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Maps, plates, charts, etc., mey be filmed at different reduction retios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hend corner, left to right end top to bottom, as many frames es required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre fiimis d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul ciichi, 11 est filmd d partir de I'angle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mithode. 1 2 3 ' 1 a 3 4 6 6 A-erV IN THE COUUT OF QUEEN'S BENCH. • V [i WaRRBNBR ET. AL. V& KiNOSMlLL. CHIEF JUSTICE ROBINSON'S JUDGMENT. The 8th plea is, in my opinion, a good defence in subalance, and is so far sufficient io form that it is not bad for any of the causes assigned. Notiiing can Le conceived more unjust or unreasonabla than that a sheriff, acting within his district in this Province, and seising the goods of a defendant in obedience to process of this courtt which he was bound to obey, should be subjected to be pro. ceeded against in a foreign country ec a trespasser for such set of duty legally performed by himt and shall be compelled to abide by the laws of a foreign court, and not by the laws of the country in which he was legally authorised and compelled to do the act com* plained of. We may admit that for a trespass to goods committed abroadt an action nay be sustained in this Province if the defendant shall be found within our jurisdiction, and we may assume that in lika manner the courts of a foreign country nsy. under similar cir- cumstances, lake cognizance of an action of trespass to personal property committed here. But in either case, the question whether .he act complained of was a trespass or not, must be governed by the law of the country where the fact took place, and if a foreign court, acting in disregard of such law, should adjudge that to 09 illegal which was done here in obedience to our law, however a judgment so rendered might be treated aa conclusive in the foreign country, yet we could never allow it to be conelusive here ; but in an action on the judgment we must of necessity* for the due proteo« tion of our own subjects, hold the grounds of it to be to this extent examinable, that when we see the judgment to have been foundei upon a esuae of action arising in and wholly confined to our own jurisdiction, we must give the defenosnt, in an action on that judgRMni, the beaefit of that law which is alone applicable to that transaction. We have many siatates which allow parties in ibe promdtion of public objects to do various acta affecting the persons and property of others, which but for such legislative authority would be acts of trespass. They could never venture to avail themselves of the n 2 r- 18' S P 1 {j-^ A,-ovod upun the ground that the defendant's position and duty as Sheriil^ accord> ing to the law« of Canada, did not constitute n jjustificaiior. as against the ptaiotrfl*, who not being British subjects nor domiciled in Canads, were not affected by the law of Canada ;. — it follows, I say, and is not 1 believe denied, that such a plea would present, ia •ubstanee, a valid defence. Now, it appears to me that the 8th plea does in fact presant that defence. It states that the trespass upon which the judgment was founded, consisted in taking and carrying away certain timber alleged to have belonged to the plaintiffs ; that at the time of such taking the defendant was Sheriff* of the District of Niagara, and that Davis having previously sued out a Writ of Mtachment against one Tanner, as an absconding debtor, had placed the same in tho defendant's bandti, as such Sheriff*, for execution ; that while th» ■aid writ was in full force, the defendant as such Sheriff*, duly reizerf the timber in qesiion, ihtn being ihe timber of Tanner, in virtue thereof ; " that at the time of such attaching and seising the said timber was by the laws of Canada the properly of the said Tanner- and subject to said attachment ;*' that the alleged trespass consisted in the seizure in question ; that at the time of such bcizure th» defendant was and since continually has been resident and domiciled in Canada and not within tlie juriidiclion of the foreign court, or subject to the foreigr. law ; that " by and according to the law of Canada, where the said causes of action and every part of them arose for tohieh the judgment was recovered, ihe said taking and carrying away did not nor does not give ihe plaintiff any cause of action against the defendant, nor was he liable by the laws to ba prosecuted therefor i" that the Court of Commun Pleas, wrongfully, corruptly, and contrary to natural right and justice, although those facts ware proved aa a defence for the defendant, refused to admit Bueh (tot or any of them as a oVfence to the defendant, and declared and adjudged that Ihe defendant oould not defend or justify himself thereby, or by his position or duty as Sheriff*, under the attachment, and that the claim of the plaintiff could not be aff*eeted by such attachment or by the facts stated in the plea, the plaintifTs not being British subjects tnor domiciled in Canada, and nut aff*ected by the laws of Canada, although it was proved at the trial (ha* Tanner and his property were subject to the said attachment ; and thai the > ^1 4' 'I timber wnB within tl.o SberifT's bailiwick, and was levied thereon according to the laws of Canada. It is not denied, I apprehend, that this plen. If cnnilned to the allegations I havo siitied, would hjvo been siilfioient in substance ; — must have been upheld upon tho general domurror. Such I understiftid to bo iho opinion of a great majoriiy of my learned brothers. But it is said that tho pluu contains a fjrther statement . not yet noticed, which i:*, in eiToct, an admission by the defeodani of the plainiifT'a propeity in tho timber, upon which ho is entillod to recover ; and it is this allegation, I believe, which has given rise to the principal diiTiculty in the construction of the plea 'J'he paksuge alluded to follows tho statement of tho timber '* then b -iRg the properly of Tanner" and is in ihiso words — •• ond the delendanl further says thot the suid pluiiitiflTj at the (imn of the said aitKching claimed and pretended to own tho said timber by virtue of a sale •hereof made to them, tho plaintilFs, by tho said Tanner, after the issuing of the aforesaid warrant cf attachment and the delivery thereof to the defendant, and while Iho tsnid timber was in (he said District of Niagara ;" then follows tho ollogiUion before staled — "Whereas the said defendant avers that nl tho time of the said attaching and seizing the said timber was by the laws of Canada the property of Henry Tanner, and subject to such nitachment." It is said that the pnssagA just above cited c )ntain^> a conclusive admission of a sale by Tanner to the plaintifT^ ; that is of properly in the plaintiifs ; that is of thoir right to rocovur in the nciim ; and numerous well-known decisions upon t!io cffocl of such all''gtitions or pleas giving express culor in actions of trespaiis are referred to as in point. Upon qII questions, but ospcciully upon ono of this character, arising in a Court of Law, I dilFcr from my learned brothers, whose daily considerations of such matters render them so much more competent to form a correct opinion upon such subjects with the utmost diffidence. But tho parties have a right to my judgment, such as it is, and the best opinion I havo been able to form i^, that the allegation in qucsiion has not tho effect of invalidating this plea. It does not appear to mo that pleas giving cxjiress cidor in actions of trespasti are at oil analogous to Iho present case. A certain class of pleas by way of confession and avoidance, wouid, in strict reason, have been bad as negativing altogether the plaintitf 's allegations of title, and, therefore, only pleadable in strictures by way of traverse. Pleas objeciionablo on this ground, however, were, under some circumstances, found to be convenient ; and this gave rise to a fiction, known as expie&s coh *, invented for tho purpose of giving validity, in point of form, lo a class of pleas, which, irrespective of such fiction, would have been pronounced bad, as repugnant to tho very principle upon which pleus in confes< sion and avoidance are constructed. It consists in an unconnected Biaicmeni, introduced into the plea for the sole furpo^e of admit tivg a eohrahle title in the jihiintijf. It jh not trdverinhle ; lecausp, being rni-ro fiction, to pcrtiiit tho plaintiiT to traverse it would bo, in efleci, to ulrognlo tho rule ; but it 'm. a statement absolutely necet* ■nry to tho vitlidity of tho plea ; and whero instead of stating u colorable, it ndmilii u perfect litlo to tho plaintit)', it is, of necessity, fatal tu the ploa. It is perfectly obvious, I think, that decisions in relation to such pleas can aflord no snfo nnology fur our guidance in the present case. The admission of title in such canfa ii an isoluted sialemeni, unafTected in construction by the residue of the pU , because wholly unconnucicd in meaning ; and vvhich conatrued alone, can nflurd no room for the argument that the plea is not to be construed as admit* ting such title in tho plainiifT as is alleged, because the statement is introduced with no other object than to mnke such admission ;— without some such admission the pica would be bad. T'lom tho very form of such pleas, therefore, this must bo construed as uumit* ting in the plaintiiT such title as is alleged. The validity of that title, therefore, is the only quoation, and, in that respect, the statement ia neither restricted nor enlarged by the other allegations in the plea. Hut express color was not necessary to the validity o( the plea in this case. It admits tho judgment upon which the plaintiiT counts, and avoids it by alleging that a good defence had been proved, according to the law o{ Canada, by which only the queation could havo been lef^ally determined, but that the foreign tribunal had refused to give eflect to that defence, upon the ground that tha plaintiff:! were not subjfct to the law of Canada, and could not be nfiected thereby: Had this been an action of trespass, and had the defendant, for the purpose of giving color, and to render his plea correct in form, stdted thai the pluintiiTs claimed the goods under a sale from the owner.— that is, had he admitted a peifect ond not a colorable title,— such statement, I presume, would have been fatal to the plea. But express color would have been quite unmeaning in the plea ; and the allegation in question cannot be reasonably in< tended, I think, to havo been introduced for any such purpose. la order, therefore, to determine whether the allegation referred to ia to be construed as admitting a sale to have taken place ; or as stating that the plaintiffs claimed and pretended ii to have taken place ; — whether it is to be construed as the admission of a fact, or as the statement of a pretence, we must look st ll e whole plea. Now not only is this allegation preceded by the eiatoment thot ihn defendant seized the timber, " then being the timber of Tanner," , but it is also an averment of property in him, in a form which seems to mo to remove all doubt. The whole passage runs thus— "And the defendant further says that tho said plaintiffs at the lime of the said attaching claimed and protended to own the said timber by virtue of a sale thereof made to them the said plaintifis by the said Tanner Whereas the said defendant avers that ^t the time of the aaid attaching and seizing the said rimbcr was by ilic law of Canada the properly of Henry Tanner, and subject to •nch attachmunt." Now the cxpresiion *' whcroaa the defendnnt avera" iinporta undoubtedly ihat aotnelhing is to follow contrary to tho preceding allegation. But the pleader certainly did not mean to deny that the plaintifla claimed and pretended to own under a lale from Tnnner. The action and recovery had placed :hnt bnyond doubt. What is it then that he did mcon to ncgnlive? Obviously the fact of saU, at least of nn effective bale. It must be borne ia mind that ihia question comes before us on general demurrer. Again the plea avers that accordmg to the law of Canada ** tho said taking and carrying did not nor does give to khe plaintiff any cauRe or right of action ogainst him, and he was not by ihe said laws liable to be prosecuted therefor." And the plea concludes with an allegation that it had been proved at the trial thai "the timber had been levied on according to iho laws of Canada." Then if the passage in question will admit of either construction; and if the dllcguiionsto which I have referred shew conclusively that the defendant cannot have intended to adoiil a sale, il will be our duty, I apprehend, to uphold this pica. It is said, however, ihat the plea does not allege thai the plaintifTs pretended to own under a i