REPORTS OF CASES IN THE COURT OF COMMON PLEAS. TRINITY TERM, 15TH VICTORIA. Present THE HON. J. B. MACAULAY, C. J. 66 MR. JUSTICE MCLEAN. A nisi prius record in ejectment having been passed and brought to trial without a second placita.-Held, that the omission was not a sufficient ground for setting aside the verdict or trial for irregularity. The lessor of the plaintiff having previously recovered judgment against the defendant, in an action brought on the covenants for the payment of money contained in two several mortgages on which this action of ejectment was brought, in which prior action the defendant had pleaded usury, and the issue thereon having been found for the plaintiff, an execution issued against the lands of the defendant, and the premises contained in the mortgages were under the stat. 12 Vic. ch. 73, sold to the defendant, who at the time of the trial of this action was in possession, claiming to hold under a deed from the sheriff. Held, that there was a sufficient privity of estate between the purchaser at the sheriff's sale, [the defendant in this suit,] under the execution against the judgment debtor, to enable the lessor of the plaintiff to estop the defendants from setting up the same defence of usury, unsuccessfully set up by the judgment debtor, under which the defendant claims. The Nisi Prius record is entitled in the court of Common Pleas. Pleas at Toronto, before, &c., of Hilary Term, 14 Victoria. Declaration: ejectment for lands in the City of Hamilton demise laid the 1st of January 1851. The plea is headed Hilary Term, 14 Victoria-not guilty. The replication is headed Hilary Term, 14 Victoria; the similiter is added, and the record then proceeds :-Therefore let a jury thereupon come before our Lady the Queen, at Toronto, on the fifteenth day of February 1851, by whom, &c., and who neither, &c., because as well, &c., the same day is given to the parties aforesaid, at the same place; afterwards on the fifteenth day of February 1851, the jury betwen the parties aforesaid is respited here until the second day of June 1851-unless the Honorable John Beverly Robinson, one of Her Majesty's justices assigned to take the assizes in and for the said united counties, &c., shall first come on the 9th of April 1851, at the City of Hamilton, &c., according to the statute, &c., for default of the jurors, because none of them did appear, therefore let the sheriff have the bodies of the said jurors accordingly, &c. The lessor of the plaintiff's title consisted of two mortgages executed to him by Daniel Kelly, previous to the defendant's entry into possession. For the defendant, it was stated by his counsel that the lessor of the plaintiff had previous to this action sued and recovered judgment against the mortgagor on the covenants, for the payment of the money secured by such mortgages; in which action the defendant had pleaded usury as a defence, upon which the issue was found for the plaintiff; and that, under an execution against the lands of the mortgagor, the premises in question were, under the statute 12 Victoria, chap. 73, sold to the defendant, who at the time of the trial was in possession, claiming to hold under the deed of the sheriff of the united counties of Wentworth and Halton. The action by the lessor of the plaintiff against Daniel Kelly was brought in February 1850, on two covenants, for the payment of money by instalments, dated respectively the 5th of January 1848, and the 12th of June 1849-breaches being assigned of non-payment of the instalments due. The 1st count was on a covenant for the payment of 3500l., to which the second plea was usury; and the 2nd count was on a mortgage to secure 301., payable every six months for twenty-one years; and then 1000l. The replication de injuria. There was no plea of usury to the 2nd count, and the breach was confessed. The verdict and judgment on the second issue, i. e. usury, was for the plaintiff. The plaintiff having obtained judgment, and issued execution against the lands of Daniel Kelly, the sheriff, on the 25th July 1850, sold the premises in question to the defendant. The defendant, on the trial of this cause, desired to set up the same objection of usury to the same mortgage which was objected to by the plaintiff's counsel on the ground that he held in privity with or under |