Blackburn, J., says, "As to the cases cited, I should decide Morgan v. Griffiths the same way; the decision in Mann v. Nunn I am inclined to think wrong, but it is unnecessary to say how that

may be.”

In Morgan v. Griffiths, L. R. 6 Ex. 70, (1871,) there was a lease of grass land with a stipulation that the tenant should not shoot, hunt or sport on the land, or destroy any game, but would preserve the same and allow the landlord to sport. When the lease was offered to plaintiff to execute he refused, unless the landlord would promise to destroy the rabbits. The latter did expressly promise so to do, but objected to a clause being inserted to that effect; but repeating his promise, the plaintiff thereupon executed the lease. The action was brought for breach of this promise. The jury found that the plaintiff executed on this express promise. In Term Kelly, C. B., said the verbal agreement was collateral to the lease. The plaintiff recovered.

In Mann v. Nunn, 43 L. J. C. P. 241, (1874,) there was a written lease. The premises were in an unfinished state, and defendant promised plaintiff before, and at the time of signing, that if he would become his tenant proper drains should be put in, water laid on, and a water-closet built. The plaintiff had a verdict for breach of the parol promise. In Term a rule was refused. Lord Coleridge, Brett and Mellor, JJ., held that such a promise was admissible. The Chief Justice says: "How can it be unreasonable in law that there should be an additional contemporaneous promise by defendant at the time of signing the lease?" Denman, J.: "The written lease is conclusive as to all stipulations contained therein; but parties were at liberty to add verbally any term consistent with the written demise."

They also held that it was not void under the Statute of Frauds, as affecting an interest in land.

Mason v. Scott, 22 Grant 590, 1875, in our Court of Appeal, contains a very full review of the authorities, but I do not think that its decision governs this case. It calls attention clearly to the necessity of a consideration for the collateral promise.

In our case there was no evidence of the promise being made at the execution of the writings, which had been sent from Belleville to Picton to be executed by the defendants, the plaintiff not being present or any one apparently authorized to contract on his behalf. The point as to this does not appear to have been urged at the trial, and no question was asked in terms of the jury whether this verbal promise was a substantial consideration for the execution of the writings.

But I think it clear from the evidence that defendants swore in effect that they would not have thought of buying unless she was guaranted to class B 1; and that they would not otherwise have given over one-third of the stipulated price for a vessel that could not be insured, and therefore would not otherwise have executed the contract.

I doubt if the case could be made to depend on the absence or presence of the verbal promise at the moment of execution, if it were made clear that it was expressly on the faith of it that defendants did execute when the writings were presented to them.

Erskine v. Adeane, L. R. 8 Chy. 765, (1873,) is a very important case, and the observations of two such Judges as James and Mellish, L.JJ., are much in point. Nothing there seemed to turn on what was said at the time of executing the lease.

We think there must be a new trial, and without costs, on the question of the measure of damages. Even without that objection, I would think we should have to direct another trial in a case so peculiar.

If the parties accept our view of the measure of the damages, they may be able to settle possibly without the cost of another trial. Taylor, the Inspector, could perhaps say what expenditure would have satisfied him as to class B 1.

ARMOUR, J.-I think the jury ought to be directed that the proper measure of damages is the difference in value. between the schooner as it was and as it was war

ranted to be; and I cannot say, as a matter of law, that the defendants were bound to spend any more money than they had agreed to expend in making it what it was warranted to be.

CAMERON, J.—I concur in the opinion that there should be a new trial, on the ground of excessive damages, and that the true measure of damages was not given to the jury in the charge of the learned Judge. The measure I take to be the difference between the value of the thing sold as represented and its value in its defective state. In the present case the measure of damage would be what it would cost over $150 to make the vessel class as B 1, assuming she can be made so to class for a reasonable amount, as that cost would show the difference between the value of the vessel as she was and what she would have been if she had answered to the plaintiff's alleged description of her. I do not wish to be taken as holding that the evidence given in this case was such as to make out in law a valid and binding agreement on plaintiff's part that the vessel would class B 1, and so for the present give no opinion upon that point.

Judgment accordingly.

[QUEEN'S BENCH DIVISION.]

BENINGER V. THRASHER.

Insolvent Act of 1864-Personal wrong-Discharge-Seduction-Ca. Sa.—

Return.

Held, affirming the judgment of Cameron, J., that under the Insolvent Act of 1864, sec. 9, sub-sec. 5, a discharge in Insolvency would form no answer to proceedings upon a judgment against the defendant for seduction.

Held, also, that where a ca. sa. had been issued upon the judgmentwithin the year, it was not necessary to return and file the same within the year.

THIS was an appeal from an order of Cameron, J., dismissing an appeal from the order of the Master in Chambers discharging an application to set aside the writs of fieri facias issued in this cause. The application before the Master in Chambers was made upon the grounds: 1st, that the judgment on which the writs were issued was entered up in 1866, more than fifteen years ago, and had never been revived, and no previous writs of fi. fa. upon such judgment had ever been issued; and 2nd, that subsequently to the recovery of the judgment, and prior to the issue of the writs of fieri facias, the defendant had made an assignment in insolvency for the benefit of his creditors, and duly obtained his discharge thereunder. The case is reported in 9 P. R. 206..

May 19, 1882. Bethune, Q.C., and Clute, in support of the appeal. The Insolvency Act of 1864, sec. 9, subsec. 5, clearly referred to claims in the nature of damages for personal wrongs. Here the claim for damages had passed into a judgment, and then became of a different nature, and was purely a debt which the defendant was entitled to be discharged from under the provisions of the Insolvency Act. The writ of ca. sa. originally issued had not been returned and filed within six years, and the judgment had not been revived: Johnston v. McKenna, 3 P. R. 229.

Holman, contra. The judgment was obtained in 1866, and ca. sa. issued on the 29th May, 1866. The sheriff duly 40 VOL. I O. R.

made his return, and it was not necessary to file the same, See Simpson v. Heath, 5 M. & W. 631; Wilson v. Wilson and Jamieson, 6 O. S. 481; Hall v. Boulton, 3 P. R. 142; Franklin v. Hodykinson, 3 D. & L. 554. The term "personal wrongs" includes seduction: Rogers v. Spence, 13 M. & W. 571; Howard v. Crowther, 8 M. & W. 601. The insolvency proceedings were void. The defendant had no estate to assign, and the proceedings were taken purely to avoid payment of his only two creditors. The judgment in this suit and the damages for breach of promise of marriage recovered by the daughter, were the only debts. set out in the schedule: Thomas v. Hall, 6 P. R. 172; Ex parte Morrison, 10 Jur. N. S. 787.

May 20, 1882. HAGARTY, C. J.-I entertain no doubt whatever but that the statute of 1864, which declares that the discharge shall not apply to "any debt due as damages for personal wrongs," prevents such discharge from affecting a judgment recovered by this plaintiff in an action for seduction.

I find it impossible to narrow the expression "personal wrongs," as Mr. Bethune urges, to claims for direct injuries to the plaintiff's person, as in assault, &c.

All the books, in my opinion, treat such an action as seduction as a personal wrong to the plaintiff. It is an action for a tort, an action ex delicto, or an action of or for a wrong.

Every trespass may be called a wrong. As is said in Bacon's Ab. "Trespass," p. 640, a trespass not accompanied by force is called "a trespass on the case, and the method of proceeding against the wrong-doer is by an action of trespass upon the case." Both are actions ex delicto.

See Com. Dig. "Trespass," (A 3.): "So trespass lies for a general wrong to another; as if a man takes the servant of another out of his service, and keeps him."

A good deal of learning bearing on the point may be found in Broom's Legal Maxims, p. 904, 5th ed.: Actio personalis moritur cum personâ." At p. 912, he speaks of