stantly; it was off and on.

Plaintiff endeavored to establish an assault arising out of plaintiff's carrying away an axe of some of the defendants, and William Anderson following him with a rail, to make him drop it; in the course of which they threatened each other, one with the rail the other with the axe. The lane was said to be generally open in winter and shut in summer. Gate-posts were put up about twelve years ago, but there had been no gate for two or three years past, and it stood open that time.

The Chief Justice was of opinion, that on the plea of not guilty the verdict should be for the plaintiff against all who were there and took a part, unless the jury was satisfied that the fence removed was not on lot No. 18, but on the concession line. If on lot No. 18 then for plaintiff as to all or any of them, according to the evidence, on which he remarked— Second. For plaintiff on the second plea, as the close in which, &c., did belong to him.

Third. That the alleged prescriptive right should be found for plaintiff, there being no prescriptive right to have the whole front of the lane open, but only a passage through the bars or gate.

Fourth. That the way by grant should be found for defendants, being a way two rods wide and covering the whole width all through to the road. But as to the excess newly-assigned, he thought the right of way would not give a right to cut down the posts, only to remove them, doing as little damage as might be.

Fifth. That a right of way of necessity should be found for plaintiff, for there would be no right of necessity for more than horses, carts, &c., to pass.

Sixth. As to the assault, it was left to the jury, though he could not say any was proved; and no evidence against any but Peter Anderson, and as to him no proof of striking with the rail, within striking distance. He thought the plaintiff entitled to a verdict on the first, second, third and fifth issues, and the defendants on the fourth: the sixth left openly to the jury. If any, who assaulted first? As to the excess, the plaintiff's counsel objected that the grant of way was not legal. The jury found, as the verdict is entered, for all the de

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fendants as to the issues under the third count; for the plaintiff against Peter and William Anderson on the issues to the first and second counts, with £5 damages for the excess on the fourth issue; and for defendant Osborne, David Anderson and Trueman.

The Chief Justice's note is, Verdict for plaintiff on the first and second issues and £5 damages, but only against Peter and William; for the other defendants, on the first issue on the third and fifth issues, for the plaintiff; on the fourth, for plaintiff as to the excess; on sixth, for defendants.

Plaintiff's counsel obtained a rule Nisi to set aside the verdict for plaintiff, and for defendants on the issues found for them; the verdict for defendants being contrary to law and evidence, and for misdirection.

M. Vankoughnet shewed cause, and referred to Ba. Ab. Grant H. 3; Sheppard's Touchstone 78; Com. Dig. Grant E. 5.

M. C. Cameron supported the rule, and relied upon the want of proof of an existing road, and of uncertainty in the road mentioned in the decds, and referred to Preston on Conveyancing, 394.

MACAULAY, C. J., delivered the judgment of the court. The verdict is not entered in accordance with the Chief Justice's note, and if amended it should be

Not guilty-First. For plaintiff against Peter and William Anderson; and for the other defendants, to first and second counts; and for all to third count.

Not possessed-Second. For plaintiff against all the defendants applies only to first and second counts.

Prescription-Third. For plaintiff against Peter and William Anderson, who alone pleaded; and for the two defendants, as to excess.

Grant-Fourth. For defendants Peter and William Anderson, who alone pleaded against them; for excess, £5. Necessity-Fifth. For plaintiff against Peter and William Anderson, who alone pleaded; and for them as to excess. Assault-Sixth. For all the defendants.

So plaintiff has a verdict against Peter and William

Anderson on the first issue, and the new assignment of excess to fourth plea, £5 damages, and against all on the second issue; also against Peter and William on the third and fifth issues; the residue for defendants. As to the first issue, it was for the jury; so the last-Cowling v. Higginson (4 M. & W. 245), Osborn v. Wise (7 C. & P. 761), Webber v. Sparkes (10 M. & W. 485-6), Dand v. Kingscote (6 M. & W. 173), Ellison v. Poles (11 A. & E. 665).

Plaintiff has a verdict against all on the second issue, and against those two who pleaded the third and fifth pleas. All turns then on the fourth issue, for he has a verdict as to excess, £5 damages. Then, as to the fourth plea, I think it quite clear that the two defendants have established a right of way by grant; the effect of which, with the rest of the verdict, is to bar the plaintiff so far as to limit his recovery to £5 on the issue of excess to the fourth plea, and costs of the other issues found for him, against which defendants' costs of issues found for them may be placed.

I see no sufficient ground for setting aside the verdict. The main question was, whether the two defendants could justify under a right of way by grant, prescription or of necessity. I think a right of way two rods wide was granted; and that a lane having long existed of nearly that width leading from the highway through plaintiff's close to defendants', the reasonable intendment is that the grant was meant to apply to that lane as, the way granted.

My doubt is, whether the fourth plea shews an obstruction impeding the actual use of the right of way at the time when &c., to justify abating the alleged nuisance on the one hand; and if the plea be sufficient, then whether cutting down the posts, &c., is not justified on the other. But the defendants acquiesce in the verdict, and have not moved against the finding of the jury as to the excess. There being a grant of way, and a wrong in fact existing at the time, would indicate what the grant meant.

Per Cur.-Judgment accordingly.

SHIPMAN V. GRAYDON.

Landlord and tenant.

In an action for distraining goods where no rent was due, and the case was left to the jury as an ordinary case, without being expressly left to them to find double damages, and without their being apprised of the provisions of the statute, the court refused to increase a verdict to double the value of the goods distrained.

CASE for distraining plaintiff's goods, a sleigh, &c., when no rent was due. Second. For excessive distress, and Third. Trover.

selling at under value.

Pleas-Not guilty, by statute: a general verdict for plaintiff, and £8 158. damages on all three counts.

Plaintiff's counsel, Cameron, H., now applies to the court to order judgment for double the amount of the verdict or value of the goods.

Defendant's counsel, Vankoughnet, M., shewed cause.

It appeared by the Chief Justice's notes that plaintiff was a tenant of Graydon, under a verbal demise, commencing in August, 1853, at £12 10s. a year, rent to be paid yearly, quarterly, monthly or weekly, but no definite time fixed; and there was no evidence of payment, except that defendant's son said he had often demanded weekly rent at his father's request. A notice to quit on the 9th of August, 1855, was served on plaintiff 22nd January, 1855; and Armstrong distrained for 98. 7d. rent in arrear, under a warrant of Graydon, dated 22nd or 24th January, 1855. He seized and sold a cutter worth about £8 158.

There was evidence that Graydon admitted the plaintiff owed him only a small sum, which plaintiff paid, and some small balance over, which he said Graydon could pay him at any time, when not clearly appearing; but last winter, before the distress, at a time when plaintiff was about leaving the premises to go to Port Perry.

The jury found for plaintiff £8 158., and no rent due.

Vankoughnet contended that the application was too late, and that the additional value should have been assessed by the jury at the trial, which he failed to desire.

Cameron contended he had adopted the correct course in the application-referring to Hilton v. Fowler, 5 Dow. P. C. 312;

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Masters v. Farres, 1 C. B. 715; Statute 2 W. & M. ch. 5, sec. 4; Woodgate v. Knatchbull, 2 T. R. 148; Buckle v. Bewes, 4 B. & C. 154; Cann v. Facey, 5 N. & M. 405; Baker v. Brown, 2 M. & W. 199.

The case of Baldwyn v. Girries, reported in Godb. 245 and Moo. 873, pl. 1217, is not quite like the present S. C. 18 Vin. Ab. "Prohibition" F. No. 4.

The case of Masters v. Farres (1 C. B. 715) is more like it. There was in that case a count for trover in addition to the count for distraining when no rent was due. Here there are three counts, and a general verdict on all; and we are asked to double the damages, the effect of which would be to double them on all the three counts. In that case Maule, J., said the jury ought to have been directed, if they found for the plaintiff, to give damages to the amount of double the value of the goods, but that he did not remember having so directed them, or that he was asked to do so. Tindal, C. J., said the mistake should have been set right at the time, and that it was then too late to apply to the court, being after the expiration of the four days for moving. Maule, J., said the complaint in substance was, that the jury had given an insufficient amount of damages.

Cases where treble or double damages are to be recovered do not present the same difficulty, because the court has in the verdict the amount of single damages, if it appears or is presumed that single damages only were given.-Deacon v. Morris (1 Chitty's Repts. 141), Buckle v. Bewes (4 B. & C. 154, 1 Lord Ray. 342), Barnard v. Moss (1 H. B. 107), Attorney General v. Hatton (13 Price 476-7, S. C. 1 McCl. 214). It was held that the verdict must be taken to be for single value when nothing is said about it at the time, and the course was for the officer to double the amount. But there the jury were aware of the usage, and knowing their verdict would be double, did not allow the full value (of duties abstracted in that case), but half the amount. So the language of Garrow, B., who tried the case, as reported in 1 McCl.

Now in the present case it does not appear that the jury were aware of the course now urged upon the court, or that