took of the case when the verdict was given, that I should consider this question, and therefore it was not decided by the verdict. I concur in the opinion which I understand to be held by one or more of my brethren, that under the peculiar circumstances of the country, and especially the remote position of the defendant's residence on the shores of Newfoundland, and the almost total absence of mail communication, it is a proper question for a jury whether the notice of dishonor was sufficiently proved by the evidence. I therefore think there should be a new trial, with costs.

DESBARRES, J.-I am also of opinion that there ought to be a new trial in this cause, not because I consider that in point of fact the note is endorsed in the usual way, the payee's name not being over that of the defendant, but because the defendant by placing his name on the back of the note in blank, and allowing it to pass into the hands of the payee, to. be by him transferred to whom he pleased, is in my opinion liable to the plaintiff as a bona fide holder for value without notice, and that the defendant is estopped under the circumstances from denying that the payee's name was placed on it subsequent to his own. See 3 B. & S., 37 ; 9 U. C. Q. B., 73.

SMITH, J.-I was present at the argument, but I did not think it necessary to prepare a written judgment. The conclusion I have arrived at is the same as that of my brother DESBARRES. I think that as the note came into the possession of a bona fide holder under the circumstances of this case without any actual knowledge of the facts, and in such a manner as to afford him no presumption against the ordinary liability of an endorser, the endorser is liable, and there should be a new trial.

WEATHERBE, J.-Defendant is sued as second endorser by a holder for value before maturity, and the allegation of endorsement by the payee is traversed, and on the trial it appeared that the payee endorsed after the defendant. The name of the payee is found written across the note on the back and at right angles to this and along the edge of the note, also on the back is found the name of the defendant. The cause was

tried under the act by a Judge without a jury, who found in the following words:

"I find a verdict for the defendant on the ground that the plaintiff cannot recover against him as endorser of the note upon the evidence given in the cause. I call attention, however, to the fact that I find it laid down in Chalmers on Bills, 1878, that on such an endorsement in England, under the Supreme Court of Judicature Act, the defendant in a case such as the present would be held liable as endorser."

Foster v. Mackinnon, L. R., 4 C. P., 704, is relied on by defendant's counsel. There the defendant wrote his name on the back of a note for £3000, being induced thereto by the fraudulent representation that it was a guarantee such as he had signed on a former occasion. He was not aware that it was a bill. There is some evidence of a similar character in this case. I need pronounce no opinion on that evidence now. I suppose it will not be contended that it is any stronger than this case for defendant. The verdict in Foster v. Mackinnon was supported because, as the Court observed, the defendant never intended to put his name to any instrument that then was or that thereafter might become negotiable. The jury had found that fact, and that was the turning point of the case. It is quite evident that we have nothing to do here with that question. It might have been otherwise on a different finding. The defendant in that case did not know he was signing a note. He supposed he was signing another paper which was not of a negotiable character. What did the defendant in this case suppose he was signing? Was it a promissory note? If not was there any representation made to him that it was a guarantee or a paper of a different character, or did he take the trouble to enquire? If we were to establish as matter of law that these are questions which need not be disposed of on the trial by a distinct finding or a general verdict, negotiable securities would, I think, be greatly shaken.

It is argued by plaintiff that there is no evidence whatever here to support the contention that this is not a valid endorsement in the hands of an innocent holder for value, that is assuming that the payee has properly endorsed. We

need not decide that. It is sufficient to say that not having been passed upon at the trial of this cause, we cannot uphold the verdict, as we are not sitting here to try the cause.

All this is upon the supposition that there is no defect. apparent in the endorsement of the payee. I understand the learned Judge has found that when defendant endorsed his name that of the payee had not been written upon the back of the note. Assuming there is no remedy where the payee has not endorsed when the note has reached the hands of plaintiff, was this note as it now appears properly endorsed by payce? It is said the name of the payee should be written before that of defendant in its position on the paper, and not after it or in another place. On the other hand it is said intention is everything, and the payee's name is without significance except as first endorser, and Mr. Ritchie contends that the name of the payee may be on any part of the paper, either on the front or back, and I suppose that is because the payee's signature can have, on being for the first time or only once signed, as here, but one meaning in law, and that is to render the instrument valid as against himself first and then any other endorser in the hands of the holder. Without going thus, in this case, so unnecessarily far, as to say the name can be written on any part of the note, I think that in this case if it is not indisputable that this note on being received by the new holder would not furnish him by the mere appearance of the names and the condition of the instrument with good reason to regard it as binding on defendant as an endorser subsequent to the order of position and time to that of the payee, then it was a question of fact also to be tried by a jury, or at the trial by the Judge acting as a jury, and for that reason I think the argument of defendant on that branch of the case cannot avail.

The learned Judge has not on the trial considered this point. He has treated this note solely as one without any endorsement by the payee because as a matter of law he came to the conclusion that an endorsement previous to that of the payee cannot be cured by subsequent endorsement in any way so as to avail in the hands of an innocent holder for value before maturity, which I think we cannot on examination hold to be law. It was unnecessary under this view of

his to consider any of the issues of fact further. We have no power over them here, and for that reason, however much I regret it, they must, I think, be reconsidered on another trial.

I do not dispose of this case without considering a difficulty said to arise in consequence of the pleading. Mr. Graham forcibly reasons that plaintiff must prove, as he has said in his declaration, that the payee endorsed the note to the defendant. If the law is as I have endeavored to apply it, the only question is whether the true principle requires us to hold that defendant by reason of his act in prematurely endorsing is now as against this plaintiff prevented from saying that the payee's name did not appear, or whether the facts should be replied on the record, and perhaps we did not afford encouragement for a full discussion. There may be a difficulty here, but I think the former is the correct view to take.

It is evident that even if plaintiff succeeded on the trial as to endorsement, failure to establish notice of dishonor would be fatal to him. His counsel relies on the receipt by defendant of a telegram containing a notice of dishonor, and respecting the sending of this notice objection is taken that the contents of the telegram cannot be received, and it is urged that the evidence of the defendant himself on this subject, that he does not recollect the receipt of such telegrams though he may have got one, is wholly insufficient.

The verdict is based entirely on the issue traversing the endorsement, and as that cannot be supported, and we cannot now supply a verdict or amend it so as to cover the issue raised by the plea denying the allegation of notice in the declaration, our judgment must, I think, on this point be for the plaintiff. I am not aware of any authority to justify us in dealing with the question so as to give effect to an opinion favorable to defendant on the subject of notice of dishonor, supposing we were to hold such opinion, by sustaining the finding which has been made by the learned Judge who tried the cause and settled the case on the question of endorsement, that being a result of a mistake in the law. We offer no opinion on the question of notice of dishonor, or-for the same reason-presentment.

The learned Judge who tried the cause has, I should say from the language of his special finding, never considered the

question of fact beyond the issue of the endorsement, and therefore the cause remains untried.

There may be room for discussion on the subject of the form and character of the verdict to be rendered under the act, imposing the obligations which formerly rested with the jury upon the Judge. Our attention was not directed to this question, and I am dealing with the question upon the same principle which I suppose would govern the verdict or finding of a jury.

I think the rule for a new trial should be made absolute.

NAYLOR v. BELL.

PLAINTIFF, through his bailiff, distrained on goods of his tenant Bryne, April 5th, but no attempt was made to sell until twelve days afterwards; no appraisement was made, and the tenant was left in possession. One reason given for the delay was that the tenant's children were sick and could not be moved; but there were other circumstances connected with the delay that pointed to an abandonment of the distress by the bailiff. The goods were seized, April 16th, under a writ of replevin, by defendant, as sheriff, at the suit of a chattel mortgagee, upon which this action was brought, to recover damages for the removal of the goods. The County Court Judge found that the plaintiff must be considered as having abandoned his distress, and he gave judgment for defendant.

Held, that the appeal must be dismissed with costs. (Per SMITH, J., that the goods had not been sold in reasonable time, and that, although the agreement between the landlord and the tenant for delay would obviate this difficulty had the question arisen between those parties, there was no pretence to hold that as against the sheriff the goods were in custodia legis. Per MCDONALD, J., that the County Court Judge having found that the distress had been abandoned, this Court had no power to interfere with the finding, and that the Court could only reverse his decision, if at all, on the ground, not that it was against the weight of evidence, but that there was no evidence to support it, the appeal not having been taken on the ground that it was against the weight of evidence. Per WEATHERBE, J., that the evidence in support of plaintiff was of so suspicious a character that the Judge below was enabled, in the exercise of an intelligent discretion, to find as he had done and had properly done.) JAMES, J., dissenting, held that there had been no abandonment, and interpreted the finding of the County Court Judge that there had been, not as a conclusion of fact, but as a conclusion of law, which he held to be erroneous.

THIS was an appeal from a decision of the County Court Judge for District No. 1, sitting at Halifax. The plaintiff Naylor distrained upon the goods of his tenant Byrne for rent, but in consequence of illness in Byrne's family, suffered the goods to remain upon the premises more than five days. After the expiration of the five days, no one being in charge of the goods, they were seized by the sheriff under a writ of replevin issued at the instance of Stephens, the holder of a