To constitute a levy, the Sheriff must do some act to enable him to deliver possession of the property to the purchaser, such as marking or taking possession of the goods, or separating them from others: he cannot, by a general sale of all the debtor's goods pass the title to property not in his view, and on which he has made no actual levy. Reynolds v. Ayers. Page 333 In an action against a Justice, the LANDLORD AND TENANT. See DISCLAIMER, 1. LEASE, 1. LARCENY. Se CRIMINAL LAW, 4. LEASE. 1. A. became tenant from year to year to B. in July, 1858, at certain rent. In 1860, A. agreed to purchase the land, and gave his note for the purchase money, taking from B. a bond for a deed, on payment of the note. The purchase was not completed and was abandoned by consent of the parties, the note and bond being given up, and A. remained in possession of the land without any new agreement. Held, -that the original tenancy was not determined by the agreement to purchase, and that B. could distrain for the rent from July, 1858, when A. became tenant. Croskill v. Wortman. 648 2. By the registry of an assignment of a lease, the title is in the assignee without actual entry. Crockford v. Equitable Insurance Company. LEGACY. LICENCE. See DEED, 2. 1. (To sell Land.) Where a petition to the Probate Court for a licence to sell land for payment of debts, contains the stateinents required by the Act, and due notice has been given to the parties interested, the Court has jurisdiction over the matter; and if a licence is granted, and a sale of the land takes place, the title of the purchaser cannot be impugned in an action of ejectment, by evidence that no debts were due by the estate at the time the licence was applied for. In such case, the decree of the Probate Court can only be questioned by appeal. Do v. Robertson. 134 2. An order of the Governor and Council, entered in the minutes, made under the Act 26 Geo. 3, c. 11, $ 18, authorising an executor to sell land for the payment of the testator's debts, is a sufficient licence to the executor to sell. Caughey v. In A. having a licence from the Crown to 651 cut lumber, agreed with B. that he should go upon the land and cut, and deliver the lumber to A. at a certain place; and that on delivery, A. would pay him 20s. per M. for the lumber; and he also agreed to furnish B. with supplies to get this lum See EXECUTORS AND ADMINISTRATORS, 6, 7. LIMITATIONS (STATUTE of). WILL, 1, 2. ber 680 LIMITATIONS (STATUTE OF) ber. Held, that until delivery, or some transfer by B. of the lumber cut, no property in it vested in A. Reynolds v. Ayers. Page 333 LICENCED TAVERN. Where a building used as a dancing room, was built separate from a house licensed as a tavern, but had communication therewith through a porch, and there was no other MALICIOUS PROSECUTION. there was no entry of such payment in the books of the Bank, and no indorsement thereof upon the note. and no receipt given to the maker of the note;-the Court refused to set aside, as being against the weight of evidence, a verdict in favor of the defendants. Charlolle County Bank v. Berry. Page 520. LIMIT BOND. entrance to the dancing-room;- A debtor in custody of the Sheriff of Held, that it was a part of the house. and that the proprietor was liable to a fine under a Bye-law of the city for allowing music to be played therein. Ex parte Har ey. 264. LIEUTENANT GOVERNOR. See UNIVERSITY OF NEW BRUNS WICK, 3. 4. LIMITATIONS, (STATUTE OF) See ADVERSE POSSESSION, 1, 3, 4.. 1. Plaintiff purchased land in 1836, which was chargeable with the payment of a legacy, and took a mortgage from A, to indemnify himself against the legacy. In 1840, A sold the mortgaged land to the defendant, who went into possession, and continued to occupy. In 1860, the plaintiff having been compelled to pay the legacy, brought ejectment on the mortgage; -Held, that his right of entry accrued, on the execution of the mortgage, and not on the breach of the condition; and that as the defendant had been in possession more than twenty years before action brought, the plaintiff's right was barred. (Doe v. Leveber, 3 Allen, 23, distinguished.) Doe v. Jones. 2. Where the Statute of Limitations was pleaded to an action against the executors of the maker of a promissory note given to a banking company, and the only evidence to take the case out of the Statute was that of the President of the Bank, who stated that the maker of the note had authorized him to retain out of a sum of money in his hands, an amount for interest on the note. and that he had done so, and made a memorandum thereof on a paper, which he produced; but 252. C. on a ca. sa, escaped into the county of Y. and was there arrested under a Judge's warrant for the escape, and committed to the custody of the Sheriff of Y. who gave him the limits. Held, that the Sheriff had no right to take a limit bond. and the party not being in close custody, the Court refused either to set aside the Judge's warrant or to cancel the limit bond. Ex parte Haines. MALICE. 251. See ACTION AT LAW. CRIMINAL LAW, 1. MALICIOUS PROSECUTION. MALICIOUS INJURIES. See CRIMINAL LAW, 1. 1. The defendant made a complaint before a magistrate against the plaintiff, on which he was indicted at the Sessions, and acquitted: the prosecution was conducted by the Clerk of the Peace, but the defendant consulted with him, and procured the attendance of the witnesses at the trial: Held, in an action for malicious prosecution, to be sufficient evidence that the defendant was the prosecutor. Burgoyne v. Moffut. 13. 2. Any motive for a prosecution, other than that of wishing to bring a guilty party to justice, is a malicious motive. Ibid. 3. Malice may be inferred from the want of probable cause; and the inference is strengthened when the defendant does not come forward as a witness to rebut it. 4. In an action for malicious prosecution, the question of want of probable cause should be determined by the Judge: and where both that ques Ibid. tion, and the question of malice were left to the jury, who found a verdict for the defendant, a new trial was granted. Hughson v. Keith. Page 559. MANDAMUS. 1. A mandamus lies to the Corporation of St. John, to levy and collect the moiety of the amount assessed and apportioned by the Commissioners, on the parties benefited by the extension of a street laid out under the Act 22 Vict. c. 44. Ex parte Jones. 183 2. Where work was done at the gaol, by direction of the Sheriff of the County, a mandamus was refused to compel the General Sessions to pay for the work—it not appearing that they had authorized the Sheriff to have it done. Ex parle Thomas. 356. MARKET TOLLS. See FREDERICTON (CITY OF) MARRIAGE. See SUMMARY CONVICTION, 1. See TRESPASS, 11. In an action for wages, as Secretary of an incorporated Company, the plaintiff who had been appointed Secretary by a former Board of Directors. relied on the defendants having paid for goods ordered by him, and for work done by his orders for their benefit. Before the goods were ordered, the defendants had appointed another person as Secretary, and had notified the plaintiff that he was not the Secretary of the Company. Held: that such a payment was not a recognition by the Directors of the plaintiff's right to give the orders, or an acknowledgment that he was the Secretary of the Company; and therefore he could not recover. Ansley v. Albert Mining Co. MERGER. See SET Off. the owner went on board and took charge of the master's effects Among them, was a sum of money which the mate took, claiming it under an alleged agreement with the master to pay him extra wages. The owner did not resist the mate's taking the money;-Held, that prima facie the money belonged to the master, and that the owner, having taken possession of it, was liable to the administrator, for money had and received. Dorman v.Anderson. Page 215. 2. Plaintiff emploved defendant, an attorney, to collect a debt due to plaintiff from A, and authorized him to allow the amount in the transfer of a mortgage from A to B, a creditor of the plaintiff. He afterwards revoked the authority so to appropriate the amount, but the defendant nevertheless arranged the debt in the transfer of the mortgage;-Held, that as the defendant had not received money or money's worth, he was not liable to the plaintiff in an action for money had and received. Neil v. Jack. 237. 3. The right to waive a tort, and bring an action er contractu, applies only to actions for money had and received. McCulley v. Ward. 505. 4. Defendant agreed to deliver deals to H., on board a vessel, in payment for goods. While the deals were being delivered, H's agent agreed to pay the defendant cash for half the deals, and paid him £20, on account; but before the loading of the vessel was completed, H. became bankrupt in England, and his agent in this country refused to make any further payment to the defendant, but gave him the bill of lading of the cargo, which he sold for his own benefit. Held, that the portion of the cargo shipped before H's bankruptcy vested in his assignees; that the sale thereof by the defendant was a conversion; and that the assignees might waive the tort, and bring an action for money had and received. Carrick v. Atkinson. 391. 5. A declaration contained special counts, and also a count for money had and received, and the particulars were applicable to both counts: Held, that the plaintiff, failing on the special count, could recover on the count for money had and received, though his counsel, in opening the case, did not claim to rely on MONEY HAD AND RECEIVED. 1. The master of a ship having died, 515 that that count. MONEY PAID. Ibid. In an action for running down and injuring a vessel, where there was negligence on both sides, and the jury found there was more negligence on the part of the plaintiff, than on the part of defendant, the plaintiff cannot recover for the injury. Day v. Hatheway. Page 388 A., having a contract with the defendant to do work on a railway, transferred it to the plaintiff, who, at the defendant's request, gave his note to A. for an amount estimated at a penny a yard on the work, being a bonus for the transfer, — defendant undertaking that if the plaintiff was prevented by illness or otherwise from completing the work, he would pay the penny per yard for the portions unfinished. The plaintiff not having completed the work, - having at the defendant's request, gone to work elsewhere, and having paid the amount of the note to A; -Held, that he could recover from the defendant, as money paid to his use, the amount he had been so obliged to pay A. Hawkins v. McBean. Page 209 1. 3. 3. 4. NEW TRIAL. Where a cause was tried out of its order, in the absence of the defendant, on statement of plaintiff's .counsel that it was undefended, the Court set aside the verdict on affidavit of the defendant, that he had a good defence on the merits, and intended to defend the suit. Sayre V. Steeves. 86 Where a cause was tried in its order, as undefended, in the absence of the defendant's attorney. who was prevented by illness from leaving his house, and no application was made for time when the cause was called on; a rule nisi to set aside the verdict was refused, it appearing that the attorney had been in Court a few days before the trial, and had inade arrangements that another cause in which he was the attorney. and which stood higher on the docket than this cause, should stand over in consequence of his illness Boyne 164 v. Elston. It is no ground for a new trial, that a witness, in giving his evidence, made a mistake as to the contents of a letter about which he was examiued; the Court being satisfied that the evidence, as corrected, would not have altered the result of the trial. 230. Magee v. Wetmore. Where a plaintiff was nonsuited, at his own request, in consequence of certain evidence given by the defenant, he cannot move to set aside the nonsuit, on the ground that such evidence was improperly admitted. Holmes v. Billings. 232. 5. A new trial cannot be granted in a summary action under the Act 12 Vict. c. 40, though evidence may have been improperly rejected, or the jury may have been misdirected. Coy v. Yeomans. 257. 6. Where, after notice of trial, the parties agreed to settle the suit, and a release was given, but the plaintiff, without any further notice to the defendant 1. Where a specific contract is declared on, payment into Court admits that contract; but where a contract is set out in general terms which may apply to more than one transaction, payment only admits a contract to The extent of the amount paid. Walker v. Pendleton. Page 402. 2. The declaration stated that defendant was indebted to plaintiffin £1,000 for salvage "of a certain ship"; and in £1,000 for work and labour performed with plaintiff's steamer at defendant's request. The defendant paid £15. into Court, generally. Held,that this did not admit any contract for salvage beyond the amount paid in. Ibid. PLEADING. See FALSE IMPRISONMENT, 2. REPLEVIN, 5, 6, 1. Overseers of the Poor, not having any corporate right, cannot maintain an action against a person who brings into their Parish, paupers 1. The declaration alleged the issue of who became chargeable thereon: such act being no injury to the Overseers individually. Gillespie v. Phillips. 221. 2. In an action by Overseers of the Poor against defendant for bringing paupers into the Parish who became that a capias out of a Justice's Court against A., at the suit of M.; that the plaintiff became bail for A.; judgment was recovered, and execution issued, and delivered to defenant, a constable; that A. had sufficient goods and chattels, which were pointed |