3. Where a motion for judgment as in case of a nonsuit was refused, on the ground that the cause had once been carried down to trial and made a remanet, and the defendant's attor ney was ordered to pay the costs of resisting the motion, on the ground that the defendant on the record was only the nominal defendant. and that the cause had been settled between the real parties, after the notice of trial, of which the attor ney was aware; and he afterwards; obtained a rule ex parte for costs of the day, for the same default for which the motion for judgment as in case of a nonsuit had been refused, the Court not being aware that it was the same cause; - On a motion to set aside this rule, and for the attorney to answer the affidavits, he p produced his own and the defendant's affidavits, denying that the defendant was only a nominal defendant, and thatany other person had authority to settle the suit, or to control it, the motion to set aside the rule was discharged without costs. Graham v. Wetmore Page 217 4. The charges of a solicitor attending the execution of a commission to examine witnesses in England, and the expenses of taking evidence de bene esse in this Province (which was not used on the trial) are not taxable as costs in the cause. Mc Givern v. Stymest. Under the ordinance of fees, one shilling only is taxable for attendance upon a Judge. Ibid. 340 5. Where a verdict for plaintiff, in an action on a policy of insurance claiming for a total loss, was set aside, and the defendant after a notice for a second trial, confessed judgment under the Act 18 Vict. c. 9, for a sum amounting to a partial loss only, which the plaintiff accepted: Held, that he was not entitled to the costs of the first trial. Wood v. Stymest 429 6. The expenses of taking the evidence of a witness examined de bene esse before the first trial, but which evidence was not used; not allowed to the plaintiff as part of the expenses of preparing for the second trial. Ibid. 7. A charge for a copy of the abbreviated bill used on an equity appeal, is not taxable, in addition to the copy used at the original hearing, where the same counsel argues both See ACCOUNT STATED, 3. CRIMINAL LAW. 1. By the Rev. Stat. c. 147, any person who shall unlawfully and maliciously pull down or destroy any building, bridge, or other erection, shall be guilty of felony: Held, 1. That it was not necessary to allege in an indictment under this Act, for pulling down a house, that it was done riotously. 2. That if the house was pulled down unlawfully, and without any bona fide belief by the defendant that he had a right to do it, the jury might infer such malice as would support the indictment. Regina v. Elston 2. 3. 2 The statement of a deceased witness taken on oath by a magistrate, detailing the circumstances under which a felony was committed, is admissible in evidence on the trial, under the Rev. Stat. c. 156, § 7, though it is headed "The complaint," instead of The examination," of the deceased, and does not appear on its face to have been taken in presence of the accused, it being proved that, in fact, it was taken in his presence, (Parker and Ritchie, JJ, dubitan'ibus.) Reg. v. Millar. 66 87 On an indictment for stealing goods, alleged to be the property of A. the defence was, that the goods belonged to the prisoner, and never were A's property; the jury acquitted the prisoner: Held (Wilmot, J., dissenting), that the acquittal was virtually a finding that the goods were not the property of A. and therefore, that it was not a case in which the Judge should order restitution of the goods, under the Rev. Stat. c. 159, § 21, though he might be of opinion that the verdict was wrong, and that the goods belonged to the prosecu tor. Held,- per Wilmot, J., — that the ver - dict did not necessarily establish that the goods did not belong to the prosecutor; and that if, notwithstanding the acquittal, the Judge was satisfied that the goods did belong to the prosecutor, he was bound to order restitution. Reg. v. Eveleth Page 201 4. On an indictment for stealing, it appeared that the goods were taken in the State of Maine, and brought into this province. Held, that in the absence of proof that the taking was larceny according to the laws of Maine. the prisoner could not be convicted. Reg. v. Hill. CRUELTY. See DIVORCE. CUMULATIVE REMEDY. See WHARFAGE 1. DAMAGES. 630 See INSURANCE, 7. INTRUSION, 2. REPLEVIN, 1, 8. SCHOOL TEACHER, 2. DEED. See ACCOUNT STATED, 2, 3. 1. A. leased land to plaintiff for 21 2. That as B was not a subsequent purchaser of the land leased, he could not, by conveying to the defendant, give him a better title than B himself had. 3. Though a subsequent purchaser from A, for valuable consideration, with a registered deed, would avoid an unregistered lease, it would not be so if the conveyance was made expressly subject to the lease. Downs v. Gordon. Page 174. an administrator, 2. A deed from under license to sell for payment of debts, held good against a bona fide purchaser from the heir, though the deed of the latter was first registered, and the application for license was not made till nine years after the death of the ancestor. Semble, that a purchaser from the heir takes the land subject to the debts of the ancestor. Doe v. Rubert134. son. 3. A deed of conveyance described the land as a piece of land “ bring lot num"ber seven" in the division of a cer tain property, "and running from "Crooked Creek," &c.;-Held, that the whole of lot No. 7 passed by the deed (the grantor having the right to convey the whole) though the line of that lot did not run from Crooked Creek. Stiles v. Keiver. 285. 4. An unregistered deed of release transfers no property to the releasee, and gives no right to enter on the land. Pattison v. Tingley. 5. As between the grantor and grantec, the registry of a deed transfers the title and possession by relation, from the delivery of the deed; but it will not affect the immediate right of third parties, not privy to the deed. Ibid. 6. 553. The Equity Act (17 Vict. c. 18), directs that on sales by a barrister, he shall"immediately upon such "sale," execute a conveyance of the land to the purchaser. Held, That this meant-without any unnecessary delay; and that three weeks after the sale was not an unreasonable time for the execntion of the deed. Doe v. Coigley, 561. 7. Becoming bail for the grantor is a sufficient valuable consideration to support a deed. Crockford v. Equilable Ins. Co. 651. 8. A deed executed in a foreign country, may be proved in this Province by the subscribing witness, for the purpose of registry. DELIVERY. Ibid. See LICENSE TO CUT TIMBER. DEPOSITION. DIVORCE. See CRIMINAL LAW, 2. EVIDENCE, 1, 3. To entitle a wife to a divorce on the DE PROPRIETATE PROBANDA. (WRIT OF) See REPLEVIN, 7. 8. DEPUTY. A person specially deputized by a Sheriff to execute a writ, is not a deputy within the meaning of 1 Rev. Stat. c. 131, and is not required to give security. Patison v. Tingley. Page 553. DESCRIPTION. See DEED, 3. DEVASTAVIT. SEE WILL, 3. DISCLAIMER. ground of cruelty, there must be acts of violence or ill-treatment by the husband, by which her life or health are endangered; or, there must be threats of such violence or ill-treatment, under circumstances which lead to a conclusion that there was an intention on his part to carry such threats into execution. slight blow, given without premeditation, and in consequence of insulting remarks made to the husband by his wife, does not amount to cruelty. Hunter v. Hunter. Page 593. DONATIO MORTIS CAUSA. 4., shortly before his death, gave his wife a box containing certain things, under circumstances which would amount to a donatio mortis causa. The box contained a deposit receipt for £300, which A. had in the Bank. Held, That this receipt being only evidence of a debt, and not a document that could be transferred so as to make the Bank liable to a third party, the £300 did not pass as a donatio mortis causa. Ex parte Gerow. DOWER. See JUDGMENT QUASI NONSUIT. ENTIRE CONTRACT. ENTRY DOCKET. 512. 1. Defendant went into possession, under a verbal lease from year to year, by a married woman, of her own property, made with consent of her husband, by which the rent was to be paid to her. While this tenancy was subsisting, the husband denied the right of his wife to make this lease, and claimed the rent, which the tenant refused to pay him, alleging that he held the property under the lease from the wife, and that while the lease continued, the husband had no right to the land:Held, that though the legal effect of the lease was to create the relation of landlord and tenant between the husband and the tenant; the denial by the latter of the husband's right See ACCOUNT. COSTS, 7. Mortgage, 3. to the rent, did not amount to a disclaimer, and entitle the husband to eject the tenant; as, by claiming to hold under the lease, he, in effect, admitted that the husband was his landlord. Doe v. Taylor. Page 144. 2. A mere refusal by a tenant to pay rent, does not amount to a disclaimIbid. er. DISTRESS. See LEASE, 1. WHARFAGE, 1. See BAIL, 1. EQUITY. M. being indebted to the plaintiff and other persons for lumber, and being also indebted to the defendants gave them a warrant of attorney to confess judgment, subject to a defeasance stating that it was given to secure the defendants in the amount due them from M., and in all sums which they might pay under a certain agreement then made between them. By this agreement, the defendants undertook 3. undertook and agreed to pay (inter | 2. J. When a judgment is not pleaded as an estoppel, but the facts relied on are stated in a notice of defence given under the Act 13 Vict. c. 32, it is open to the jury to find the truth of the facts on which the plaintiff relies as an answer to the judgment and execution. Ibid. Plaintiff purchased lumber from J., but before he got possession, it was seized and sold under an execution issued by the defendant against J. An action having been brought by J. against the plaintiff for the price of the lumber, it was agreed between the plaintiff and defendant that the plaintiff should defend the action, on the ground that the lumber was rightfully seized under the execution, and that the defendant should save the plaintiff harmless in case he was unsuccessful in the action. recovered in the action, and the present defendant paid him the amount of his judgment:-Held, That the plaintiff, by so defending the action, and inducing the defendant to pay the amount of the verdict to J., was estopped from sueing the defendant for the conversion of the lumber, on the ground that he had no right to levy on it. Crocker v. Hutchinson. Page 139. 4. Defendant purchased lumber from D. who claimed to be the owner. In replevin by the plaintiff, who owned the lumber, the defendant cannot set up as a defence, that D. had authority from the plaintiff to sell the lumber for a certain price; the defendant in purchasing having dealt with D. as the owner of the lumber, and not as the plaintiff's agent. Davis v. Cushing. 383. EVIDENCE. See CRIMINAL LAW, 2. ESTOPPEL, 2. JUDGMENT, 1. JUSTICE OF THE PEACE. 1. Where a bill of lading, which had been proved before commissioners appointed to take evidence, was not enclosed in the return of the commissioners, but was offered in evidence on the ground that it was referred to in the depositions, and was indorsed with a certificate signed by both commissioners, that it had been before them; and the handwriting of one of the commissioners was proved by a witness, but that of the other only by a comparison with the signature upon the commission: Held,-That the evidence was properly rejected at the trial. Semble, that it would be admissible if there were clear evidence that it was the identical paper produced before the commissioners, and was in exactly the same state as when so produced. Thompson v. Reed. Page 7. 2. Where a criminal charge has been tried at the Sessions, and the examinations taken by the magistrate on the complaint, are in the posession of the Clerk of the Peace, a certified copy from him is evidence under the Act 21 Vic. c. 3, § 7. Burgoyne v. Moffatt. 13. 3. A commission issued from the Supreme Court of this Province, for the examination of witnesses in Ireland, in which the plaintiffs were named "Hugh James and Heatly W., "his wife." The depositions returned were entitled, "In the Su"preme Court of Nova Scotia," and in the title of the cause, the female plaintiff was called "Heatly Ann"; Held, that the depositions could not be received in evidence. Doe v. McLaughlin. 54 4. In an action against the secretary of the Society of Underwriters under the Act 21 Vict. c. 61, the declarations of an underwriter on the policy, relative to the subject matter, are evidence against the defendant; and if such declarations refer to facts stated in an affidavit obtained by the plaintiff respecting the loss, such affidavit is also admissible. Duffy v. Stymest. 197 5. A report of the circumstances of the loss, made to the defendants by their agent, a copy of which had been given to the plaintiff, is not evidence without notice to produce: and quære, whether it would then be admissible. Ibid. 6. In an action for wages due the intestate as master of a ship, a letter written to him by the owner offering to employ him at a certain rate, is evidence of the rate of wages; and it will be presumed that the offer was accepted and acted on by the master. Dorman v. Anderson. 215 7. In an action charging a person as exccutor de son tort by meddling with the goods of the deceased, a declaration of the deceased while in possession, that the goods did not belong to him, is evidence for the defendant. Powell v. Wathen. Page 258 8. Where one of the parties to the suit is called as a witness by the other party, it is discretionary with the Judge to allow him to be examined as a hostile witness. Atkinson v. Atkinson. 271 9. The opposite party, on the record is not necessarily a hostile witness; his conduct on the stand is the proper test. Ibid. 10. A notice of defence given under the Act 13 Vict. c. 32, is not part of the Nisi Prius record,which may therefore be put in evidence without proving the notice, or accounting for its absence. Lawton v. Adams. |