Doe ex dem. Armstrong v. Bridges.

should have told the jury that Robert Bridges was estopped from denying his father's title; he having stated to Maddox that his father had been twenty years in possession of the land and thereby induced him to advance money upon it.

C. H. B. Fisher, shewed cause in Hilary term. The Judge's charge was right. Robert Bridges swears that he went into possession as purchaser from Holland Bridges, and the evidence of the statement made to Maddox being contradictory, it was a question for the jury and there is no estoppel. Robert Bridges went into possession under a title, and the possession of a part is possession of the whole. It was simple a question of evidence for the jury as to who was to be believed. Where two parties are in possession of property, and one claims by title and the other does not, on the death of the latter the former will take all. This was the case with Samuel and John H. Bridges. The fact of Robert going into possession, under title from John H., is conclusive. Samuel never was in actual possession of this seventy-five acres. [ALLEN, J.: I suppose you mean he never lived on it. RITCHIE, C. J.: If, as the learned Judge says, the lines were run out, his possession of a portion would be the possession of the whole.]

S. R. Thomson, Q. C., contra. It is clear the verdict in this case cannot stand. The declaration made to Maddox by Robert Bridges that the property was their father's, that it came to them by descent, as it induced Maddox to advance money on the land, is an estoppel in pais and prevents defendants now from denying their father's title, and the Judge should have so directed. They also took possession of the land under their father's will, and the story of Robert in regard to his having, in 1842, while a lad of eighteen, worked for and purchased the land on which his father then lived from J. H. Bridges is incredible. Even if true there never was any break in the title of Samuel, and the simple declaration of John Holland that he would give the land to Robert never could effect the title to the land.

RITCHIE, C. J., now delivered the judgment of the Court.

The land for which this action is brought was part of a tract of three hundred acres, granted by the Crown to John Holland Bridges in 1834. Samuel Bridges, a brother of John Holland Bridges, had been in possession of the land about two years before the grant issued, and made some improvements. After the grant issued, Samuel Bridges had the lines run round the land, and continued to occupy and cultivate it up to the time of his death, in 1852, without any interference by John Holland Bridges, who, it appeared, obtained

Doe ex dem. Armstrong v. Bridges.

the grant for the benefit of Samuel, by whom the purchase-money was paid. Samuel Bridges left a will, by which he devised, by particular description and bounds, one hundred and fifty acres of this land to his son Robert, one of the defendants; seventy-five acres to his son William, the other defendant, and seventy-five acres to his son Thomas, and appointed his son Robert his executor. Robert proved the will in the Probate Court, and each of the sons took possession of the land so devised to him. Thomas built a house on the land devised to him, and was assisted in doing so by his brother Robert, the defendant. In August, 1861, Thomas mortgaged the land devised to him to George Maddox, who assigned to the lessor of the plaintiff. Thomas afterwards conveyed his equity of redemption to one Thompson. who gave a mortgage thereon, with a power of sale to Willard Sawyer, who sold and conveyed to the lessor of the plaintiff uuder the power. The lessor of the plaintiff, therefore, has all the right and interest which Thomas Bridges had in the land.

The defendant, Robert, claimed the land under an alleged verbal agreement with John Holland Bridges, in 1842 or 1843, who, it is said, agreed to convey to Robert the whole of the land contained in the grant, as payment for work done for him by Robert. The defendants also claimed under a quit-claim deed given to them by some of the heirs of John Holland Bridges in 1867.

As against the heirs of John Holland Bridges, we think the Statute of Limitations did not begin to run before the issuing of the grant. The right of entry of John Holland Bridges did not accrue until he acquired the title to the land in 1834; and whether it accrued then, or at the expiration of a year from the issuing of the grant, is not material in this case, as there is no evidence of any entry by John Holland Bridges. or his heirs, at any time, or at all events, not until 1867, when the defendants, professing to claim as the assignees of the heirs, set up the quit-claim deed. This, however, taking the most favorable view for the defendants, would be more than thirty years after the right of John Holland Bridges accrued, and after Samuel Bridges, and those claiming under him, had acquired a title by possession. Independently of any question under the Statute of Limitations, we think the defendants are not in a position to set up under John Holland Bridges; that they were estopped by the entry under their father's will, from denying that the title was in him. There is no evidence of any disclaimer of title under the will, unless, perhaps, a parol disclaimer; but that would be insufficient. A devisee is presumed to assent to a devise for his benefit, until he does some act to shew his dissent. Townsou v. Tickell, (3 B. & Ald. 31); Hamilton v. Love, (2 Kerr, 248). The acts of the defendants here, so far from shewing a dissent from the devise, shewed an express

title

Doherty v. Desbrisay.

assent to it, for they took possession of the land according to the division made by the will, recognizing the right of Thomas to that portion of the land now in dispute, which acts are entirely inconsistent with the alleged agreement by the defendant, Robert, to purchase the land from his uncle, John Holland Bridges, and with the claim of both defendants under the deed from the heirs of John Holland Bridges. In addition to this, we incline to think the defendants would be estopped from setting up title in John Holland Bridges, by their statement to Maddox, that their father had been in possession of the land for upwards of twenty years, and had left will, devising the property to them and their brother. This statement is sworn to by Maddox, and is not positively denied by either of the defendants. Maddox acted upon the representation so made to him by the defendants, and by Thomas Bridges, in the presence of one or both of the defendants, and advanced his money on the security of Thomas' title under his father's will. The case, therefore, comes within the principle of Pickard . Lewis, (6 A. & E. 474); Gregg v. Wells, (10 A. & E. 98); and Freeman v. Cook, (2 Exch. 661); Clark v. Hartt, (5 Jur. N. S. 447); Cairncross v. Lorimer, (3 Macq. H. L. cases, 827, 7 Jur. N. S. 149); that where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.

Rule absolute for a new trial.

Costs to abide the event.

DOHERTY V. DESBRISAY.

APRIL 24TH, 1869.

Where no notice of trial was given by plaintiff, and a counsel who had been retained for defendant in a former trial, in ignorance of this fact, appeared without authority, defendant being absent, and defended, a verdict for the plaintiff was set aside.

S. R. Thomson, Q. C., in Michaelmas Term last, moved on behalf of the defendant to set aside trial and all subsequent proceedings in this cause for irregularity. It appeared by affidavits that at the Westmorland Circuit, in July, 1867, the cause entered for trial and Mr. Smith retained as counsel for the defendant, but it was not then tried and the cause became a remanet. No notice of trial was given to the defendant's attorney for the next Westmorland Circuit,

Doherty v. Desbrisay.

but the cause was called on, and Mr. Smith being in Court and thinking the defendant and his witnesses were on their way to the Court, moved for a postponement, which being refused by the learned Judge the trial went on, Mr. Smith acting as counsel for defendant and the plaintiff obtained a verdict. Mr. Smith was not aware that no notice of trial had been given, and had no authority to act for defendant on the trial. A rule nisi having been granted,

A. L. Palmer, Q. C., shewed cause in Hiláry Term, contending that Mr. Smith having been counsel in the first trial had authority to act on the second. [RITCHIE, C. J.: Did you not bring this difficulty on by not giving notice of trial? ALLEN, J.: Does the retainer of a counsel continue beyond the trial for which he is retained? RITCHIE, C. J.: The counsel here says that he acted without authority.] I had a perfect right to treat him as counsel for defendant, having been told by the attorney that he was so, and acting in good faith. Prima facie, if an attorney tells me that a certain person is his counsel I have a right to treat him as such, and the fact of there being no notice of trial given makes no difference if he appears and defends.

Fraser, contra. If notice of trial had been given, the appearance of Smith, either authorized or not, was not material, but here the plaintiff himself committed the first error, he not having given notice of trial. The fact of a counsel being retained in a cause gives him no power to waive notice of trial. Swinton v. Swinton, (5 Ex. N. S. 590) is quite conclusive on this point.

Cur. adv. vult.

ALLEN, J., now delivered the judgment of the Court.

The difficulty in this case arose from the plaintiff's attorney not having given notice of trial. The defendant and his attorney are blameless. When the cause was called on, Mr. Smith, who had been retained as counsel on a former trial, supposing that notice of trial had been given, and that the defendant was on his way to the Court, applied to the Judge to postpone the trial, and when the Judge refused to do so, and the trial proceeded, he acted as counsel for defendant, though, it appears by the affidavit, without any authority from the defendant. Had Mr. Smith not appeared, the verdict would have been set under with costs. As the matter now stands, we think the defendant ought not to be precluded, by the unauthorized act of Mr. Smith, from having an opportunity of defending the suit. The verdict will therefore be set aside, but, under the circumstances, without costs.

RANKIN et al. v. MITCHELL.

APRIL 24th, 1869.

S, who was building a ship for plaintiffs, being indebted to them, agreed to transfer the vessel to H, one of the plaintiffs, together with all materials for construction then procured, S to finish vessel at his own cost, and rig and equip her with rigging to be provided by plaintiff. The vessel, when finished, to be registered in the name of H. Canvas, cordage and wire were procured by L at plaintiff's store; and, while being prepared for the vessel, were taken by the sheriff under an execution against S, when $150 worth of labor had been expended upon them. Held, That under the agreement the property in she sails and rigging remained in plaintiffs, and that the fact of the articles being charged to S in plaintiffs' books was not conclusive to shew a sale to S, but was a question for the jury.

That the plaintiff was entitled to recover the value of the sails and rigging when taken.

Trespass against the sheriff of Northumberland for unlawfully taking a quantity of sails and rigging tried before ALLEN, J., at the last Northumberland Circuit. The defendant justified the taking under an execution against one Sinclair, and the question was whether by the terms of a certain agreement the property taken belonged to Sinclair or the plaintiffs. The facts of the case are fully set forth in the judgment of the Court. A verdict having been found for plaintiff, Needham, in Michaelmas Term last, obtained a rule nisi for a new trial on the grounds of misdirection and excessive damages.

A. L. Palmer, Q. C., shewed cause in Hilary Term. The only property that passed to Hutchison by this agreement was the wood and iron of which the vessel was composed. The object of the agreement was to divest the property from Sinclair, but the sails and rigging never passed out of the plaintiffs. The goods taken by the sheriff were never sold to Sinclair by the plaintiffs, for by doing so they would have defeated their own agreement by which they agreed to furnish the sails and rigging for the vessel. The fact of them being charged to Sinclair does not shew that they passed to him. [WELDON, J.: Suppose they had been burnt in the sail loft whose loss would it have been?] I should say the plaintiffs, for they were not making a sale but carrying out their agreement to supply certain articles. [ALLEN, J.: I thought at the trial that Sinclair did not go to buy the articles as a man would go to purchase in the ordinary way.] It cannot be contended, as was done by defendants, that the goods belonged to Hutchison, for that could only arise on their becoming a part of the vessel, which they never did; and the property being originally the plaintiffs, it is for defendants to shew that it passed from them. The damages were certainly not excessive, for the plaintiffs only recovered the value of the goods at the time they were taken.