his family on to it. On the fourth day of May the defendant placed the writ of habere facias possessionem in the hands of the sheriff; and on the 5th day of May the defendant went with the sheriff and ejected the plaintiff, and for this alleged trespass this action was brought. The plaintiff asked the defendant to pay him the $65 he had paid Hobson. The defendant refused, and the plaintiff proceeded against him, laying his damages in his declaration at $500.

Neither the plaintiff, nor any of his witnesses, placed the plaintiff's damages at a higher figure than $500.

The learned Chief Justice made the following memorandum on the pleadings: "The parties agree the evidence taken shall be the facts of the case, and the law upon these facts is to be argued. I shall state findings upon these facts if required by the Court, with the consent of parties ;" and he asked the jury to assess the damages, which they did at $1,500, for which sum he entered the verdict, amending the plaintiff's claim of damages in his declaration by increasing it from $500 to $1,500.

May 18, 1882, Bethune, Q. C., obtained an order nisi calling upon the plaintiff to shew cause why the judgment rendered for the plaintiff in this cause, and the proceedings upon which the same was based should not be set aside, and a new trial had between the parties, on the ground that the findings of the jury were against law and evidence; and for misdirection on the part of the learned Judge, in telling the jury that notwithstanding the plaintiff's landlord had made default in payment of the mortgage to Wragge, and notwithstanding the defendant was the assignee of the mortgage and of the legal estate in the land, this action would lie; and in telling the jury that the relation of trustee and cestui que trust existed between the plaintiff and defendant, and that the defendant violated the terms of the trust in ejecting the plaintiff; and on the ground that the damages were excessive; and on the ground that no action would lie in this cause without enforce

ment of the alleged agreement between the mortgagor and the defendant, and that the same could not be enforced, and if enforced would not be enforced in the absence of Hobson.

May 30, 1882. Bethune, Q. C., supported the order, and Wallbridge, Q.,C., and Henderson, Q. C., shewed cause.

June 24, 1882. ARMOUR, J.-I think the damages. excessive, and such as twelve reasonable men should not have given for the injury sustained by the plaintiff, and were it necessary to do so I would concur in granting a new trial on this ground. It is unnecessary to do so, however, for I am of opinion that the defendant is entitled, under the pleadings and evidence, to judgment, because in taking possession of the land and expelling the plaintiff therefrom he was only doing what he had a right to do, being entitled to the land and to the possession of it under the Wragge mortgage.

In Harvey v. Brydges, 14 M. & W. 442, Parke, B., says: "If it were necessary to decide it, I should have no difficulty in saying that where a breach of the peace is committed by a freeholder, who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I cannot see how it is possible to doubt that it is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that he entered upon it accordingly; even though, in so doing, a breach of the peace was committed." See also Taylor v. Cole, 3 T. R. 292; Newton v. Harland, 1 M. & G. 644; Davison v. Wilson, 11 Q. B. 890; Burling v. Read, 11 Q. B. 904; Meriton v. Combes, 9 C. B. 787; Pollen v. Brewer, 7 C. B. N. S. 371; Lows, v. Telford, L. R. 1 App. 414; Stroud v. Kane, 13 U. C. R. 459.

It was contended, however, that by the memorandum of March 11th, 1880, the Wragge mortgage was satisfied, and afforded therefore no justification to the defendant.

This contention is, I think, unfounded.

The defendant was obliged to make some arrangement with respect to the Wragge mortgage, in order to prevent Wragge turning him out of possession of the mines on the mortgaged lands, which he was then engaged in working, and his manifest object in procuring that memorandum. was to prevent the possibility of his being obliged to pay the Wragge mortgage in addition to the price he had agreed to pay for the minerals.

By this memorandum he is expressly given the option either of paying the said mortgage and interest in full discharge thereof, or of taking an assignment thereof by purchase, as a subsequent encumbrance, for the purpose of saving his interest, as also the interest of Hobson in the said land. He adopted the latter option, and thus became entitled to the rights of Wragge, as mortgagee of the land.

It is true that by the memorandum Hobson covenanted that he would credit, deduct, and allow to the defendant the full amount of principal and interest due or payable thereon, together with all expenses connected therewith, out of and from the amount payable by the defendant to him under the written agreement between them of January 27th, 1880, and that he would not make any claim against the defendant for said moneys so payable to the extent of said mortgage and interest, and expenses thereon; but no such credit, deduction, or allowance had been made at the time of the alleged trespass, and money to the extent of the amount paid by the defendant to Wragge for the assignment of the said mortgage had not then become payable to Hobson under the said written agreement.

I think, therefore, that the said mortgage was not, at the time of the alleged trespass, a satisfied mortgage, and that the defendant was entitled to the possession of the mortgaged land thereunder.

Nothing whatever is said about the possession of the mortgaged land in the memorandum, nor, as far as the evidence shews, was anything said about it by either Hobson

or the defendant in the negotiation which led to the making of it.

The right of the defendant to the possession as assignee of and under the Wragge mortgage remained unaffected by anything that took place between him and Hobson, and there was nothing in the transaction from which a tenancy at will could be implied; but if such a tenancy could be so implied, it was clearly determined before the alleged tres

pass.

To test whether under the circumstances which occurred Hobson was entitled to the possession, let me assume that Wragge had been put into possession by the sheriff under the habere facias possessionem, upon his judgment; that then the memorandum of March 11th, 1880, had been made, and that then the defendant had taken an assignment of the Wragge mortgage and of the judgment in ejectment, and had received possession of the land from Wragge-could Hobson have brought ejectment against the lefendant for the land by reason of anything contained in this memorandum, or by reason of anything shewn by the evidence to have taken place between them? I think clearly not.

In my opinion the plaintiff's action should be dismissed, with costs.

HAGARTY, C. J.-It may be that, speaking in a purely technical sense, the Wragge mortgage may not be considered as a paid mortgage; and it may be also that, under the former system the defendant, as assignee of it, might have successfully set it up as a bar to this action at common law; and the plaintiff, or Hobson, as his landlord, might have had to apply to equity to restrain defendant from using it to the disturbance of either.

But I think we are now bound to treat the parties and their rights as they would be either at law or in equity (a).

When defendant became the assignee of Wragge, whose mortgage covered the whole land, the contract of sale be

(a) See Pugh v. Heath, L. R. 7 App. Cas. 237. 35-VOL. I O. R.

tween him and Hobson of the minerals was in force, and his purchase money considerably exceeded the amount due to Wragge.

The effect of the agreement between him and Hobson was, I think, distinctly to protect their respective interests, both jeopardized by Wragge's proceedings. Whatever money he should pay to Wragge was to be applied to and credited on his purchase money to Hobson, thus protecting Hobson's estate in the surface and his own in the minerals.

It seems to me that the Court of Equity would promptly interpose to prevent defendant from disturbing plaintiff's possession of his interest in the surface, and that we are. bound to do the same, if necessary, or, what will amount to the same thing, to treat the Wragge mortgage as in defen dant's hands merely for the purposes of the contract for the sale of the minerals, and incapable of being used in any way. for any other purpose.

As to the damages, I consider them as indefensibly excessive, and such as no reasonable jury should have awarded.

I see no reason whatever for estimating the plaintiff's damages at a higher amount than he himself placed them at in advancing his claim against defendant, viz., $500, and I should have thought that amount most ample compensation for any damage he could have sustained; first, for the actual injury done to him, and secondly, for any reasonably temperate damages which it would have been proper to allow over and above the actual amount proved.

Nothing came to light which was unknown to the plaintiff when he first estimated his loss, and I have heard nothing that would have induced me to have allowed the amount claimed to be amended.

Men do not usually underestimate their own injuries, and I think in a case like this I hardly understand how a jury called to try the justice of a claim brought by one man against another are to award him threefold more than he asked.

In my opinion there should be a new trial without costs, unless the plaintiff elect to reduce his verdict to $500: if he do so, then rule discharged, with costs.