1850 DES BRISAY against MOONEY.

The plaintiff being the licensee of the Crown land agreed to allow Allanach to cut logs thereon to be manufactured into deals, and furnish him supplies to carry on his lumbering, which were to be paid for in deals of a specified quality, delivered to the plaintiff at Richibucto : Held (Stre-t, J. dissentiente), that no property in the deals when cut, vested in 4. until it was ascertained what portion of them came within the description the plaintiff was to retain, and therefore that the plaintiff might replevy the whole the deals from the defendant, to whom A. had delivered them before they arrived at Richibucto. Held also, that the defendant having mixed with these deals others belonging to himself, which he refused to point out and which could not otherwise be distinguished. did not deprive the plaintiff of his right to replevy.

Held per Street, J.. that under the agreement the property in the lumber was in A. until delivered to the plaintiff. and that the Judge ought so to have directed the jury; and that the plain. tiff was not entitled under the circumstances to replevy the lumber from the defendant.

This was an action of replevin for 17,000 feet of deals, The plaintiff to which the defendant pleaded property in himself. licensee of Crown land. At the trial before Parker, J., at the Kent circuit in August agreed to allow last, it appeared that two persons named Allanach and thereon to be manufactured M’Cauley had leased a saw mill from J. Cunard in 1846, at an annual rent of £30, payable in deals; that Cunard was to supply them to carry on lumbering, and that all the deals cut at the mill were to go to Cunard, who was to have the right to charge them with double the value of all the deals they should sell to any other person. In the autumn of 1847, Cunard having assigned his property to trustees and being unable to continue supplying Allanach and MCCauley, Caie, the agent of bis assiguees, directed them to apply to other persons for supplies; in consequence of which they applied to the defendant, who refused; after which they applied to the plaintiff, who assented, and the following agreement was entered into:

“Memorandum with Duncan Allanach and John McCauley. [A number of articles were then described.] “Dry goods to the amount of £50 or £60. Payment-pine deals, 9, 11 and broad, “at £6 ; at least one-fourth No. 1-remainder No. 2; delivered at Richibucto. Dated 21st December, 1847.” It also appeared that in the summer of 1847, the plaintiff had obtained a license from the Crown to cut a quantity of logs on land near the mill occupied by Allanach and McCauley, and that it was verbally agreed at the time the above memorandum was signed that the logs were to be cut on the plaintiff’s license. The plaintiff afterwards made further advances. Allanach and McCauley proceeded to cut logs on the land licensed to the plaintiff, and sawed them into deals, and in the spring of 1848 informed the plaintiff that they had set apart deals at the mill to pay the amount of his account, and wished him to take delivery of them, which however he did not; but directed them to keep the deals until he sent word that he wanted them. Allanach also informed Caie that they intended paying the plaintiff’s account in deals, that his complement was rafted, and that the principal part of the logs from which the deals were manufactured were cut on the plaintiff’s land : this also appeared by other evidence. Afterwards, upon an intimation from the plaintiff, they made up a raft of deals at the mill, with which Allanach set off with the intention of taking it to Richibucto and delivering it to the plaintiff, and while it was on its way he obtained further supplies from the plaintiff, to enable him to bring it down; but before it arrived there Allanach delivered it to the defendant, to whom he owed a small sum of money. 1850. The defendant’s witnesses stated that he wished to take a DESBRIGAY against sufficient quantity of the deals to pay the amount of his account, which was said to be about £15, but that Allanach refused to break the raft, and it was finally agreed that the defendant should take the whole, and pay Allanach £20 in addition to the account. M’Cauley was not privy to this transfer, and stated that it was always his intention that the deals should go to the plaintiff, and that he considered them as the plaintiff’s from the time they were cut. Immediately after this transfer of the deals Allanach left the country, and the defendant, who it appeared knew the plaintiff had furnished the supplies and expected to get the deals in payment, took possession of the deals and piled them with another small lot belonging to himself, and when the sheriff went to execute the writ of replevin, refused to point out to him the deals cut by Allanach and M’Cauley, stating that he would have all or none. The raft contained deals of several qualities, but the exact proportion of each quality could not be ascertained until they were surveyed by a sworn surveyor. The learned Judge instructed the jury that the point on which the case must turn was, whether the general property in the deals at the time of the cutting and rafting was in the plaintiff, subject to a future deduction on a survey being made of such a part as did not fall within the description of qualities Nos. 1 and 2, which would thereupon become the property of Allanach and M’Cauley-or whether the deals were the general property of Allanach and M’Cauley, and not to become the property of the plaintiff until the delivery and survey. In the former case (which appeared the most reasonable view), if the jury believed that it was agreed that the logs were to be cut on land on which the plaintiff alone had a right to cut by license from the Crown—such license not being assignable in law, nor in fact assigned by the plaintiff to Allanach and M’Cauley, the plaintiff would be entitled to recover; in the latter case, the verdict must be for the defendant. His Honor observed that it appeared essential to the plaintiff’s security in the advance made by him, that the general property should remain in him—while be protected also from the wrongful acts of each other. Although it was stipulated that the plaintiff was only to receive deals of the first and second qualities, and part of the deals in the raft were of an inferior quality, yet as the exact proportion of each quality could only be ascertained upon a lawful survey, the property might remain generally in the plaintiff until such survey had determined the relative proportion of the respective parties. When the raft was made up expressly for delivery to the plaintiff, it was to be presumed that it would be made up, as nearly as the circumstances would admit, to suit the contract; and when the stipulated quantity had been delivered to the plaintiff, the property in the remainder (if any) might vest in Allanach and M’Cauley; and if Allanach and M’Cauley, contrary to the agreement, sawed logs got off the license, and mixed the lumber therefrom with the other,-as this was done to suit their own purposes, it must be considered an appropriation of that part of the lumber to the plaintiff, if he had the general property in the remainder. That in respect to some deals belonging to the defendant replevied by the plaintiff, the defendant could not take advantage of his own wrongful act in mixing up his deals with the others, and as be bad refused to point them out, the sheriff (being unable to distinguish them) was justified in taking the whole. The jury found a verdict for the plaintiff, damages £10, stating that under the agreement they considered the property vested in him from the beginning.

Weldon, Q.C., obtained a rule nisi for a new trial in Michaelmas term last, on the following grounds : 1. Improper admission of parol evidence to alter the terms of the written agreement. Hope v. Atkins (a), Halliley v. Nicholson (b), Woodbridge v. Spooner (c). 2. Misdirection. 3. Verdict against law and evidence. Crane v. Hutchinson (d), Coombes v. Hatheway (e), were cited.

D. S. Kerr shewed cause in Hilary term last. The written memorandum did not profess to be the agreement between the plaintiff and Allanach and M’Cauley; it was but little more than a memorandum of the supplies they required, and therefore it became necessary to produce other evidence to shew what the agreement was, and that evidence did not contradict the writing. Secondly. The logs from which the deals were sawn were the plaintiff’s property from the time they were cut. Allanach and M’Cauley found the ground licensed to him, and went on with his permission and as his servants; then according to all the authorities, from Segee v. Perley (a) to the present time, the property vested in the plaintiff as soon as the trees were cut. The almost universal custom in the trade is that the supplies are to be paid by the lumber. In Crane v. Hutchinson, the lumberers hired the men and furnished the teams to get out the timber; and it was not by virtue simply of the agreement with the lumberere that the property was held to be in the plaintiff, but because he had the license. If the licensee has not the right to the timber, he is without remedy, for he can bring no action against a trespasser on bis license. It cannot prejudice the plaintiff that a small portion of these deals were sawn from logs not cut on the plaintiff’s license, for the defendant, who claims under the transfer from Allanach, cannot take advantage of that: besides, he prevented the plaintiff from selectingout of the raft the qualities that suited his contract. Neither can the defendant take advantage of his own wrong in mixing up his deals with the deals in question, and refusing to point them out to the sheriff-he cannot thereby deprive the plaintiff of what belonged to him.

Weldon, Q. C., in support of the rule. The effect of the parol evidence was to shew an agreement to vest the property in the plaintiff as soon as the logs were cut : that is inconsistent with the written memorandum, and in fact goes to alter the whole character of it; and if such evidence could be admitted, every written agreement may be cut down by parol evidence. Parol evidence is not even admissible to explain a writing which is imperfectly expressed or difficult to understand, though it may not alter the terms of it. Hope v. Atkins (b), Halliley v. Nicholson (c). Even if the evidence was admissible, it failed in shewing any agreement to vest DESBRISAY the property in the plaintiff without delivery. The mere fact Mooney of the logs Daving been cut on land licensed to the plaintiff gave him no property in them unless it could be shewn that Allanach and M’Cauley went there as his servants; and the case in this particular is distinguishable from Segee v.Perley and Crane v. Hutchinson; for here the plaintiff was to be paid in deals, and a delivery of any deals of the specified quality, no matter out of what logs they were manufactured. would have discharged the debt. The true way of testing the question is to inquire upon whom the loss would have fallen had the deals been destroyed at the mill before delivery. Would not Allanach and M’Cauley have remained liable to the plaintiff for the supplies? If the plaintiff could not take his deals without also taking what belonged to the defendant, he should have brought trover instead of replevin The verdict at all events should have been confined to that portion of the deals which were manufactured out of the logs cut on the plaintiff’s land.

Cur. adv. vult. The Court differing in opinion, now delivered judgment seriatim.

STREET, J. I regret I cannot agree with my learned Brothers in the judgment they are about to give in this case, and the more so, because I am free to admit that the real justice of the case is with the plaintiff; but however hard it might be upon him, yet it appears to me that deciding the right of property in the lumber in question was in him, is inconsistent with a principle of law that has been frequently laid down and acted upon, not only in this Court but in the Courts at Westminster Hall. Taking the whole circumstances of this case together, I cannot see under wbat rule of law the property in the deals in question could vest in the plaintiff, until they were either delivered to bim or something tantamount to such delivery took place. The jury, it is true found that the property was vested in the plaintiff from the beginning, by the terms of the agreement between him and Ailunach and M’Cauley; but I think this was not a question to be left to the jury- I think it was a pure question of law arising upon the legal construction of the agreement, and should bave been decided by the learned Judge himself; for whether the terms of an agreement are of a nature to pass the right of property in an article that is to be subsequently cut or made, without any further act of transfer, is purely a question of law arising from the legal construction of the instrument itself, and therefore not a matter of fact to be left to the decision of a jury.

It appears in this case, Allanach and M’Cauley in the year 1846 rented a mill from Cunard under a written lease, at an annual rent of £30. payable in deals; part of the terms of the lease were that all deals made at the mills were to go to Cunard, and that he was to supply them, and to have the right to chargethem with double thevalue of all the deals they sold to any other person—the prices of the supplies and the prices Cunard was to allow them for the deals were specified in the lease. Now although it was expressly stipulated by this lease that all the deals they made were to go to Cunard, yet that did not make the deals his until delivered, and therefore the clause making them liable for double value of any they sold to any one else, was as a penalty upon them in case they broke the terms of the lease in that respect, and they could not makean agreement to supply any other person with deals sawed at that millwithout subjecting themselves to that penalty,unless Cunard consented. I allude to this, as having some bearing upon what the parties themselves, that is, Allanach and M Cauley and the plaintiff, understood to be the effect of the agreement between them at the time it was made. In the autumn of 1847, Cunard having failed, and assigned his property over to trustees, his agent, Caie, at Richibucto, could not then go on giving Allanach and M’Cauley supplies for their logging concern, and be as agent for the trustees authorised them to apply for supplies elsewhere; and when Allanach afterwards informed him (Caie) that the plaintiff had consented to give them supplies to the extent of £50, and to permit them to cut upon his license ground, and that they (Allanach and M’Cauley) were to pay him for the supplies in deals at £6 per thousand, delivered at Richibucto—he (Caie) as agent for Cunard’s assignees, sanctioned it, whose assent the plaintiff required before he would DES BRISAY enter into an agreement with Allanach and M’Cauley; against thus shewing from the representations of one of the parties, and the acts of all at the time the agreement was made, that all the plaintiff was to have, was payment for his supplies in deals of specified qualities and dimensions, at £6 per thousand, to be delivered to him at Richibucto. After this (in the spring of 1848) Allanach told Caie that he had got the logs for that spring’s sawing, principally on the plaintiff’s license and supplies, and that the plaintiff had given him more supplies than he promised, and that he was going to saw the logs into deals, and give the plaintiff deals to the extent of his supplies, and the rest was to go to Caie for Cunard’s assignees; and this is all proved by the plaintiff’s own witness as part of the plaintiff’s case. Then let us look at the written memorandum of the agreement between the plaintiff and Allanach and M’Cauley, as also proved by the plaintiff, and we find the terms of that exactly correspond with what Allanach told Caie. The memorandum is in the following words :

“Memorandum with Duncan Allanach and John M’Cauley,” (Here follows a list of different kinds of goods to be supplied, and then it proceeds) “ Dry goods to amount of £50 or £60. Payment ” —pine deals, 9, 11, and broad, at £6 ; at least one-fourth No 1,

remainder No. 2 ; delivered at Richibucto. Dated 21st Decem. “ber, 1847.” (Signed)

ALLANACH & M’CAULEY.” A counterpart of this memorandum, signed by Des Brisay, it appears was given to Allanach and M’Cauley. The parties therefore clearly made this memorandum the binding agreement between them, by making two parts, and each party signing one, and exchanging them; and so far as the deals are concerned, I think it must be taken as the only agreement proved between them. It appears also to be the only one sanctioned by Caie,whose assent Des Brisay himself thought necessary, knowing as he did that Allanach and M’Cauley were holding the mill under Cunard, on terms which prohibited their disposing of deals to any one else.

A good deal was said in the argument about the Judge having incorrectly admitted parol evidence, to add to the terms of the written memorandum, but I can find nothing in the evidence of any terms differing from the written memorandum. .All Miller says, after proving the written memorandum, is that the plaintiff agreed to give the supplies on which they were to get logs to make the deals, to bring them
to Richibucto to the plaintiff, and nothing further was said. It seems the plaintiff advanced more supplies than were mentioned in the memorandum, but they were all advanced on the same understanding; but taking the whole together it amounts to nothing more than this—that upon the plaintiff consenting to advance them what supplies they wanted, and permit them to get their logs on his licensed ground, they
undertook to pay him for those supplies in pine deals of a specified quality and dimensions, at a specified price, and to deliver them to him at a particular place. The plaintiff under this agreement, was not bound to take any deals the parties might make out of the logs they cut off his license, nor did that license, I conceive, give him any property in any logs they might cut and manufacture into deals; for if it did,
the whole were his without reference to any amount of supplies, and they would have had a right in that case to have charged him for their labour and expense in getting the logs, and in manufacturing them into deals, which clearly was never contemplated by any of the parties ; nor was the plaintiff bound to receive any deals up at the mill, but by the terms of the agreement he had a right to say, “before I can
“receive any deals in payment of this account for supplies, “I must have them brought down to Richibucto and surveyed, ” to see that they answer the description and quality men”tioned in the agreement;” and if he was not bound to take any others, or any, except at that place, how could any property in any vest in him until he had accepted them ?
Allanach v. M’Cauley appear both to have considered it necessary that a delivery should take place to pass the property to him, for they wanted him to send some one up to the mill to take a delivery of the deals there, but this he did not do, nor was he bound to do so, for by doing so he might have waived the provision in the agreement, that they were to be delivered at Richibucto. Again : supposing the raft in question had gone down to him at Richibucto, he would only have been bound to receive such out of that raft as answered, on a survey, to the description mentioned in the agreement; and it appears there was a considerable quantity in the raft which did not answer that description, which he might have rejected. The deals therefore could not be his until he had accepted them, and if they were not his, Allanach asone of the joint owners could dispose of them elsewhere; and however dishonest it may have been in him to sell and deliver them to the defendant as he did, yet that sale and delivery would give the defendant the property therein; and in this view of the case I think the verdict was wrong and ought to be set aside.

Suppose the raft had been lost by stress of weather in going to Richibucto, without any one’s fault, would not the loss have been Allanach and M’Cauley’s, and would they not have been still indebted to the plaintiff for the amount of his supplies ? I think they clearly would. But if the property in the deals was in the plaintiff, at the mill, immediately on their being sawed, then had they been lost in going down or burnt at the mill, Allanach and M Cauley would still have been entitled to credit in the plaintiff’s account, either to the value of the deals up at the mill at the rate of £6 per thousand, less only the expense of taking them down, or to the value of their labour and expense in getting the logs and sawing them into deals : a mode of settlement either way, that clearly could never have been contemplated by the parties.

PARKER, J. I am compelled to differ from my learned Brother on this occasion. I see no reason to change the opinion expressed by me at the trial. This case it appears to memay be distinguished from the lumber cases which have been referred to; and the ground taken by the defendant, that no property in the deals vested in the plaintiff until actual delivery to him at Richibucto, or in other words, that something remained to be done by Allanach and M’Cauley before the property vested in the plaintiff, seems to me incorrect. My opinion is mainly founded on the consideration that the property was originally in the plaintiff, and was not divested, but continued in him; and that the raft made up by

what part would go to Allanach and M’Cauley, as not being of the first and second qualities. In fact, that the property which Allanach and M Cauley had, was under and to the extent of the agreement made between them and the plaintiff, and not beyond it, and that it is a mistake to suppose that the plaintiff would derive no title, except by a delivery to him under the agreement; that Allanach and M’Cauleyin sawing the deals were manufacturing the materials of the plaintiff, not their own materials, and were prepaid for their work and labour thereon by the supplies received. And had it been that any part of the supplies stipulated for were not delivered, Allanach and M’Cauley would have a lien on the deals for their security, and not a property therein. And I am happy to think such a view of the case would secure to them all they were entitled to, without enablingthem to commit with impunity the manifest fraud intended to be practised by Allanach, and would to this extent also secure one of these partners from suffering from the misconduct of his co-partner.

The remarks I have made apply primarily to the logs got under the license, but will embrace the other logs spoken of, if the deals made from them were mixed up with the others, and treated all alike by Allanach and M’Cauley; as I shall endeavour to shew. It will be remembered that this was not one of the contracts which are frequently made between & merchant and a lumberer, where the merchant was by the terms of the contract to procure a license for the lumberer ; but the plaintiff was in this case possessed of the license before the agreement; and the first point for consideration is, whether or no it was part of the agreement that Allanach and M Cauley were to get the logs from the ground covered by the license, and although they might have gone beyond it, still the intention was they should keep within it. It being evidently found by the jury under the evidence (which I still continue to think was properly admitted,) that this was the case, let us see the effect of it.

The land belonged to the Crown. The license was a Crown license to the plantiff to cut the trees. It was not an assignable license. The plaintiff who did not own the trees until they were cut, could not before the cutting make the property in the trees theirs upon being cut, for that would be in effect to make the license assignable. They were cut under the plaintiff’s right and as his property, and although no doubt the plaintiff might agree with Allanach and M’Cauley that the whole or part should belong to them on certain terms, this was matter of agreement, not a grant of property; and it will depend on the terms of the agreement between them, as to what part and at what period any change in the property should take place. To consider that-notwithetanding the plaintiff was the only one who had the right to fell the trees, and that they were felled for the purpose of being sawed into deals, such deals to the extent of the supplies furnished to be delivered to the plaintiff—the general property would vest in Allanach and M’Cauley, is, I think, unnecessary for any purposes contemplated, and would deprive the plaintiff of the only security he possessed for the advances; the personal security in such cases of men like Allanach and M Cauley being notoriously worthless.

The evidence which could most be depended on in this case (though I admit there was conflicting testimony), tended to shew that most of the logs were got under the license; that the lumber manufactured therefrom was called and considered the plaintiff’s; that notice was sent to him when a sufficient quantity was sawed, to come and take a delivery, but that he, not deeming any delivery at the mill necessary, so informed Allanach and M’Cauley, and directed them to keep it until he sent them word he wanted it; that afterwards on receiving an intimation from him, they made up a raft for the plaintiff, and that Allanach set off with it in order to bring it round to Richibucto, and deliver it to the plaintiff ; that the supplies stipulated for (which were in fact the payment to Allanach and I’Cauley, not for the lumber itself but for their work and labour on the lumber) were all furnished and exceeded; and that it was, at the time of the bargain with Allanach, known to the defendant (who by the by had refused himself to supply Allanach and M Cauley) that they had got their supplies from the plaintiff–he well knowing also their inability to pay for them except by the means of this lumber. I can well believe that the defendant was not aware or did not suppose the property was then vested in the plaintiff, but supposed he might legally purchase it, though he could not but be conscious of the injury which would thereby be done to the plaintiff, and therefore should not without full inquiry have meddled with it; but no sale or delivery by Allanach to the defendant could change the property or confer on him any title, unless the property was then actually vested in Allanach and M Cauley. The plaintiff then I conceive, when he became acquainted with this disposal of it, had a perfect right to take possession of it, and the defendant was not justified in taking it again ; far less can he be excused under such circumstances in proceeding to pile it up with other deals of his own. It was for the jury to consider whether the reason given for this was a pretext or not. It cannot be doubted that the defendant’s real object in mixing these deals with other property of his own was to strengthen his title to the whole. He has done so for his own purposes, and he must take the consequence of the act if those purposes cannot be served.

There was no intention on the part of the plaintiff to take any other deals under his writ of replevin than those which were delivered by Allanach to the defendant : all that could properly be distinguished as those of the defendant were left; and the defendant had the opportunity, of which he would not avail himself, of pointing out what part of the remainder had not belonged to the plaintiff’s raft. He would not do so at the time of the execution of the writ of replevin, or afterwards claim them separately on the execution of the writ de proprietate probanda : he would have all or none.

A separate question may certainly arise as to the deals made from logs cut without right by Allanach and M’Cauley from land not within the license, and for some cut for other mixed the lumber together. They did this, not at the plaintiff’s request, but to suit their own purposes. The mill while employed in sawing the logs on halves or the other logs, could not be engaged in sawing deals to be delivered to the plaintiff, unless the mill share of the deals from these logs also went to the plaintiff. There was a discrepancy in the evidence as to the extent of what were so cut, and it would have been impossible to have made an exact separation of one from the other unless it was done at the very time. If on making up the raft for the plaintiff there was a mix. ture of the lumber, the plaintiff derived no benefit, nor Allanach and M’Cauley any injury, from treating it all alike, as it was their evident intention to do: all that was left after the delivery of as much of the first and second quality as at the rates agreed on would pay the plaintiff’s bill for the supplies would by the terms of the agreement be retained by Allanach and Mc’Cauley, and be at their disposal. Any disposition of the deals before this made by them would, I take it, be subject to the rights of the plaintiff. What then is the result of this view? Is it anything so extraordinary? No. The plaintiff having originally the property, keeps it until he is paid. Allanach and Mc’Cauley then get the rest; and in the mean time are secure by the actual possession they have, but cannot make such possession available to defraud the plaintiff. Any third person who comes in as the defendant has done, does it at his own risk, and is not entitled to much commiseration if he suffers by it and loses his money.

That this may not have been the view taken by many persons, of the relative rights arising in such lumber cases as this, I can well believe when I find so much difference between my Brother Street and myself. But I think my view while legally sustainable, is calculated to prevent a great deal of fraud-to secure to both parties their rights, and that no one would benefit by such a construction of these lumber contracts more than the lumberer himself; his business being relieved from a risk which is by no means a necessary, though a frequent attendant on such contracts. I think the verdict was right, and that the rule for a new trial should be discharged.

CARTER, J. On some of the points submitted to the jury I think there can be no doubt either in the direction of the learned Judge, or the finding of the jury on that direction and the evidence-such as the question whether the bulk of the lumber in dispute was cut within the plaintiff’s license, and the effect of the defendant’s mixing up a small quantity of his own with the other raft, in such a manner that it would be all but impossible for any other person to distinguish the one from the other. His refusing to point out what was clearly his own, and stating that he would have all or none, amounted to this—that he was willing to rest his title to the whole on the same ground, and if he failed in shewing title to the larger part of the raft, he abandoned his title to the smaller. The only difficulty I have felt was on the main question, whether the circumstances of the case warranted the finding of the jury that the property vested in the plaintiff before delivery. On a careful consideration of this point, and the conflicting opinions of my learned Brothers Parker and Street, I agree with the former in the conclusion to which he has come. It is quite clear that Allanach and M Cauley had no right to cut and carry away logs from the ground comprised in the plaintiff’s license, independent of the plaintiffs authority; nor did they ever pretend to cut adversely to him, or as trespassers. They clearly cut down the trees under an authority derived from the plaintiff, under their agreement with him; and unless that agreement vested the property in trees so cut in Allanach and M Cauley, the property in such trees cut under the license, by the plaintiff or those authorised by him, would remain in the plaintiff. It appears to me that the effect of the agreement was not to vest any property in Allanach and M’Cauley as against the plaintiff, until it was ascertained what part of the deals manufactured, came under the description which the plaintiff was to retain. When that was ascertained, then the remaining part might become the property of Allanach and M’Cauley. To support the defendant’s view of the case, we must assume that Allanach and M Cauley acted wrongfully; whereas the other view—which seems to me more in accordance with the evidence and the conduct of Allanach and M Cauley up to the time of the dishonest sale to the defendant by Allanach-makes their acts up to that time legal and right. The former view would enable them to commit a gross fraud on the plaintiff, while the latter would only effect that which is fair and honest. When a man’s acts can be easily reconciled with law and justice, I should be little inclined to strain a point of law to make them illegal and dishonest. Rather would I, unless I found the established principles too inflexible, endeavour to bend them in the direction of honesty and good faith. That the plaintiff is fairly entitled to these deals, no one can doubt; and though’ from the strong opinion entertained by my Brother Street, my mind has not been free from doubts on the point of law, I have after much consideration, satisfied myself that the plaintiff’s claim is maintainable on the principles which I have briefly stated, and which have been more fully put forward by my Brother Parker. I think therefore that the verdict should stand, and this rule be discharged

Chipman, C.J. The leading feature of this case in regard to the property in the lumber in question was, that this lumber was got out by Allanach and M Cauley under the plaintiff’s license, and the license not being assignable, the property in the logs when cut vested in the plaintiff, and Allanach and M’Cauley could have no right of property unless by agreement with the plaintiff, and such right of property could not vest in them until the terms of their agreement had been complied with, and this not having been done, the plaintiff’s right of property was in fact never changed; and in this point of view the verdict was right, and must be sustained.

Rule discharged.