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AND WILLIAM JAlilES TAGGART, {Defendant,) Respondent. J. T. GARROW, Attorney for Api.rXlaut. CAMEROM, HOLT ^ CAMEROK, Atto.tuys fur lieitpundi^.iit. GODERICH, ONT. HUROf SIGNAL PUINTINU HOl'Sl, NOUTU STKEfcX. 1880. IN THE COURT OF APPEAL. In appeal from the Connly Court of the Connty of Huron. ROBERT TAG G ART, PlaintiflT, Appellant. V«. WILLIAM JAMES TAGGART, Defendant, Respondent. Action commenced by writ (specially etdorsed) dated 3rd October, 1879. Declaration : filed 81 October, 1879, For that tho Defendant is indebted to the 1 Plamliff for money payable by the Defendant to the Plaintiff for money awarded by James Mullen, Robert Murray, and Charles Girviei, to be piid to the Plain- tiff by the Defendant, by an awani of the said Jam-s Mnlliu, Robert Murray, and Charles Girvin, made under a submission to their arbitration by the Plaintiff and Defendant, of matters in difference between them; and the Plaintift claims two hundred dollars. Pleas: Filed 10th November, 1879. J. Nunquam indebitatus. 2. Satisfaction and discharge by payment before action. 3. That before the commencement of this suit, the Plamtiff was and still is indebted to the Defendaot in an amount greater tnan the Plaintiffs claim, for that certain disputes and 2 differences having arisen between the Plainlifi and Defendant, the Plaintiff and the Defendant by their several Bonds, dated the Twenty-eighth day of August, in the year of our Lord one thousand eight hundred and seventy-nine, became each bound to the other in the penal sum of one thousand dollars, which said several b;.nds after reciting that disputes and differences had arisen and were then pending between the Plaintiff and Defend uit, touching and con- cerning certain unsettled account-* between them, and also t .uching and concerning their re- spective rights under a certain lease (with a right to purchase) of certain lands mentioiisd and described in said lease, and of ceitain goods and chattels, which said lease was dated the Thirtieth day ol July, A. U. 1877, and was mado hetwisoii the I'laintiti", of the first part, and the Defendant and nne Clark Tuggart, ot the second pari, and also alter reciting that tiie Plain- 8 tiflf and Defendant had agreed to refer such disputes undditi-jrences, us well as all actitiU:*, suits and controversies, accounts, reckonings", matters ani tilings, uml uUo their respodivri rights un- der the said lease to the award, arbitrament, final end and delortninatit)n ol James MuUin, of the Township of Ashfield, in the County of Huron, contractor, unJ lldburt Murray, < f the villagfi; of St, Helens, in the County of Elurtm, Township Clerk, aid s.ieii third arbitrator as tho Baid two arbitrator* by writing under their haul endorsed is or of any tw.> of them, shoulil be final and conclimive, and also after rtcitiiii,' that the Hlainlilf and D»?hmdaiit ha I al*o agreed that the said abritrators slionld have full power by their award ti> caiiCi'l the said leasi" 4 so far as the same affected the Defendant and tlie Plaintiff, and a's.) to cancel the right to pur- chasLi therein contained, and to award sueli dama'^o.-i by reason ubject, however to the following conditions. Ist. That the said Robert Taggart give the .said William J. Taggart the use of the said mules, harness and waggon for ten days next, irom the Nineteenth day of September A. D. 1879, 11 12 13 14 2nd. The saiJ William J. Taggart to have the right to enter on the said land at any time up to the first day ol" March A. D 1880, for the purpose ot removing any property ot his from 11 oft" said promises. 3rd. The said Robert Taggart to have the right to enter on said land mcvjioned in said leaae at once in order to do fall ploughing and sow tall wheat doing no daraago whatever to the said William J. Taggart or his property. Third. We award, order and direct that the said llobert Taggart do and shall pay to the said Wiiham J. Taggart the sum of two hiinarcd dollars on or before ihe first day of (Jctober A. D. 1880, as and lor the damage accruing to the said William J. Taggart by reason of the cancellation of said Lease and of the surrender l)y liiin if ihe right to purchase therein contain- ed. And tlial tlie said Robert Tagg.irt do on or bi-Iurj thj lirst of Ojtob^r, A. D. 1879. give the said William J. Taggart security for the due payment of such sura at the time aforesaid to wit 12 the first day of October, A. D- 1880. And in case the said tiobert Taggart fail in giving such security at ilie time mentioned, then w? do award, order and direct that the said Kobert Tagg- art do pay the said sum of two hundred dollars t ) the s lid William .1. Taggart, on the first day of October A. U. 1879. We award, order and direct that the said William J. Taggart do pay the costsofsaid reference and award forthwith which we fix at the sum of fifty eight dollars. I:i witness whereof we have hereunto subscribed our names this third day of September in the year of our Lord one thousand eight hundred and seventy nine. Signed, Sealed and delivered in the presence of Plulip. Holt. S'd James MuUin, S'd Robert Murray, ri'd Charles Girvin, (Sean (Seal) (Seal) 13 And the Defen'?ant further avers that the Plaintiff and Defendant attended on said Arbit- ration before said Arbitrator!? during the progress of said Arbilration, without any objection as to the regularity of the proceedings under said bonds, and the defendant farther avers that the saia Arbitrators on the said third day of September, A. I). 1879, duly published the said award to the Plaintiff and Defendant who then had notice thereof aid of the contents thereof. And the defendant further avers that the said Plaintiffdid not on or before the said hrst day of October in the year of our Lord one thousand eight hundred and seventy nine, give tn the Defendant security lor the due payment to the Defendant by him, the Plaintiff, of the said sum of two hundred dollars, so by the said award awarded and directed to he paid by the Plaintiff to the defendant on the first day of October A. D. 1880, as requited and direct-d by 14 said award although duly requested by the Plaiiitill so to do but on the contrary thereof IIk' said Plaintiff neglected, refused and failed to give to the defendant such security on or before the said hrst day of October A. D. 1S79, lor the due payment f)y the Plaintiff to the Delend ml of the said sum of two hundred dollars at the tiin ; mentioned in said award, to wit, the first day of October A. D. 1880. Nor did the said Plainiilf pay to the Defendant the said sura of two hundred dollars on the said first day of October in the year of our Lord one thousand eight 15 16 17 hundred and seventy nine, ar any part I'lorool Imt wholly ni-docted and refu-sei so to do, atul for money payable by the Plaintiff to the delcudant for money awarded by James Mullin, Robert Murray and Oharlt-s Girvin to l)e piid to th(! Deiendant by thu Plaintill by an award ol the said James Mullin, Kobert Murray and Charles Girvin made under a subiiiissioii to tlieir 15 arbitration by the Plaintiff and l>fendant of ;r.atters in diderence between the(U. And the defendant claims lo recover a bahince. Keplication filed 18lh November, A. D. Ifi79. 1. Joinder of issue on the Pleas of the Defendant. 2. Second Replication to the Delendanl's third plea : That the Plaintifl did on or before the first day of October, in the year of oiir Lord one thousand eight hundred and seventy-nine, give to the Defendant security for the due payment to the iJefendani, by him, the Plaintiff, of the said sum of two hundred dollars, so by the ^aid award awarded and directed to be paid by the Plaintiff to the Deleiidant on the fiist day of October, in the year of our Lord one tliousand eight hundred and eighty. 1(^ 3. Third Replication to Defendant's said third plea: That the Plaintiff always was ready and willing to give to the Defendant securiiy for the due payment ol the said sum of two hundred dollars, and on the first day of Octoh.>r, in the year oi our Loul one thousand eight hundred and seventy-nine, he tendered to the IJi-fendant a promissory note for \\v^ said sum of two hundred dollars, payable to the Defendant on the said first day of October, hi tlu^ year ot our Lord one thousand eight hundred and eighty, made by the Plaintill, William J. Bennett, and Alexander Phillips, which the Plaintiff avers was a reasonable and sulficient security lor the due payment by the PlaintHl to the Delcudaut ot the said sum ol two hundred dollars. Yet the Deleiidant without any just or sutlli nt cause refused to accept or reieive the said se- curity. 17 Rejoinder filed 18th November, A. D. 1870. Defendant takes issue upon the Kepfieation of the Plahitifi". Case tried betore a jury on the 1 It'.i December, 1879, W. R. Squier, Ki^ciuire, .ludge. E^/IDKNCE TAKEN AT TRIAL. Counsel for Plaintill. Mr. (larrow. Counsel lor Defendant, Mr. Cameron, James Mullin, sworn : 1 know the parties to this suit. I was an aiI)itrator between them. I was a witness t > 18 1(1 i>( exhibit "A." An award was made by the arbitrators, of whom I was one (the award is now put in marked "B"), aud the endorsement marked C is in my hand writing, 18 Cnss-Ex'd — Mr. Girvin was not present when the evidt-nce was taken. 1 don't think he \\!}». My. Girvin was not there vvlieii the evidence was taken. Alter the evidence was taken and the two arbitratcis had faih'd to agree Cruvin came id. Robert Taggart, Ph\ii>tin', sworn : I am the PhiintiH"— the lease has been ciuicelled, m (he award iliHClsJ, No move has been made towards the setting aside ol the award. On the 1st October, I tendered a note to the Defendant, and 1 believe VV. J. Bennett now has tiie note. The note ncnv prodiuied mark- ed "D" is the one 1 lend'icd to the Defendant. When I tendered the note Defend mt ^aid, neither of securitietj was good and neither f theui \\'G9 ^'S^ ■ I am worth $lt)0O; rhillij/s SslOOU and Hennelt $500. I think 1 offered good security when I olf'^red the note on 1st Oct >- 19 ber. EnC retused to take it, and said he'd be damned if h(!'d lake it. Alexander I'hiUips was present. We were not on friendly terms. If I did not ofler the tteciirities then, I did not do so at all. Cross-Kx'd— 1 think it was on Wednesday that I tendered it to tlie Defendant I tendered the note on the first October. The Defendant's house and mine are near together. Wlien I tendered the note Defendant was going out to meet a team— Fiizpatrick was driving it. If Ed, had been there and the hoi ses quiet he conid have heard what went on. Wlien I ten- dered the note I was noarer thin 15 feet to the Defendant. The note marked D is tlie only one tendered on that day. I told Defendant this was a non-negotiable note and Defendant said he wanted a note he could sell, with good security, 1 told him I knew he would sell the iiO note and his property was in his pocket. He would not take the note. My farm is mortgaged lor $13U0. My chattels were mortgaged, but the mortgage is discharged. I havii a mortgage upon Bermetl's ni res Defendant said he wculd take such security as he i.ould sell. 1 tried Irwm and White and they relused to endorse. I did not see Dt'fendant ut Lucknow. liut I don't remember whether I saw him on my way liome. That evening I heard but di i not see him. On the 3rd Cctooer, I tendered him the lu-goiiuhle note, i.e , ! would give the n t> il he would pniy the rent. On the 1st I told him I would give him a negotiable note if he would come in'.o town the morrow and pay me the rent ; he said he was not bound tv. run over the countrv alter me W. J. Bennett, sworn: 21 I know the parties, 1 drew the note marked '^D" about 11 o;i thi; fir^t Octtob-r. Plaintitl asked me to draw the note. At the time the note was drawn Alexander Piiilips was there. I saw the parties on the sime day when he (P) oflered the note and told him \V. J. liennelt and A. I'hilips were on the note nnd he said he would not take it, to stick it in his a 1, I saw the note in his hand. The Defendant snid lie had the money in his pocket, and he would like to see tlie man who would take it out. Philips was inside at the time of the eonv-n- i saliun, nobody was present so far us I could sec, Hat Ed. Fitzpalrick was coming down the road. He camo on to where th'.* pnties were talking, lain woith more than the iaco of my note. I'hiiipa i.s worth considerable, he is a suliicient security for 4200.00. On the 4th Oc- lober I saw Delindant and served a writ on birn for $124 00. He .said lie would not lake the 2i note because it was not security. Cross Ex'd It was at Dungannon tliut I heard Plnintiffsay he Would not take tlio secur- ity. When I was tliere tlie old man >aiii "Here William is this note." He told him that Alex IMiilips and W J liennelt were to it as securities. At that time he was not very far from the Delendant. Delendant said he miglit stick it in his e 1 He said he was damned it he would take it. 1 recollect ol" nothing more being said than I have stated. I saw the note when Plainnd'vvas talking to iho Defendant. Delendant said Plaintfff told him it was a non- negotiablo note, and !»aid he wanted a noie he could sell, and the old man said as soon as he would pay the rent he would give a negotiable note. Alex. Phillips, sworn : 23 I am a son-in-law of Plaintiff's. I signed the note marked 1) on the 1st October. I don't know about the note alter it was .signed, I did not see the note thai day again. I saw it after. 1 am worth over $10iO. t afterwards denied I had signed a note of the kind. I am on good terms with both parties. Cross-Ex'd — 1 told Defendant I h.id noi signed a note that day in the presence ot Young Fitzpatrick. 1 did sign tl>e note in the mommg. 1 told Defendant before the 1st October that if I got a good chance to sell I would go away. John Mallough, sworn: I live in Waw.inos!!. I know Plainiitf, Ceniielt and Phillips I lend money and buy notes. Phillips is giod for .^200. I was asked by Defendant if I would take the note and I 24 said I would. E Campion, sworn : I am Attorney for Plaiiuitf. I am ;ilso Attorney lor t'-e Defendant in an action l)rought by the preseni Defen laiit ngainst the present Plaintiff' upon the award in question in this suit. CASK. Mr. Cameron sa3^'i tluvl the awar.l is un I 'r av/A, an J thai the declaration is in a'^snmpsit. 2. No evidence oi any reference between parlies. 25 •2(i& 3. The PlainiilF tondereJ a noii ntigoliabic notu and that is not a li'fjal tender. 4. There was no tender at all because it was not made under such circumstances a« would give the Uelenilant auoppoiiunily of examining the note. 25 6. The note is no ni)lo. 6. Tliero 18 no nole as n te is not stamped. Di^KKNCi-:. W.J. Taggarl, sworn : I am the Defendant. I s.ivv no ii ^t- ov any (hwuinent on 1st Oeloher. I s;ia' the I'laintilf on the Ist October b.'lween 11 and 12 oVlocli. lie was not closer than two roils, when lie came to me then, lie said, '-this is the diy ta it n )te is to \w settled and I'll givi- a iiol»! for 870 if yon will allow in • 10 |)er (!ent on t!ie $124 you have to give me iio.v,'' 1 6aid he had juid lor HOttliny, and iliafslhe w;.y he would settle. I did not hear l!h; I'iiiiutiir ollering a note that day. Nor did I see one. In the evenin;,' when they came i'ro;ii LucUnovv I hhw dieni I heard William hallo(.in.'^ ami asking have you -ot that not-, and he said he had not it, but it 29 he would follow him into town to-morrow \m would give it to him. George ('anweli, sWorn : I was with Defendant coming hom3 h-.m Liicknow on 1st October. We were all sober. I stopped appf.site the old man'.s place. I heard William ask about a *200 note, and the ohl man said if ho would come into town to-morrow he would give it to him. Cross-Ex'd— When the Defendant drove up he asked the PhintiH' whether he had th.t i(200note, and he s>uid he had not but if he went into Goderich he would get the note. DEFENCE CLOSED. James MuUin, reealle.l by Plaintiff: I was at Dungannon on Division Court .lay. and .saw the Tagg^irts there, and I wanle.l :]0 the parties to settle. I dslo-d him why he did of il.U Uul« show chum-: ni Wl.y .r (lu. riuiu.ia i....M.an. ( V. ro... V...I at .lu- trial, on t'u- gnmuJ tint ih. non-.u.t cnieivcl l.y llu' k.«rmnlju.li,.. w,.H.va,iraryiol«w..-vi,l...w,...un.l .ho w.i.^'ht of evul.nc.., Or why t.. ...a nun-Huit Hhoul.l not b. ^.t asul. an I a u.w tri.,1 «ra>.t<..I ... tho ;,rnina th.i tho .. .n-s .,1 c.- .ered is contrary t. law ... 1 .•vi.!-...'.. a.il m.> .nti... • !.■. all pr-v^cxh..,- ^r ^t.y I. On motion of Mr. tf arrow. ul'Co.inM'l lor Phiinl'ir. hy till' CiMirt, I). McDonald. Chii. 32 JUDGMKNT ON lU LK MSI, ,-,, p,,i,ti.r l>vi..,s his .ction in aol., tbv tl.o ....t;.re....xent ol h.s cla.n.. un . U^ • N^ | ,,,a.,.., in ..vid.nc.a,.cl has thus a...n.n«d ,h. bur.l.n ol prov.oKt.ot only o va " - - 1 ; ' mutu.l enl>..us.ion of ,h. tnatt.rs tlu.eby dHer.nin.l. Though acc^nl.n, o ^ ' ;^ UV.nod in the award a sv.iu.n .ub,T,i«.ion would ai.poar to be .n cx.st.nce the inau...rt .ns, a, od" i.,.. an.) pv.vin. ,h. .an.e in i! rdinary way relied upc.u the aC. and eond...:t .1 h . nd^nt as proch.di.., bin. IV.nu oh,...! .. t . f . • war.t ol tho nec.3s.ry sub.us.on. I.. 11 vs N,d..lsoa 3 n. N. C- . .. th. si.,u,u,v by t^. Delendant pur«uan to the duec.ons .,• an ...arcl ot an u..d..t,.l.ing .»ot to pir .t. IM. at ills invent.on. vvas hold .ulhc .en proo . Delendanis hav.n, .nb:..itt..d to .he ..bit.-ati... TU. same prnxcple .s aeted "P " ^ '^: 3vnan vs S.ui.h 6 K >. U Til. whev. tk. parties by aeli.., upon th. re IV-ronco a. ^.U .ubs,^n, were held to be e.toppod Iro.n de,.y.n, ,ho exis, •. ce of eucumstance. uece.su-y to ^.ve .In.,.- i ,„totl.e Arbitr'L Who had entered up.:, ti.e .-eleronee alter tho e.xp.:tng . the t..ne n I by the onier. I. app.a.. i>y M.'. aun,>iou's evidence th.t .he present e -ndan as : :,t^.ae,u.aa,ai..,t.epros..tPlainti,r.M.>ni>---.d aud , at the Delendant has :..:uled,ho seea.itv ,o wh.h be eo.sMe.vd b.u..ir entitle 1 .hereunder. "■---'«- cessce.nto.n..ohequi.esutlie,ienttoest.pplU. Delendant b'o.n d eny.ng the . x.stenc ol .. submission np.ai which lo base the award. The Defeuda: t by the terms of the award was entitled on the 1st October lh79 to a valiam a > ^^^ ^^^^^__^ „^^^ ^^,^j^„. .„ ,„„,, „„ „,,,,„,. tanity of d... na.amg ->"',;;';, J ,, ,,,, ^ w. 347 it ™h ..Id that a. olh.r „. -U- livc- go,.J, in cl »J.l ca,k., v.,» not a o u _^^^ ^^^^^^^^ ^^ ^^^^^^ ^^^^^^__^^^^ ^_^ ^^^^ ^,_,^ „, „„ tioii aiid .11 Mallvs.il V* iv-Uv -1 n ^- ■ • ■ „„,j„„,„„ ,h„ money said ''Haro i> yoar ,,a„alo,d,,l,cMhi,ngl,tlnndn.ad,».« doe.u.ne.i. in Oefe.ld- bo,.bedid,.ot.« any ..me as.tsoem, '"'"^ ' , n„„„ ,|,„i ,|„. Delendaiu would tbero an.s hamls or give hi,n s..cb an easy oppov. .l,.y ...p. . °,j, t„, „e(.,„d.ol might have after be „,i,b,e .o pl.id '^':;-:^,:^,:r::::^2:L.l^^^ tbat be w e dispensed w ilb the ■"- , ^ , '^ . ,.^|„,.., „, „,„, „,„ Malbeson vs Kelly sup.a and ceive sneli asecin'V a, 1 l.in.u „o,.v,te to relb-ve the Flai.ilid Irom the the eases .here ei.ed, ba: sueli dis,ensat.o„ .. :;',;"; '" ^„„,„ , „,,,„,„ „ „osi rorm.lit, o, a.,.,ider aa 1 .,.,,.. ..n ''';--, i;',;:;!::,!,, m Polglase vs Oliver . C. . .T. u .as notUKU ... am.n. u>n .-d --7, ;;" ^^^^^ ' ^ .cl.l. . n^n .ayu., there .vas not a v.hd t.Kl. • ^ "^ ^^ ,, ^^. ,^,, „, „,,, b.o . 1.4:1 I :hu.U that au ertectual .euder In.l >;^' ■'^;- ,^^J ^ad the Defeudaut objocte.l only : and properly stamp d -u-.o ^^'^ ^^f"; .; ^^..^i,,,, any objection to tl.e namber ot- to Its nun negotiability h. w.uUtl '>^^ 7'-\^ ' ^ .^^i;^ ; ^, J,,, ,,,„ which the 1).- \f tend ot tl the the SL'Cl pro me 39 sec evi th* \Vi th 111 11 40 tl 41 13 t„„ 1-l.iu.i., deni» .l.« "■"'■'S ';„",;;'J h . ,u,t ,u....ss.,y i. -i-v of my .,,nu,m a, ,c, t.c „e n,„r„,agof Oclobor .., ..ul »' ™ ;, ,„ .iL t^c ,., and vas »o .vas i„,al,„ a. a bid o, „.M. ■;^^^l^^^;t „i„r for .iu, payment of .be amo.n. mem.o ed therelo«. at tlie moment of ...ndu.ee,> > ^^ .n,e qtieen, 2 hup. et lul,. 340d .,„ i„ face (McKay vs. Gnmley 30 l^- <-• « „„„„„.,,, simply 'o P«'ve ,t. ex .tone Tho reception of .be d„entnent on -vide,.. • ''^^""f' ^.J walb.n, I, U 3. «■ I'- T') """' ' rsocb and t„e .ender „t .t wa-l'"- l^''^« J ; ' '.^ i„,„„„,en. until the clo,e of the case tbink that by om.tting to ob.ieet "> ";''°'; 1 ° „„;„,„„ „p.,n i., invalidity and ,t. .n- 40 t Defendaal di.l .tot d.n>rive Nio.seit ^^ .^^ " -^J ,„„„,„, („ „„,ai„g as 1 IniHeiency as a prope, -> V"*"'"^;'; * "2«eV was invalid a. a pro.nissory ..o.e by reaso do, that the doen,nen. .a.d to ''''-;; ^^^^"thteless as a sec.m.y to the Defendan.. . ot lie wan. of stamps and so was »''»1°''^'S' «' ^„„^,„ ,t„„pi„g have rendered that no that the D.fentant ,mgbt bave ^ ™ j;,;' ,'„ ,, , ,„d ,.rbaps, if bo h,..l so taUen j., eBeetnal as a security which .he lau 'l"'""' " "' ' ,^,,,1, vs. Uobinso.,, 33 b. C , B. *lld no. now be heard to obiec. to | e -- -' J ., ,,„„„, ,„,«» upon the 362) bn. the I'lain.ilt betng bonn. to g.vc .he U ^ _^_^^ ^_^ .^^^^ ^ ^^1,., ,,,„„„sory ^,L,dant .he troob. a.d ;;;;.■- :^-:::"t^ rule shcnld be discharged wi.h c,.ts, note, a" sticuiny "^ 41 Rule discliarged wiUi co^U RIU.E DISClIAlinING RULE NISI. A? yet of Jaiiiiary term 1880. 43 Victoria. , nil „■ f.f luiuarv A. U. 1880 and upon R„leN„ihercmda,eJ,l.e I""' t* .^'j ""Lj.he same is hereby Upon -^'"^^;^,:;:'::.7u:o;a7r:dt;.„ said ame nisi be and ,he same hearing counsel tor hotii puu , discharged with costs. Dated January 24th A.D. 1880. 42 ti tl u 43 ( 44 14 REASONS OF APPEAL. The PUuutill submits thai the said Kule Wi.i should have been made absolute lov a mnv 42 trial on the grounds stated in trie said Rule lor the U.Uuvving, among other reasons : 1. The Plainllfl-'8 case was prov.J by i.,..or of the auard which the Icanicd Ja.lge of the County t;oa.t huid la be .ulli< .ciilly Movni. The real eont.ove.sy arose upm Uv, evidence upoa Dclcndanfs right ot sett uli, this sel uli depe..d..ig up:.n the quesuoa ol whether U.e Plamtili had complied with the award, by -ender.ng 'o the Deleuda.it a security on the lirsl day ol Octooer The learned Judge held that li.ere was no .ndence ot any t.-nder ol sec.r.iy, and thai in any event the inst.-u„ient said to nave been tendered, was n,>t a security wit .i.r the contemplation ol the awaid heoa use unstamped, Upon these haduigs the case saoaM under any circimistances have gon.' to the jirry, aaJ a no.i-sait wasimproi)or. 2. There was some evidence ol a tender ol the instramenl in ciuestionon the hrst ol 43 October, incompliance with the awa.d, atrd tl such evidence was conihctm,, that was lot the jury, not lor the Judge. 3 There was some evidence that the Ueleuda.it hy his condact vvaived the right to de- mand a strict tender of such security, which was also a question ol fact tor the jury. 4 It appeared by the evidence that the demand made in the evening by the Delend.nt was ;.th:;iSiu Jreasottable manner nor at a reasonable time -^^ Pj;-;^- -^-^ the alle-^ed relusal by the Plai.mfl to then give the security was distinctly dented. hue ^^ as ttn-liv, upon this'pointU' material a conllict of evidence, and, therefore, a question ol fact lor the jury. 5 The objection to the instrument tendered urged by the Defendant at the trial, and 44 upon which the learned Judge held m his iavor was that it was not properly stamped. Tht, objection is untenable for the lollowiiig reasons : («) It Avas not taken when the instrument was tendered on the lirs, of Octobe.- bttt the Defendant then objected only to the smx-ties after heari.tg- their names, and to the manner in which it was drawn, lie thereby waived all other objections, (M The Plaintiff was m,t boun>e 246. I'ieldv». [\uodl A. and IC. 114. Fosa va. Wagner note. («) in last mentioned ease. Doe D. Phillips rs. Benjamin 9 .1. and E. tl 14. {d) As the instrument was capable even by the Del'endant of being made a valid promissory note by stamping it, and as such stamping would have related back to the 46 original making thereof and rendered it valid as of the tiniv! of such making (Imperial Bank vs. Boulton 4 Appeal iieporls 2:28.) Thi' instrument even it unstamped ought not to have been held to be no security, (Watts vs. Jtubinson 32 U. 0. R. 3f5:i,) and no evi- dence of any security within the meaning ol the award. If it was some security its sufficiency was a question for the jniy. (e) The objection as to stamps should have been pleaded. Rule 8 Trinity Term 1856. Baxter vs. Baines 15 C. P. 2ol. Imperial Bank vs. Boulton \ A/ip. 228. 6. Upon the question of tender tiie following casos will be reterrei to; ^ly Saunders vs. Graham Gow. 111. Eckstein i^. liei/nctds 7 A. and E. 80. Marsden vs Good 2 C. and li. 133 Jarkson os Jacobs 3 Bn