NASH V. BUSH.

Notice to produce-Opposite party—Examination of.

A notice served on plaintiff's attorney on the day of, and within one hour of the trial is too late to entitle defendant to give secondary evidence. A plaintiff or defendant in a suit may be called as a witness by his opponent in the same manner as any other witness; that a party called as a witness under the stat. 16 Vic. ch. 19 is not entitled to any other notice, or to be supened differently from any other witness.

ASSUMPSIT upon a promissory note made by defendant on the 31st October 1851 for £200, payable on or before the 1st January 1854 to John Ham Perry, or order, with interest, and endorsed by said Perry to plaintiff.

Piea-That after the note became due, and after the cause of action accruel, and before suit, to wit, on the 1st of February 1854, defendant delivered to plaintiff, and plaintiff accepted and received a covenant of defendant, whereby defendant covenanted to pay to plaintiff the sum of £226, with interest at ten per cent. yearly, on or before the 1st January 1855, in full satisfaction and discharge of the causes of action in the declaration mentioned.

Replication. That defendant did not deliver, nor did plaintiff accept, the said covenant in full satisfaction and discharge of the said causes of action in the declaration alleged, modo et forma &c. to the country and issue.

At the trial a promissory note was produced, dated 30th October, but in other respects corresponding with the one declared on.

Notice to produce a mortgage between the parties made the 1st February 1854 on lot 10, 14th concession Orillia. Notice dated 21st May 1855, the day of the trial, served one hour before on plaintiff's attorney, to whom it is addressed. Secondary evidence of the mortgage was admitted, though objected to on the ground of the notice being too late.

Copy of an indenture, 1st February 1854, between defendant and plaintiff, conveying the lot above-mentioned in fee; proviso, to be void on payment of £226 with interest, thus,on or before the 18th January 1855 (interest to be calculated from the 1st January last at ten per cent. per annum) according to the exigency of a certain promissory note made by the said party of the first part (defendant) to one John Ham Perry, and by him endorsed over to the said party of the

second part (plaintiff); said note however only bearing legal interest; and defendant covenanted with plaintiff well and truly to pay the plaintiff the said principal sum of money in the proviso hereinbefore mentioned, and interest at the time and manner herein before appointed for payment thereof, without deduction, according to the true intent and meaning thereof with power to mortgagee to enter &c. in case of default after three months' notice, and to lease or sell &c. Mortgagor to possess &c. until default.-Verdict for defen

dant.

Rule Nisi to set the verdict aside on the grounds of being contrary to law and evidence and the judge's charge, and for the reception of improper evidence.

MACAULAY, C. J.-If the plaintiff thinks he can better his case at another trial, I think he is strictly entitled to it on the ground that the notice to produce the mortgage was served too late to make secondary evidence admissible, and because its production in proof was necessary in support of the defendant's plea, in order to identify the instrument mentioned in the plea and the promissory note therein referred to with the mortgage in question and the note declared upon.

I am also much disposed to think that the plaintiff was not compellable to be sworn at the defendant's call against his will, without being previously subpoenaed, or his attorney notified according to the statute 16 Vic. ch. 19, sec. 2.

It is, however, so much a matter of discretion with the presiding judge, that, having been sworn and examined, I do not know that it would constitute a sufficient ground for setting aside the trial, even if not strictly bound to have given evidence. It is not the same as if the application were to attach him for refusing to be sworn, and give evidence &c. when his right to decline would come strictly in issue.

As to the substance of the defence, I am at present disposed to think the note was merged if the note sued upon and the one mentioned in the proviso, and covenant contained in the mortgage, are identical in point of fact,-which of course is a question; for the note mentioned in the proviso is referred to as if to come due concurrently with the

time specified for its payment in the mortgage, whereas, the note declared upon, though between the same parties and for similar sums, was overdue long before the mortgage was given. If identical, then the endorser would be discharged, if not so already, as having endorsed without recourse; and as between the plaintiff, the holder; and the defendant, the making the covenant to pay is a higher security, and such security is co-extensive with promissory notes, it seems to come within the rule.-Ross et al. v. Winans (5 U. C. C. P. R. 183), Mathewson v. Brouse (1 U. C. Q. B. R. 272). It is inconsistent that the note at six per cent. interest, and the mortgage covenant at ten, should be both subsisting for the same demand at the same time, by agreement between the parties.

RICHARDS, J.-I have very little to add to what the learned Chief Justice has said, as I concur in opinion with him that there ought to be a few trial. I merely wish to say, I consider that the plaintiff or defendant in a suit may be called as a witness by his opponent precisely in the same manner as any other witness: that a party called as a witness, under provincial statute 16 Vic. ch. 19, is not entitled to any other notice, or to be suppœnaed differently from any other witness. I think the second section has particular reference to the mode of procuring the attendance of the party when his opponent wishes to call him as a witness, and the penalty to be imposed on him for non-attendance-viz., taking the cause as pro confesso against him.

MCLEAN, J., concurred with RICHARDS, J.

MICHAELMAS TERM, 19 VICTORIA,

Present,-THE HON. J. B. MACAULAY, C. J.

Defendants sold to plaintiffs, to be delivered at Port Hope on the first of June, two thousand barrels of Otonabee and Peterboro' mills flour, free on board; terms, cash on delivery or on warehouse receipt. The flour was not delivered on the first of June, but was deposited in Hackett's warehouse before and on the 6th of June, on which day a written order was given, addressed to Hackett at Port Hope, requesting him to deliver to defendants at Port Hope one thousand barrels of flour, Peterboro' and Otonabee mills, free on board, across the face of which W. C. wrote, "Mr. Hackett will please deliver the within flour to R. A. G. or order" (said R. A. G being the broker acting in the transaction), and R. A. G. endorsed it in blank. On the 7th of June defendants wrote to R. A. G. inclosing the order for the flour and requesting him to remit the funds by express next day. On the 11th of June, R. A. G. telegraphed to defendants, Money goes to-morrow, was ready first of June." On the 12th of June Perry, from Oswego, telegraphed to Hackett, "Minerva leaves to day for the other one thousand barrels, account of Coleman" (one of the plaintiffs). On the same day R. A. G. from Toronto, wrote defendants at Port Hope, that he enclosed £2125, being the last payment on the sale of the flour; on the 15th of June the plaintiffs presented the order of the 6th of June to Hackett, but was told that the flour had been burnt the preceding day : on the 16th of June the defendants were notified of Hackett's refusal to accept the order for the flour. It was proved that on the 8th or 9th of June the plaintiffs hesitated accepting the flour, the day for delivery having passed, but on the morning of the 12th of June plaintiffs paid the money and received the order of the 6th of June for the flour, which order had not been accepted by Hackett.

Held, That a specific one thousand barrels of Peterboro' and Otonabee mills flour having been deposited in the warehouse at Port Hope, and appropriated to the plaintiffs, and the plaintiffs having paid the price thereof and accepted the delivery order, theright of property therein passed to and vested in them, and that the property remained from that time at their risk. First count special.-An agreement to deliver 4000 barrels flour, free on board, at 42s. 6d.

Breach.-Non-delivery of 1000 barrels. Also money had and received.

Special pleas.-Traversing the averments in declaration,

and alleging performance. Coleman and McIntyre were copartners in trade. Proudfoot joined them, or one of them, in this purchase, and the misjoinder of one plaintiff too many was objected to; but the main point was the question whether plaintiffs or defendants were liable to sustain the loss of 1000 barrels of flour, burnt at a warehouse of Hackett's in Port Hope. On 12th April 1855, Goodenough, a broker in Toronto, bought of defendants for plaintiffs 4000 barrels Otonabee and Peterboro' Mills flour, F. O. B., at 42s. 6d.; 2000 on or before 1st of May next, and 2000 on or before the 1st June next. Terms, cash on delivery or on warehouse receipts.

The bought and sold notes mention the purchase as being made on account of Messrs. Coleman & McIntyre, but in the margin of the broker's book Proudfoot's name is inserted.

The 3000 barrels had been delivered and paid for. The 1000 remaining were not delivered on the 1st of June, but were deposited in Hackett's warehouse at Port Hope before and on the 6th of June, on which day W. Cluxton gave a written order at Peterboro', addressed to F. Hackett, Port Hope, requesting him to deliver to defendants at Port Hope 1000 barrels flour, "Peterboro' Mills and Otonabee Mills,' free on board, and you can charge me for wharfage, &c. Across the face of which defendants wrote, "Mr. Hackett will please deliver the within flour to R. A. Goodenough, Esq., or order," and Goodenough endorsed it in blank.

On 25th of May defendants, from Port Hope, wrote to Goodenough, inclosing Cluxton's order, "on our wharfinger here for 1000 barrels flour, &c., duly accepted, &c."

On 7th of June defendants, from Port Hope, wrote to Goodenough, "we beg to inclose order for the fourth and last 1000 barrels flour, sold by you for our account, please remit us the funds through the express that comes down to-morrow, and not to fail &c."

11th June, 1855.-Goodenough telegraphed to defendants. "The warehouse receipt only received on Saturday, after mails and boats had left-money goes to-morrow: money was ready 1st of June.”