1863.

Doe dem. SIMPSON against

FALLS.

peatedly recognized, was an extract from the minutes in the Council book, signed by the Provincial Secretary, who was then, ex officio, Clerk of the Council (a).

We think the licence to sell, in this case, was properly authenticated both objections, therefore, failing, the rule for a new trial must be discharged. Rule discharged.

(a) See, Caughey v. Inman, ante, p. 399.

15th. June.

place of abode

T

BAXTER against HALLETT.

The name and RESPASS for false imprisonment, against the defendant, a Justice of the Peace. At the trial, the plainneed not be tiff proved the service in November, 1861, of a notice of ac

of the plain

tiff's attorney

"endorsed"

of action

on the notice tion, in which the name and place of abode of the plaintiff's attorney were stated at the foot of the notice only. No Justice of the evidence was given to shew whether the action was com

served on a

Peace, under

the notice.

1 Rev. Stat. c. menced within six months after the cause of action arose, 129, § 8; it is sufficient if or more than one month after the service of the notice; they are stated at the foot of and the learned Judge, thinking such proof necessary, In an action ordered a nonsuit, to which the plaintiff's counsel declined tice, the plain- to submit. The defendant called no evidence, and the tit gave no learned Judge directed a verdict for him, but the jury the action was found for the plaintiff'.

against a Jus

evidence that

not com

expiration of

the notice;

whereupon the Judge

menced till the In Hilary term last, S. R. Thomson moved for a rule a month after nisi for a new trial; contending 1. That it was necessary to prove the time of the commencement of the action, 2. That the notice of action was defective, the name and place of abode of the plaintiff's attorney not having been plaintiff did endorsed thereon, as required by 1 Revised Statutes, cap.129, and obtained a § 8. The statute must be strictly complied with: submotion for scribing the attorney's name at the foot of the notice was

directed a nonsuit, to which the

not submit,

verdict. On

a new trial, it

appeared by not sufficient.

the Nisi Pri

us record, that the declaration was entitled more than a month after the notice. Held, this was prima facie evidence of the time of commencing the action, and that the nonsuit was wrong, but that the plaintiff should have submitted to it; therefore a new trial was granted.

Per

Per Curiam:-If the name and abode of the attorney appear anywhere on the notice, it is sufficient.

Rule nisi on the 1st point.

Gray, Q. C., shewed cause in Easter term last. It was not necessary to prove that a month had elapsed after the service of the notice; the tenth section of the Act sets out what is required to be proved, but does not mention this. The eighth section requires a month to elapse, but it was for the defendant to shew that it had not done so, as in the case of the statute of Limitations. [WILMOT. J. If you gave no notice, you could not proceed; therefore you must prove a notice, and prove that it is according to law.] The tenth section merely requires proof that the action was commenced within six months. [RITCHIE, J. That section requires that you should prove the action "brought, and notice thereof given within the time limited; that must have reference to the time of serving the notice.] The Nisi Prius record was evidence of the time the action was brought; it shews that the declaration was entitled of Ilary term, and it will be presumed that the writ was issued of that term; therefore more than a month had elapsed after the service of the notice.

S. R. Thomson, contra. The plea of the general issue places the defen laut, by the provisions of the Act, in the same position as if he had pleaded specially; the burden of proving when the action was commenced, is on the plaintiff. [CARTER, C. J. [CARTER, C. J. The Nisi Prins record shews that the declaration is entitled of Ilary term, and this is prima facie evidence that the action was commenced on the first day of that term, and this evidence was not rebutted. RITCHIE, J. The only question I see in the case is whether the Nisi Prius record is evidence of the commencement of the action.] When a counsel, depending on a Judge's ruling at the trial, calls no evidence, and the jury find against the Judge's direction, he is entitled to a new trial. [RITCHIE, J. On principle, it would be a bad state of things, if a counsel could disregard the ruling of the Judge, with the expectation of persuading the jury

1863.

BAXTER

against

HALLETT.

also

1863.

BAXTER against HALLETT.

also to disregard it.] The jury must find according to the Judge's ruling, otherwise a counsel would often be misled by his confidence in the Judge's opinion.

Cur. adv. vult.

CARTER, C. J., now delivered the judgment of the Court. This was an action of trespass, for an act done by the defendant acting as a Justice of the Peace. A proper notice of action was proved, but there was no evidence given that the action had not been commenced until one month after the service of such notice. The learned Judge thinking such proof necessary, ordered a nonsuit, to which the plaintiff's counsel declined to submit. The defendant's counsel relying on the ruling of the learned Judge, called no evidence nor set up any defence, save that on which the Judge had ruled in his favor, and which ought under that ruling to have secured him the verdict of the jury. The learned Judge directed a verdict for the defendant on this single ground, but the jury found a verdict for the plaintiff. During the argument, it appeared by reference to the Nisi Prius record, that the entitling of the declaration was more than a month after the service of the notice. This, being prima facie evidence of the commencement of the action (a), would remove the ground on which the nonsuit was ordered, and the direction to find a verdict for the defendant given. But there must nevertheless be a new trial. The case, now, is in this position. It went to the jury against the express opinion of the Judge, and the defendant, relying on the validity of his objection so supported, called no evidence. The plaintiff's counsel, on the other hand, insisted on what appears to have been considered at the trial as his right, and took the course which was formerly not unfrequently adopted, of going to the jury and asking for a verdict in defiance of the opinion already expressed by the Judge, a practice happily now decided to be inadmissible. As it turns out, the defendant took an untenable

(a) By the rule of Hilary term, 1875, the day of the issuing of the summons is to be stated in the Nisi Prius record.

objection

1863.

BAXTER

against

objection, and the cause should have gone to the jury. So far the plaintiff was right. On the other hand, he should have acquiesced in the ruling of the Judge, and sought his remedy in the Court above, instead of endeavor- HALLETT. ing to induce the jury to assume the decision of both law and fact.

Both parties therefore have been wrong; and while setting aside the verdict, which we think ought not to stand, we shall do it with a direction that the costs of the former trial shall abide the event of the suit.

Rule accordingly (a).

(a) The decision in this case-that the name of the plaintiff's attorney need not be indorsed on the back of the notice of action · -was followed in the case of McGilveray v. Gault, Hilary term, 1878 (Fisher, J. dissentiug).

On the other point, as to the right of the plaintiff's counsel to address the jury after the Judge has ordered a nonsuit,- -see Hodges v. Ancrum, 11 Erch. 214; Commercial Bank v. Etna Insurance Co., ante,p. 441.

And as to granting a new trial where the verdict is perverse.-see ante p. 330, note (a).

A

FENETY and ANOTHER against SIMONDS.

on a

Where an agreement to

John perform work

has been re

14th duced to writ

ing, but is not

future day,

ing to prevent

from binding

the agreement

SSUMPSIT on an agreement to perform work house; tried before Ritchie, J., at the last St. circuit. The agreement was in writing, dated the January, 1857, and contained a stipulation that unless the signed till a work was completed by a certain day, the plaintiff's should there is nothforfeit to the defendant, £5 for every day that it remained the parties unfinished after the specified time. The defendant signed themselves, the agreement about the day of its date, and left it with and making the plaintiffs for signature; but they declined signing it, operate from unless the time stated for the completion of the work was entered into, though prior extended ten days. This alteration was made, and the to the signing contract signed by the plaintiffs, in March, 1857. The work had been going on since January; and while it was in progress, and before the plaintiff's signed the agreement, the defendant asked them to undertake some other work, in addition to that contracted for.

According

the day it was

of it.

1863.

According to the plaintiffs' evidence, they told the defendant that if they undertook this additional work, they FENETY could not perform their contract within the stipulated against SIMONDS. time; and that the defendant thereupon agreed to waive that part of the agreement. The defendant denied that he had agreed to waive the time of performance. The work was not complet ed until some time after the day agreed upon; and unless that stipulation was waived by the defendant, the plaintiff's would have been overpaid, taking into consideration the forfeiture of £5 a day.

The learned Judge directed the jury that the contract would take effect from its date, when the work was commenced, and not merely from the time it was signed by the plaintiffs; and if the defendant, after the commencement of the work waived the stipulation as to the forfeiture, he would not be entitled to exact it. Verdict for the plaintiffs, the jury finding that there had been a waiver. A rule nisi for a new trial having been obtained on the ground of misdirection,

S. R. Thomson shewed cause in Easter term last, and contended that when the agreement was signed by the plaintiff's in March, it took effect from the date, and in the same manner as if it had been signed by both parties in January. The plaintiff's were induced to sign the contract on the faith of the waiver by the defendant of the time for completion. The effect of the oral agreement was not to defeat the written contract. Wallis v. Littell (a).

A. R. Wetmore, contra. The performance of the contract could not be waived until the contract came into force; and it had no existence until March, when the plaintiff signed, before which time the alleged waiver took place. There was no mutuality, and, consequently, no contract, until the plaintiffs signed. [CARTER, C. J. Have you any authority to shew that an agreement may not be binding from its date, though not signed by all the parties? RITCHIE, J. All the work done before March, was done under the agreement.] There was no agreement till the

(a) 8 Jur. N. S. 745. s. c. 11 C. B., N. S. 369.

plaintiff's