num

V.

Forbes,

in the third division in the town of Shoreham, drawn Smith and Barto the original right of James Forbes, junior, supposing at the time of purchase, such title to be good and valid in law; that they entered into and took possession of the land on the day of the date of the deed, and have made large improvements on the same, (setting forth the improvements particularly,) to the amount of 500 dollars. That the now de

cords, the neglect or laches of others in the chain of title, or from other causes, and who, if the strict rules of the common law be attended to, may be turned off from their possessions and improvements on such lands so by them made at great expense, without any compensation or rewards for such better

ments.

"Sect. 1. It is hereby enacted, &c. That when any person or persons in the actual possession or improvement of lands within this State, who had purchased them, or those under whom they hold had purchased a title to said lands, supposing, at the time of such purchase, such title to be good in fee, and having, in consequence of such purchase, entered and made improvements upon such lands, and shall or have been prosecuted or sued for the recovery of such lands before any Court by action of ejectment, or any other real or possessory action, and judgment shall be hereafter rendered against such person or persons in possession as aforesaid, such person or persons, against whom judgment shall thus be finally given, shall have right by action to recover of the person or persons in whom the legal title shall be found by such judgment, such sum or sums of money as shall be found on the trial of such action, that he, she, or they, or those under whom they hold, have made the lands so described in the plaintiff's declaration better or of more value by such betterments than it otherwise would have been, had no such improvements been made thereon; and the mode of process shall be, that the recoveree or recoverees in such action as aforesaid, shall, within forty-eight hours after such judgment, or during the sitting of the Court in which

num

V.

Forbes.

Smith and Bar- fendant instituted an action of ejectment against them, (setting forth the proceedings in ejectment,) and at the term of the Supreme Court of Judicature, January, A. D. 1801, he recovered judgment final against them for the possession of the premises; for the recovery of which, &c.

To this declaration the defendant put in the following plea in bar.

First. That the plaintiffs have not possessed and improved said land in said declaration mentioned, ever since the 24th of May, 1793.

Secondly. Nor have the plaintiffs made the said lot of land better and of more value by their supposed betterments and improvements on the same, than it otherwise would have been if no such improvements or betterments had been made thereon, and of this he puts himself on the country.

Objected by the plaintiffs, that this plea is double.

Sed per Curiam. The statute under which the declaration has been filed is a creature of the Legislature sui generis, applying a remedy to an injury peculiar to the settlement of lands in a new country,

such judgment is had, file a declaration in an action of the case against the recoveror or recoverors for so much money as the estate is made better as aforesaid, in the clerk's office of the Court in which such judgment was obtained, which shall be sufficient notice to such recoveror or recoverors to appear and defend in such action at the next session of the said Court; and the Court, on the entry of such action, shall order all proceedings staid on the first action, until the action so filed shall be determined,' &c.

num

Forbes.

and cannot be made subject to any strict rules of Smith and Barpleading. It seems the Legislature have so considered it, by the provision in the second section, "that so often as judgment shall be rendered on demurrer, or any plea in abatement in favour of the defendant or defendants in such action for betterments, the plaintiff or plaintiffs, within twenty-four hours after such judgment, or during the sitting of the Court, shall have liberty to file another declaration for the purposes intended by this act."

It may, however, be observed, that although this plea is very unskilfully drafted, and seems to traverse two distinct points, yet in essence it only goes to one, to wit, negating the plaintiffs' having made the land better since they went into possession in the year 1793, as set forth in the declaration.

This is the first instance in which the Court have ever heard any objections to a plea until after joinder in demurrer; but as the practice under this act has not been well established, they were inclined to indulge the parties. Let the plaintiffs now elect either to enter a formal demurrer to the plea, and risk the decision of the Court, or to join issue.

The plaintiffs joined issue, and had leave to enter a nonsuit on trial.

Chipman and A. Marsh, for plaintiffs.

Samuel Miller and Moses Strong, for defendant.

Woodbridge

V.

Austin.

When a demand is barred

ENOCH WOODBRIDGE, Appellant,

against

APOLLOS AUSTIN, Appellee.

CASE on a promissory note, endorsee against

by the existing promisor, with plea of set-off.

laws of a fo

reign country,

The plaintiff declared upon a promissory note, where the con- dated at Quebec, November 1, 1790, made by the de

tract wasmade,

it cannot be re- fendant to Thomas Aylwin, or order, for the sum of

an inhabitant of this State.

vived by transferring it to 2517. 11s. 9d. Halifax currency, payable on the 13th of June following. That since the decease of Aylwin, to wit, on the 22d day of February, 1793, the contents being then due and unpaid, John William Woolsey, curator on the estate of Aylwin, appointed and authorized by the laws of the British Province of Lower Canada, for a valuable consideration by his endorsement under his hand made, ordered the contents to be paid to the plaintiff, of which the defendant had notice, &c. and therefore, &c.

Writ dated 17th of February, 1794.

To this declaration the defendant pleaded the general issue, (which was joined by the plaintiff,) and filed a declaration in set-off, protesting that the note above declared upon was and is the property of John IV. Woolsey, in his capacity of curator on the estate of Thomas Aylwin, and that J. W. Woolsey endorsed the same to the plaintiff in trust to be collected for the use and benefit of Aylwin's estate; and then declares, that Thomas Aylwin, in his life-time, to wit, on the 14th of November, 1789, at Quebec, in the British Province of Lower Canada, made his certain promissory note of that date to Simeon Frazer and John Young, merchants, trading in company under

V.

Austin.

the name and firm of Frazer & Young, by which he Woodbridge promised to pay them or order, 400l. Halifax currency, with interest, on the first day of June then next following. That on the 14th of November, 1789, the contents of the same note being fully due and unpaid, the said Frazer & Young, for a valua ble consideration, by their certain endorsement on the same note in their hand-writing by one of the said copartners in the name of said firm made, ordered the contents to be paid to the defendant, of which the said Aylwin in his life-time had due notice, and likewise the said J. W. Woolsey, in his capacity of curator as aforesaid, since the said Aylwin's decease. Then raises the liability and consequent promise in the usual form, and prays that the contents of the same note may be set off against the plaintiff's demand.

To this declaration in set-off, the plaintiff pleaded non assumpsit, with a counter protestando, and issue joined.

It was conceded by the defendant, that he made the note declared upon; but he called upon the plaintiff to show that his endorsor was curator to the estate of Aylwin the intestate, and as such had a legal right to endorse the note declared upon.

Et per Curiam. This is not a common endorse- Where a proment by the custom of merchants. The endorsee's missory note is not negotiated interest in the note must be shown to entitle him to by the custom of merchants, a recovery, and this cannot be shown but by showing the endorsee's an interest in it, and a right to transfer such interest note must be in the endorsor. The declaration alleges no interest

interest in the

made to appear, and the particular pow

er of the endorsor must be shown.