although the owners do undertake and are bound to carry them safely, so far as in their power, still serious accidents it is well known may happen from slight degrees of negligence.Christie v. Griggs, 2 Camp. 81. Carriers of passengers are not insurers like common carriers of goods, and are only liable for negligence including of course, the consequences of the inju rious act or tort which constitutes the negligence. Where negligence is established or admitted, the question of damages no doubt rests with the jury under the circumstances in evidence; still the cases on the subject seem to indicate that such damages require the exercise of a sound discretion with a view to afford pecuniary redress to the injured party for the damages he has sustained.-Blake v. The Midland R. W. Co. (16 Jur. 562); Theobald v. The R. W. Co. Passenger Assurance Co. (18 Jur. 583). It is difficult to say here that the jury have acted upon any wrong principle or been actuated by improper motives; still it does not appear to the court that they have exercised a sound and reasonable discretion. The grievous bodily injuries and suffering of the plaintiff may have influenced them in awarding so large a sum; no doubt they did, for there was little else laid before them on the subject. But, however attended with difficulty as a precedent for disturbing verdicts on grounds so peculiarly within the province of the jury, we have to consider that to confirm it might serve to form another, which might prove inconvenient and be in other points of view not reconcileable with the exercise of a sound judicial discretion.

We think, therefore, we ought to grant this rule upon terms, unless the parties can agree to reduce the verdict to a smaller sum. If not, we think that the rule should be made absolute; but only on these terms-viz., upon payment of costs and upon payment into court of the sum of £500, with leave to the plaintiff to accept it without prejudice to his claim for damages ultra at another trial. The defendants, if so advised, being at liberty to add a plea of such payment into court. The same and costs to be paid on or before the 1st of August next; in default of which the rule is to be discharged. We exact this condition not because we consider the sum mentioned to be sufficient in amount to cover the plaintiff's

damages, but because the plaintiff has manifestly sustained great damage and been put to much expense; and we do not feel that we can relieve the defendants from the present verdict without their indemnifying him in a sum sufficient to cover his expenses and to enable him to take the case down to another trial, which the defendants desire to have. Of course, if the whole sum was paid into court to abide the result, that would do; but the sum is so large that we do not propose to impose such a condition. On the terms mentioned, we think we ought to allow the case to go to another jury, but we do not feel justified in so doing on any other more favorable terms to the defendants.

Per Cur.-Rule accordingly.

PARNELL V. MARTIN.

Assumpsit-General issue, and set-off.

By agreement under seal, the plaintiff in this case agreed with the defendant to manage, cultivate and improve the defendant's farm for one year, and do whatever work defendant should require during that period, in consideration of the sum of £95, payable at the expiration of the said termplaintiff to have the use of the house on said farm during the term, pasture for two cows, and half an acre of land for a garden. The plaintiff served the defendant until within three weeks of the end of the term -then left the farm at the defendant's request, and upon defendant's promise, if he would do so, to pay or settle with him. Defendant afterwards objected, and plaintiff sued in an action of assumpsit for work and labour generally. Defendant obtained a verdict.

Rule Nisi to set it aside and enter verdict of £35 for plaintiff, on leave reserved.

Held-That the plaintiff could not declare in assumpsit for work and labour generally, because the work was performed under a sealed contract. ASSUMPSIT, among other things, for £35, work done and materials.

Pleas-General issue and set off.

By agreement under seal of plaintiff and defendant, dated 24th April, 1854, plaintiff agreed that he would, for one year from the 1st May, 1854, manage, cultivate and improve the defendant's farm therein mentioned, and do whatever work defendant should require during that period. In consideration of which said promise and agreement and other the premises aforesaid, defendant agreed to pay plaintiff the salary or sum of £95 at the expiration of the said term, &c.; plaintiff to have the use of the house on the said farm during

30

VOL. V.

the term, pasture for two cows, and half an acre of land for a garden.

The plaintiff served defendant till within about three weeks of the end of the year; and then, in April, 1855, left the farm at the defendant's request, and upon his promise, if he would do so, to pay or settle with him.

He now objects assumpsit will not lie by reason of the sealed agreement.

Verdict for defendant.

Rule Nisi to set verdict aside, and enter it for plaintiff for £35, on leave reserved.

Another ground of action for the price of horses sold by plaintiff to defendant was met by proof of payment.

Crooks shewed cause.

Wilson, Q. C., in reply, cited Armstrong v. Anderson et Cumming, 4 U. C. R. Q. B., 113; Turley v. Grafton Road Company, 8 U. C. Q. B. R., 579; Jones v. Nanney, 1 M. & W., 333; 1 Smith, L. C.; Fewings v. Tindal, 5 D. & L., 196. For plaintiff, Cort & Gee v. The Ambergate, Nottingham & Boston and Eastern Junction Railway Company, 17 Q. B. 127; Cro. Car. 343; Ashbrooke v. Snape, Cro. El. 240; Foster v. Allanson, 2 T. R. 479.

MACAULAY, C. J., delivered the judgment of the court. The plaintiff cannot declare in assumpsit for work and labour generally, because the work was performed under a sealed contract, excluding the implication of any promise in law arising out of the performance of his covenant, which affords a higher security or remedy. Then performanceviz., a year's services-being a condition precedent and the contract entire, no action would lie on the covenant without the averment of performance, which plaintiff could not establish. A verbal waiver could not be pleaded in excuse of the time omitted, and so plaintiff without remedy on the special agreement.

I see no remedy at law, unless it be competent to the plaintiff to declare as upon a new special agreement by parolnamely, that in consideration that he at the defendant's request would refrain from completing the residue of the

year's service, (whereby he would have been entitled under the covenant,) defendant promised to pay him for the services he had rendered under it, admitting that plaintiff did so agree to refrain, and had refrained. This would be according to the facts, and apparently founded on mutuality of consideration: the one refraining from services he was entitled to continue, and the other, in consideration thereof, promising to pay for what had been done.

In Goss v. Lord Nugent 5 B. & Ad. 58), Lord Denman said, "After the agreement is reduced to writing, it is competent to the parties at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, subtract from, or vary or qualify the terms of it, and thus to make a new contract. But that was a parol, not a sealed agreement.

Rule discharged.

CARTER V. HIBBLETHWAITE.

Lease-Verbal assent to sublet-Ejectment.

In an action of ejectment for breach of covenant not to assign without license, &c., against the assignee of the lessee, the plaintiff's verbal assent to the assignment, before defendant enters into possession, is no defence to the action.

Writ, 25th June, 1855. Ejectment for the east half of south half of Lot No. 11, 5th concession, township of London.

Lease-Indenture made 1st May, 1851, in pursuance of an act to facilitate the leasing of lands and tenements, between plaintiff and William Taylor-witnessed that plaintiff, in consideration of the rent thereinafter reserved, and of the covenants thereinafter contained on the part of the said William Taylor to be paid and performed, did lease, and to farm let unto the said William Taylor, all that farm known as the east half of the south half of Lot No. 11, in the fifth concession township of London, containing forty-three acres, more or less; to have and to hold to said William Taylor from the 1st May present until the full end and term of five years from thence next ensuing and fully to be complete and ended, -yielding and paying therefor the clear yearly rent of £13 158. of lawful money of Canada, half-yearly in advance; the

first payment of £6 17s. 6d. to be made at the time of the execution thereof. And the said lessee covenanted with the said lessor to pay rent, and to pay half the taxes and all the statute labour; and the said lessee hath power to cut down and use only twelve acres of wood, which wood is to be cut on the east side of the lot; and the said lessee doth covenant to clear up and fence in a lawful manner all the land from off which he cuts wood on the said twelve acres, against the expiration of the said lease; and the said lessor hath power to enter and view state of lands and buildings; and the said lessee will keep the fences in good order, and also the buildings, and will not assign or sublet without leave; and the foregoing is subject to a proviso for re-entry by the lessor, on non-payment of rent or non-performance of covenants; and the said lessor covenants with the said lessee for quiet enjoyment. In witness whereof, &c. Signed and sealed by

both.

The lessee said he assigned the lease to defendant, who entered and cropped it. There was evidence, and the jury found, that the plaintiff verbally assented to the assignment, after the assignment, but before defendant entered into possession. Rent offered but refused; defendant possessed and improved. The assignment was destroyed after plaintiff dissented. The assignment was a year and more after the

lease.

Wilson, for plaintiff, contended-The lease had been assigned without leave in writing, and a subsequent verbal assent will not operate as a sanction or waiver binding on the plaintiff. That it is a statute lease, and within the provisions of the 14 & 15 Vic. c. 8; Cro. Ja. 398; Smith v. Arnold, 3 Sal. 3.; Platt on Leases, 467; Doe dem. Nash v. Birch, 1 M. & W. 402; Doe dem. Gregson, widow, v. Harrison, 2 T. R. 425; Littler et al. v. Holland, 3 T. R. 590. Acceptance of rent might be a waiver, because it would be an act recognizing the tenancy as continuing. A mere er post facto assent is nudum pactum.

M. C. Cameron, for defendant, contended,-That it was not a lease within the statute, not conforming to its terms as it should do strictly-pointing out wherein it varies, or