The case was tried before Armour, J., on the 26th October 1880. Smart's account was admitted, and Sorenson then proved that he had given Smart an order, dated 3rd May, 1879, on J. C. Iler in these terms: "Please pay J. H. Smart the balance due me on my contract on 8th Con. Tap drain." He swore that there was then due to him on account of the contract, about $475; but that the work was not quite finished, nor the amount finally settled between him and the Council. He contended that he had given the order to Smart as payment on account. Smart, on the other hand, said that he was only to give credit for anything which might be paid to him on the order as soon as he received it, and that nothing had ever been paid to him thereon.

The plaintiff failed to prove that other payments had been made to Smart on an order in connection with a drain in another township.

Iler, the reeve, was not called. It was said he had been subpoenaed, but he did not arrive in time to give evidence, and Smart had a verdict, on which judgment was afterwards entered and enforced, for the full amount of his demand.

Sorenson now alleges that two days after the trial of the former action he discovered that Smart had in fact omitted. to credit him therein with a further sum of $300, which he had received from the township of Colchester on one of the two orders he had given him, and had thus recovered a verdict for $300 too much. He, however, made no attempt to set aside the verdict, and now brings this action to recover back one of the sums thus received but not credited by the defendant.

It is important to notice the precise way in which the claim is put in the particulars. It is alleged that the plaintiff gave Smart an order upon Iler for $300, dated 15th January, 1879: that on this order, Iler, on the 18th March, 1879, issued a warrant to him which he endorsed to Smart, who on the same day received the amount of it from Iler: that he gave "another similar order, no date preserved" to 86-VOL. V. O. R.

pay Smart the balance which would be due to him, Sorenson, when the drain under contract was completed; and that on or about the 18th April, 1879, Iler issued a warrant to Smart, who obtained thereon from the township treasurer $300. "And in the suit of Smart v. Sorenson, only one item of $300 was credited for and on account of the above mentioned orders and warrants, and therefore the plaintiff claims $300 from the defendant."

That was the way in which the case was presented for the plaintiff at the trial before Proudfoot, J. The plaintiff proved that he had given the defendant an order on Iler about the middle of January, 1879, for $300, and he swore that on the 18th March, 1879, they were both present at Iler's house, on which occasion ller gave him a check or warrant for $300, payable to his order, which he then endorsed and handed to the defendant, and that this warrant was given for the January order. This warrant is not endorsed by the defendant, nor is there any receipt from him for the amount thereof, but Iler swore that he paid it to him on the same day just after the plaintiff had left the house. The plaintiff also swore that he had given the defendant another order, the date of which he could not remember, for the balance coming to him on the contract, on which order the defendant afterwards received $300 on the 10th or 11th April, 1879. Iler also swore that the second payment was made upon this order, which is described as a conditional order, and it is clear that a payment of $300 was made on the 10th or 11th April, proved as it is by Iler's warrant or check in his favour endorsed by him, and by his receipt for the amount. The defendant, however, said, and to my mind with much appearance of reason, that he never received a payment on the 18th March, that the payment of the 10th April was made on account of the order of the 15th January, and that he had never been paid anything on account of the conditional order at all. I do not however here discuss the evidence on this point further than to observe that while both parties agree that

there were but two orders, the payment of the 10th or 11th April, could not have been made on the conditional order, which was not given until the 3rd May, a fact the existence or importance of which was, I strongly suspect, overlooked or forgotten by both the plaintiff and Iler, when they swore that the above payment was made on the second or conditional order.

It appears to me on this state of facts that the defendant is entitled to our judgment on the defence of res judicata, a defence which applies "not only to points, upon which the Court was actually required by the parties to form an opinion and pronounce judgment; but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the time”: Henderson v. Henderson, 3 Hare 115.

The only issue in the former action which need be considered is that on the plea of payment, a plea which according to the practice is to be taken distributively, and "if issue is taken thereon and so much thereof as is a sufficient answer to part of the cause of action is proved and found true on trial, a verdict shall pass for the defendant in respect of so much of the causes of action as are answered, and for the plaintiff in respect of so much thereof as are not answered:" C. L. P. Act, sec. 113.

I say the plea of payment is the important one, because if these two sums of $300 were received by Smart they were payments by Sorenson, having been paid by his order out of moneys of his in Iler's hands. Then the question on that plea being, whether the whole or any part of Smart's demand had been paid, the judgment thereon was and is that it had not been paid. True, Sorenson did not then apply his evidence to prove a payment on the 18th March, as he now seeks to do, but that, to use the language of the Vice-Chancellor in Henderson v. Henderson, supra, was only because from negligence, inadvertence, or even accident, he omitted to do so. I think myself that his reason for not doing so was, that he knew there had been no such payment, but that is not material.

To permit him to prove it in this action, is to permit him to contradict the record in the former action, by shewing that the judgment therein should have been for $620 only, instead of $920, which, in the plain language of Lawrence, J., in Marriott v. Hampton, 2 Sm. L. C. 406, "is too preposterous to be stated."

Such cases as Seddon v. Tutop, 6 T. R. 607; Chisholm v. Morse, 11 C. P. 589, and others of that class, have no application to the present. They are cases where a plaintiff having two distinct unconnected demands, sued for and provable in the same action, confines his evidence to and has judgment in respect of one of them only, it may be by inadvertence as in Seddon v. 1utop, or because the action has been prematurely brought, as in Palmer v. Temple, 9 A. & E. 508. The judgment so recovered is no bar to another action for the other demand. Here the question was the single one of payment, and it has been adjudicated upon: Markham v. Middleton, cited in Seddon v. Tutop 6 T. R. 609. The case of Brunsden v. Humphrey, 11 Q· B. D. 712, may be referred to as the last authority on the subject.

I do not see the slightest foundation for the contention that the plaintiff was prevented by the fraud of the defendant from proving the payment now in question in the former suit, and the learned Judge's finding is in the defendant's favour on this point. He gave credit in his particulars of demand for a payment of $300, in April, 1879, and that should have been sufficient notice to the plaintiff that he was not receiving credit for a payment which, if he is to be believed, he knew Iler had made for him in the March previous.

In my opinion the judgment should be reversed, and the action dismissed, with costs.

FERGUSON, J.-After going over the records and the evidence in both suits, I am of the opinion that the defendant is estopped by the finding and judgment on the issue raised on the plea of payment in the former suit.

This plea was a distributive plea, and the finding and judgment were against him. To permit the plaintiff to recover for the sum now sued for would, I think, most certainly contradict the record in the former suit.

I think the charge of fraud against the now defendant not supported by the evidence.

I am of the opinion that the judgment should be reversed, and the action dismissed, with costs.

G. A. B.

[CHANCERY DIVISION.]

GUNN V. BURGESS.

Bills of sale act-R. S, 0,. ch. 119-Indivisible chattels-Possession of co-owner-Sheriff's sale.

A. having purchased from B. a half interest in a celebrated brood mare, paid in his purchase money $50 more than the half interest was worth, on the understanding that B. was to keep and take care of the mare for a year, when A. was to have her, and her expenses were thereafter to be shared equally between them. The bargain was that they were to keep her for breeding purposes and share the profits equally.

During the year, and while in B.'s possession, she was seized and sold by the sheriff under an execution against B., but notice of A. 's claim was given to the sheriff and publicly at the sale. Subsequently the mare had a colt which was in gremio at the time of the sale.

In an action by A. against C., the purchaser at the sheriff's sale, in which C. contended that the Bills of Sale Act, R. S. O. ch. 119, avoided the plaintiff's title as against the execution, it was,

Held, that the Act was intended to apply to personal chattels susceptible of specific ascertainment and of accurate description, and capable of being transferred and possessed in specie, and did not apply to an indivisible chattel, like that in the present case. That A. & B. were tenants in common of the mare; that B.'s possession of the mare was not his sole or exclusive possession, but the possession of both; that the sheriff's sale passed only B.'s interest in the mare, and C. by his purchase became a co-owner with A. ; and that the property in the colt followed that of its dam, and that A. was an owner of an undivided moiety in both.

THIS was an action brought by William Gunn against Samuel G. Burgess, to establish his right to a half interest in a celebrated brood mare called "Simoon," and her colt.

The case was tried at the sittings held at Woodstock, before Boyd, C., on the 19th April, 1884.