The plaintiff could not, before the trial of that cause, have gone into evidence on the trial of this cause to shew the non-existence of the debt sworn to; and if not much less, is the verdict therein (which is merely the expression of the opinion of another jury, on evidence not before the jury in this case) admissible.

The debt not being contested or put in issue in the declaration as a ground of action or otherwise, but left uncontradicted, the plaintiff cannot, to shew malice, or to rebut a fraudulent design on his part to abscond or to enhance damages, produce the Nisi Prius record. Consistently therewith, and with the verdict for defendant therein, the present defendant may have had reasonable and probable cause for swearing to the debt, and if so, no action would lie as for a malicious arrest on that ground.

The arrest without reasonable or probable cause in relation to the alleged intention to abscond, and maliciously, constitutes the gist of this action, and the verdict in the other suit. is not relevant or admissible in evidence in support of this action; but it may have influenced the jury, and materially increased the damages.

If admissible at all, the suit should first be at an end, which it was not; and my impression is, that even if at an end at the time of the trial the result would not be admissible to shew that defendant had not reasonable or probable cause to apprehend that defendant was about to abscond to defraud him of a debt, the existence of which he had not reasonable or probable cause for swearing to.

I think we have no alternative but to set aside the verdict and grant a new trial without costs.

On reference to the learned judges's notes, I find no notice taken of the Nisi Prius record in the other suit, but the merits of the accounts were a good deal gone into in the course of the trial, and though objected to apparently during the progress of the cause, and certainly at its close, the evidence was received and retained; so that irrespective of the verdict in the other suit, inadmissible evidence seems to have been received. It is for the defendant to consider what is to be gained by this rule. Now that the other suit,

shewing nothing to have been due, is at an end, it is for him to consider whether the plaintiff can be allowed to add another count to this declaration, or whether, in order to proceed upon both grounds-i.e., because no debt was due, and because defendant had no reason to apprehend &c., he must discontinue this action and begin de novo.

Per Cur.-Rule absolute.

WILSON V. AITKIN.

Lex loci contractus-Promissory notes.

A promissory note made in Upper Canada, for a sum of money expressed to be sterling, payable in Glasgow, not adding the words, and not otherwise or elsewhere, is a note payable generally, and that the plaintiff was not entitled to recover the difference of exchange on such note.

In two cases, Mr. Freeman moved on leave reserved to increase the verdict. The actions are brought by the holders. against the maker of promissory notes made in Upper Canada, for certain sums of money expressed to be sterling, payable at the office of the payces in Glasgow, not adding the words "and not otherwise or elsewhere;" and the question is, whether sterling money is to be calculated according to the statutes 4 & 5 Vic. chap. 93, sec. 3; and 16 Vic. chap. 158, sec. 5, at £1 4s. 4d. currency to the pound sterling, or whether the difference of exchange exceeding that sum (as it does in fact) can be added, so as to enable the plaintiff to purchase bills and remit the amount to Glasgow, where the notes are made payable.

MACAULAY, C. J., delivered the judgment of the court. It does not appear that the notes were in fact presented there for payment or protested there for non-payment.

On reference to the P. S. 7 W. IV. ch. 5, and 12 V. ch. 76. s. 2; and the cases of Rothschild v. Currie (1 Q. B. 43); Allen v. Kemble (13 Jur. 287); Gibbs v. Fremont (17 Jur. 820, S. C. 20 Eng. R. 555); and Story on Bills, s. 177, it appears to me that by our law, or the lex loci contractus, the notes are payable generally, and that the plaintiff is only entitled to recover at the rate of £1 48. 4d. to the pound sterling. See Ross et al. v. Winans & Poore (5 U. C. C. P. R. 185.) Judgment accordingly.

In an action on the case to set aside a security, under which plaintiff claims, or a portion of the sum confessed, the plaintiff in the confession may shew in support of it the circumstances that constituted the consideration for the acknowledgment, and that such confession was to operate as a continuing security, to cover future as well as past advances.

CASE. First count abandoned at the trial. Second count recites, that being indebted to the defendant-to wit, in £316 148. 4d.—it was agreed plaintiffs should give a confession of judgment for a nominal sum of £600 to secure the aforesaid sum, on the defendant's agreeing that any execution issued thereon should be endorsed only for so much thereof and interest as might remain due; the judgment to be security for the said £316 14s. 4d.

That in pursuance, &c., the plaintiffs did, on the 30th of September, 1854, sign a confession of judgment in the Queen's Bench, confessing nominal damages of £1000 and costs, with leave to enter up judgment forthwith, but no execution to issue till the 4th of October next following, in default of payment of £600 and interest; and that the defendant afterwards entered up judgment thereon; that the plaintiffs had paid £132 of the said £316 148. 4d., leaving £184 148. 4d. only due; yet the defendant wrongfully and maliciously caused a Fi. Fa. to be issued on said judgment, &c., and endorsed for £446 168. 10d. damages, £3 9s. 8d. costs and interest, and 178. 6d. for writ, and caused the plaintiff's goods to be seized by the sheriff of York and Peel for the same, whereas £184 148. 4d. only remained due, &c.

Pleas. First-Not guilty. Second-Denial of agreement. Third-That the plaintiff did not sign the confession. Fourth That the full amount endorsed on the writ was due; absque hoe, that £184 148. 4d. only, or any less sum than the amount endorsed, remained due and owing, &c.

The plaintiffs proved a confession as stated, taken through the intervention of J. Crawford, Esq., the plaintiffs' attorney. It calls the £600 the true debt in the action.

It appeared at the trial that £600 was not all due when confessed; and that of the amount then due £184 148. 4d. only remained due when execution issued at the time alleged,

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but that £446 168. 10d. was due, including subsequent advances of goods, and that the £600 was confessed as the true debt to cover future as well as past advances; in short, to be a continuing security. Verdict for defendant.

H. Cameron obtained a rule Nisi to set the verdict aside, as being contrary to law and evidence. Hagarty, Q. C., shewed

cause.

MACAULAY, C. J., delivered the judgment of the court.

The facts then shew, not that the £600, or the confession to that extent, was to operate as a continuing security, but rather that it was to operate as a security to the extent of £600, including past and future advances; and that the execution was not really endorsed for more than the balance due, such balance being composed partly of both. Under such circumstances, I do not think the verdict should be disturbed. The satisfaction piece is satisfactorily explained -Dillon v. Browne, 6 Mod. 14; Hatton v. Young, 2 W. B. 943; Charrington v. Laing, 6 Bing. 242; Wooley v. Jennings, 5 B. & C. 165; Saltmarshe v. Hewett, 1 A. & E. 812; Re Brown, 2 Grant Chy. Cases 111; Shaw v. Vauduzen, 5 U. C. Q. B. R. 353.

The amount confessed, as compared with the debt really due, and the short interval between the confession and the time when execution might issue, tend strongly to the inference that it was meant to operate as a security to the extent of £600.

The second count does not impeach the confession on the ground of fraud, but of excess. Then prima facie it admits £600 to have been the true debt; and if so, there was no excess. But the plaintiffs seek to contradict it by parol, and to prove that the true existing debt was less, and that subsequent payments had reduced it to £184 when the execution issued. This is objected to as contradicting and varying the instrument without imputing fraud. (Part of it may have been a gratuity).

The defendant admits that if the confession cannot be contradicted he is protected; and if it can be, that on the same principle he may rebut the parol evidence by other parol evidence, proving that the £600 was inserted to operate as a security for future as well as past advances, not as a continuing

security, but as a security for any advances not exceeding £600 and if so, that he is equally protected. This seems reasonable. The consideration for confessing a sum due by a confession of judgment, like the consideration for a sum promised to be paid by a note of hand, may, I dare say, be investigated when necessary to the ends of justice, as both resting in parol contract. But, admitting this when the object is to defeat or set aside the security, or a portion of the sum confessed, I think the plaintiff in the confession may shew in support of it all the circumstances that really constituted the inducement or consideration for the acknowledgment, such as an existing debt and further advances contemplated and made, and the balance really due when the execution issued. Per Cur.-Rule discharged.

COMMON PLEAS, HILARY TERM, 19 VICTORIA.

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

Defendant, and those under whom he claimed, having the right to overflow the adjoining lands to an extent not exceeding ten acres, for supplying their mill with water, and which right had been exercised to a certain. extent for twenty years or more,

In trespass quare clausum fregit for entering the adjoining close-Held, that having the right to overflow a part of plaintiff's close, defendant had, as incident to that right, authority to enter and repair breaches in the natural state of the soil of the dam, but not to add thereto so as to cause additional overflow.

Held, also, that the extent to which such right could be maintained was that to which it was exercised during twenty years after such right accrued; and that a partial overflowing would not keep alive the right to extend the overflow at any time to the full extent of ten acres.

Declaration states that the defendant, on-to wit, the 1st of June, 1853,-with force and arms, broke and entered a