pointed out to the defendant, and out of which he could have levied the execution; but that he refused to levy on the goods, and falsely returned on the execution, that he could not find any goods or chattels, or the body of A., whereby the plaintiff as bail was compelled to pay the debt. Held, per Carter, C. J., N. Parker, M. R., and Wilmot, J. Parker. J., dissentiente,) that the declaration disclosed no cause of action; the undertaking of the bail being, that they should be answerable for the debt, or that A., the defendant, See ADVERSE POSSESSION. INTRUSION, 1. should be rendered into custody, unless he pointed out property to satisfy the execution; and the declaration did not shew that the bail had done all that their undertaking required. Tower v. Stephenson. 2. Though a declaration does not set out a good cause of action, if the alleged cause of action is proved the defendant is not entitled to a nonsuit; but if a material allegation is not proved, a nonsuit will be granted. Gillespie v. Phillips. 3. Though the averments in the declaration are proved, if a material averment, essential to the maintenance of the action, is omitted, the defendant will be entitled to a nonsuit, though he might have demurred. McPhelim v. Weldon. TRESPASS, 6, 7. POUNDAGE. 93. 1. An actual levy is not necessary to entitle a Sheriff to poundage: therefore, where after execution issued, the defendant gave a written acknowledgement that a levy had been made on his property under it, and afterwards paid the amount to the Sheriff. Held,-that under 1 Rev. Stat. chap. 163, the Sheriff was entitled to poundage on the amount paid. Central Bank v. McKeen. 221 358 4. To a declaration in trespass for breaking and entering the plaintiff's close, taking away 50,000 feet of deals and a horse, and disposing of the same to defendant's use, the defendant pleaded - as to breaking and entering the close, seizing and carrying away the goods, and converting and disposing of the same actio non, because A. had recovered a judgment in a Justice's court of the county of K., against the plaintiff, for £4 18s. 3d, on which execution was issued and delivered to B,. a constable, to be executed; that B., as such constable, and defendant as his servant, and by his command, seized and took the goods, and entered the plaintiff's close for that purpose; and that after advertising the goods, B. sold the horse to satisfy the execution. And as to all the other supposed trespasses in the declaration not guilty. Held, — that the plea answered the whole declaration: that the defendant, act 529. 2. Defendant tendered the plaintiff the the Ibid. 000 each, one at the suit of A. individually, and the other at his suit as administrator, were delivered to the Sheriff, with directions that the first named execution was to be first satisfied. The Sheriff levied, and afterwards by direction of A's attorney, abandoned the levies, and returned the executions "Nulla Bona." indorsing thereon his fees and poundage. Held,-in an action for poundage ou the execution, (poundage on the first having been paid), that an admission by A., that he had received £9,000 £9,000 of the amount he claimed from the judgment debtor, was, in the absence of any evidence by him of the amount of the compromise, evidence from which the jury might infer that that was the amount of the compromise in both actions, RELATION. See AGREEMENT. DEED, 5. RELEASE. See NEW TRIAL, 6. £6,000 of which was applicable to In an action on a promissory note for the first execution, leaving £3,000 as the amount of the compromise of the second execution, and upon which the Sheriff was entitled to poundage under 1 Rev. Stat. c. 163. Wetmore v. McLeod. Page 534. See DEED, 1, 4, 5, 8. EVIDENCE, 19. $85, given by the defendant to the plaintiff on a settlement between them; the defence was, that the note was discharged by a release of the same date as the note, in which the settlement was recited, and the consideration was stated to be the sum of $85, paid to the plaintiff, the receipt of which he thereby acknowledged. Held, that the circumstances connected with the giving of the release created a latent ambiguity therein and were admissible to ascertain whether or not the note was discharged by the release. Caldwell v. Keith. - REPLEVIN. Page 590 I. It is no ground for a new trial in replevin, that the jury have not distinctly found on the several issues,it having been understood at the trial, that the substantial question was, to whom the property belonged. If they find for the defendant on the plea of property, they are not bound to give him damages under 1 Rev. Stat. c. 116. Fearon v. Murray. 11 2. In replevin for grass, to which the defendant pleaded property in the land on which the grass was cut, the plaintiff may set up in answer to the plea, an outstanding mortgage given by the person under whom the defendant claims title. Sect. 17 of the Revised Statutes, c. 112, does not apply to such a case. Baxter v. Johnston 350 3. Where the mortgagor is in possession, and the mortgagee has not given any notice of intention to take the rents and profits of the land, grass growing on the land will be deemed to belong to the mortgagor, with the assent of the mortgagee. Therefore, in replevin for the grass, where the defendant pleaded property in it in himself and the plaintiff as tenants in common; on which the plaintiff took issue, an outstanding mortgage of the land on which the grass was cut, is not available to disprove the plea. Ibid. 4. Where in replevin the defendant was entitled to a verdict, on the merits, on one of the issues but the jury found for him on an issue which should have been found for the plaintiff, the Court refused a new trial, giving the plaintiff leave to amend the verdict, by entering it on the issue, on which it should have been found for the defendant. lbid. 5. In replevin, the defendant pleaded non cepit, and gave a notice of defence. that the goods were the property of A., on which evidence was given by both parties, and a verdict found for the defendant. Held,-that it was too late after verdict, to object that the Act 13 Vict. c. 32, did not authorize a notice in actions of replevinno such objection having been taken at the trial. Wilbur v. Trites. Page 633. 6. In replevin, defendant pleaded property in A. Replication, that the property was in the plaintiff, and not in A. Held,-that special property in the plaintiff was sufficient to maintain the action, though the general property was in A. Elston v. Vance. Page 633. 7. A claim of property having been put in, in an action of replevin, the attorney's clerk, in his absence, issued a writ de prop. probanda, under which the Sheriff summoned a jury to try the claim. Held,-that as it was the duty of the plaintiff's attorney to issue the writ, he could not withdraw it; that an inquisition held under it (the plaintiff's attor ney protesting) was regular; and if he was not prepared to try the claim, he should have applied to the Sheriff to put off the trial. Jones v. Caie. 638 8. The plaintiff in replevin cannot recover as part of his damages, an amount paid to counsel attending on the execution of a writ de proprietate probanda issued on a claim put in by the defendant; nor a sum paid for boomage while the timber replevied was in charge of a Boom Company, where it was placed for safe keeping: that being a charge which he as owner, would be liable for at all events. Davis v. Cushing. REPLEVIN BOND. 642 1. A replevin bond with one surety is sufficient, and may be assigned un SCHOOL TEACHER. der the Rev. Stat. c. 126. Though the Sheriff might object to take such a bond, or the defendant in the replevin suit to take an assignment of it, the plaintiff in that suit cannot object. Taylor v. Burpee. Page 191 2. A subscribing witness not being required to the execution of the bond or assignment, proof of the obligor's handwriting is sufficient in an action by the assignee of the bond. Ibid. 3. The bond may be assigned at the request of the defendant's attorney. Ibid. SCHOOL TEACHER. 1. A licenced school-teacher employed by the inhabitants of a School District, with the assent of the Trustees, under the provisions of the Parish School Act (1 Rev. Stat. c. 49), can only be dismissed by the Trustees, during his term of engagement; and if the inhabitants exclude him from the school, without such dismissal, they are liable to an action. Connor v. Wiggins Page 185 A copy of process against defendant was left at his house by the Sheriff, with an adult member of his family, and four days afterwards he admitted to the Sheriff that he had received it, and said he would see the plaintiff's attorney about it. No order for good service was obtained under the Act 12 Vict. c. 39, § 44. The Court refused to set aside a judgment sigued for want of appearance, being satisfied that the defendant had received the copy of the writ, in time to appear in the suit, if he wished to do so; though he swore that only a blank paper had been left at his house by the Sheriff, and that he did not know what it meant. O'Leary v. Graham. SET OFF. See ACCOUNT STATED, 2. 105 In assumpsit on an award, defendant gave notice of set-off of a promissory note made by the plaintiff, and indorsed to the defendant. At the time this notice was given, an action was pending on the note, and judgment] was obtained therein against the now plaintiff before the trial of this action;-Held, that though the pendency of the action on the note would have been no bar to the set-off, when the judgment was signed, the note was merged in it, and could not be given in evidence under the notice. Semble, that the only relief for the defendant in such a case, would be an application to the Court to be allowed to set-off his judgment against the plaintiff's judgment. Atkinson v. Keith. Page 305. SHERIFF. See DEPUTY. EXECUTION, 1, JURY. LEVY. POUNDAGE. REPLEVin, 7. SOLICITOR GENERAL. See INTRUSION, 3. SPECIFIC PERFORMANCE. See BANK, 1. EQUITY. STATUTE. (CUMULATIVE REMEDY.) McLeod v. Yeates. Page 168. (WHEN DIRECTORY ONLY) Berlon v. Central Bank. Page 493. Doe v. Coigley. Page 561. STATUTE OF FRAUDS. See FRAUDS, (STATUTE OF) STATUTE OF LIMITATIONS. See LIMITATIONS, (STATUTE OF) STAYING PROCEEDINGS. Defendant after interlocutory judg ment, in an action on a promissory note, being willing to pay the debt and costs, but not the amount demanded by the plaintiff's attorney, who claimed the costs of making up the judgment roll, obtained a Judge's summons for the plaintiff to shew cause 688 SUMMARY CONVICTION. cause why the proceedings should not be stayed, on payment of debt and costs; but, before the summons was served, the plaintiff's attorney had assessed the damages and signed judgment. The Court set aside the judgment and ordered the action TRESPASS. but A, proceeded with the case, and convicted the defendant. Held,that his conviction was good. Regina Roberts. Page 531. SURETY. BOND, 1. TENANCY IN COMMON. to be discontinued on the payment See FRAUDS, (STATUTE OF). REPLEVIN of the debt and costs up to the time that it was apparent that the plaintiff's attorney knew the defendant was willing to pay-though there was no affidavit of the defendant's offer it not appearing that the plaintiff's attorney had made up the judgment roll at that time. McInerney v. Chandler. Page 436. SUBSEQUENT CREDITOR. See JUDGMENT, 3. VOLUNTARY Deed. SUBSEQUENT PURCHASER. See DEED, 1, 2. SUMMARY CONVICTION. 1. The fine imposed by the Rev. Stat. c. See CONVERSION. REPLEVIN, 3. TENANCY AT WILL. 1. Defendant went into possession of land belonging to plaintiff, more than twenty years before action brought. Within the twenty years, the plaintiff, with the defendant's consent, entered on the land, and ran the dividing line between it and the adjoining land. Held,-that such entry did not determine the defendant's tenancy, and prevent the statute of limitations from barring the plaintiff's right of entry. De v. Tidd. 2. 569. Any act upon the land, by the person having title, for which he would otherwise be liable as a trespasser amounts to termination of a tenancy at will. Ibid. TIME. the fine being a "criminal proceed- Sce AMENDMENT, 1, 2. EXECUTION, 3. "ing," the defendant is not a competent witness under the Act 19 Vict. c. 41. The proceedings need not be in the name of the Queen. Ibid. 3. If the prosecutor appears at the trial of a complaint, and the Justice, after hearing, dismisses it, he has no power to award costs against the prosecutor, under the Summary Conviction Act, 1 Rev. Stat. c. 138. Ex parte Beattie. 377. 4. A prosecution for selling liquor without licence, was instituted before A. a Justice of the Peace, who, on the return of the summons, adjourned the trial. Pending the adjournment, defendant went before another Justice, and admitted the sale, whereupon such Justice imposed a fine upon him. At the adjourned hearing before A, the defendant pleaded this conviction in bar; Plaintiff brought trespass against a Sheriff, for taking his goods on an execution against A, and recovered judgment, but not to the full extent of his claim. He afterwards brought trespass against the defendants (who had indemnified the Sheriff) for the same taking of his goods; Held, that the judgment against the Sheriff was a satisfaction for the wrong done to the plaintiff, and that he could not recover. Ibid. In a joint action of trespass, and where all the evidence related to a joint trespass, the plaintiff's coun sel |