1861.

OLIVER

against

is not necessary to give any decision on this, because we think, from the terms of the arbitration bond, and the award, that the question of the legal title to the land was not submitted to the arbitrators, nor was determined by ELLIOTT. them. The power given to the arbitrators was "to award "as follows, viz. a conveyance of said land by Elliott to "said Oliver; payment of the improvements made thereon "by said Oliver; payment of any sum of money due or "proved to be due on purchase of said land, or for pay"ment of grant money; or in such way or manner, so "that the title to the said land may be forever quieted "between the said Oliver and Elliott, &c." In pursuance of this authority, the arbitrators award "that said Oliver "is entitled to hold and retain as his own property in fee"simple, the southern half of lot No. 22, containing one "hundred acres, upon which he now resides; and we do "further award that said Elliott, at his own expense, shall "prepare, give, and execute forthwith, to said Oliver, his "heirs and assigns, a deed of all his (Elliott's) right or "claim to said southern half of lot 22, with all improve"ments thereon." They further award, that on delivery of such deed, Oliver do pay to Elliott £4 78. 6d., being one half of money paid one Darcas by Elliott for quitclaim. Now the obvious meaning of this award is, not that Oliver had the legal title to the land in dispute, but that he ought in equity and justice to have it; and in order to effect that equity and justice, they order Elliott, in whom by the grant the legal title clearly was then vested, to convey the legal title to Oliver by a deed. Oliver, if Elliott refused to give the deed, had his remedy on the bond, or by application to a Court of Equity to enforce the giving of the deed under the award; but it is clear that the award itself does not determine the legal title to be in him, so as to raise any question of estoppel arising from the award itself.

The rule for a new trial will therefore be made absolute.

1861.

It is no ground for a new trial, that a witness, in giving his evidence,

made a mis

letter about

MAGEE against JOSEPH WETMORE and ANOTHER.

A

SSUMPSIT against the defendants, as makers of a promissory note for £55. The defence was that the note had been paid by the defendant Joseph Wetmore. take as to the At the trial before Parker, J., at the St. John circuit contents of a in May last, the plaintiff's attorney was called as a witness which he was on behalf of the defendants, and proved that he had examined; the Court being received a letter from Joseph Wetmore, which letter he the evidence, was required to produce under a notice to produce. The as corrected, would not letter was not produced, the attorney stating that he did have altered the result of not consider it of any importance. The defendants' coun

satisfied that

the trial.

sel then endeavored to prove by the attorney, that Joseph Wetmore had written to him in the letter, that he (Wetmore) would be in St. John, where the attorney resided, in a few days, and would pay the amount of the note. The witness would not admit that the letter contained such statements, or any particulars in reference to the note; but was of the opinion that it merely stated that Wetmore would be in St. John in a few days. The jury found a verdict for the plaintiffs.

A. R. Wetmore, in Trinity term last, obtained a rule nisi for a new trial, on the ground of surprise, on affidavits stating, that on the 31st May last, at the circuit at which this cause was tried, and about twenty days after it, another action, brought by the same plaintiff, against one Alexander Johnston, as indorser of the same note, was tried; that the same attorney acted for the plaintiff in both actions; that on the latter trial, the letter in question was produced, and was found to state distinctly that Joseph Wetmore would be in St. John in a few days, and would pay the amount of the note on which this action was brought; and that in the action against Johnston, the jury found a verdict for the defendant. The affidavit also stated that Joseph Wetmore was not present at the first trial, and that the defendants' counsel had no way of prov

ing the contents of the letter, except by the plaintiff's 1861. attorney.

MAGEE against

S. R. Thomson shewed cause, on a former day in this term, contending that the letter to the plaintiff's attorney, WETMOKE. even if it had been produced, would not have been evidence.

A. R. Wetmore, contra, contonded that when the attorney for the successful party has been guilty of any disingenuous conduct, as was the case here, it was ground for a new trial. Graham N. Trials, 45, 56; Anderson v. George (a); Bodington v. Harris (b); Trubody v. Brain (c).

Cur. adv. vult.

CARTER, C. J., now delivered the judgment of the Court. This was an application for a new trial, on the ground that the plaintiff's attorney, who, though not subpoenaed, was examined as a witness on behalf of the defendant, had on such examination made a mistake as to the contents of a letter addressed to him by the defendant, and which mistake, it is alleged he had it in his power to have corrected before he finally left the stand, but did not do so. This allegation, Mr. Thomson, on shewing cause, stated he was prepared, by affidavits, fully to explain; but we have felt it unnecessary to enter upon an investigation of this matter, inasmuch as though we consider it unquestionably true, that it is the duty of a witness, who in his examination inadvertently makes an erroneous statement, to correct such mistake, when discovered, if an opportunity offers of doing so, more especially if he can do so before finally leaving the stand; still, in this case, we are of opinion, that had the letter itself been produced, or its contents stated with the strictest accuracy, it could not have afforded, with the other evidence advanced by the defendant, any answer to the plaintiff's case, and therefore we think there is no ground for a new trial.

Rule discharged.

(c) 9 Price, 76.

1861.

When work has been done

by the defendant for the plaintiff, under an agreement

under seal, the

defendant may shew under a

off of an

that after this

work had

been perform

ed, mutual

been stated

A

HOLMES against BILLINGS.

SSUMPSIT on a promissory note made by the defendant, in favor of the plaintiff, tried before Wilmot, J., at the last Charlotte circuit. Plea, the general issue, with a notice of set-off for work and labor, goods sold and delivered, and on an account stated.

At the trial, the defendant swore that part of the notice of set- consideration of the note was for liquor sold to him at account stated, retail, by the plaintiff, who was a tavern-keeper. The defendant also gave evidence of a settlement of accounts between him and the plaintiff; and in the course of his accounts had evidence, it appeared, that the work in respect of which between the the settlement was made, had been done under a sealed balance found contract. The plaintiff's counsel then objected, that evidence of work done under such a contract could not he plaintiff was admitted under the notice of set-off. The learned Judge stated that he should allow the evidence to be continued; and thereupon, at the request of the plaintiff's counsel, the dence given plaintiff was nonsuited.

parties, and a

due the defendant.

Where a

nonsuited, at his own request, in consequence of certain evi

by the defen

dant, he can

G. D. Street moved on a former day in this term, to not move to set aside the nonsuit, on the ground that the notice of setoff was for work and labor, and the defendant could not that such evi- give evidence under that notice, of work done under a sealed contract.

set aside the nonsuit, on the ground

dence was im-'

properly admitted.

Cur, adv. vult.

CARTER, C. J., now delivered the judgment of the Court. This is an action of assumpsit, on a promissory note. The defendant gave notice of set-off for work and labor, goods sold and delivered, and account stated. The defendant gave evidence, that part of the considération for the note was for liquor, sold by the plaintiff to defendant, the plaintiff being a tavern-keeper. The defendant then went on to give evidence of a settlement of accounts between him and the plaintiff. It then appeared, by a question put by plaintiff's counsel, that the work for which the settle

ment

1861.

HOLMES

against

ment was to be made, had been done under a contract under seal; and the plaintiff's counsel then objected, that evidence of work done under such sealed instrument, could not be given in evidence, under the notice of set-off BILLINGS. which had been given. The learned Judge stated that he should allow the evidence to be continued, and thereupon, Mr. Street, as plaintiff's counsel, requested to be nonsuited, and was nonsuited acccordingly. This voluntary nonsuit he now seeks to set aside, on the ground that the evidence under the notice of set-off was not admissible. Mr. Street may be quite correct in the general proposition, that work and labor, done under a sealed contract, could not be given in evidence as a set-off, unless the notice of set-off stated such work and labor to have been performed under the sealed contract; but in this case it would have been open to the defendant to shew, that after the contract under seal, had been completed, mutual accounts had been stated between the parties, and a balance found due to defendant, which he could set-off, under the notice he had given, as an account stated. The evidence he had given had an apparent tendency to establish this. Again, at the time the plaintiff voluntarily elected to be nonsuited, the defendant had given evidence as to the consideration of the note, which, if unanswered, would undoubtedly have entitled him to a verdict. Now, where the voluntary nonsuit prevented the defendant from completing evidence which might have sustained his set-off, and from having the benefit of a defence, which, at the time of the nonsuit, would clearly have entitled him to a verdict in his favor; it would seem unreasonable, that the plaintiff, having derived this advantage, by electing to be nonsuited, should, at his own instance, set aside such nonsuit, for the reception of evidence which might or might not have been admissible on the question of set-off; but which, evidently, could have in no way affected that part of the defence which proved the note to be altogether void, and would have entitled the defendant to a verdict. Rule refused.