Daniel Kelly, the judgment debtor that the latter was estopped by the judgment recovered, and therefore the defenalso; and, as to the other mortgage there was no objection, so that the plaintiff was entitled, at all events, to a verdict. The Chief Justice of the Court of Queen's Bench, who tried the cause, being of opinion that the defendant was bound by the estoppel, refused the evidence offered by the defendant; and the plaintiff had a general verdict. In Easter Term, 14 Victoria, Cameron, Q. C., obtained a rule calling on the lessor of the plaintiff to shew cause why the verdict should not be set aside on two grounds:-1st. That the record was defective, owing to the omission of a second placita, and the trial therefore irregular or void. 2nd. That the defendant was entitled to set up usury as a defence, was not estopped, and that the evidence offered was therefore improperly rejected.

Connor, Q. C., shewed cause, and contended that a second placita was unnecessary-2 Sellon's Practice, introduction 72, page 423, explaining the orgin and reasons for the practice; 2 Saund. 253, (a); and Badgley's Practice 166, and form No. 12; also the forms in Chitty's Archbold's Practice; Tidd, &c., Cow. 407.-That the record may be amended if necessary.-2 Bing. 384; 1 M. & Rob. 474. 2nd. That the defendant could not set up the defence of usury, being bound by a privity of estate and estopped by the lessor of the plaintiff's judgment, against Daniel Kelley, under which defendant purchased and holds. Also that the estoppel might be set up under the general issue, and was conclusive in evidence, though not pleaded.-2 Smith's, L. C. 436; Taylor's Evidence, secs. 1218, 1225; 2 W. B. 827; 3 Wil. 304; 13 M. & W. 654 and 681; 2 Ex. R. 375, 368; 10 A. & E. 763; 13 Ju. 1000.

Cameron, Q. C., in reply, as to the first point, relied on the recent decision of Doe Burnham v. Simmons (7 U. C. Q. B. R. 598), as expressly in point. 2nd. He contended that the usury alleged might be proved; that there was no sufficient privity between the mortgagor and the defendant to estop the latter, by reason of the judgment of the lessor of the plaintiff against the former. That the

sheriff sold all Daniel Kelly's right and title; and defendant stood upon an independent footing, claiming as the purchaser under the sheriff; and if he could displace the mortgage, Daniel Kelly's right would then be the unincumbered fee simple, which the defendant acquired under the terms of his purchase and the sheriff's deed. Co. Lit. 476; 4 B. N. S. 782; 1 B. N. S. 253; 2 M. & Scott, 609; 2 A. & E. 11; 4 Dow. 374.-At all events, that without being pleaded and relied upon as an estoppel, the jury were not concluded, but might find the truth, according to the evidence.

MACAULAY, C. J.-With respect to the first objection, I do not think the omission of a second placita a sufficient ground for setting aside the verdict for irregularity or an irregular trial, leaving the Nisi Prius record unassailed. The application should have been to set aside the Nisi Prius record as improperly made up and passed, and as a consequence the subsequent trial also; however, I do not think the objection valid in any form. The only cases I find respecting the influence of the new rules upon actions of ejectment, are 1 Bing. N. S. 253; 2 M. & Scott, 609, S. C.; 2 A. & E. 11; 3 M. & Scott, 373; 4 Dow. 374; Imp. Stat. 2 Wm. IV. ch. 39, sec 14; 1 C. M. & R. 19; 2 Dow. 690, S. C.; 1 Scott, 387; 3 Dow. 408; 1 Scott, 253; 3 Dow. 404; 4 A. & E. 485; 2 M. & W. 70. entitling and date of the declaration, not the form of the Nisi Prius record in reference to continuances. The origin and meaning of the second placita is stated in Gilbert's History of the Common Pleas, pages 70 and 83, and his language is adopted in Sellon's Practice-cited by the plaintiff's counsel in argument.

They relate to the

I have examined the books of practice and forms, and it seems to me a second placita in a case like the present cannot be material or necessary.

Our own rules (Cameron's Rules, page 29), provide that no entry of continuances by way of imparlance, curia advisari vult, vicomes non misit breve, or otherwise, shall be made upon any record or roll whatever or in the pleadings, except the jurata ponitur in respectu, which is to be retained; and No. 45 (Cam. Rules, page 64) provides that issues,

judgments and other proceedings shall be in the form afterwards given or to the like effect; No. 2 is then given as the form of a N. P. record, amended by form No. 2, in rules of H. T. 13 Victoria, No. 40 (page 12 of the printed rules); the latter shews how the record should proceed after the pleadings are completed in relation to the venire, and at once directs the sheriff to cause the jury to come before the judge of assize. The former preserved the former course of respiting the jury in the court above, unless, &c. The present record is framed according to the original form, (Cameron's Rules, page 64, No. 2), and like the form given it omits the second placita, but the proceedings are all in the same term, and the respite is only from the last day of the term, in which issue was joined to the next term, unless Sec. 45 of the R.H.

the judge of assize come in the interim. T. 13 Vic. provided that the process and proceedings in actions of ejectment, dower and replevin, shall be and continue as theretofore; consequently it depends upon the propriety of following the forms originally given in the first set of the new rules.

The forms given in Badgley's Practice, for all the counts in ejectment, show that it is considered correct practice to omit the second placita in such actions as well as others, and I perceive nothing to prohibit it or render it necessary. The case referred to in Q. B. U. C., is not, as reported, quite like the present; there, as I understand it, a term or more intervened between the joining of issue and the trial, creating a hiatus in the proceedings without the entry of continuances or a second placita, and respite of the jury of the term next preceeding the trial; but if the jury were respited from the term in which issue was joined until that next succeeding the trial, unless, &c., I am not prepared to say it would be bad under the form given in the new rules, if it could be adopted in ejectment, because the blank following the word "afterwards," in form No. 2, might and perhaps ought to be within the term, or the last day of the term next before the trial-the last is, I suppose, intended. In the case before us, the jury are respited from the last day of the first term to the one next ensuing, &c.,

and I must say I think it sanctioned by the new rules and the practice in England, indeed (so far as I am aware), under a rule similar to ours.

On referring to the terms of the statute 12 Vic. ch. 73, under which I suppose the sale took place, I think the purchaser of the equity of redemption of all the estate, right and title of the mortgagor, under an execution agains this real estate, when the mortgagee is the plaintiff and the debt the same as that secured by the mortgage, creates a sufficient privity (in such a case) to entitle such mortgagee and plaintiff to the benefit of the judgment, as an estoppel, against the mortgagor and those claiming under him or claiming to have acquired all his estate and interest, under such judgment, by virtue of the statute.

The defendant claims under the judgment—it is the foundation of his title, and renders him privy in interest; and if entitled to the benefit of it, it must be all taken together. The establishment of usury to defeat the mortgage would show the judgment itself wrong, and that no execution should have issued under it; if the defendant showed the judgment void, he might defeat his own title, which is supported by the judgment.

Still, from the cases on the subject, which are numerous, I infer that matter of estoppel in pais may be proved, and being proved is conclusive without being pleaded, although there has been an opportunity; that estoppels by deed or record are not conclusive, unless pleaded and relied upon, if there be an opportunity, but that if there be no opportunity such estoppels are also conclusive in evidence. Now here it could not have been pleaded; the estoppel is not set up by the defendant as a defence; the mortgage does not appear on the pleadings; it comes out in the plaintiff's evidence in chief. The defendant, by the terms of the consent rule, is only admitted to defend on the condition of his pleading not guilty, but in doing so the parties are permitted upon titles, and upon titles only. The defendant was therefore precluded from pleading specially, and ought not to be prevented from proving a deed or record that estopped the plaintiff, having had no opportunity of pleading it. Then,

it being open to defendant to go into his title, or to impeach the title of the plaintiff by special matter in defence, the plaintiff could have no opportunity of replying an estoppel to anything he might be entitled to set up as a defence, and therefore ought to be at liberty to prove it in reply, where it would be conclusive with the jury in evidence, though not pleaded. I take this to be the clear rule, and that consequently the plaintiff had a right to urge the plea and issue of usury, found in his favor of record, as conclusive upon Daniel Kelly the mortgagor, and if so, likewise conclusive on the defendant, who purchased his interest as such mortgagor under the same record. I do not see that the terms of the sheriff's deed could make any difference in the end; and going off, as the case did, upon questions submitted to the court at Nisi Prius by the defendant's counsel, I do not see any good reason for a new trial merely to find out its contents. Now, to look at it on this application would be virtually receiving evidence after the trial, and in strictness neither judgment against Daniel Kelly, the fi. fa., or the sheriff's deed are before us, unless the judgment was proved or admitted at the trial, as I understand it was, in order to raise the question, and which without it could hardly be understood.

As to the 2nd point, the defendant not having given any evidence: The question comes before us in an abstract form; had he proceeded, he would have produced the sheriff's deed, and we should have known its contents, whether it professed to sell the estate absolutely, or all Daniel Kelly's ⚫ interest therein, or only his equity of redemption, subject to the mortgages in question; he would also have proved the fi.fa. against lands, and its terms would have been seen. It might also have been incumbent upon him to have produced the judgment; as to which (this action not being defended by the defendant in the writ, though it is defended against the plaintiff, at whose suit the sale took place), 6 M. & S. 110, 5 Esp. 24, 2 Star. N. P. C. 199, Holt. N. P. C. 587, 2 C. & J. 71, 6 B. C. 41, may be mentioned. If he produced the judgment, he would himself shew that he claimed under it; if he did not, and the sheriff's deed did not convey,