subject to the mortgages, he might be entitled to go into the defence of usury, in which event proof of the judgment would come from the plaintiff in his reply; but, however proved, whenever it appeared, it would show that the defendant purchased and held under it; and this, I think, would establish a sufficient privity to entitle the plaintiff to rely on the estoppel therein contained, if admissible.

If not necessary that the defendant should have produced the judgment, (the fi. fa. and sheriff's deed, being a sufficient title as against the plaintiff in such fi. fa.), I have not overlooked the consideration that the defendant's title may be independent of the judgment, so that, if reversed in error or set aside, the sale may nevertheless remain good. -1 M. & S. 425; 6 M. & S. 110; 1 Q. B. 738.

DOE HENDERSON V. McWAde, et al.

A. being in possession of the west half of a certain lot of land as assignee of the vendee of the Crown, (no patent having issued), assigned the same to B., one of the lessors of the plaintiff, but continued in possession of the south-west quarter of the said west half; and having accepted from B. a written permission to occupy the same, afterwards disavowed his holding by such permission, and claimed to hold the same in his own right. During the period A. claimed to hold in his own right B. assigned the whole west half to C., the other lessor of the plaintiff.

Held, that the defendantA. having created the relation of landlord and tenant, to the extent at least of a tenancy at will, by accepting the written permission of B. to occupy, a subsequent disavowal by him could not create a holding so adverse to B. as to prevent B.'s assigning to C. without first obtaining possession by ejectment.

Ejectment for south-west quarter of lot No. 8, 5th concession, Albion-a Clergy Reserve.

Declaration Hilary Term, 14 Vic..

The demise by Jane Henderson is laid the 1st January 1844; the demise by Thomas McWade is laid the 4th January 1850.

It appeared by the evidence and papers produced at the trial that no patent for the lot in question has yet been granted by Government, but that on the 25th September 1834 the west half was sold by the then Commissioner of Crown Lands to Michael Henry for 62l. 10s., being estimated at one hundred acres, at the price of 12s. 6d. per acre, payable in ten yearly instalments, on the 29th Sept. in each year, of which the first, being 61. 5s., was paid

down. It was suggested, but not distinctly proved, that said Henry assigned his right to a brother of the defendant, who afterwards assigned to defendant; at all events, before any more money was paid, and before the month of December 1843, the defendant was in possession of the whole west half of the lot. That on the 28th December 1843 the defendant, in consideration of 51. assigned the same absolutely to Jane Henderson, one of the lessors of the plaintiff, her heirs and assigns, for ever. The assignment has a seal to it, but it is not clear that it was sealed, as well as signed, by the defendant. It was proved to have been executed by his making a mark thereto. It has the appearance of having been twice witnessed, first by Thomas Shirty and Thomas Henderson on the left side, as witnesses to defendant's signature; then in the printed form it says, signed sealed and delivered, &c.; and again by those persons whose names are written on the right side below the wafer seal. Below is an affidavit of execution by Thomas Shirty, sworn 27th December 1843, that he saw it signed sealed and delivered.

The defendant was the son-in-law of Jane Henderson; she had two other daughters, one named Ann, since married to the lessor of the plaintiff, McWade.

Jane Henderson entered into possession of the north-west quarter, and resided thereupon for some years; she afterwards removed to the County of Huron, leaving her then unmarried daughter Ann, and other children, upon the premises. Ann afterwards married McWade. On the 1st January 1844 Jane Henderson paid the 2nd instalment, 9l. 14s. 5d., principle and interest, on the west half of the lot, at the Clergy Reserve Office; on the 9th August 1847, the sum of 11. 1s. 6d. in full of the 3rd instalment. The Government office receipt is in the name of Henry, but the words "per Ann Henderson" are written under the date, in a hand-writing different from the rest of the receipt, which is a printed blank filled up in a different hand.

On the 1st March 1849 the sum of 11l. 15s. 3d., in full of the fourth instalment, is receipted as from Henry, but the words "paid by Thomas McWade" are written under the date, all apparently in the same hand-writing.

B

On the 1st February 1850 the sum of 121. 1s., in full of the 5th instalment, is receipted as from Henry, the words "per T. McWade" being written under the date.

On the 3rd January 1850, Jane Henderson executed under her hand and seal an assignment to Thomas McWade, (then) husband of her daughter Ann, his heirs and assigns, for ever, the whole west half of the said lot, the consideration therein expressed being 30l. to her in hand paid by Ann Henderson in the year 1845, the receipt whereof she thereby acknowledged, the defendant being at that time in the possession of the south-west quarter.

This was in effect the plaintiff's case.

The defence (which had been partly anticipated by the plaintiff in the evidence in chief) was, that although the defendant had assigned the whole west half to Jane Henderson, still only the north-west quarter was to become hers beneficially, the defendant retaining for his own use and benefit the south-west quarter. In order to establish this the defendant, beyond the mere fact of continued possession of that quarter, alleged, and endeavoured to prove, that five or six years ago Jane Henderson had executed and delivered to him an absolute assignment in writing of the same, which writing had been afterwards abstracted surreptitiously by her third (youngest) daughter from his, defendant's house, upon the premises.

The lessor of the plaintiff admitted that she gave a writing at the period mentioned, but asserted that it was a mere license to the defendant to occupy and cultivate the ground until she disposed of the premises, and denied that it had been stolen or taken away, as alleged. This paper writing not being produced, it was, on the defendant's part, asserted to be an absolute assignment of the south-west quarter; on the plaintiff's part, to be a mere permission to occupy. Its execution being admitted, the only contest was as to its contents, which appeared upon secondary evidence, and consisted of the statements of one of the two subscribing witnesses, (the other not being called by either side) and others who said they had read or heard it read. There was a good deal of evidence on the subject, more or less conflict

ing, shewing however that the parties were not on good terms; that misunderstandings and quarrels had grown out of these transactions; and that at the time Jane Henderson executed the assignment to McWade it was well known to her, and to him, and to his wife, that the defendant was in possession claiming to be entitled as her absolute assignee, although she asserted the contrary.

The case was tried by the Chief Justice of the Court of Common Pleas at the last assizes for the county of York, who left it to the jury to find for the plaintiff if satisfied that the absent writing was in fact only a permission to occupy until Jane Henderson sold or disposed of the property (or place); but for the defendant if not so satisfied, or if satisfred that it was an absolute assignment, as he contended; the point was never left to them by the court upon the subject of adverse possession, although argued by defendant's counsel, the court being of opinion that if the writing he had received and accepted from Jane Henderson was a mere license at will, or until she sold the place, he could not (coupling it with his absolute assignment to her) set up an adverse claim under it, still claiming to be only entitled thereunder, so as to invalidate her assignment to McWade, while he remained in possession under such circumstances.

The jury found a verdict for the plaintiff.

On Wednesday the 4th June last, being the third day of term, Bell, for defendant, moved for a rule for the plaintiff to shew cause why the verdict should not be set aside and a new trial be granted, as being contrary to law and evidence, and for misdirection, and on affidavits filed.

The court took time to consider the application, but granted a rule on the following day, the 4th; it was however intimated in the absence of the defendant's counsel and attorney, and he not hearing of it, the rule was inadvertently omitted to be taken out, and not served till the evening of Thursday the 12th of June. The affidavit relates merely to the absence of witnesses who, for all that appears, might have been produced at the trial had due measures been taken to secure their attendance.

Dempsey, for the plaintiff, shewed caused last term, and urged, in the first place, that the rule was not taken out in time; that the defendant had been guilty of laches, and the plaintiff was entitled to judgment.

Bell excused the delay, owing to inadvertence, and not hearing of the rule being granted at an earlier day.

The case was heard subject to this objection.

Dempsey contended the absence of the witnesses was mentioned in the defendant's affidavit, and most satisfactorily accounted for, and constituted no sufficient ground for a new trial.

That the alleged adverse possession of defendant did not affect the assignment to McWade; and if it did, that there being a demise in the name of Jane Henderson also, the defendant was entitled to recover on one demise or the other.

Bell, in reply, relied principally on misdirection in relation to the adverse possession of defendant as invalidating the assignment to McWade; and contended that the demise by Jane Henderson cannot prevail, owing to her having no right by her own shewing; at all events, that the question of adverse possession should have been left as a fact to the jury, and that if reduced to the single demise of Jane Henderson the other matters of fact ought to have been submitted to the jury in relation to that demise also, which was not done that at present the plaintiff has a verdict on two demises, and both cannot be right.

Doe Gray v. Stanton, 1 M. & W. 695; Doe Graves et al. v. Wells et al., 10 A. & E. 427; Doe Dunn v. McLean, 1 U. C. R. 151; Doe McMillan v. Brock, 2 U. C. R. 270; 6 U. C. R. 32; Doe Williams v. Evans, 1 C. B. 717; 9 Ju. 712 S. C. As to assigning contingent interests or rights, P. S. 7 Wm. IV & 1 Vic. ch. 26 sec. 3; J. S. 7 & 8 Vic. ch. 76 sec. 5; P. S. 12 Vic. ch. 71 sec 5; P. S. 4 & 5 Vic. ch. 100 sec. 18 sec. 30; P. S. 12 Vic. ch. 31 sec. 2 sec. 8-see. section 5, as to forfeiture; 7 Wm. IV ch. 118-117, 2 Vic. ch. 14; Disseizin, 2 D. & K. 40; Tew v. Jones, 13 M. & W 12; Howard v. Shaw, 8 M. & W. 118; Winterbottom et al. v. Ingham, 7 Q. & B. 611; Baxter v. Taylor, 4 B. & A. D. 72. That ejectment lies by assignee of vendee of the Crown before grant, by the terms of the statutes.