dict, which we think was just and moderate as regards damages. Rule discharged (a). (a) See Abell v. Light, 1 Han. 240; Alward v. Sharp, Ibid. 286; Vincent v. West, Ibid. 290; Brown v. Moore, 2 Pugs. 407; Lister v. Perryman, L. R., 4 H. L. Cas. 521; Lows v. Telford, 1 L. R., App. Cas. 414; Wasson v. Taylor, 1 Han, 102; Basebe v. Matthews, L. R., 2 C. P. 684. 1861. BURGOYNE against MOFFATT. WALLACE and ANOTHER against COLEMAN. TH mesne proc for support HE defendant having been arrested on mesne process, Defendant having been had made an application for support under the Insol- arrested on vent Confined Debtors' Act (1 Rev. Stat. c. 124), and ess, applied been refused. He afterwards put in special bail, and after under the Injudgment was arrested on a ca. sa. Allen now moved for the discharge of the defendant Act (1 Rev. under § 9 of the above Act. solvent Confined Debtors' Stat. c. 124), and was refused. He put in special the bail, and after the judgment Fraser, contra. The defendant cannot avail himself of afterwards his first imprisonment. The creditors should have benefit of his examination since his last arrest. J. This is a new imprisonment. He has put in special ca. sa. Held, bail since his first arrest. changed since that.] [WILMOT, was again ar rested on a that he could not apply to the Court for discharge un Allen, in reply. The defendant swears that he has had der the ninth Section of the The Act only requires Act, until he He had made an has other applica no property since his first arrest. CARTER, C. J. My opinion is, that according to the construction of the Act, the defendant should have applied to the Justices for relief since his arrest on the ca. sa. Application refused. Per Curiam, tion to the Justices since his second arrest. 1861. Plaintiff and defendant had each obtained a judgment against A. The plaintiff'issued execution on under which the Sheriff levied upon lumber belonging to A TR MCKAY against CROCKER. ROVER for logs and timber, tried before Carter, The plaintiff claimed the lumber as purchaser at Sheriff's sale, under an execution issued upon a judgment his judgment, obtained by him on a bond and warrant of attorney against James Donelly, on the 2d July, 1858. The execution was issued the same day, and the Sheriff levied and B. The under it upon a quantity of spruce logs and pine timber, got out by Donelly and James Fowler, and then lying in his judgment: the Southwest Branch of Miramichi River. The sale the property under this execution took place on the 16th October, 1858; defendant then issued execution on was adver tised under both execu but previous to that, on the 13th August, another fi. fa. tions, and A's execution had been placed in the Sheriff's hands, issued lumber sold upon a judgment recovered by the defendant Crocker, right in the (under protest by defendant) against Donelly and John Fowler, prior to the plaintiff's The Sheriff advertised the lumber for sale to satisfy the plaintiff's exe-judgment. cution, and was purchased by the under both executions; and, under the plaintiff's execuplaintiff; and tion, sold (under protest by the defendant's attorney) all then A's right the right and interest of Donelly in the lumber, to satisfy der the defen- the execution, of which the plaintiff became the purchaser ; was sold un dant's execu chased by tion, and pur-and immediately afterwards sold, under the defendant's him. The de- execution, all the right and title of Donelly in the lumber, fendant hav ing taken pos- of which the defendant became the purchaser. session of the ver brought The lumber was got out by James Fowler and Donelly, under an agreement that each should furnish half the supaction of tro- plies and wages required, but there was no particular by the plaintiff agreement as to the division of the lumber. Fowler stated that he had a that the lumber was got out for the defendant, under an right to shew that the plain- agreement; that the defendant furnished the principal against 4 was part of the supplies for it,—about £600,- and that Donelly against him, tiff's judgment obtained by fraud, and, consequently, that he obtained no title to the lumber, by the purchase under the execution. Sawing up logs which the defendant owns as tenant in common with the plaintiff, and mixing the deals with other lumber belonging to the defendant, so that the plaintiff cannot identify his property, amounts to a destruction of the common property, for which the plaintiff may maintain trover. Quare, whether the mere shipping of square timber by one tenant in common, and sending it out of the country for the purpose of sale, amounts to a conversion. only 1861. MCKAY against only furnished £200; and that he (Fowler) delivered the lumber to the defendant at the Southwest Miramichi boom. The lumber was brought down to the boom by the plaintiff, and was taken out of his possession there, CROCKER. against his consent, by men in the defendant's employ, who took it to the defendant's mill, where the logs were sawn into deals, and mixed with a large quantity of other deals belonging to the defendant, which, during the season, were from time to time shipped to England. It did not appear what the defendant had done with the pine timber. The defendant offered evidence to shew that the plaintiff's judgment against Donelly was fraudulent and collusive; and, consequently, that he claiming as a purchaser under the execution, acquired no title to the lumber, as against a bona fide creditor of Donelly. The learned Chief Justice rejected the evidence; being of opinion that the validity of the judgment could not be inquired into at Nisi Prius. In charging the jury, His Honor said, that by the agreement under which Fowler and Donelly made the lumber, they became tenants in common of it, and each had an interest in proportion to the supplies furnished, of which it appeared Donelly had furnished one quarter. That by what took place afterwards, between Fowler and the defendant, the latter became the owner of Fowler's interest in the lumber; and by the purchase under the execution, the plaintiff became the owner of Donelly's interest. The plaintiff and defendant therefore became owners, as tenants in common, of all the lumber, and each would have a right to the possession of it, and a refusal by one to give up the possession to the other, would not amount to a conversion, or render the party refusing, liable to an action of trover at the suit of his co-tenant. But there might be such a dealing with joint property as, between tenants in common, would amount to a conversion. As regarded the pine timber, he thought there was no evidence of conversion, because it did not appear that the defendant had sold it, or done anything with it, even if a sale would amount to a conversion, which he doubted. But, as regarded the logs, if the defendant had them sawed 1861. MCKAY sawed up, and mixed the deals with other sawed lumber, so that it would be impossible for the plaintiff to follow and identify the property, that would amount to a converagainst CROCKER. Sion, for which the defendant would be liable in this action. As to the damages: the plaintiff would be entitled to recover the value of one fourth of all the logs made by Donelly and James Fowler jointly, which were converted by the defendant. The jury found a verdict for the plaintiff for £183. In Hilary term last, Johnson, Q. C., obtained a rule nisi for a new trial on the following grounds: 1. Misdirection of the learned Judge; 2. Improper rejection of evidence. In Trinity term last, J. A. Street, Q. C., shewed cause. The judgment is conclusive until set aside. Moses v. McFarlane (a), Imray v. Magnay (b). To admit such evidence as was offered, would be putting it in the power of the jury to say whether the judgment is fraudulent or not. [PARKER, J., refers to Christopherson v. Burton (c) and Remmett v. Lawrence (d).] No case can be found where the validity of a judgment can be attacked at Nisi Prius. Chit. Cont. 2, 3. The proper course is to apply to the Court to set the judgment aside. Reed v. Jackson (e). As to conversion. Mayhew v. Herrick (f) decides that though a mere sale of a chattel by one tenant in common, may not amount to a conversion; such a disposition as amounts to a destruction of it, will do so. There was ample evidence to justify the jury in finding a conversion. It was proved that the defendant had put the property beyond the plaintiff's reach. The lumber was traced into his boom, and it was proved that all the logs in his boom were sawn up, and that he shipped large quantities of deals that season. The mixing up the deals cut from the logs, with the plaintiff's other lumber, so that it could not be distinguished, was a conversion. Des Brisay v. Mooney (g). The timber was traced into the defendant's possession, and he refused to give any account of it. [CAR (a) 2 Burr. 1005. (b) 11 M. & W. 267. (c) 3 Exch. 160. (ƒ) 7 C. B. 229. TER, 1861. MCKAY against TER, C. J. You stopped there. PARKER, J. I do not see how the verdict for the timber can be sustained. You did not shew that the timber was not in the defendant's boom at the time of the trial. If you had shewn that he CROCKER. had shipped it to England, I am not sure that it would not have amounted to a conversion.] At all events, there was a conversion of the logs. Johnson, Q. C., contra. The plaintiff must shew either a general or special property in the lumber, and he cannot make out property through a fraud. If an action can be brought against a Sheriff for a false return to an execution, because a prior execution under which he seized property was founded on a fraudulent judgment, as the case of Imray v. Magnay decides, — surely in an action brought by the party himself who committed the fraud, and who makes out his title through the judgment, evidence of the fraud must be admissible. What evil can result from allowing evidence of the fraud to be given at Nisi Prius? It is not for the purpose of shewing that the Court has done wrong; but, that the Court has been deceived. The judgment may be binding as between the plaintiff aud Donelly, but it cannot affect the rights of third persons. 1 Chit. Pl. 486. Fraud vitiates everything. Duchess of Kingston's case (a). In 3 Chit. Pl. 1088, a form of replication is given to a plea of judgment recovered against an executor, that the judgment was obtained by the fraud and covin of the executor. Williams v. Fowler (b) is to the same effect. And in Shedden v. Patrick (c) it was held that a decree of the House of Lords, obtained by the fraudulent collusion of the parties, might be questioned even in an inferior Court. No doubt, an application might have been made to the Court to set aside the plaintiff's judgment on account of the fraud; De Medina v. Grove (d); but the fraud may also be pleaded. Philipson v. Earl of Egremont (e). 2d. There was no evidence of conversion. There must (a) 2 Smith's L. C. 424. (c) 1 Macq. H. L. Ca. 535; 28 Eng. R. 56. (b) 1 Stra. 410. be |