matter. The deed from Frizzle to the plaintiff, whether it is to enure as an absolute deed or as a mortgage, was not in itself fraudulent. It was made in the form it bears, with the full knowledge and consent of Frizzle, and with the sanction of the arbitrators, who were evidently friendly to him, and not neglectful of his interests.

We agree however with the learned Judge who heard the case, that the weight of evidence is in favor of the defendants; that the deed was to be considered, though absolute in form, only a security for the money advanced by the plaintiff, and therefore that the defendant Frizzle had an equity of redemption. This however, did not justify the conduct of the defendants in seeking to destroy the title of the plaintiff altogether, by the execution of a subsequent deed, with full knowledge of the transaction, (the acknowledgment of which deed was ante-dated) and to place it first on record. The plaintiff was entitled to hold the land until it was redeemed; and the course of the defendants should have been to tender him the redemption money, and if he refused the money so tendered, and wrongfully insisted on an absolute right to the land, equity would, on a bill filed by the defendants, have compelled him to do justice.

On the other hand, the language of the plaintiff gave just reason to question whether he intended to deal fairly with the defendant; and the course he pursued at the hearing, shewed that the words used to the arbitrators after he was in possession of his deed, were not mere words of irritation; but that it was his settled intention to insist on the advantage, the absolute form of his conveyance had given him.

The deed to the defendant Salter, then ought not to stand against the deed to the plaintiff, but only subordinate thereto; and the defendant Salter should be allowed to redeem the plaintiff. We think, therefore, the decree should be, that the deed to the plaintiff should be declared to be a mortgage, and entitled to priority over the deed to Salter; and that upon the defendant, Salter, paying the amount advanced by the plaintiff, with interest, the deed

to

1863.

HILLOCK

against FRIZZLE.

1863. to Salter should be allowed to stand as valid, and the plaintiff should relinquish all right and title to the defendHILLOCK ant Salter: but in default of the defendant Salter so doing, against FRIZZLE. that his deed be set aside as fraudulent and void.

Neither party, it seems to us, is entitled to any costs. Had the plaintiff been content with his deed as a security, and his conduct and declarations been consistent with his previous language, we should have thought him entitled to have a deed like that to Salter, under the circumstances under which it was executed and registered, set aside with costs. But, having neither stated it in his bill as a security, nor admitted it to be such when so alleged in the defendants answer, and having contested the point throughout the hearing, we think he is not so entitled; nor, do we think the conduct of the defendants is such, as to give them a right to more favorable consideration in this respect.

The judgment therefore will be, that in place of the decree made on the hearing of the cause, it be decreed that the deed made and executed by the defandant Frizzle to the plaintiff, be declared to stand and enure, and be construed as a mortgage only, to secure the payment of the sum mentioned therein with interest, and not as an absolute deed; and to be entitled to priority over that from the defendant Frizzle to the defendant Salter, in the pleadings mentioned; and upon payment of the said sum with interest within three months from the date hereof, the plaintiff do, at the proper costs and charges of the defendant Salter, make and execute to him a conveyance of all his right and title in the said land, free and clear of all incumbrances by him. But, in default of the said defendant Salter paying the said sum within such time, the deed to the defendant Salter be set aside as fraudulent and void: and that no costs be awarded or decreed to either of the said parties.

END OF MICHAELMAS TERM.

AN INDEX

TO THE

PRINCIPAL MATTERS.

1. A lot of wilderness land, containing two hundred and forty acres, was granted to H. in 1809, soon after which he left the country. In 1812, H.'s father, without any authority, conveyed the land to B., who conveyed to K., in 1825. K. took possession of the land, cut timber upon it, ran out one of the side lines, and in 1828 conveyed it to F., who also cutered and lumbered upon it, and conveyed it to the plaintiff in 1834, The several conveyances were registered. The plaintiff cleared about an acre of the land, which was the first improvement made, and commenced building a house in 1856, when the defendant (the heir of H.) entered and forbade him: the house was not finished, and was burnt soon afterwards, and the land re

AGREEMENT.

ants' right.

Humphreys v. Helmes.

Page 59 2. Acts, which in the case of a person who enters on land without claim of title, may be treated as mere acts of trespass; may when done by a person under clain of title, be considered Ibid. acts of ownership. 3. In order to constitute an adverse possession of land, it must be exclusive, continuous, and clearly defined; there must be something to she w the person having the legal title, that a possession has been taken of some definite portion of the land, hostile to his title. Doe v. Littlehale.

121

4. Where the land above high-water mark was granted to one person, and the beach in front, between high and and low water mark, to another, the merely passing over the shore with boats at high water, or the landing boats on the shore at low water, by the proprietors of the land above high-water mark, and passing to and fro over the beach for a period of twenty years, does not amount to a possession; there being nothing to define a possession in any particular portion of the land, and the acts being consistent with the exercise of a public right of passage when the beach was covered with water, and with an easement in the proprietor of the adjoining land, when the beach was uncovered.

AFFIDAVIT.

Ibid.

mained unoccupied till 1850, when The words "before me," were omit

the plaintiff built another house: the defendant soon afterwards eutered and cut trees upon the land, for which, trespass was brought. Held, per Parker, Wilmot, and Ritchie, JJ. (Carter, C. J., and N. Parker, M. R., dissentientibus), that the jury were properly directed, that if the plaintiff, and those under whom she claimed, entered under registered deeds with defined boundaries, with the intention of taking possession as owners, and not as mere trespassers without any claim of title, their acts might be considered as continuous acts of possession of the whole lot, and not merely of the part actually occupied; and that such possession, if continued for twenty years, would bar the defend

ted in the jurat of an affidavit to hold to bail, taken before a commissioner: Held, Per Carter, C. J, Wilmot and Ritchie, J. J. (Parker, dissentiente), that the affidavit was a nullity; and on application of the bail, an exoneretur was entered on the bail-piece, and the recognizance roll set aside. Lyons v. Ellison.

AFFINITY.

See JURY.

AGREEMENT.

Page 367

Where an agreement to perform work has been reduced to writing, but is not signed till a future day, there is

nothing to prevent the parties from binding themselves, and making the

AMOTION.

agreement operate from the day it See UNIVERSITY OF NEW BRUNSWICK. was entered into, though prior to the signing of it. Fenety v. Simonds Page 547.

ALTERATION.

See BILLS & NOTES, 2.

AMENDMENT.

ANCHORAGE.

The power given to the City of Fredericton, by the Act 22 Vict. c. 8 to make bye-laws to regulate the "anchorage, lading and unlading of "vessels," does not authorise the imposition of a toll for anchorage. Reg. v. Dowling. Page 378.

APPEAL.

See CERTIORARI, 3. COSTS, 7, 8.
LICENSE TO SELL LAND, 1

1. One of the conditions of a policy of insurance declared that no action should be sustained thereon, unless it was brought within a year after the loss happened. In an action on the policy, it appeared by the de- APPROPRIATION OF PAYMENTS. claration in the Nisi Prius record, that the action had not been commenced till after the year. The Judge refused to receive the evidence of the plaintiff's attorney, that the action had been commenced within the year, or to amend the entitling of the declaration in the Nisi Prius record, on an affidavit stating when the action was commenced, there being nothing to shew, that if so amended, it would correspond with the declaration on file- and nonsuited the plaintiff. Held, that the evidence was properly rejected, and the nonsnit right. Commercial Bank v. Etna Insurance Compary. Page 441 2. On motion to set aside the nonsnit, and for leave to amend the entitling of the declaration and the Nisi Prius record, on an affidavit

Defendant was indebted to A. who transferred his business and the debts due him, to the plaintiff. The defendant afterwards, with knowledge of the transfer, dealt with the plaintiff.who rendered hin accounts, charging the original debt and the subsequent transactions as forming part of the same account; the defendant made payments from time to time, and promised the plaintiff to pay the whole of the account: Held, - that the defendant's debt to A. was thereby extinguished and transferred to the plaintiff, and that he was justified in applying the payments to the balance due on A's debt. Esson v. Dunn. Page 417

ARBITRATION.

ARREST.

See FALSE IMPRISONMENT.

ASSAULT AND BATTERY.

shewing that the action was com- See AWARD. CONDITION PRECEDENT. menced within a year after the loss, that the cause was duly entered, but that the declaration was entitled of a subsequent term through inadvertence; the Court refused the amendment, it appea: ing that no declaration had been filed, though the plaintiff's attorney swore that this was an accidental omission; that he was not aware of it till the motion was made for a nonsuit; and that he was entirely taken by surprise by the objection. Ibid. 3. Quære, whether where a Judge refuses to amend at Nisi Prius, the Court will interfere.

Ibid

66

Where, in an action for assault and battery, it appears that the injury amounts to grevious bodily harm," according to the definition given in the Rev. Stat. c. 155, § 4, the plaintiff will be nonsuited, unless the defendant has been prosecuted for the felony. Schohl v. Kay.

Page 244,