defendant to Alexander McVean, dated the 16th May 1849. The items on the debtor side were:

1839

5 0 170 10 10

Feb. 14-To mortgage on lots 6 and 7 Gore of Toronto, 284 "10 years' interest to May 1849,

1843

Feb. " Amount advanced you on the equity of

1844

redemption being executed

" 6 years' interest on do.,

July 22" Paid Blake in Chancery suit against

1845

Woodill,

"Interest on do.

Dec. 11-"Paid Blake in Chancery suit against

1849

May 13-"Your notes to McPherson, as acknowledged

1849" Paid Maddock taxing costs, suit of Woodill,

Nov.21-50 acres of 6 in 8th con., sold to Watkins, 200 0

1846

"Interest to May 1849,

"Interest to May 1849,

42 0

150 0 0

"Interest to May 1849,

30 7 6

"Balance due to defendant 16th May 1849, 902

0 10

£2283 2 4

Jan'ry " Amount assumed by Woodill,

The plaintiff claimed the amount of the notes above mentioned under date 13th May 1847, under the following

circumstances:—

He produced oral proof that Alexander McVean, a very old man, and who was examined as a witness, had dealings with the defendant and became indebted to him, and assigned or conveyed property to him to secure him, being lots Nos. 5, 6 and 7, in 8th concession Gore of Toronto, estimated at 200 acres each, and to which the credits for lands sold related; that during the progress of their transactions, the plaintiff' held two promissory notes against the said McVean, which were by him transferred to the defendant with McVean's assent and at his request, on terms that the defendant should advance to the plaintiff 70l. at the time, which he did, and promised to pay him the balance if there should be any surplus in his hands belonging to McVean after satisfying the defendant's demand against him; that in consequence of this arrangement the notes were charged against McVean, as appears in the above account.

To establish the receipt of such surplus, the plaintiff proved orally the sale of certain portions of the land and the receipt of the purchase money thereon. It was said McVean owned lots 6 and 7 in fee, and had a government lease of No. 5, which was a clergy reserve; and that a mill had been erected on the west half of the last men tioned lot, upon which mill the defendant had effected a policy of insurance in August 1849; and afterwards it was burned, and the sum of 750l., being the amount insured, was paid to the defendant as follows:

1850-16th May, 275l.; 20th May, 100l. ; 29th May, 50l.; 5th August, 300l.; 8th Oct. 251.

Of the lands credited in the above account, 50 acres were sold to Slocum, 100 acres to Archibald McVean, and 100 acres of lot No. 7 was sold to Tindal for 450l.; and the other items were for portions of each lot of the residue. It appeared that Tindal had contracted to purchase 66 acres of No. 6 at 470l., payable at 50l. next autumn (1851), and 1007. yearly afterwards till all is paid; that 20 acres of No.

6 were given to or retained by Alexander McVean, and 10 acres were sold or retained by defendant as a water privilege; that defendant gave 25 acres of No. 5 to the widow of Peter, a son of Alexander McVean; and that 50 acres remain unsold. It was also admitted that another part of No. 5 had been sold to one Bland, who had paid the defendant therefor 3001. The average value of these lands was proved to be from 81. to 12l. per acre. The quantities credited in the account are-Slocum, 50 acres ; A. McVean, 100 acres; Tindal, 100 acres; Walker, 50 acres-making 300 acres since sold to Bland, 100 acres, for which he paid 300.; to Tindal, 66 acres; Alexander McVean, 20 acres ; retained by defendant, 10 acres; to Mrs. P. McVean, 25 acres; undisposed of, 50 acres; making in all 571 acres, and leaving 29 unaccounted for. It was, however, stated by McVean's son in his evidence that all the land had been disposed of. It was said that Walker, among other tenants, had occupied the mill at the rent of 125l. per annum, but there was no proof of any payment of rent; there was evidence that the defendant and Peter McVean had dealings; but Alexander, his father, denied that he had anything to do with the mill, although he admitted that his said son had something to do with the first item in the defendant's account. On the other hand, a brother of Peter stated that the latter had done work about the mill, that the father was aided by his sons, and that they got money of defendant-how much he could not tell; and there was no other evidence, except what Peter had said the mill cost, which could not be received.

There was also evidence that in the winter before last the defendant had applied to Alexander McVean to execute releases of their lands, but no releases were produced, the object of such evidence being to prove a final settlement of the accounts between the defendant and McVean, and thereby to establish that McVean had satisfied or paid the defendant the full amount of plaintiff's notes in addition to all other demands. A witness was also called, who related what took place at an interview between the plaintiff and defendant about the 20th November last,

when the plaintiff demanded the balance of the promissory notes; in reply to which the defendant said he could do nothing; that it was a bad case for him; that the McVeans were still in his debt, and it was a losing transaction; that defendant said he did not expect to get the notes for 751.; that if there was any more realized the plaintiff should get it, but that there was not the least probability of any more being realized. There was therefore no evidence of an account stated; and the only proof of moneys received on lands sold, in addition to the sum credited in the account, was, to Bland for 300l., and the insurance on the mill, 7501., making together 1050l. The former would not balance the items of debit in the defendant's account rendered earlier in point of time than the plaintiff's notes. The latter, if added, might do so, and leave a small surplus in reduction of that item. It was also contended, that on the evidence the defendant was liable to account for the price or value of all the lands as if received, as he had disposed thereof acccording to his own discretion.

The plaintiff was however nonsuited, with leave to move to set it aside.

Connor, Q. C., obtained a rule in Easter Term calling on the defendant to shew cause why the nonsuit should not be set aside and a new trial had between the parties, on the grounds of misdirection and for the improper rejection of evidence. Cause was shewn during the following term by Vankoughnet, Q. C., and Strong, for defendant, who contended that the plaintiff relied upon proof of moneys received on land sales, and on the policy of insurance, without giving any secondary evidence of the nature of the defendant's interest in the lands or mill whatever. He was acting as a mere agent of Alexander McVean under a power of attorney irrevocable, as having an interest as trustee or mortgagee; and that, owing to uncertainty touching the extent of the defendant's claims, or the terms on which the defendant had a lien or claim upon, or an estate or interest in the property, it could not be determined that there was any surplus available to the plaintiff's benefit, or that the defendant had received any such surplus

so as to support the count for money had and received to his use that the plaintiff should have sought a discovery, or called upon the defendant to account in Chancery, and had mistaken his proper course: that no presumptions could be raised upon the defendant not producing the deeds and books called for by the notices; and that the nature of the accounts regarding the defendant as a trustee required their adjustment in equity: that the case must be first considered as between defendant and McVean, as the plaintiff could have no action like the present unless McVean might, under the same facts and circumstances, have maintained it, had the plaintiff's claim not interposed; and that there is no such adjustment of the accounts between the defendant and McVean, that the latter would be entitled to sue for a balance as money received to his use: that in taking the account, the very first steps of enquiry must be the terms under which defendant holds or was empowered to sell McVean's lands, and those terms do not appear with necessary distinctness: that there was moreover no consideration sufficient to bind the defendant to his alleged promise to the plaintiff; and if there was, it required to be in writing; but that the main point was, whether the evidence shews money received by defendant to the plaintiff's use-Holt, 500; Edwards v. Bates, 7 M. & G. 590; 13 L. J. C. P. 156; Roper v. Holland, 3 A. & E. 99; Harvey v. Archbold, 3 B. & C. 626; Boddington v. Abernethy, 5 B. & C. 793: that the defendant was not bound to account to McVean for the insurance money; and if he was, he could be made to account for it in a court of equity only-19 L. I. N. S. ch. 484; Dobson v. Land, 14 Ju. 288; S. C. Peak, 157; Clarke v. Inhabitants of Blything, 2 B. & C. 254; Stat. Geo. III. and upon the whole, that there was no clear evidence.

Connor, Q.C., in reply, submitted that two propositions were established: first, that the plaintiff may recover under circumstances like the present; and, second, that there was sufficient evidence to have gone to the jury to entitle him to do so. That it established-1st. That the defendant had property of McVean's.

2nd. That the plaintiff was