of the Statute 11 George II, c. 19, § 23, which says the Sheriff may and shall take a bond from the plaintiff, and two responsible sureties, does not decide that such bond would not be good under the Statute. It would seem to follow, from the same reasoning which established the validity of bail bonds in the cases in Cro. Eliz., that such a replevin bond would be good under the Act, and if so, it would follow that it would be also assignable under the Act.

The second objection is, as to the proof of the bond, which, it was argued, should have been by the attesting witness. This, under 19 Vict. c. 41, § 18, will depend on the question, whether attestation were requisite to the validity of the bond. In none of the Acts on this subject, has it ever been enacted with respect to the replevin bond, that it shall be attested, though in former Acts it was so enacted with respect to the assignment. Nor do we think the mere form of the bond, which undoubtedly admits of an attestation, would make such attestation necessary. By 1 Rev. Stat. 463, § 17, "Forms, when prescribed, "shall admit deviations, not affecting the substance, or "calculated to mislead." The omission of attestation to a replevin bond, could not in any way affect the substance, or mislead; and if the bond would be good without it, it cannot be requisite to its validity. The case of Pollok v.

1861.

TAYLOR

against BURPER.

1861.

TAYLOR

against

BURPEE.

Gardner (a) is very different from this. There, the deviations from the form prescribed by the Rule of Court, Mich. term, 4 Vict., made under the authority of 3 Vict. c. 63, § 4, were essentially substantial, and (if not substantial) had no such auxiliary to aid them as is provided by 1 Rev. Stat. 463, § 17.

2. As to the assignment. The absence of any attestation to that, is disposed of by what has been said with respect to the attestation to the bond; and the case is stronger, inasmuch as the positive enactment in the former Acts, 4 William IV, c. 38, § 2, and 13 Vict. c. 53, which made attestation by two or more witnesses essential, has been entirely omitted in the 1 Rev. Stat. 324, § 11.

The objection to the assignment is, that it professes on its face to have been made at the request of the defendant's attorney. This would not vitiate the assignment, because it is quite consistent with the expression, that such request was authorized by the defendant, and if so. would be his request. It might be open to the other party to shew the contrary; but in this case, the evidence proved that the request was made by Mr. Wetmore, by the express authority of the plaintiff in this suit, who was the defendant in the replevin. A man who requests by an authorized attorney, himself requests. "Qui facit per

alium, facit per se."

(a) 2 Kerr, 655.

Rule discharged (b).

(b) See Wheeler v. Stewart, 3 Pug. 398.

1861.

DEB

DUFFY against STYMEST.

EBT on a policy of insurance, against the defendant In an action against the as Secretary of "The Society of Underwriters," Secretary of under the Act 21 Vict. c. 61: tried before Ritchie, J., at Underwriters the last St. John circuit.

the Society of

under the Act 21 Vict. c. 61,

tions of an

on the policy, circum- relative to the

subject mat

Society ter, are evi Leavitt the defendant; of the declarations

dence against

and if such

stated in an

refer to facts

specting the

davit is also

The action was brought to recover the insurance on the the declarafreight and cargo of a vessel which went ashore on Duck underwriter Island, near Grand Manan, under suspicious stances. Notice of abandonment was given to the about ten days after the loss, and they sent Capt. to Grand Manan to inquire into the particulars loss, and to report to them. After receiving his report, the Society determined not to pay the loss, and so notified affidavit obtained by the the plaintiff,-giving him a copy of Capt. Leavitt's report. plaintiff reThe plaintiff then obtained the affidavits of some persons loss, such affiat Grand Manan in reference to the circumstances of the admissible. loss, with a view of inducing the Society to reconsider the circumtheir decision respecting the payment of his claim. These loss, made to affidavits were shewn to several of the underwriters, made statements respecting the facts contained in them. a copy of The declarations of the underwriters were admitted in evi- been given to the plaintiff, dence, and the plaintiff also tendered the affidavits, as is not evidence being connected with the declarations, and thereby made part of them; but on objection by the defendants' counsel, they were rejected.

who

Several questions were submitted to the jury by the learned Judge; but the only one material to the present question, is, whether there was an abandonment by the plaintiff, and whether it was accepted and acted on by the Society. The jury answered this question in the affirmative, but found a verdict for the defendant.

In Hilary term last, A. R. Wetmore obtained a rule nisi for a new trial, on the grounds of,

1st. The improper rejection of the affidavits.

2d. The improper admission in evidence of Capt. Leavitt's report.

A report of

stances of the

the defendants by their agent,

which had

without notice

to produce: and quære, whether it

would then be admissible.

1861.

DUFFY against

3d. The verdict being against the weight of evidence. Gray, Q. C., and Duff shewed cause in Easter term

last.

STYMEST. 1. The affidavits were mere ex-parte statements, and not part of the preliminary proof, nor were they given to the underwriters as agents of the Society, but merely to induce them to call a meeting to take the plaintiff's case into consideration. The declarations of individual members would not make them evidence in this action, as the underwriters are not co-contractors, and cannot be affected by the declarations of parties with whom they have no common interest. The Act allows the action to be brought in this form, merely to prevent plurality of suits, and the declarations of a member of the Society can no more bind them, than that of a stockholder in a bank could bind the corporation. [RITCHIE, J. The Act expressly declares that the Society shall not be a Corporation.] If the action was against one underwriter, the plaintiff could not have the benefit of these declarations. The liability of each underwriter continues exactly as before the Act, namely, merely to pay the amount of his subscription, in case of a loss. If the evidence had been admitted, the jury should have been directed that the declarations of individual underwriters could not affect the Society.

2. Capt. Leavitt's report was made in pursuance of a clause in the policy authorizing the underwriters to inquire into the circumstances of a loss, and the plaintiff is bound by his agreement delegating the inquiry. The report was therefore properly admitted.

3. There was no evidence to justify the finding of the jury, that the Society had accepted the abandonment. The only evidence, was the instructions to Leavitt, and they did not extend to acceptance of the abandonment. If he went to Grand Manan for that purpose, why should he inquire into the particulars of the loss, or as to the state of the weather, or how the vessel got ashore?

A. R. Wetmore, contra. The action is nothing more than the joinder of a number of separate actions which would otherwise have to be brought against each under

writer,