Cornell University Library KEN 121.2.S84 1888 A digest of the reported decisions in th 3 1924 018 093 777 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924018093777 A DIGEST OF THE REPORTED DECISIONS SUPREME COURT OF NEW BRUNSWICK, HILABY TEBM, 12 VICTORIA: 1879, TO BASTKE TERM, i9 VICTORIA, 1886, DIGEST OF CASES IN CANADA SUPREME COURT DECIDED ON APPEAL FROM SUPREME COURT OF NEW BRUNSWICK WITH Rules OF Court From i88i to 1886 IN Continuation of "'Stevens' Digest." BY JAMES G. STEVENS, ESQ., Q.C., 3SE flFTirr. J OSE DF Tirr. JUDGES OF THE COUNTY COURTS OF NEW BRUNRWIClt, TORONTO: CARSWELL & CO., PUBLISHERS. 1888. Entered according to Act of the Parliament of Canada, in the year one thousand eight hundred and eighty-eight, by Cabswell & Co., in tljie office of the Minister of Agriculture. PRINTED BT Tnos. MooEE & Co., Law Pbintees, 20 AdeijAide St. Eabt, TORONTO. SUPREME COURT OF JUDICATURE. NEW BRUNSWICK. Chief Justice — Hon. John C. Allen, October, 1876. Justices — Hon. A. K. Wetmoee " Hon. a. L. Palmer, " Hon. Geo. B. King, " Hon. John James Feasbr, Hon. W. H. Tuck, May, 1870. June, 1879. December, 1881. December, 1882. March, 1885. ABBREVIATIONS AND REFERENCES. Vol. 18, 2. PugBley & Burbidge. " 19, 3. do. do. ■' 20, i, do. do, " 21, 5. do. do. " 22, 1. Pugsley & Trueman. " 23, 1. Trueman. " 24, 2. do. " 25, 3. do. ADDENDA. CASES ON APPEAL TO SUPREME COUET OF CANADA. ERRATA. On page 11, 5th line from bottom, for " 12, 15th line from bottom, for " 47, 19th line frora top, for " 65, under NumbeK,"3 " vol. 24 " 88, 6th line from top, " 95, 20th line from top, 140, 7th line from bottom laws" read "land." Agreement" read "Amendment." vol. 26" read "vol. 25." Chestnut V. Doyle," for " vol. 25 " read after" read "on motion for." "vol." insert " 21." >r" 564 " read "364." 155, McDonald v. Mayor, etc., of&. John. Appeal to S. C. C. dismissed. \ Reports S. C. C, vol. 14, page 1. " 240, under head "Woodstock," oa^e ea; parte Dibble is omitted; read " The Act, 45 Vic. cap. 78jNproviding that no person, who is not a ratepayer in Town of nfoodstock, shall engage in any trade, etc., therein without aylicense from the mayor, is intra vires the Provincial LegisSiture under 92nd section of B. N. A. Act, vol. 25, page 119." " 243, at foot of note, read " Goates v. Town of Moncton, vol. 25, 605." N. B. — Some few errors occur in names of cases in Digest, but are correct in Table of Cases. It was not thought necessary to extend the errata in this respect. The cases that were inserted in the last edition of Stevens' Digest in the Addenda to that edition, being several cases in vol. 18, N. B. Eeports, are now included in this present edition, thereby saving the trouble of reference tj the Addenda in Stevens' last edition of Digest. iM^j-f)' A DIGEST OF THE REPOETED DECISIONS IN THE SUPREME COURT OF NEW BRUNSWICK, FROM HILARY TERM 42 VICTORIA, 1879, TO EASTER TERM 49 VICTORIA, 1886. ABATEMENT. For matter of form. Action in Jus- tice's Court, section 13, cap. 85, Con- solidated Statutes. An action was brought in a Justice's Court, by the title of "The estate of the late R. K." against the defendant, and a non-suit was granted, because the name of the executrix was not stated in the summons. Held, that the suit abated for matter of form, and . prevented the plaintiffs' claim, being barred by the Statute of Limitations, under section 13, of cap. 85, Consolidated Statutes. Kerr Exe- cutrix, etc. V. Squires, vol. 22, 448. Action brought in County Court oy a female, does not abate by her marriage. See County Court 5, ABANDONMENT. Notic3 of — Loss of vessel — Waiver. See Insurance, 16. ^0£ possession of land where wrong- ful entry by another. Whether tres- pass cm afterwards be maintained. See Trespass, 8. — Of excess in particulars filed. See Certiorari, 8. — Not applicable to actions of tort. See County Court 6. S.D. — Giving evidence of separate tres- pass — No abandonment of joint tres- pass. See New Trial 2. — Election of trespass — time for — in judge's discretion. Ibid. ABSCONDING DEBTOR. 1 Consolidated Stat. Cap. 44— Warrant to attach property — Affidavit stating belief of witnesses only— Supersedeas — Certi- orari — Delay In applying. Merely stating belief of absconding or concealment, not sufficient — facts should be stated for grounds of belief, if not, the judge has no authority to issue the warrant. Void proceedings not cured by the appointment of trus- tees and registry thereof, under the 11th section of Act. A purchaser of land from the debtor after the issue of a warrant, in such a ease, had a right to apply for a certi- orari to quash the proceedings. Such an application might be made, though two terms had elapsed since tha warrant issued. Ex parte Moore, vol. 23, 229, ABSENCE. The mere absence from parish, of parish officer, does not create such ti, vacancy as will authorise the appoint- 1 ACCOMMODATION NOTE. ACCOKD AND SATISFACTION. ment of a person to fill the office by the councillors. The Queen v. Close, vol. 19, 502. —Meaning of Canada Temperance Act. See Canada Temp. Act 19. ACCEPTANCE. What constitutes such under Stat- ute of Frauds. See Statute of Frauds. —An acceptance of goods subsequent to time agreed upon for delivery. See Assumpsit 1. —Order for goods sent by letter. See Contract 10. Contract for sale of goods— Statute of Frauds— Offer by letter to sell. See Contract 17. — Necessity of distinct offer and ac- ceptance. Where contract for insurance de- pends upon correspondence. See Insur- ance 12. Entire contract— Whether purchaser can accept a part and refuse to pay contract price for whole. See Con- tract 13. Accomplice — Testimony of — Corro- boration of. See Evidence 16. ACCOMMODATION NOTE. 1— Liability of mal(er of, where payee has been discharged. To an action on a promissory note made by the defendant in favour of F. L. L., or order and by him endorsed to plaintiffs, the defendant pleaded that he made and gave the note F. L. L. for his accommodation, and that there never was any value or consideration for the making or payment of the said note ; that the plaintiffs were a banking company, of which L. was president and manager, and that the said note was received by the said L. for the plaintiffs with full knowledge that the note was so given without value and for the accommoda- tion of the said F. L. L., and the plain- tiffs while they were holders, dis- charged the said F. L. L. from all liabi- lity on said notes. Held, by Weldon and Fisher, JJ. (Wetmore, J., doubting), that the plea was no answer to the action. Bank of New Brunsivick v. Brown, vol. 19, 106. — Agreement to pay — Bill of sale given in consideration of. See Promis- sory Notes 6. ACCORD AND SATISFACTION. Plea of^Taking defendants' promissory note — Note not stamped — Where given bacl( — Pleading — Departure, duplicity. 1 — To a declaration for goods sold and delivered defendant pleaded. 1st. That after the accruing of plaintiff's claim and before the commencement of the suit, he satisfied and discharged the claim by making and delivering to plain- tiff his promissory note dated, etc. which promissory note plaintiff accepted and received in satisfaction and discharge of his claim. 2. That after the accru- ing of plaintiff's claim, etc., (as in first plea) he made and delivered, to plain- tiff, and the latter accepted and received from him on account thereof, his pro- misaorynote for, etc., payable to plaintiff or order on 1st August then next, which period had not elapsed at commence- ment of the suit. Plaintiff replied to both pleas. 1st. That the notes were not stamped according to provisions of statute', etc. And 2nd. (as to the first plea), that he did not receive the note in satisfaction and discharge of his debt, and that after he received it, he re- turned it to defendant, who accepted it and cancelled and discharged it, and agreed to remain liable to pay plaintiff's claim whenever required so to do. Defendant demurred to the replications, and plaintiff delivered objections to the pleas. Held, that the pleas were good, bat that the replications were also good on ACCOUNT STATED. ACQUIESCENCE. demarrer, and that plaintiff was enti- tled to judgment. Held, also, that though the 2nd re- plication was open to objection for dupli- city, that was not a ground of general demurrer. Cruickshank v. McAvity, vol. 20, 352. 2 — Where the plaintiffs demand is for a liquidated amount, the payment of a ^imaUer sum will not amount to a satis- faction of the larger sum, even though the plaintiff agreed to accept it in fall. Pitfield, App. and EimbeU, Besp., vol. 35, 193. — Plea of — In action against drawer ■of bUl of exchange — What evidence of. See Agreement 7. — Contract under seal — Breach — New agreement by parol, in settlement of. See Contract 16. Accounts. Previous settlement with third party — ^Effect of, as admission of their correctness. See Evidence 11. Settlement with deceased person — Conclusiveness of. See Settled Ac- ule was discharged, but without costs, as the rule was taken out without costs, and could not be made absolute with costs, and there j was no necessity for the defendant to shew cause. Tower v. Outlwuse, vol. 21, 1302. 2— Notice under— Practice— Act 42, Vic. Chapter 8. Where the notice given under Act 42, Vic. Chap. 8, Sec. 10, stated that defen- dants would move to enter a non-suit or a verdict for the defendants, and leave had not been reserved at the trial, the Court refused to allow the defendants to amend the notice and move for a new trial. Mullin v. Frost, vol. 20, 122, — Conviction under Canada Temper- ance Act, 1887— When penalty imposed is greater than the Act authorises— Whether allowable. See Canada Tem- perance Act 9. — Conviction under Canada Temper- ance Act. See Summary Conviction — Ag*eetneinr^f conviction, bee Can. Tem. Act, 22. — Of name of defendants — Judge granting order to change. See Prac- tice 2- — Of declaration— When both lessor of plaintiff and defendant died while suit was pending. See Ejectment 3. — Bill in Equity — When allowable. See Equity. — Pleadings — At trial — When pro- posed amendment would make Court demurrable. See False Imprisonment 7. — Amendment on appeal. See Ad- denda 31, 39. APPEAL. APPEAL. 13 — When judge at nisi pnus has power to refuse. See Partnership 1. — Of Bill in Equity— Foreclosure. See Mortgage 2. — Election petition under Dominion Controverted Election Act — Variance in copy served — Whether may be amended. See Dominion Controverted Election 2. Ancient Document. — - Statement in Crown grant of sale of the land — Admissibility of. See Possession 2. ANNUITY To wife of testator — If the particular property upon which it was made a charge should prove insufficient for that purpose, the amount should be paid in full out of the residuary estate. See Will 5. — Where corpus can be sold to pay. See Will 3. Ante - Nuptial Agreement. — Voluntary deed from husband to wife — Whether can support by proof of. See Husband and Wife 5. APPEAL — (See County Court Appeal.) Decision of Judge. — The decision of the Judge in equity on a question of fact will not be reversed on appeal, unless it clearly appears that his decision was not only wrong, but entirely erroneous. Wilbur v. Jones, vol. 21, 4. In questions of fact— Verdict set aside by County Court Judge — Interfering w.tli Judgment of County Court. 2 — On an appeal from an order of a County Court Judge granting a rule for a new trial on the ground of the verdict being contrary to evidence, the Court refused to interfere with the decision of the Court below. Hamilton v. Dunphy, vol. 21, 214. 3— From order made by a County Court Judge— iWhen appeal will lie— Where Judge sets aside a judgment and allows defendant to come in on terms — Manda- mus to compel Judge to cerlily — Power of Court to grant— Consol. Stat. C. 51. SS. 31 and 51. An order of a Judge of a County Court Betting aside a judgment and allowing the defendant to come in and defend on terms, made under section 31 Consol. Statutes, chap. 51, is not a decision upon a point of law, but depends on the Judge's belief in the facts stated in the affidavits, shewing a defence to the action on the merits ; and no appeal lies from the order under the 51st section of that chapter, The Court will not compel a County Court Judge to certify the proceedings before him, unless his decision is upon a point of law, or comes within the other cases mentioned in section 51 of Consol. Statutes, chap. 51 Semble — If a Judge of a County Court refuses to certify proceedings in a case where he ought to do so, the Court will grant a mandamvs to compel him to cer- tify. Ex parte McCully, vol. 20, 87. 4 — From order of a County Court Judge refusing rule for a new trial, on the ground that the verdict was against the evidence, Ihe Court will not inter- fere with the finding of the Court below. Sheratin v. Whelpley, vol. 20, 75. 5— From County Court — Where abandoned by appellant and notice given— Motion to dismiss with casts refused— Power of County Court to give costs. Where the proceedings on an appeal from a County Court had been certified and filed with the clerk of the pleas, but the case had not been entered on the appeal paper, an application to dismiss the appeal with costs for failure to pro- secute was refused, the appellant having previously given notice that he aban- doned the appeal, and the respondent 14 APPEAL. APPEAL. having a remedy by application to the Judge o£ the County Court under Con- sol. Stat. cap. 51, sec. 52. Kinnear v. Black, vol. 21, 272. 6— Chatham Police Act 22 Vic. cap. 46, and 26 Vic. cap 40 — Appeal under 11 Vic. tap. 12— When Court will not inter- fere with decision of Justice. Where on appeal under 11 Vic. cap. 12, from a. conviction before a Justice, the evidence was conflicting, the Court refused to interfere with the decision of the Justice. Ex parte Balatead, vol. 21, 227. 7 — Probate Court — question of fact — Decision of. The Court on an appeal from the Pro- bate Court will decide questions of fact from the evidence sent up on appeal, irrespective of the finding of the Judge of the Probate Court. Consol. Stat, cap. 62 sec. 47. In re Ferguson, vol, 21, 71. — Preliminary objections as to suffi- ciency of petition to prove a, bill in solemn form— Decision of Judge. See Probate Court. 8— Equity— Injunction— Dissolution of. In order to entitle a defendant to have an ex parte injunction dissolved on the ground of suppression of fact by the party obtaining it, the facts relied on must be material to the case as pre sented in the plaintiff's bill. Held, by Wetmore, J., on appeal from the decision of a Judge sitting in equity, that the Court having stopped the defendant's counsel when he was about to endeavour to sustain the decision of the Court below on grounds not consid ered by the latter, that judgment ought not to be given allowing the appeal until the respondent's counsel was permitted to present the other grounds, which he had been so estopped from arguing. Watt V. South West Boom Co., vol. 19, 646. 8- To Supreme Court of Canada — ^Ex- tending time. Held, that a Judge has power from time to time to extend the time for per- fecting an appeal to the Supreme Court of Canada. The fact of the Court having decided what the case on appeal should be, wiU not prevent a Judge from making an order settling the appeal. Copp v. Reid, vol. 19, 641. — Preparation of case, what case must contain. See Supreme Court of Canada 1. 10 — Crown has not an appeal to the Supreme Court of Canada from judg- ment quashing conviction. See Evi- dence 16. 11— Ex parte order extending time. The time for appeal allowed by the Supreme and Exchequer Court Act Statutes of Canada 38 Vic, cap 11, sec. 21, should not be extended by an ex parte order. Jackson v. McLellan, vol. 18 694. — Summons for new trial not disposed of — Befusal to set aside taxation of costs. See New Trial 12. — ^Dismissal of, when appellant does nos appear when case is reached. See County Court Appeal 2. — Where appeal, County Court al-' lowed — Bule — Costs. See County Court Appeal 3. — Judgment of the Court appealed from, may be supported on other grounds than those on which it was decided below. See Ship 1. — Dismissal of — Where appellants' counsel had stated that he did not intend to support the appeal. See County Court Appeal 1. — Non-suit having been set aside with costs. Court will not grant at- tachment for costs. See Costs 8. — ^Not allowed on question of costs. See Costs 10. ARBITRATION. ARREST. 15 — Can only be in reference to point actually taken and decided in Court below. See Carrier 2. — From an order of a Judge of County Court relieving bail. See Bail 1. — Ferrnission to enter cause on ap- peal proper — Practice. See County Court Appeal 4. — Serving notice of — Statement of grounds. See Equity Appeal 2. — Costs — Question of — Whether ap- peal will lie. See Sayre v. Harris, vol. 18, 677. — Procedure on appeal. See Court General Bules. — County Court — Judge certifying proceedings — Time within which appli- cant must apply for — Bond. See County Court Appeal 7. — On Appeal to Supreme Court of Canada — Defendant cannot rely on ground of plea not pleaded. See Addenda 31. — Jurisdiction — On what grounds appeal will lie— Sees. 20 & 22, Sup. Court Act. See Addenda 48. Appeal Papers — Equity — When to be printed— Entry of cause— Application to strilce cause off docket— Rule of Hillary Term, 1881— Practise. The Court, (Wetmore, J. dissenting) refused to strike a eause oft the Equity Appeal paper by reason of the appeal papers not having been printed and filed as required by rule of Hilary Term, 1881, when good cause was shewn for the delay. Colwell v. RoMn- ion, vol. 21, 489. Appropriation — Agreement for — wheth- er payment — Rescission of. See Con- tract 7. Appropriating with intent to defraud — Stating value in indictment for. See Intent to Defraud 1. ARBITRATION -^Sea Award). Costs of — Power of Court to review. 1 — Where an order of reference to arbi- tration made at nisi prim provided that the costs of the arbitration should be taxed by the clerk as costs in the cause, the Court has no power to review the clerk's allowance of the costs of the arbitrator. Snowball v. Muirhead, vol. 22, 561. — Power of agent to refer to, without authority of principal. See Agent 1. — When clause in Act 34 Vic. cap. 52, to construct lines of Telegraph applies. See Trespass 6. — When damages reduced to less than two hundred dollars in action brought in Supreme Court, whether plaintiff is entitled to costs. See Costs 5. — Conditions for, in insurance policy — Where it does not apply. See Insur- ance 6. — A submission to — Parties to, must expressly consent and agree to its being made a rule of Court. See Award 1. Arbitration clause — Marine insurance — Policy.- See Insurance 11. Architect's certificate — Not required to entitle to damages for delay in finishing work under contract. See Contract 2. Argument of summons — To set aside at- tachment — What grounds party apply- ing can avail himself of. See Practice 3. Array — Challenge to — Action pending against sheriff by piisoner's husband — Good ground of. See Challenge 2. ARREST. — Previous arrest for same cause of action — Res adjudicata — Discharge from custody — Splitting up claims — Whole amount due at time of first suit. See National Parle Bank v. Ellis, vol. 18, 547. Bight to arrest not taken away in actions of tort by Consol. Stat. See Mullen v. Frost, vol. 18, 463. — Writ of capias — Affidavit to obtain order for arrest under Chap. 38 Consol. Stat, sec. 1, need not state plaintiff's belief- Defendant about to quit the province— 16 ABEEST. ARREST. Order to arrest one of several defendants — Attorney's name not signed to not'ce on copy writ of capias— Effect of— Impossi- ble date— When defendant not mis'ed. — An affidavit to obtain an order for the arrest of defendant under sec. 1 Chap. 38 Consol. Stat, (where an order is necessary under that section), need not state an allegation that plaintiff believes the defendant is about to quit the province. An order may be made to arrest one of defendants — the name of the plain- tiff's attorney was stated at the foot of the endorsement required to be made on a writ of capias (Consol. Stat. cap. 37, Schedule A. No. 2, page 278), where the form does not require it and omitted at the end of the notice to the defendant (No. 3), where it is required to be stated. Held, that as the object in requiring the name to be stated on the copy is to give the defendant the name of the attorney who issued the writ,, and as the defendant in this case could not have been misled, or left in any doubt, the deviation from the form was not sufficient to justify the Court in setting aside the arrest. A considerable part of the copy of the writ of capias was illegible. It appeared to be dated thirty-third day of June, 1899, the word intended for "twenty" looking more like " thirty " than "twenty,"' though it was neither the one nor the other, the year was plainly written 1899. The copy of the indorsement which appeared on the copy of the writ stated that " the writ was issued on the 23rd day of June, 1879 " — the defendant was arrested on the 25th June. Held, that the irregularity was not sufficient to justify the setting aside of the arrest, the defendant not having been prejudiced by it. O'Sullivan v. O'Sulli- van, vol. 19, 396. 2 — In an action for malicious prosecution — Consol. Stat. c. 38— Not necessary to s'ate in affidavit tha* defendant about to quit thefprovince— Orthat arrest not made for purpose of vexing or harrassing defen- dant—Amount for which ball to be given In Judge's discretion . Held, by Allen, C. J., and Duff, J., Wetmore, J., dissenting, that the right to arrest by a judge's order in action of tort is not affected by the 38th Chap, of Consol. Stat. And it is not necessary to state in the affidavit, to obtain the order, that the arrest is not made for the purpose of vexing or harrassing the the defendant. Mullin v. Frost, 2 P. & B. 463 approved. Held, by Allen, C. J., and Duff, J. (Wetmore, J., dissenting), that an affi- davit to obtain a judge's order to hold to bail in an action of tort, it is not neces- sary to state that the defendant is about to quit the province. The amount for which the Judge should order, bail in an action of tort must be, to a great extent, a matter of discretion to be exercised by him with reference to the facts disclosed by the affidavits upon which the application is made. Weldon v. 0' Sullivan, vol. 19, 441. 3 — Under a Judge's order for a tort— Exa- mination and disclosure under Consol. - S'a'. cap. 38, sec. 7— Whether Act applies to such case. Held, by Allen, C. J., and Duff, J. (Palmer, J., dissenting), that the provi- sions of the Consolidated Statutes Chap. 38, sec. 7, allowing a debtor to make a disclosure of his affairs, and authorizing his discharge under certain circumstan- ces, do not apply to a case where the defendant is arrested under u, Judge's order for a tort. Beste v. Berastain, vol. 20, 106. 4.— Affidavit of agent— Stafement.that arrest not made for purpose of vexing or haras- sing debtor— Affidavit of attorney not suf- ficient. The agent of an incorporated com- ARREST. ASSAULT.. 17 pany made an affidavit for the arrest of the defendant in an action of debt, stating that the amount of the claim was justly due to the company. The plaintiff's attorney also made an affida- vit that the arrest was made under his advice, and was not for the purpose of vexing or harrassing the debtor. Held, that the affidavit of the agent should state that the arrest was not made for Jhe purpose of vexing or haras- sing the debtor, and it was not sufficient for the attorney to make an affidavit to that effect, The Star Kidney Pad Com- pany V. McCarthy, vol. 23, 83. S^Plea justifying an imprisonment under warrant Issued by receiver of taxes, St. Jolin, by virtue of 41 Vic, cap. 9— Neces- sity of setting out in detail ^the proceed- ings tal(en under the Act— An allegation that all things required by the Act were done, not sufficient— Consol. Stat. Cap. 37, sec. 46— Applies only to actions on contract— Appointment of person to re- ceive moneys assessed under Act — Necessary before receiver of taxes can issue warrant — Sec. 14 of 41 Vic, cap. 9. The plaintiff was arrested on an execution issued by the receiver of taxes of the City of St. John, under 41 Vie- cap. 9. In an action against the cor- poration and the receiver of taxes for false imprisonment, the defendants pleaded a special plea, setting out the proceedings taken under the Act. There was, however, no allegation in the plea of the appointment of ni person to re. oeive the moneys assessed against the plaintiff under the 14th section of the Act ; but there were allegations that all things required by the Act had bean done, and that the moneys assessed Tinder the Act, by the commissioners against the plaintiff, had been demanded of him. Seld, that the plea was bad. McSorley V. the Mayor of St. John, vol. 19, 635. S.D. — Under execution issued out of a Justice's Court without search for goods and chattels. See False Imprison- ment 3. Under second execution. For costs of previous execution for taxes. See False Imprisonment 8. Discharge from — Disclosure by debtor — Consol. Stat. cap. 38, sec. 7. See Debtor 1. — Where goods stolen — Eight to arrest person on whose lands goods are found — Search warrant. See Trespass 9. — Where justice not justified in issu- ing warrant to arrest in first instance. See Summary Conviction Act 9. ASSAULT. 1 — Where one enters house of another quietly — Necessity of previous request to leave, to justify assault. There is a manifest distinction be- tween endeavouring to turn a person out of a house into which he has previously entered quietly, and resisting a forcible attempt to enter : in the first case a re- quest: to depart is necessary ; but not in the latter. In a criminal prosecution by the wife of O. for assault made upon her on entering her husband's house, the defence was, that she had no right to go to her husband's house, and that her intention in going there was to take away property which she had no legal right to take; but held, on a case re- served : that this would not justify the assault, there being no previous request made of her to leave the house, nor any statement of her intention, or attempt made, to take anything. The Queen v. O'Neil, vol. 19, 49. Summary convictions — Under the Consoli- dated Statutes cap. 62— Evidence that assault was made in defence of title to 2 18 ASSESSMENT. ASSESSMENT. land admissible— Magistrate refusing to certify for review — Certiorari. The defendant in a prosecution for an assault under cap. 62 of the Consoli- dated Statutes of " summary convic- tions " has a right to shew that the assault was committed on his land and in defence of his title. When the magistrate before whom the prosecution was had, refused to cer- tify the proceedings for appeal under cap. 62 of the Consolidated Statutes the court granted a certiorm-i. Ex parte Esiabrooks, vol. 19, 283. — When action is brought in the Supreme Court and plaintiff does not recover over $100 — Costs refused. S Costs 1. — Prisoner indicted for murder in short form cannot be convicted of. See Indictment 1. — Where an indictment charged that the prisoner made an assault upon A. " and him the said A. did beat, wound and illtreat," and there was no evidence of any wounding, it was held that the prisoner was rightly convicted of a common assault. See Criminal Law 7 Assault and battery — Plea of son- Assault Demesne — Replication justi- fying assault only. See Pleading 7. Assent — Necessity of creditor's for whose benefit judgment confessed. See Deed 4. ASSESSMENT. 1 — Statement — Ambiguous and uncertain — Requisite information not furnished — Right of assessors to assess. Where assessors under authority of Act, 31 Vic, cap. 36, sec. 4, required the manager of a bank to furnish them " a true and correct statement in writing — under oath — setting forth the whole amount of income received for such bank within the City of St. John for a fiscal year preceding May lst,1877." And the manager rendered a statement as follows : " Net profits or income de- rived from business done within the city — nil." Held, that as he had treated the terms "income" and "net profits" as sy- nonymous, the statement was uncertain and ambiguous, and that {he assessors were justified in ignoring it, and assess- ing the manager according to the best of their judgment. Lawless, ex parte, ^ vol. 18, 520. See case on appeal. Ad- denda No. 26. 2 — St. John City— Whether party applying for certiorari must give bond required by sec. 110, cap. 100, Consol. Stat. Held, by Allen, C.J., and Duff, J., that sec. 110 of Consolidated Statutes, cap. IQO, relating to rates and taxes, requiring a bond to be given before a party complaining of an assessment shall be entitled to a rule nisi, for cer- tiorari is not applicable to assessments made in the City of St. John. Held, by Palmer, J., that the section applied, but if it did not, it would be because it was inconsistent with the 20th section of the Act, 22 Vic, cap. 37, giving an appeal to the common council, and as the applicants had neither given the bond required by the former, nor taken the appeal required by the latter, certiorari should be refused. Ex parte Lewin, vol. 19, 425. 3— False imprisonment — Action for an arrest by virtue of an execution issued for assessment under 41 Vic, cap. 9— Where plaintiff did not own land on account of which the assessment was made— Exe- cution issued by chamberlain of city— Where it was his duty to issue it — Whether either corporation or chamberlain liable. The plaintiff was arrested under a warrant issued by the defendant San- dall, the receiver of taxes for the City of ASSESSMENT. ASSESSMENT. 19 St. John, for non-payment of an amount assessed upon him under the Act, 41 Vic, cap. 9, providing, among other matters, for the extention of Canter- bury street. The assessment was made by com- missioners appointed by the Lieut. - 6ovemor-in-Council. The plaintiff was not the owner of the land for which the commissioners made the assessment on him. Sandall, as was his duty under the Act, notified the plaintiff to pay, and in default, issued an execution, and for want of goods the plaintiff was arrested. Held, that the corporation of the city had nothing to do with the legality of the assessment, and that neither the corporation nor Sandall were liable for doing what by law they were directed to do. McSorley v. the Mayor of St. John, vol. 20, 479. Appeal to Sup. Court of Canada allowed. See Addenda No. 10. 4— St. John — Trustees of estate residing out of ilie city, but employing agents tliere to collect and pay moneys. S. being a resident of St. John died leaving property consisting of mort- gages, bank stock, debentures, etc., and appointed trustees, none of whom re- sided in St. John, although some of them carried on their private business there. The trustees employed T., who held the office of pilot commissioner in St. John, and also attended to some other business on his own account, to collect the dividends and interest on the securities, and to make payments of the moneys collected. T. kept the accounts in his office, where some of the trustees came occasionally to make in- quiries and give directions in matters connected with the estate ; but they kept no office, and did no business as trustees, except what he did as their agent in so collecting and paying the moneys. Held, that the trustees neither "car- ried on business " nor had " an office or place of business" in St. John, and were not liable to assessment. Regina v. Wilson, vol. 21, 178. 5 — " Employment" within meaning of St.John Assessment Act of 1882—" Inhabitant of city " — President of a company attending office in St. John. The president of an insurance com- pany resided outside the city of St. John, but attended daily at the com- pany's office in the city for the purpose of transacting such business as was assigned to that officer, such as signing policies, etc. Held, thai he had an employment within the meaning of " The St. John Assessment Act of 1882," and was liable to be assessed as an inhabitant. Ex parte Tucker, vol. 23, 311. 6— St. John Assessment Act of 1882— Assessment of capital and joint stock of bank — Whether real and personal pro- perty belonging to, may be assessed. By the St. John Assessment Act of 1882, sec. 25, all rates and taxes on the city are to be raised by an equal rate upon the real estate therein, and on the personal estate and income of the in- habitants, and of persons declared to be inhabitants, for the purpose of taxation and upon the capital stock, income or things of joint stock companies or cor- porations, and shall be levied as fol- lows — viz: by a poll tax of one dollar on all the male inhabitants of 21 years of age, and the residue upon the whole rateable property,' real and personal, and rateable income and joint stock, according to its true and real value; provided that joint stock shall not be rated above the par value thereof. By sec. 28, joint stock companies are to be assessed in like manner as indivi- duals ; and the president or manager of 20 ASSESSMENT. ASSESSMENT. such joint stock company, etc., is to be deemed the owner of the real and per- sonal estate, capital stock and effects of such company, and shall be dealt with accordingly. By the Act incorporating the bank of New Brunswick, the capital or stock was to consist of gold and silver coins to a certain amount to be divided into shares of £50 each ; and by a subsequent Act, the capital stock of the bank was fixed at one million dollars. In 1882 the president of the bank was assessed under the 28th section of the Assess- ment Act. on real estate valued at $42,200, and personal estate of $1,057,800, making together $1,100,000. Held, per Allen, C.J., Wetmore and Palmer, JJ. (Weldon and Fraser, JJ., dissenting), that the real and personal estate and capital stock of the bank were each liable to be assessed under the Act ; and that an assessment on the real and personal estate was legal, though the estimated ralue of such estate ex- ceeded the par value of the joint stock of the bank. Per Allen, C.J., atid Wetmore, J., that the words " capital stock " in the Act, meant the shares into which the capital of the company was divided, and not the real or personal estate of the bank. Per Weldon and Fraser, JJ., that all the property, real and personal, of a joint stock bank formed its assets, and should be assessed as capital stock, and at the par value thereof. Ex parte Lewin, vol. 23, 591. Appeal to Sup. Court of Canada allowed. See Addenda 23. 7 — Municipal taxation — Employee of Fed- eral Government — Income — Assessment of. A. was employee of the Intercolonial Railway in the capacity of a clerk in the general offices of the railway at the town of M., where he resided. He received from the Government of Can- ada a salary at the rate of $600 per year, payable monthly, for his services as such clerk, and had been so employed for the space of three years, but such employment might be terminated at any time by the Bailway Department, on giving fourteen days' notice. A. did not contribute to the superannuation fund of the Civil Service of Canada, and had not been appointed to such service as provided by the Canada Civil Service Act, 1882, or otherwise. It did not appear whether or not his salary was fixed by the Governor-General in Coun- cil. A. was assessed in the said town of M. for municipal purposes on his said income, and on the question being stated for the opinion of the court. Held, by Weldon, Palmer, King and Fraser, JJ. (Allen, C.J., dissenting), that the case came within the principle of ex parte Owen (4 P. & B. 487), and that such income was not subject to assessment. L. was employee of the Intercolonial Bailway, employed as a painter of cars in the works of said railway, at the town of M., where he resided. He was paid by the Government, through the man- agement of the railway, fifteen cents per hour for each hour that he was so em- ployed, and was paid monthly therefor. At the time of the assessment mentioned below, he had been so employed for two years, but his employment might be terminated at any time by the Rail- way Department, on giving fourteen days' notice. He was assessed in the said town of M. for municipal purposes on his income derived from such labour and employment. Held, by Allen, C.J., Weldon and Palmer, JJ. (King and Fraser, JJ., dis- senting), that L.'s case did not come within the principle of ex parte Owen, and that the assessment was rightly made. Ackman v. Tovm of Moncton ; Lartdry v. Town of Moncton, vol. 24, 103. ASSESSMENT. ASSESSMENT. 21 Assessment for taxes — How made where owner of land dead — Assessment against widow— Warrant to sell land for non-payment of taxes— Effect of including bad assessments in warrant — Whether warrant to sell land a judicial Act— Es- toppel by attending sheriff's sale of land without protesting. G. being the owner of real estate, con- veyed it by registered deed in 1868, to three persons in trust for tha benefit of his creditors, but remained in posses- sion. In 1873 the trustees executed a deed reconveying the property to G., but it was not acknowledged by them, or registered until after his death, nor was there any proof of actual delivery of it to him. G. died in 1875 leaving a widow and children in possession of the land. Under the Act, 38 Vic. cap. 40, incorporating the town of Monoton, the property was assessed in the years 1875, 1876, and 1877 to "the estate of G.," and in 1878 to " the widow G." These taxes being unpaid, a warrant issued in 1879 by the chairman of the town of Moncton, to the sheriff of the county under the Act, 41 Vic. cap. 82, reciting that the estate of G. had been assessed for the years 1875, 1876, 1877 and 1878 in a certain sum (the aggre- gate of the four years), which remained unpaid, and directing the sheriff to sell so much of the real estate as would be sufficient to pay the assessment and expenses. Under this warrant the sheriff seised and sold part of the land on which the assessments had been made, and it was purchased by the defendant. No objection having been made by the heirs, though a person attended the sale at their request for the purpose of bidding in the land. In ejectment by the heirs of G. against the purchaser. Held, per Allen, C.J., King, Wetmore and Praser.'JJ. (Palmer, J., dissenting). 1. That the assessment for 1875 while G. was living, was improperly made against Ihis "estate," and that the as- sessment for 1878 against " the widow G," did not indicate that it, was upon her as the occupier or person having the ostensible control of her deceased hus- band's real estate ; but was merely in her character as widow ; and therefore that non-payment by her was not a default by the heirs of G. 2. That the inclusion of the assess- ment for 1878 in the warrant of the sale of the real estate vitiated the whole, and that no title passed by the sheriff's deed to the defendant. Per Allen, C. J., and Palmer, J. (Wet- more, King andFraser, JJ., dissenting). 1. That the order for the sale was a judicial Act, and while it stood unre- versed, the validity of the sale could not be disputed. 2. That the heirs of G. having at- tended the sheriff's sale by their agent for the purpose of bidding on the pro- perty, and having seen the defendant purchase it without protest or objection, were estopped from disputing the de- fendant's title. Per Fraser, J., Qutere. Whether where an assessment is against the estate of a deceased person, a sale of the real estate can be made for non-pay- ment of the taxes under 41 Vic. cap. 82. Doe dem Elliott et al. v. Flanagan and wife, vol. 25, 154. — This case was affirmed on appeal to the Supreme Court of Canada. See Addenda 33. — In city of St. John, creating lien on land. See Notes and Taxes 1. — Warrant against estate of non-resi- dents and minors. See Certiorari 5. —Of damages— Affidavit for— Power of single judge to assess in term. See Practice 10. — Of damages — Bills of exchange — Fraud — Disclosure to judge. 22 ASSUMPSIT. ASSUMPSIT. — Inhabitant — Wife's separate pro- perty—Taxes—Partly legal and partly Illegal — Whether execution issued for whole is void. See Inhabitant 1. — Land damages — Where land taken for railway purposes. See Land 'Dam- ages 1. — Highway — Assessment for. See Highway Act. — Of commissioners of sewers for pur- pose of improving lands — Evidence of possession in party paying. See Posses- sion 2. ASSIGNEE. Of bill of lading — Right to instruct agent to hold until payment of bill of exchange drawn for goods mentioned in bill of lading. See Bill of Lading 1. — Of mortgage— Whether right in judgment obtained by mortgagee passed to assignee. See Ejectment 2. — Under Insolvent Act of 1869. Title to land. See Insolvent Act 2. ASSIGNMENT. Under Insolvent Act — Demand of, made with malice and without probable cause, affords ground of action. See Insolvent Act 1. ^Of debt — Suit by assignee in equity. See Pleading 6. — Of claim after verdict. See Set Offl. — Deed of assignment — Fraudulent. See Deed 2, 3, 4. — Mortgage of chattels — Not an as- signment — Condition in fire insurance policy. See Addenda 45. ASSUMPSIT.— (See contract— Agreement.) 1 — Delivery and acceptance ot goods sub- sequent to time agreed upon for delivery — Cannot be set up as a defence, or in reduction of damages. Where it is agreed that goods shall be delivered at a certain time, and the defendant, subsequently to the time agreed upon with a full knowledge of all the facts, thinks proper to accept de- livery of the goods, he cannot set up the non-delivery at the specified time as a defence to the action, or in reduction of the value of the goods. Moffat v. Lwnt, vol. 18. 2— Implied contract to pay freight— Wliere owner gets posssession of the goods- Interest. In an action for the recovery of the freight of a quantity of iron carried in plaintiff's ship from London to St. John, it appeared that the iron was shipped by D. C. & Co., of England, who re- ceived from the master the usual bill of lading, in which the goods were made deliverable to the order of D. C. & Co., on paying freight. On arrival of the ship in St. John, defendant, to whom the bill of lading had been sent, claimed the iron as his own, and explamed to plaintiff that D. C. & Co. had omitted to indorse the bill of lading. He also tendered the freight. Plaintiff still de- clined to deliver the goods without an indorsed bill of lading. The iron, how- ever, was landed on the wharf, and it was shown that one J., a tide waiter, weighed it by defendant's direction, and it was hauled to the railway station by one C, who was paid for the hauling by defendant. Subsequently plaintiff ren- dered a bill for the freight to defendant, who replied that he had once tendered the freight, and referred the plaintiff to his solicitor. Held, (by Weldon and Fisher, JJ., Allen, C. J., dissenting), that under these circumstances the jury were justified in finding an implied contract on defend- ant's part to pay the freight. Held, also, that plaintiff was not en- titled to interest. Ferguson v. DomviUe, vol. 19, 576. ATTACHING ORDER. ATTACHMENT. 23 3— Master and servant— Wages— Where ser- vant leaves before time up. If a servant, being engaged for a stated period, has, by the terms of the hiring, a right to leave before the time is up in a certain event, he may sue at once for the time he has worked, unless agreed to the contrary. Law v. Harding, vol. 19, 590. 4— Written agreement — Work done under — Action for quantum meruit— Wliere plain- tiff allowed to prove case without producing agreement— Defendant putting in as part of his case denying performance — Onus of proof. In an action for work and labour done under a written agreement, plaintiff was allowed without objection to prove his case on the qiiantum meruit without pro- ducing the agreement. Held, by Allen, C.J., and Weldon and Praser, 33., that this made out a prima facie case, and the defendant having put in the agreement as part of his case, the onus was on him to shew that plaintiff had not performed the contract. Held, by King, J., that at the close of the whole case the question was as to the rights of the parties on the whole evidence, and if it shewed that the work was in fact done under a written con- tract, it was for the plaintiff to shew the performance of it, rather than for defendant to negative it. Sleeves v. Fox- ioell, vol. 23, '476. — Contract repudiated — Recovery under common courts. See Contract 12. — Sale of goods subject to reduction of price. See Agreement 8. ATTACHING ORDER. Under Garnishee Act — Set aside ■where proceedings vexatious. See Gar- nishee Act. ATTACHMENT. 1— Dissolution of— Where defendant has be- come insolvent — Where property has been released on bond. Where defendant's property has been attached, and he afterwards becomes in- solvent, the court is bound to dissolve the attachment, although the property was released on bond. Mcintosh v. Ham- ilton, vol. 19, 1. 2 — Action on bond given by defendant — Where obligors cannot dispute defend- ant's ownership of property. The obligors in a bond given by a defendant, under section 29 of the At- tachment Act, cannot, in an action on the bond, raise any question as to de- fendant's ownership of the property attached. Botsford v. Trites, vol. 19, 135. 3— Where defendant became a non-resident of the province before cause of action accrued — Whether Act applies. Held, that the Attachment Act (Con- sol. Stat. cap. 42) did not apply to non- residents of the province, who had not been within it since the cause of action accrued. Sehofield v. Nevins vol. 19, 399. 4 — Whether second may be issued — ^What affidavit should state. Held, that a second attachment might issue under cap. 42, Consol. Stat., the first having been set aside, and that the affidavit to obtain a judge's order for attachment to issue during the progress of the suit, need not state more than the affidavit for attachment issued con- currently with the writ in the cause. Hilyard v. Wood, vol. 19, 572. 5— Sheriff's return — Matter of record — Estoppel. A sheriff having made return to a writ of attachment issued under the Attachment Act, Consol. Stat. cap. 38, 24 ATTACHMENT. ATTOBNEY. that he had seized certain property (describing it) under plaintiff's attach- ment, and held it subject to that attach- ment till the debt and costs were paid, is estopped, while that return stands, from returning. jinHa bona to the exe- cution issued on the plaintiff's judg- ment ; and in an action for a false return, it is no defence to allege that at the time of delivery to him of the attachment in plaintiff's suit, the sheriff had already attached the same property under an- other attachment, which it was not sufficient to satisfy. Everitt et al. v. Lynds, vol. 20, 384. 6— Contempt of Court— Injunction order — Disobedience not wilful. Where a judge sitting in equity, being satisfied that a breach of an injunction order by the defendant was not wilful, declined to make an order for his im- prisonment, the Court on appeal refused to disturb the judgment of the Court below Sayre v. Harris, vol. 18, 677. 7 — Contempt of Court — Constable selling goods after being served with cerliorari containing stay of proceedings — Interroga- tories — When to be filed— Costs of. A constable, who had seized goods under a warrant issued by a justice on a conviction made by him, was served with a rule nisi for a certiorari, contain- ing an order for stay of proceedings, but went on and sold the goods. Held, that he was guilty of a contempt of Court, and that it was no excuse to say that he did not think the certiorari restrained him from selling, but where he had made restitution, and paid the costs of the application, he was ordered to be discharged from custody. Where an attachment for contempt was ordered by the Court to remain in the clerk's office until the first day of the following term, on the defendant's attorney undertaking that he would then appear in Court, the party obtain- ing the attachment is not entitled to costs of interrogatories before the time appointed for the defendant to appear. Ex parte Loane ; ex parte Grovei, vol. 22, 629. — For costs, where costs are taxed on a day later than day named in clerk's appointment of taxation. Court will not grant. See Costs 12. — For costs against one of two defend- ants, no demand on the other being shewn. See Costs 12. For costs on appeal. See Costs 8. — Writ of — Writ good upon face, while in force a justification to the sheriff. See Insolvent Act of 1869, 2. — Of property — By order of commis- sioner under Oonsol. Stat. cap. 39. See False Imprisonment 7. — Issued out of County Court. See Criminal Law 7. ATTESTATION Of Will. See Will 4. ATTORNEY. 1— Collecting money. Although an attorney, who has col- lected money, may be made to account therefor in a civil action, the Court will compel him to do summary justice with- out putting the client to the necessity of bringing an action. Ex parte Kerr v Thome, vol. 18, 625. 2— Understanding between— Pleading. A suit was commenced in January, 1876, and declaration delivered in April, with the ordinary notice to plead. No plea was demanded, and by consent of the attorney the matter was allowed to stand, on an undertaking that the de- fendant should plead, and that one of the pleas would be "never indebted." The defendant did not plead till Novem- ber, 1879, previous to which time, and ATTORNEY. ATTOKNEY. 25 since the commencement of this suit, he had become insolvent, and had agreed with plaintiff that he would pay him $1,000, and his costs in settlement of this suit, if plaintiff did not oppose his discharge. Defendant obtained his dis- charge, but would not carry out this arrangement ; he then pleaded five pleas, the fifth plea being his discharge under the Insolvent" Act. The plaintiff joined issue upon the first four pleas, but took no notice of the fifth plea, alleging that it was pleaded against good faith, and gave notice of trial. Held, per Weldou and Wetmore, JJ. 1st. That the Court would not interfere to aid attorneys in carrying out loose understandings in matters of practice. 2nd. That if the 5th plea was irregular- ly pleaded, the plaintiff's attorney might have applied to have it struck out, but he could not accept part of the pleas, and treat the 5th as a nullity. 3rd. That the 5th plea, not setting up a matter of defence which had arisen after plea pleaded, was not a plea puts darriin continuance, but might be pleaded with the other pleas under Oonsol. Stat. cap. 37 sec. 64. Per Fisher, J., That defendant should be allowe.i to plead the matter of the 5th plea puis darrein continuance without the affidavit required by Consol. Stat. cap. 37 sec. 63, but only on condition of his paying the plaintiff the ?1,000 and his costs. Moore v. May, vol. 19, 506 ; see also Kjwx v. Gregory, vol. 21, 196. 3— Misconduct— Witness — Refunding fees wliere he does not attend. Where an attorney was subpoenaed four times to attend the trial of a cause as a witness, and only attended once, though he was paid his witness fees — $20 each time — a rule was granted directing him to refund the 820 paid him for the trial which he did not attend. Serrible, that where a charge against an attorney amounts to an indictable offence, it cannot be tried on a summary application calling on him to pay over money. In re Wetmore, vol. 19, 639. 4— Firm of— Whether each member must pay library fees — Notice of bail by firm when one in default — Irregularity, Where two or more attorneys practice as partners, they must all be qualified by payment of library fees under Con- sol. Stat., cap. 34, or their proceedings will be liable to be set aside. When special bail was put in and the notice of bail was signed by a firm of attorneys, one of whom had not paid his library fees, Jleld, by Allen C.J. and Weldon Wet- more, and Palmer, JJ., that the notice was not a nullity, but an irregularity, and plaintiff's proper course was to have taken advantage of the irregularity by opposing the justification or by apply- ing to set the proceedings aside ; but by King J., that the notice was a nullity, and plaintiff was entitled to treat it as no bail, and take an assignment of the bail bond. Jones v. Milliken, vol. 22, 315, 5 — Admission of — When applicant had no notice of new by-laws of the Barristers' Society. The by-laws of the Barristers' So- ciety relating to the admission of attor- neys approved by the Court in Easter term, were not published until May. Two students-at-law, who, under the new by-laws, might have been admitted in Easter term, had no notice of the rules, and came up in following term for examination. The Barristers' So- ciety having recommended their admis- sion, the Court, under the peculiar cir- cumstances of the case, allowed the applicants to be enrolled, stating, how- ever, that it must net be considered a 26 ATTOENEY. AWARD. precedent for any departure from the rules in future. In Re Beckwith, vol. 21, 104. 6— Firm of— Misappropriation of money by one partner— Liability of co-partner —Summary application to Court. If an attorney receives money in tis character as such, the Court v^ill compel Mm to perform his undertaking in re- spect to it. Where one member of a firm of attorneys receives money for invest- ment, and misappropriates it without the knowledge or consent of the other, it ought to be clearly shown that the latter was guilty of personal misconduct, or at least, of neglect of duty as a mem- ber of the firm, in consequence of the misconduct of his partner, before the Court will interfere on a summary appli- cation to compel him to pay money. Ex parte Flood, vol. 23, 86, Agency of student-at-law in Barris- ter's office. See Eastern Township Bank v, Hanning- ton, vol. 18, 631. Liability of attorney for sheriff's fees for executing a.fi. fa. The attorney is liable to the sheriff for the latter's fees for executing & fi.fa. Palmer v. Harding, vol. 19, 281, Attorney's name not signed to notice on copy of capias. — Effect of. See Arrest 1. Absence unavoidable on trial of cause. — ^Effect of. See Collision 1. Admission of — Bule as to. See Bnles Easter Term, 1881. Affidavit to hold to bail by — Whether Sufficient. See Arrest 1. Promise by an attorneyto mdemnify sheriff — When binding one client. See Sheriff 2. AUCTIONEERS. Liability to assignees of bill of lading for selling goods on consignee's account. See Bill of Lading. AUDITORS. Admission to, of correctness of entries in cash book, kept by official shewing balances against self. See Evidence 14. AWARD— (See Arbitration). 1— Submission containing agreement that award may be entered as a postea— But silent as to its being made a rule of Court— Application to malce it a rule of Court refused. Where by a submission containing no agreement that it might be made a rule of Court, the parties to the suit agreed that the award could be entered as a postea on the nisi prius record, and judg- ment be signed thereon, the Court re- fused to make the submission a rule of Court. McLeod, assignee, v. Pye, vol. 21,212. 2— Publication— Reference of a suit and all matters in difference — Finding on one issue only — Immateriality of other issues Costs. A. and B. being the respective owners of mills on the same stream, A. brought an action against B. for damages to his mill by the erection of a dam by B.., which it was alleged caused the water to flow back upon A.'s mill fur- ther up the mill stream. B. pleaded, 1. Not guilty ; 2. That A. was not pos- sessed of the mill as alleged ; 3. That A. was not entitled to the flow of water to his mill ; That B. was seised in fee of a mill, and for 20 years before the suit enjoyed the right to use the water of the stream to work bis mill, which user was the alleged injury complained of. The suit and all matters in difference were referred to arbitration — the costs AWARD. BAIL. 27 of the action and of the arbitration to be assessed and allowed by the arbitra- tors for the party in whose favor they should award — to be paid as they should direct. The arbitrators awarded that B. was not guilty of the grievances laid to his charge in the declaration, and directed that A. should pay him a certain sum as the costs of the action and of the arbitration, which when paid, should be a final end and determination of all matters in difference. Held, 1. That the award that B. was not guilty of the charge in the declara- tion was a, determination of the suit ; and that it was not necessary for the arbitrators to award upon the issues raised by the other pleas which thereby became immaterial. 2. That the arbi- trators having power to assess the costs, it was not necessary for them to award specifically upon the several issues raised by the pleas. 3. That B. had a right to withdraw from the consideration of the arbitrators, a claim which he made against A. for injury caused by him to B.'s mill. An award need not be made in dupli- cate. If it is duly executed, and de- livered to the party in whose favor it is made, it is sufficient to give a copy to the other party. In re Oulton and Allen. vol. 25, 19. 3 — Refusal to make submission a rule of Court— When action pending on the award. An application to make a submis- sion to arbitration, a rule of Court was refused, where an action was pending on the award, and where there was a dis- pute as to the validity of it. In re Palmer and Calhoun, vol. 24, 240. 4— Excess of authority — Award bad in part — When bad part inseparable. A matter was referred to two arbitra- tors, with power to select a third per- son to act with them in case they could not agree ; the costs to be in their discre- tion. The arbitrators appointed A. who sat with them on the arbitration and joined in the award, though it did not appear that they had been unable to agree. An award was made in favor of the plaintiff for a sum -of money pay- able by instalments, in which was in- cluded an amount for the fees of A. Held, that under the circumstances, the arbitrators had no right to appoint A., and as the sum included for his fees was so mixed up with the total sum awarded, that it could not be separated from it, the award was bad. JTurner v. Burt, vol. 24, 547. — Of arbitrators — Amendment — When allowable. See Equity 1. — Conclusiveness of — As to amount of demand. See Costs 5. BAIl,. 1 — Relief of— In action In the County Court — Consol. Stat. C. 37, sec. 31, cap. 38, sec. 5, and cap. 51, sec. 30 — Considered — Necessity of Issuing ca sa to fix bail — Appeal from order of Judge — County Court relieving bail. A Judge of the County Court has no power to relieve bail who render their principal after the expiration of thirty days after the service upon them of the writ in the action on the bond. Semble, — An appeal lies to this Court from an order of a Judge of «■ County Court relieving bail. McRory v. McAl- pine, vol. 20, 557. 2— Execution delivered to sheriff to fix ball —Effect of— City Court of St. John— Consol. Stat. cap. 53, sec. 11. Held, in an action in City Court of St. John where the execution was de- livered to the sheriff " to fix bail " it was not delivered " to he executed," and the bail was held not liable. Young Glaus V. Wallace, vol. 24, 365. 28 BANE. BA.NKBUPTCY. Affidavit for — Delay in filing. See Bail Bond 1. Notice of, by firm of Attorneys, one of whom had not paid his library fees — Irregularity. See Attorney i. Where defendant had entered, and been rendered— Delay in signing judg- ment. See Discharge 1. The amount of bail to be given in action of tort — In Judge's discretion. See Arrest 2. Affidavit to hold to — Time of filing. See Practise 12. Arrest of Debtor^Affidavlts of attor- ney and agent of company. See Arrest 4. Arrest on capias — Time for giving bail. See Practise 24. BAIL BOND. 1— Forfeiture of — Delivered up to be can- celled — Affidavit for bail and entry docket — Delay in filing. Where a defendant had given a bail bond, but did not put in special bail till after the forfeiture of the bond, though before the assignment of it to the plain- tiff, the Court ordered the bail bond to be delivered up to be cancelled — the plaintiff not having filed the affidavit for bail, nor the entry docket in the cause till after the special bail was put in, and more than thirty days after the exe'ou- tion of the capias. Jones v. Landry, vol. 22, 417. Where signed by only one surety — Sufficiency of. See Practise 24. BANK. New Brunswick — Capital and joint stock— Whether real or personal pro- perty belonging to, may be assessed under St. John Assessment Act of 1882. See Assessment 6. Bankable Currency— Whether a note for a stated sum " payable in bankable cur- rency " is a promissory note — Meaning of. See Dunn v. Allen, vol. 24, 1. BANKING ACT. Charter— Continuation of— Right to transact business— Proof of Charter. The Banking Act, 34 Vic. cap. 5, con- tinues the charters of the banks enume- rated in a schedule to the Act, and authorises them to discount bills and notes, and to transact business at any place in the Dominion. In an action by sach a bank as indor- sees of a promissory note it is not neces- sary to produce the charter of the bank to shew their right to sue. Semble, that if the existence of the corporation is not denied by plea, it is admitted. La Banque Nationale v. Beckett, vol. 25, 145. BANKRUPTCY. 1— Under Imperial Act, 12 and 13 Vic cap. 106— May be pleaded in the Courts of this Province to an action on a judgment obtained prior to 1869 on a cause of action arising here— Sec. 115 of the Insolvent Act of 1875— Not retrospective— What plea should contain — Procedure and pleading— Pleading matters of law only- Departure — Costs as part judgment— Whether discharged with debt. See Gilbert v. Raymond, vol. 19, 315. 2— Partnership — Non-resident partner — English Bankrupt Act— Trustee appointed under property vesting in — Jurisdiction of Supreme Court. A firm consisting of A. and B. carried on business in England, and also in New Brunswick, A. residing in England and B. in New Brunswick. The firm became insolvent, and petitioned the Court in England for liquidation under " The Bankruptcy Act of 1869," which was adjudged, and a trustee of the estate appointed. BILL OF EXCHANGE. BILL OF EXCHANGE. 29 Qucere, Whether the provisions of the Bankrupt Act, 1869, applied to this pro- vince, and whether property belonging to the firm here,, vested in such trustee. A judgment creditor of the firm in the province issued an execution, under which property belonging to the firm here was seised and sold by the sheriff, who refused to pay the proceeds to the trustee. On an application to the Court, under the 74th section of " The Bank- ruptcy Act, 1869," for an order to the sheriff to pay the proceeds of the exe- cution to the trustee. Held, 1. That even if the English Bankruptcy Act did apply to this pro- vince, this Court had no jurisdiction as a Bankruptcy or Insolvent Court. 3. That no sufficient application had been made to this Court by the English Bankruptcy Court, under the 74th sec- tion, to justify this Court in acting in aid of the English Bankruptcy Court in the matter. 3. That if the property of the firm in this country vested in the trustee under the Bankruptcy Act, he might have brought trover against the sheriff for the seisure under the exe- cution, or, an action for money had and received for the proceeds of the sale ; and therefore the Court would not in- . terfere on a summary application. Held, also, that the affidavit on which the application was made need not be entitled in the suit in which the judg- ment was obtained. Ex parte Gliddon ; in re Maritime Bank v. Carvill et al., vol. 24, 250. BILL. In equity — Amendment of — Prayer — General relief — Where inconsistent with specific prayer. See Equity. Amendment of title. See Equity 1. BILL OF EXCHANGE. Action by Indorsee— Where payee became insolvent before indorsement — Whether notice to indorsee necessary. A declaration on a bill of exchange stated that F. drew the bill on the 13th May, directed to the defendant, request- ing him to pay to B., or order, $800 on 1st December then next; that defend- ant accepted the bill ; that B. indorsed it to one E., who indorsed it to plaintiff. Defendant pleaded that subsequent to the acceptance of the bill, and prior to the alleged indorsement by B., the latter became insolvent, and a writ of attach- ment was issued against his estate under the Insolvent Act, whereby the bill of exchange became vested in his assignee ; that the alleged indorsement was made without the knowledge or con- sent of assignee. Plaintiff demurred to this plea on the grounds (1) that it did not appear that at the time B. indorsed the bill, plaintiff had any notice that B. had become an insolvent; (2) that by accepting the bill defendant was es- topped from disputing B.'s right to indorse it. But, Held, that the plea was good, and de- fendant was entitled to judgment. Mac- lellan v. Davidson, vol. 20, 338. Stamp Act— Right to affix double stamps- Knowledge— What constitutes. See Tufts V. Chapman, vol. 22, 185 ; see also Addenda No. 12, case on appeal. Double stamping by payee— Where allowed. Defence of insufficient stamping — Whether must be pleaded. See Vaughan v. Roberts, vol. 23, 343 ; see also Addenda No. 20, case on appeal. Double stamping — Reasonable time. See Bank of Nova Scotia v. Gushing, vol. 21, 498. Conditional payment — When consid- ered such. Assessment of damages by single Judge in term. See Practise 10. (See Promissory Notes). — Parol evidence of agreement. Accord and satisfaction — What evi- dence of. See agreement 7. 30 BILL OF LADING. BILL OF SALE. BILL OF LADING. 1— Rights of assignee of— Right to instruct agent to hold until payment of bill of exchange drawn for goods mentioned in bill of lading— Whether instructions ad- missible in action against a third party- Consignee obtaining goods without bill of lading and without paying for goods- Liability of auctioneers to assignees of bill of lading for selling goods on con- signee's account — Trover — Interest. The plaintiffs, a banking company doing business at Charleston, S. C, were assignees of a bill of lading, for one hundred casks of spirits of turpen- tine and five hundred and one barrels of resin, for which they had discounted the shipper's draft on R. of St. John, N. B., the consignee. They forwarded the draft to their agents with instructions to deliver the bill of lading to E. when the draft was paid. The draft was dated August 2, 187S, and was payable twenty days after date. B. accepted the draft, but did not pay the same, and the bill of lading was retained by plaintiffs' agents. The invoice was sent from Charleston to R., to whom the captain of the vessel by which the goods were shipped, delivered the goods without the production of the bill of lading. Subsequently E. delivered ninety barrels of the turpentine to the de- fendants, who were auctioneers, for the purpose of being sold by the defen- dants on account of R., upon which they advanced E. $1,000. The defen- dants after advertising the sale sold the turpentine at public auction and paid the balance of the net proceeds to E., on September 24, 1875. ' The turpentine had been taken out of the vessel and landed and warehoused several days before delivery to defendants, and de- fendants did not know that R. had not possession of the bill of lading until October 21, 1875, when the plaintiffs, by notice in writing, demanded the tur- pentine of them. Held, that plaintiffs were entitled in an action of trover to recover from defendants the invoice of the turpen- tine. The court also gave interest on the amount to the plaintiffs from the day the demand was made. Held, that the instructions from plain- tiffs to their agents to deliver the bill of lading upon payment of the draft, was admissible evidence in an action by plaintiffs against the defendants. The People's National Bank of Cliarleston v. Stewart, vol. 18, 268. On appeal to S. C. C, judgment con- firmed, 10th June, 1880. BILL OF SALE. 1— Passing of after acquired property— Novus actus interveniens— License to grantee to take possession jus tertii— Trover. The plaintiffs were the grantees, and one H. the grantor, in a bill of sale, which specified eertain property conveyed, and contained the following clause: — "And all property owned or to be owned by me, and including all renewal stock or stocks to be purchased by me." H. subsequently acquired possession of a horse and colt. The colt was the progeny of a mare conveyed by the bill of sale. The horse was bought in for H. at a sale had at his direction to satisfy a lien which he claimed for keep. H. made a formal delivery of the horse and colt to the plaintiffs, stating that he delivered them to hold on the terms of the bill of sale ; but H. always retained the actual possession. The defendant (the sheriff) seized and sold the horse and colt under an execu- tion against H., and the plaintiffs claiming that the property was in them, brought trover. Held, 1. That the property in the horse did not vest in the plaintiffs by BILL OF SALE. BILL OF SALE. 31 the bill of sale, and that the symbolic delivery by H. to them with no osten- sible change of possession, was not a ncmtts actus interveniens, nor was it an exercise by them of a license to take possession under the bill of sale. 2. That the colt being .the progeny of a mare conveyed by the bill of sale, passed to the plaintiffs. 3. That the sheriff having seized and sold the horse and colt under an execu- tion against H., could not set up that H. had no title, in answer to an 'action by persona claiming through H. Nicholson et al., V. Temple, vol. 20, 248. Appeal to S. C. C. dismissed. See Addenda 37. Z— Action by grantee not in possession- Evidence under not guilty — Measure of damages— Trover. D. conveyed two horses to the plain- tiff by a bill of sale conditioned to become void on the return by D. of a quantity of grain, etc., loaned him by the plaintiff, and on payment of a sum of money, D. retained possession of the horses. During the continuance of the security the defendant took the horses under an alleged distress for rent against D. Held, in an action of trover by the plaintiff against the defendant for con- verting the horses, — 1. That the pro- perty being in the plaintiff, he was not bound under the plea of not guilty to shew a right to prevent possession. 2. That no demand of possession was necessary. 3. That it was not misdi- rection to tell the jury that they might find as damages the full value of the horses. Coates v. Gosling, vol. 20, 323. 3— Registry— Grantor continuing in posses- sion—Whether conclusive evidence of fraud. When an absolutef bill of sale is given, the fact of the grantor continuing in possession.though evidence of fraud,doe8 not necessarily make the transfer void ; and it is for the jury to say whether, from all the circumstances, the trans- action is bona fide, or merely colorable to defeat an execution creditor. When the bill of sale is registered, one of the circumstances always relied on to shew fraud, namely, the secrecy of the transaction is wanting. Sheriff v. McKeen, vol. 23, 184. 4. Consol. Stat. cap. 75 — Debtor and creditor accounts — Credit of chat- tels — Registration. A. being indebted to B., an account was made out by B. shewing the amount which A. owed him, and crediting cer- tain articles, including a wagon, leaving a small balance in favor of B. The account was signed by A. The wagon was in A.'s possession at the time, in an unfinished state, and was left with him to be completed in consideration of the balance due on the account. There was no other evidence of a sale of the wagon from A. to B. Held, — Per Palmer, King & Eraser, JJ., (Wetmore, J., dissenting) that as there was no sale of the wagon indepen- dent of the written document, it amounted to a bill of sale, and not being registered under' Consel. Stat, cap, 75, the wagon was liable to seizure under execution against B. Per Wetmore, J., that the writing was simply a receipt of the settlement of accounts between A. and B., and did not require registration as a bill of sale. Shirreff, Appellant, and Vye, Respon- dent, vol. 24, 572. — Subject to a defeasance, necessity of filing — Schedule should be attached. SeeBillsof Sale'Act, 1. —Conditional sale-agreement— Rep- resentation when not considered as bill of sale. See Trover 6. 32 BILL OF SALES ACT. BOOKS. — Whether a bill absolute in its terms, but sabject to a. defeasance, which is not reduced to writing and filed is void, against the persons named in section 1 of the Bills of Sale Act. See Sheraton v. Whelpley, vol. 20, 7S. — Insolvency — Future advanoes~Eeg- istry. See vol. 20, 75. — After acquired property — When Court of Equity would refuse perform- ance. Bee Equity 1. — When void under Insolvent Act of 1875, See Insolvent Act of 1875. — When fraudulent or not — Question properly left to jury. See Evidence 2. — Effect of — Where boat has been re- built and registered — Since given. See Begistration 1. BILL OF SALES ACT. UltraVires— Defeasance— Filing of— Sched- ule. |— TheBills of SaleAot Consol.Stafc.,cap. 75, is not beyond the power of the Local Legislature under the British N. A. Act. 1867, as dealing with matters re- lating to insolvency. A bill of sale absolute on its face was made subject to a defeasance or equity of redemption, but the defeasance was not filed under the Bills of Sale Act. Held, that the bill of sale was inoper- ative, and vested no title in the grantee as against the assignee of the grantor under the Insolvent Act. A bill of sale professed to convey all the goods and merchandise of the grantors contained in their store situate etc., consisting of dry goods and groceries mentioned in the schedule annexed. There was no schedule. Quffire— per Allen, C.J., whether the bill of sale was not thereby rendered in- operative. In re Deveber, vol. 21, 397. 2 — Matters of insolvency-r-Bill of sale Act not ultra vires as dealing with matters of insolvency — Bill of sale taking effect only from time of registry — Future advances — Fraudulent prefer- ence — Banking Act 34 Vic. cap. 5, sec. 40. See in re Deveber, ex parte Bank of New Brunswick, vol. 21, 401. Agreement when not considered as bill of sale. See Trover 6. Boom Company — Incorporation of, no power to obstruct tidal or navigable rivers. See Addenda No. 29. BOND. Given by defendant under Attach- ment Act— Action on. See Attachment 2. Although property released on — ^At- tachment dissolved if owner after be- comes insolvent. See Attachment 2. For security for costs — Defective- Should be returned to plaintiff's attor- ney. See Judgment 1. — For faithful discharge of agent's duties. See pleadmg 9. — On appeal from County Court — Perfecting of— Notice to the Judge. See County Court Appeal 7. — Bail — One surety — Sufficiency of. See Practice 24. —Bond — Payment on — Statute of Limitations. See Addenda 27. BOOKS. inspection of — Application for— Where par- ticulars previously demanded— Stay of proceedings. Held, by Wetmore and King, JJ.— (Weldon and Duff, JJ., dissenting), that the fact of defendant having demanded particulars of plaintiff's claim prevented plaintiff from obtaining an order for in- spection of defendants' books until an application was made under section 94 BUILDING. CANADA TEMPEBANOE ACT. 33 of C. L. P. Act (Consol. |Stat.), to re- move the stay of proceedings created by the demand of particulars. Mr. Justice Duff having referred the matter to the Court yielded his opinion to that of Wetmore and King, JJ., and the order was refused. Jones v. Maritime Bank of Canada, vol. 20, 544. BOOKS OF ACCOUNT. A creditor has no right to object before County Court Judge that insolvent has not kept proper books vrheu he has not raised objection befoi>e assignee. See Insolvent Act. Insurance company having once ex- amined the books of the insured and adjusted the loss, cannot demand a second examination. See Insurance 6. Boom Company— Liability of. nikik Boom Co. See Medux- Boundary line. See Acquiescence, BREACH OF PEACE. Assault on wife by husband is breach of peace. See Husband & Wife 6. BRITISH STATUTES. Mortmain. The Statute of Mortmain, 9 Geo. II. cap. 36, is not in full force in this pro- vince. Boe dem Hasen v. Hector, etc., St. Jamet' Church, vol. 18, 479. BUILDING. Overhanging land of adjoining owners — Entry to prevent falling — Justifi- cation, See Trespass 1. — For faithful discharge of agent's duties, See Pleading 9. — On appeal from County Court — Perfecting of — Notice to the Judge. See County Court Appeal 7. S,D. — Bail — One surety — Sufficiency of. See Practice 24. — Bond — Payment on — Statute of Limitations. See Addenda 27. BUSINESS LICENSES. 1 — Authorizing the Mayor of St. John to grant businsss licenses — By-laws im- posing penalties on persons not free citizens who engage in any business in Si. John without a license — Commercial travellers — Whether Act ultra vires. The Act of the Provincial Legislature, 33 Vic. cap. 4, authorising the Mayor of St. John to license natural born British subjects, etc., to engage in business, etc., in the city of St. John, and empowering the city council to pass by-laws impos- ing penalties and forfeitures on persons other than free citizens who carry on business, etc., in the city without a license, is not ultra vires as being in conflict with the powers of Parliament to regulate trade and commerce. Ex parte Fairbum, 2 P. & B. 4, approved. Jones V. Gilbert, vol. 20, 61 ; Jones v. Marshall, vol. 20, 64. Appeal to Supreme Court of Canada allowed. See Addenda No. 5. BY-LAW of City of St. John — Betrospective oper- ation of — Previous contract for build- ing avoided. See Contract 4. The common council of St. John have no power to pass a by-law subjecting persons to imprisonment for non-pay- ment of a pecuniary penalty, except contingently, in case goods and chattels cannot be found on which to levy. Regina v. Gilbert, vol. 18, 619. CANADA TEMPERANCE ACT. 1— Certiorari— Whether talcen away. Certiorari is by the Canada Temper- ance Act of 1878, taken away in all cases 8 34 CANADA TEMPEEANCE ACT. CANADA TEMPERANCE ACT. where the magistrate has jurisdiction. Ex parte Orr, vol. 20, 67. 2— Conviction— Proof necessary— Procla- mation of Act. Held, by Allen, C.J., and Duff, J. (Palmer, J., dissenting), that in order to convict a person under the Canada Temperance Act of selling liquor con- trary to the statute, it must be proved by the production at the proclamation con- taining the order in council, and by shewing the expiry of the licenses that the second part of the Act is in force. By Palmer, J., that the Court must take notice, as a matter of law, that the Act is in force ; and is also bound to find out and take notice of all facts necessary to determine the question of law. Held, by Palmer, J., that in a convic- tion under the Act costs may be awarded against the defendant. Ex parte White, vol. 20, 552. 3 — Conviction under — Must prove second part of Act in force — Evidence that licen- ses iiave expired. Where the proolamamation in the Canada Gazette contained an order in council declaring the second part of the Canada Temperance Act shall be in force [upon, from, and after the day on which the annual or semi- annual licences would expire, in order to ^sustain a conviction under the Act, it must be proved that the licences have expired, except in cases where from the time which had elapsed between the publication of the proclamation and prosecution for the alleged breach of the law, all previously existing licences must necessarily have expired. Ex parte McDonald, vol. 20, 542. 4— Gazette containing proclamation must be put in evidence to shew second part of Act in force— Certiorari where magistrate acts without jurisdiction. Before a person can be legally con- victed of selling liquor under the Canada Temperance Act 1878, it must be proved before the magistrate that the second part of the Act is in force by the pro- duction of the Gazette containing the proclamation. Without such proof the magistrate has no jurisdiction, and the Court will grant certiorari to remove the conviction. The Act does not take away certiorari where the magistrate acts without juris- diction or in excess of it. Ex parte Wil- liam Russell, vol. 20, 536. 5 — City within meaning of,- Expiration of. - Licenses - The town of Moncton, in County of Westmoreland, was incorporated by Act of Assembly, whereby the whole local government of the town, and the exclusive power to grant licences for, and to regulate the sale of spirituous liquors in the town, was vested in the town council. The County of West- moreland was afterwards incorporated as a municipality. The Canada Tem- perance Act 1878, provided that the pro- ceedings for bringing the Act into force in any county or city should be by petition to the Governor-General in Council, of at least one-fourth of the electors of any county or city, on which a proclamation might issue for taking a poll of- the votes for and against the petition. By section 96, if the petition was adopted by the electors of the county or city named therein, and to which the same related, the Governor-General in Council, might by order in council declare " that the Act shall be in force and take effect in such county or city from and after the day on which the annual or semi-annual licenses for the sale of spirituous liquors then in force in such county or city will CANADA TEMPERANCE ACT. CANADA TEMPEEANCE ACT. 85 expire." A petition from the requisite number of electors in the County of ■Westmoreland having been presented to thejGovemor-Greneral, and a vote having been taken adopting the petition, an order in council was made declaring that the Act should be in force and take e£fect in the County of Westmoreland from and after the day on which the annual or semi-annual licences for the sale of liquors then in force in the said county expired. At the time 'this order in council issued, there were licenses for the sale of liquors in force in Moncton granted by the town council, and in the County of Westmoreland granted by the muni- cipality, such licenses expiring at differ- ent periods. Held, by Allen, C.J., and Duff, J., (King, J., dissenting) that Moncton is a city within the meaning of the Canada Temperance Act, and as no separate vote of the ratepayers of the town had been taken, the order in council bringing the Act in force in the county did not apply to Moncton. Held, by King, J , that Moncton is not a city within the meaning of the Act, and that the Act came in force in the county, including Moncton ,on the ter- mination of the latest expiring licences either in the town or county. The licences granted by the town council of Moncton expired on the 15th December, 1880. A by-law of the municipality declared that all tavern licenses should expire at the annual meeting of the council, which was on the third Tuesday in January. Licences were granted by the muncipality on the 24th January, 1880, for one year. Held, per Weldon and Wetmor, JJ., that even if the Act were in force in Moncton, such licences would not expire till the 24th January, 1881 : and that the Canada Temperance Act would not be in force in Moncton till that day. Per King, J., that the licences should be read in connection with the by-law, and that they would not run for 365 days from their issue, but would expire at the annual meeting of the muncipal- ity, (the 18th January, 1881) and there- fore a conviction for selling liquor in Moncton on the 23rd January was sus- tainable. Ex parte McCleave, vol. 21, 315. 6— Certiorari— In wliat cases taken away — Sec 111— Construction of- Penalties under sec. 110 — How recoverable. Held, per Allen, G.3., Duff and King, J.J., (Weldon Wetmore and Palmer, JJ., dissenting) that by section 111 of the Canada Temperance Act, a certiorari is taken away in all cases of conviction for offences against part II of the Act, except where there is an excess or want of jurisdiction. Per Wetmore and Palmer, JJ., that the certiorari is not taken away where the conviction is before two justices of the peace, but only where it is before the officers named in sec. 111. Per Allen, C.J., Wetmore, Duff, Palmer, and King, JJ., that the con- victions, etc., mentioned in sec. Ill, re- lated to offences against part II of the Act, and not where offences created by sec. 110. Pe?- Allen, C. J., Duff and Palmer, J J., that the penalties for offences under sec. 110, were not recoverable by sum- mary conviction, but by action of debt. Per Allen, C.J., Duff and King. JJ„ that as a certiorari would still lie in some cases as in excess or want of jurisdic- tion, the recognition of the certiorari in sec. 118, was not inconsistent with the prohibitory words of sec. 111. Per Wetmore and Palmer, JJ., that as the certiorari was not taken away by sec. Ill, where the conviction was be- fore two justices of the peace, the 118th 36 CANADA TEMPERANCE ACT. CANADA TEMPERANCE ACT. see. might apply to such oases. Ex parte Hackett. vol. 21, 513. 7 — Proclamation declaring second pari of Act in force— Must be put in evidence be- fore Magistrate— Information. Held, {following Ex parte Russell, vol. 20, 536) that before a person can be legally convicted of selling liquor under Canada Temperance Act, 1878, it must be proved before the magistrate, that the second part of the Act is in force by the production of the Canada Gazette, con- taining the proclamation. Held, that the information under the Act must be taken before two justices, although one may sign the summons. Reg. v. Risteen, Reg. v. Burtt, vol. 22, 51. 8— Election under — Scrutiny— Parties to- Writ of prohibition. By a return of a poll held on a petition to bring the Canada Temperance Act into operation, it appeared that the votes for and against the petition were equal. An application to the Judge of the County Court, under section 61 of the Act, praying for a scrutiny of the votes polled, charged that there had been bribery, and corruption, and treat- ing ; that persons who had no right to vote, voted against the petition by per- sonating voters; that ballots against the petition were improperly allowed, and ballots in favor of it improperly rejected by the returning officers ; and that there was a legal majority in favor of the petition. That B. was the secre- tary of a committee who opposed the petition, and that F. was prominent at the election in opposing it, and was a proper person against whom the petition might be brought. The Judge thereupon appointed a time for hearing the application, and directed notice to be given to B., F. and S., and at the bearing decided that B. and F. were proper parties against whom the petition should be brought, and ordered the petitioners to enter into a recognisance to prosecute the petition, and to pay B. and F. any costs that might be adjudged them, and appointed a day for the scrutiny. Held, per Allen, C.J., Palmer and King, JJ. ; (Weldon, J., dissenting), that the Judge of the County Court had jurisdiction over the subject matter of the petition, and power to name a party against whom the same should be brought ; that F. was properly named as such party, and therefore the recog- nisance was sufficient, even if B. should not have been included ; but— 5ero6;e, that B. was also properly named as a party. Held, also, that as the petition con- tained sufficient allegations to authorise the Judge to proceed, it was immaterial that it asked for the scrutiny on other grounds into which he might not have a right to enquire. Per Weldon, J. 1. That the petition should have been brought against the officer whose return was complained of, or, against the agent of a party at the polling. 2. That the petition stated no act done by B. to justify his being made a party. 3. That the authority of the County Court Judge was only to order a re-count of the ballots, and as the petition asked for a scrutiny of the votes polled on other grounds, not au- thorised by the Act, the Judge had no jurisdiction, and a prohibition should issue to restrain him from proceeding. Ex parte Boyne, vol. 22, 228. 9— Conviction under — Excessive penalty imposed— Conviction invalid— Court has no power to amend. Under sections 117 and 118 of the Canada Temperance Act, 1878, the Court has no power to amend the con- viction when the penalty imposed is CANADA TEMPERANCE ACT. CANADA TEMPERANCE ACT. 87 greater than the Act authorises ; but such conviction is invalid. Begina v. Rose, vol. 22, 309. 10~Town of Milltown— Whether " city " or "county" within meaning of Act. The town of Milltown is neither a city nor a county within the meaning of the Canada Temperance Act, 1878, and is not entitled to a separate vote under the Act, from the rest of the county of Charlotte. Ex parte Mahar,,Ex parte Coughlin, vol. 22, 632. 11— Prosecutor for offences under— Deputy Collector of Inland Revenue — Police Magistrate of Woodstock —Jurisdiction over offences committed outside the town. Beld, by Allen, C.J., arid Wetmore, Palnier and King, JJ. : 1st. That the Police Magistrate of the town of Wood- stock has power under the Act, 43 Vic. •cap. 48 to try offences against the Tem- perance Act, 1878, committed in any part of the county of Carleton. 2nd {Weldon, J., dissenting). That a Deputy Collector of Inland Bevenue was not necessarily a prosecuting officer under the Act see. 101 ; and, therefore, that the Police Magistrate, holding such office, was not disqualified from trying offences under the Act. Eegina v. Dibble, ex parte Shaw, vol. 23, 30. 1Z — Whether Woodstock is a city within meaning of Act — Deputy Collector of Inland Revenue — Prosecuting officer — Power of Town Council to assess for expenses of prosecutions under Canada Temperance Act — Conviction for second offence — Whether defendant must be present in person. Held, by Wetmore, Palmer, King and I'raser, JJ., that the town of Woodstock is not a " city " within the meaning of the Act. Held, by Wetmore, Palmer, King and Praser, JJ., (Weldon, J., dissenting), that the fact of the Police Magistrate being Deputy Collector of Inland Revenue did not disqualify him from trying offences under the Act. The town council of Woodstoek has no power to assess the inhabitants of the town for the expenses of carrying on prosecutions under the Canada Tem- perance Act, and the Police Magistrate being a, ratepayer of the town, is con- sequently not disqualified from trying offences under the Act. In a prosecution under the Act, where the defendant appeared by attorney. Held, by Palmer, King and Praser, JJ., (Weldon and Wetmore, JJ., dissenting), that the defendant might be convicted of a second offence under the 122nd section of the Act, though he was not present at the trial. Ex parte Groves, vol. 23, 38. 13— Summary Conviction — Place of Sale- Evidence of. A summons headed "County of York, parish of S., required the defendant to appear before a justice to answer the complaint for illegally selling liqnor " in the said parish." The trial took place in the parish of S., and a witness proved a sale by the defendant at his shop " in this village." Held, sufficient evidence of a sale in the parish of S. Ex parte Hayes, vol. 23, 313, 14— Prosecution before two Justices— Infor- mation. Where a prosecution is brought he- fore two justices under sec. 105 of Act, the information must be laid before both justices. Ex parte Maurer, vol. 23, 815. 15— Adoption of Act in counties where no licenses issued— Whether can be brought 88 CANADA TEMPEKANCB ACT. CANADA TEMPERANCE ACT. into force— Newcastle Civil Court— Com- missioner of— Jurisdiction to try offences under Act. Held, (Allen, C.J., dissenting) that the Canada Temperance Act, 1878, can be brought into operation after its adoption by a county, notwithstanding no licenses are in force there at the date of the Order in Council. Ex parte Far- rell, vol. 23, 467. 16 — Section 100— imprisonment— In de- fault of goods— Wliat time allowed. The provisions of the 57th and 62nd sees, of the Summary Convictions Act, 32 and 33 Vic, cap. 31, are applicable to convictions under the Canada Temper- ance Act, sec. 100, where no mode is provided for enforcing payment of a fine — therefore in default of goods, imprisonment not exceeding three months may be imposed. Ex parte Pourrier, vol. 23, 544. 17— Liquor License Act 1883 — Sale of liquor without license — Whether pro- cedure must be under the Liquor License Act— Repeal of Statute by Implication. Prosecutions for selling liquor with- out license in towns and counties where the Canada Temperance Act, 1878, is in force, must, since the passing of " The Liquor License Act 1883," be regulated in the mode of procedure and punish- ment by the 91st and 104th sections of the latter Act, and not by the 100th and 106th sections of the former Act. Per Palmer J., that where the mode of procedure provided by " Liquor Li- cense Act, 1883," is imperative, it must be followed in prosecutions for violation of" The Canada Temperance Act, 1878,' but when the mode of proceeding is only permissible, it does not take away the right of the prosecutor to proceed according to the provisions of " The Canada Temperance Act, 1878." Ex parte Coleman, vol. 23, 574. 18 — Ultra vires —Mandamus to compel the City of Fredericton to grant license to applicant to sell spirituous liquors by retail, Held, by Allen, C.J., Weldon, Fisher and Wetmore, JJ., (Palmer, J., dissent- ing) that the C. T. Act, 1878, which pro- hibits the sale of spirituous liquors in those counties or cities where the Act is brought in force is ultra vires. The Queen v. Fredericton, vol. 19, 139. Appeal to Supreme Court of Canada followed. See Addenda No. 1. 19— Justices of the Peace— " Absence " within meaning of sec. 103 of the Canada Temperance Act — Summons to witness — Who may issue— Conviction— Where made by justices acting without jurisdiction, but having jurisdiction over the subject mat- ter — Whether Justification to parties for anything done under it. A prosecution under the Canada Temperance Act was commenced by two justices, A. and B., and a summons issued. At the return of the summons, another justice of the county, on appli- cation of the defendant, issued a sum- mons for A. and B. to give evidence for the defendant on the hearing; where- upon two other justices, at the request of A. and B., under the provisions of sec. 105 of the Act, heard the case, and convicted the defendant. Held, per Allen, C.J.. Weldon, Palmer and Fraser, JJ. (King, J., contra), that the Word " absence " in sec. 105 did not necessarily mean actual absence from the place of trial, but would apply to a case where the original justices had, for some cause, become incapable of acting on the hearing. Per Allen, C.J., Weldon, King and Fraser, JJ., that under section 16 of the Summary Convictions Act, only a justice before whom the case is to be heard, has authority to issue a summons for a witness ; therefore A. and B. were CANADA TEMPERANCE ACT. CANADA TEMPEEANOE ACT. 39 not legally summoned as witnesses, and were not " absent " within the meaning of the Act, and that the other justices acted without jurisdiction. Per Palmer, J., that A. and B. having been summoned as witnesses on the re- quest of the defendant he could not object that they were not legally sum- moned. Held, also (King, J., dvbitante), thaA as the convicting justices had jurisdiction over the subject matter of the complaint, and the conviction was good on its face, it was a justification for them, until set aside, for anything done under it. Byrne V. Arnold, vol. 24, 161. (Affirmed on appeal to Sup. Court of Canada), See Addenda 36. 20 — Election under — Scrutiny of voles — Extent of inquiry by Judge. On a scrutiny of votes given at an election held under " The Canada Tem- perance Act 1878," a County Court Judge has power under sees. 61 and 62 of the Act to go into an inquiry affect- ing the validity of the election, and not merely to inspect the ballots and so determine their validity and then re- count them. (King, J., dissenting). Ex parte Rand, vol. 24, 374. Above case reversed on appeal to Sup. Court of Canada. See Addenda 25. 21— Keeping liquor for sal? — Partners — Joint conviction. A conviction of A. and B. who were in partnership, for an offence several in its nature (keeping intoxicating liquor for sale), adjudging that they for their said offence should forfeit and pay $50, and in default of payment, be impri- soned for forty days, is bad. The penalty ought to be Imposed on the parties severally. Ex parte Howard ajid Crangle, vol. 25, 191. 22— Conviction for violation of, and Acts In amendment thereof— Liquor License Act 1883 — Amendment of conviction — Sur- plusage — Refusal to grant certiorari — Where conviction amendable. Before the disallowance of " The Liquor License Act, 1888, by the judicial committee of the privy council, a con- viction was made for selling liquor "contrary to the Canada Temperance Act 1878, and the Acts in amendment thereof." Held, after the disallowance of the Liquor License Act, that the words " and the Acts in amendment thereof," might be treated as surplusage, and the conviction amended accordingly under sees. 117 and 118 of the Canada Temper- ance Act ; and therefore that a certiorari should not issue to bring up the convic- tion in order to quash it on account of the addition of these words. Ex parte Russel, vol. 25, 487. 23— Order in Council bringing Act into force — Evidence of. The introductory part of the annual statutes of Canada containing a state- ment that an order in council had been made bringing the Canada Temperance Act into force in a county, is not evi- dence of the making of such order. Ex parte Mercer, vol. 25, 517. ■ — Witness — Summons for — Who authorized to issue under sec 16 of Sum. Convictions Act. See above. No. 19. — Liquor sold in violation of Act. See Contract 15. — Liquor bought for sale in violation of^-Onus of proof. See Contract 8. — Parish Court has jurisdiction to try offences under. See Parish Court Com- missioner. — Second offence — Defendant's pre- sence at trial not essential to conviction for selling liquor. See Sum. Con. Act. 6- 40 CABBIEB. CABEIEB. — TTnoertainty as to time of offence — Amendment. See Sum. Con. Act 6. — Identity of offence. Autrefois con- vict. See Sum. Con. Act 12. — Certificate of dismissal, subsequent prosecution for same offence. See Sum. Con. Act 8. — Form of conviction must be adopted. See Sum. Con. Act 7. — Intoxioating-Spirituous — Whether anonymous terms. See Sum. Con. Act 4. — Procedendo when will issue to en- force conviction. See Procedendo. CAPIAS. Issuing wrong form of — Irregularity. See Practice 12. CAPITAL STOCK. Bank of New Brunswick — Assessment under St. John Assessment Act of 1882. See Assessment 6. CARRIER. 1— Liability — ^Forwarding by company beyond terminus contract — Conditions —Notice — Bight of carrier to impose conditions — Loss by fire. See Armstrong y. Qrand Trunk Bailway, vol. 18, 445. 2— Steamboat owners — Loss of goods- Action for negligence— Onus of proof — 37 Vic. cap. 25— Effect of evidence- Rebuttal— Hearsay— Statement by master regarding cause of accident — Whether admissible — Wh^re Improper evidence admitted without objection, and left by Judge to consideration of jury— Whether ground for new trIaL In an 'action against the owner of a Bteamboat as a common carrier for the loss of goods, the plaintiff proved the delivery of goods to the defendant, and their non-delivery at the place of desti- nation. The defendant then (without objecting that ttie plaintiff had given no evidence of negligence), called witnesses to disprove negligence, and ths plaintiff gave evidence of negligence in reply. Held, per Allen, C.J., Weldon, Wet- more and Fraser, JJ. (Palmer, J., dis- senting). 1. That no such objection having been taken at the trial, the defendant could not afterwards move to enter a non-suit on the ground that the plaintiff had not gireu any evidence of negligence in his prima jacie case. 2. That the plaintiff having relied in the first instance on the receipt of the goods by the defendant, and their non-delivery at the place of destination, was properly allowed to give evidence of negligence in answer to the case set up by the defen- dant. Quesre, Whether the Dom. Stat. 37 Yic. cap. 25, has changed the onus of proof in actions against carriers for loss of goods, and requires the plaintiff to give affirmative evidence of negligence. Semble, per Allen, C.J., Weldon, Wet- more and Fraser, JJ., (Palmer, J., dis- senting), that it does not, but that the defendant to excuse himself must prove that the loss happened without any negligence on his part. Where the loss of the goods was caused by the steamboat running on a bar, and afterwards sinking, the declaration of the master of the boat, made at the time that the grounding of the boat was an act of carelessness is not evidence against the defendant ; but per Allen, C.J., Weldon, Wetmore and Fraser, JJ., that the evidence having been received without objection, the judge was not bound to withdraw it from the consid- eration of the jury. Per Palmer, J., that it was misdirec- tion to tell the jury they might consider the declaration of the master with the other evidence. Small, et at., applicant, and Belyea, respondent, vol. 24, 16. CEBTIORAEI. CEETIOKARI. 41 CERTIFICATE. Under 37 Yio. cap. 94, Acts of Parlia- ment — Shareholder of company. See Evidence 16. CERTIFICATE FOR COSTS. Where action brought in the Supreme Court, on being submitted to arbitra- tion, is reduced to less than $200. See Costs 5. — For costs where party sues in Supreme Court, but does not recover more than he might have recovered in County Court. See Costs 9. In action in Supreme Court for tres- pass — Title to land not in question — Verdict less than $100. See Costs 13. CERTIFICATE OF DISMISSAL. Under Summary Convictions Act — Whether granted bona fide — Inquiry into. See Summary Convictions Act 8. CERTIORARI. 1— Copy of proceedings — Production — Necessity of. Quare. — Whether » party applying for a certiorari should not produce a copy of the proceedings before the jus- tice, or account for his not doing so. Ex parte Abel, vol. 18, 600. 2— Where rule once refused — Second ap- plication — Refusal of Court to hear a second application. A motion having been made for a certiorari and refused, the court de- clined to hear a second application. Ex parte Abel, vol. 19, 2. 3— Application for— Whether necessary to produce copy of proceedings. Although it is not necessary on an application for a certiorari that a copy of the proceedings sought to be re- moved should be produced, the sub- stance should be set out. Ex parte Nevers, vol. 19, 5. 4— Debtor— Order of discharge— When Re- fusal to answer proper questions. When a debtor who was being ex- amined before a commissioner, on an application for his discharge from custody, refused to answer proper questions put to him, and the com- missioner ordered his discharge, the court granted a certiorari to remove the order. Ex parte Wright, vol. 20, 509. 5— Judicial and Ministerial Acts— Will not lie to remove proceedings purely minis- terial — When objection may be tal(en— Void proceedings — Issuing Warrant against real estate of non-resident min- ors without order of Counly Court Judge. Con. Stat. c. 100, ss. 17, 74, 75 and 77. The issuing of a warrant by the sec- retary of the municipality under the 74th section of chapter 100 of the Con- solidated Statutes, to sell the real estate of non-residents for the purpose of collecting the amount of an assess- ment against them, is not a judicial act, and the court has no power to grant a certiorari to remove the warrant. The objection that the act of the secretary is a ministerial and not a, judicial one, may be taken when shew-' ing cause against the rule to quash the warrant. Semble, certiorari may be granted to remove proceedings which are void. Semble, the issuing of a warrant under Consol. Stat. cap. 100. sec. 77, against the real estate of non-resident minors under an assessment made against their guardian without the order of the County Cburt Judge as provided in sec. 17, is bad. The Queen v. Simpson, vol. 20, 472. 6— Judge Supreme Court— Review— New trial. 42 CERTIOBAEI. OEETIOEAEI. A certiorari will not be granted to bring up the proceedings in review before a Jndge of this Court under the Consol. Stat., cap. 60, the proper re- medy being by motion to set aside the order. A Jndge has no power to order a new trial in a review case under Consol. Stat. cap. 60, sec. 43. (Weldon and Palmer, J J., dissenting). Ex parte Kane, vol. 21, 370. 7 — New trial in review under Consol. Stat, cap. 60, sec. 45— County Court Judge. A certiorari will lie to bring up the proceedings in review had before a County Court Judge under Consoli- dated Statutes, cap. 60, if he had no jurisdiction to make the order — (Wel- don, J., dissenting). Per Weldon, J., the order of a judge in a review case is final. A judge has no power to order a new trial in a review case under Consol. Stat. cap. 60, sec. 45. (Weldon and Wetmore, JJ., dissent- ing). Ex parte Fahey, -vol. il, 392. See Acts of Assembly, 45 Vic, cap. xii. 8 — Review — Costs — Abandonment of ex- cess upon particulars. In an action in a parish court where the plaintiffs' claim exceeds the amount over which the court has jurisdiction, he may by abandonment of excess upon the particulars filed, bring the case with- in the jurisdiction of the court. Where the plaintiff in an action of debt in a parish Court was improperly non- suited — no evidence having been given by the defendant. Held, per Wetmore and King, JJ., (Palmer, J., dissenting) that a judge on review had power to order judgment to ba entered for the plaintiff for the amount proved at the trial. Held, per Weldon, J., that an order of a jndge of a County Court in a case of review, was final, and that a certiorari would not lie to remove it into this Court. Per Wetmore and King, JJ., that a certiorari would lie in such a case. Per Palmer, J., that though the order of the judge of the County Court was wrong, if he had jurisdiction to make it, a certiorari would not lie to remove it into this Court. The Court has no power to grant costs in discharging a rule nisi for a certiorari, unless such power is given by statute. Ex parte Simpson, vol 22, 132. 9 — County Court Judge — Review — Where Judge does not exceed his jurisdiction. The decision of a County Court Judge in a review case, under the Consol, Stat. cap. 60, is final, if he has jurisdic- tion over the matter, or has not ex- ceeded his jurisdiction, and a certiorari will not be granted to bring up the pro- ceedings. Ex parte Turner, vol. 22, 634. 10— Where right of review exists — Delay in applying. Where a right of review exists, certi- orari will be granted under very excep- tional circumstances. Where there has been delay in apply- ing for a certiorari, such delay must be satisfactorily explained. Ex parte Price, vol. 23, 85. 11 — Removal of proceedings under the Highway Act — Unreasonable delay in applying for. A certiorari to remove proceedings for the alteration of a road under the High- way Act, Consol. Stat, caip. 68, was refused where two terms had elapsed since the filing of the commissioners' return. Ex parte Lipsett, vol. 25", 66. OERTIOKABI. GHAIiLEKaE. 43 Granted where magistrate refused to certify the proceedings for appeal. See Assault 2. Whether party applying for, must give bond required by Consol. Stat. cap. 100, sec. 110. See Assessment 2. — Taken away by Canada Temperance Act, where magistrate has jurisdiction. See Canada Temperance Act 1, Not taken away where magistrate acts without jurisdiction. See Canada Tem- perance Act 6, Summary Convictions Act 11. In what cases taken away. See Canada Temperance Act 6. — Containing an order for stay of proceedings — Constable selling goods after having been served with-Contempt of court — See Attachment 7. — When too late to read affidavits. See Seaman's Act 1873. — Eight to apply for, to quash the pro- ceedings under Act, relating to abscond- ing debtors-Application allowed, though two terms have elapsed since the warrant issued. See Absconding Debtor 1. — Filing affidavits on which rule granted by Judge at Chambers. See Practice 22. — Amending return. See Seaman's Act 1. — Garnishee Act — Whether proceed- ings under, are subject of appeal, under County Court's Act, or by certiorari. See County Court, Appeal 9. — Conviction under Canada Temper- ance Act, where amendable certiorari will not issue. See Canada Temperance Act 22. ■ — Procedendo will issue when proceed- ings affirmed on certiorari. See Proce- dendo. Cestui que Trust. Belation|of trustee, and Cestui que trust created. See Equity. CHALLENGE. 1— Of juror after hand has been placed on book. On the trial of cause when the first four jurymen came to the book, the clerk at once commenced to administer the oath, and had got as far as " you shall, well and truly try the issues," when the Judge interposed, and called the attention of plaintiff's counsel and the clerk to the fact that there was only one issue upon the record. The plain- tiff's counsel then challenged L., one of the four jurymen, whose hand was on the book, and the counsel persisting, L. was ordered to stand aside. The record was then amended by adding another plea ; and the jury was sworn to try the issues then upon the record — the plain- tiff having obtained a verdict. Held, that the allowance of the chal- lenge under the circumstances was no ground for a new trial. Somers v. Wilbur, vol. 20, 502. 2— For favor— Should contain an allega- tion of sheriff's partiality— Venire to a coroner. When the facts stated in the challenge would not of necessity disqualify the sheriff from summoning the jury, and might or might not render him partial, the challenge is to the favor, and it should, in addition to the facts relied on, contain an allegation that the sheriff was not impartial, otherwise it is bad. Semble. A venire may be issued to a coroner on a suggestion on a record that the sheriff, for the reasons stated, is not impartial. Brown v. Maltby, et al, vol. 20, 92. 3— To array— Where prisoner's husband has action pending against the sheriff. Held, on an indictment against K. M., that it was ground of principal challenge 44 CHARTER PABTY. CHARTER PABTY. to the array that the prisoner's husband had an action pending against the sheriff for assault committed on the prisoner. The Queen v. Base Milne, vol. 20, 394. 4 — The fact of a juryman who is open to challenge, having served on the jury, is not per se a ground for a new trial. A party challenging a juror should make his objection in snch a manner that the Judge or the clerk of the court can hear him ; and unless he does so, he cannot raise the objection after the juror is sworn. Pitfield, appellant, and KiniboU, respondent, vol. 25, 193. — Juror — An alien— Objection when must be taken. See Juror. CHAMBERLAIN. Of Saint John — Not liable for arrest- ing a person on execution for taxes assessed by the commissioners, who was not owner of the land on which he was See Assessment 3. CHARGES. Railway Company — Action to recover back excessive charges. See Railway Company 3. CHARTER PARTY, 1— Damage to ship — Unavoidable delay- Refusal of charterers to load— Action by ship-owners for. By a charter-party of December 11, 1878, it was agreed that the plaintiff's vessel, then on her way to Shelborne, N. S., should proceed with all possible despatch, after her arrival at Shelb.urne, to St. John, and there load from the charterers a cargo of deals for Liver- pool ; and if the vessel did not arrive at Shelburne on or before 1st of January, 1879, the charterers were to be at liberty to cancel the charter-party. The vessel arrived at Shelburne in December, and sailed at once for St. John. . At the entrance of the harbour of St. John, she got upon the rocks, and was so badly damaged that it became neces- sary to put her upon the blocks for repairs. Although she was repaired with all possible despatch, she was not ready to receive her cargo until 21st of April following, prior to which time-^ on 26th March — ^the charterers gave the owners notice that they would not furnish a cargo for her. The owners sued for breach of the charter-party, and on the trial defendants gave evidence, subject to objection, that freights between So. John and Liverpool were usually much higher in winter than in summer, that lumber would depreciate in value by being wintered over at St. John, and also as to the relative value of lumber during the winter, and in the spring in the Liver- pool market : and it was contended that the time occupied in repairing the damage was unreasonable, and had entirely frustrated the object of the voyage. The Judge directed the jury that if the time occupied in getting the vessel off the rocks and repairing her, was so long as to put an end, in a com- mercial sense, to the commercial specu- lation entered into by the ship-owners and charterers, they should find for the defendants, The verdict being for the defendants. Held, on notice for a new trial that this was a misdirection, there being no evidence to warrant the case being left in this way, and a new trial was ordered. Schqfield v. Carvill, vol. 21, 558. Appeal to Supreme Court of Canada dismissed. See Addenda No. 14. 2— Charter-party— Voyage from England to New Brunswick— Ship notlready for sea- Danger of the seas— Damage to ship- Deviation for repairs— Questions forjury. By a charter-party, stating that the ship was tight, etc., and in every respect ready for sea, and the defendant agreed CHARTER PARTY. CLAIM OF PROPERTY. 45 to sail from Liverpool with all con- venient speed to B., in New Brunswick, and there load a cargo of deals for the plaintiff, and thence proceed to Liver- pool — the dangers of the seas and navigation excepted. The ship was not ready for sea at the time the charter- party was entered into — not having any sails — and repairs were made to her while her ballast was being taken in, but she sailed as soon as she had completed her ballastmg. On the voyage, the ship was damaged by storms, and became leaky, and when off the coast of Cape Breton, and within about a day's sail from the port of Sidney, the master determined that he could not proceed to B. without repairing the ship, and he sailed to St. John, N. B., for that purpose, thinking, as he stated, that the repairs could be best made there. Bepairs were made at St, John, but it was then too late in the season to go to B., on account of the ice, and the voyage was never completed. There was evidence that the ship could have been repaired at Sydney, and at other ports in Nova Scotia nearer than St. John. The plaintiff recovered damages for not loading his deals and carrying them to Liverpool. Held, 1. That there was a breach of the charter-party in the ship not being ready for sea at that time, though if she sailed as soon as the ballast was com- pleted, the plaintiff might only be entitled to terminal damages for such breach. 2. That it should have been left to the jury to find whether the '^necessary repairs to the ship could have been made at Sydney, or the other ports of Nova Scotia, and whether the master was justified in going to St. John for that purpose, and also, whether if the repairs could have been made at Sydney, &o., it would have then been too late in the season for the ship to proceed to B. and take in the cargo. Bums v. Cassels, vol. 25, 13. — Parol evidence — When admissible as to. See Agreement 2. — Loss of freight — Voyage frustrated by ice — Whether one of the perils insured against. See Insurance 18. — Where signed by mortgagee of ship under instructions received by telegram from mortgagor — Meaning of telegram — How ascertained. See Ship 3. CHOSE IN ACTION. An indorsement in insurance policy to pay loss to third party, is not an assign- ment of. See Insurance 4. Bill of sale of Act does not apply to. See Bills of Sale Act 2. Property of vrife — Assignment by husband and wife — Effect of. See Hus- band and Wife 3, CITATION. 1. The heir at law, though not entitled to any of the personal estate of the deceased, may file a petition to have an alleged will of deceased proved in solemn form under Consolidated Statutes cap. 52, sec. 34. In re Annie R, Fox, vol. 20, 391. Proof of will in solemn form. See Probate Court 2. CITY. Within meaning of Temperance Act. See Canada Temperance Act 5. CLERK OF COURT. Writ signed and sealed by, but issued after appointment of successor. See Practice 12. Client — Liability of, on promise by attorney. See Sheriff 2. CLAIM OF PROPERTY. Setting aside defective claim. See Beplevin 6. 46 COLLISION. COMMISSIONS. CASE. Whether railway company bound to burn. See Railway Company 5. COGNOVIT. — Future advances — Dispute as to intention — Bight of creditors to be repaid. See Judgment 5. — Judgment on motion to set aside on ground of fraud — Application by judg- ment creditor — Contradicting affidavits. See Judgment 4. COLLISION. 1— Carrying lights— 31 Vic. cap. 58— Onus of proof— Plaintiff must shew his default did not contribute to injury — Interest in an action of trespass on the case — Con- sol. Stat cap. 37, sec. 119— Reducing verdict — Trial of cause in unavoidable absence of attorney and counsel— New trial — On terms — Whether ground for or not- Waiver of objection. The plaintiff's vessel was lost in a collision in which the defendant's vessel was at fault. At the time of the collision the plaintiff's vessel was not carrying lights as required by 31 Vic. cap, 58, it being a bright moonlight night. On the trial the judge directed the jury that the onus was on the plaintiff of showing that the i^bsence of lights did not in any way contribute to the accident. Held, by Weldon and Wetmore, JJ., that the direction was correct. In an action of trespass on the case for the loss of the plaintiff's vessel by collision with the defendant's vessel, interest on the value of the vessel and freight is not recoverable as part of the damages under the 119 section of the Consolidated Statutes, chapter 37, and where in such a case the jury allowed interest, a new trial was ordered, unless the plaintiff should consent] that the verdict should be reduced to the value of vessel and freight as proved on the trial. This cause was tried in the unavoid- able absence of F . , the attorney and coun- sel for the defendants, an application to postpone having been refused by the presiding judge. P., by his agent, pro- tested against the trial,' but instructed counsel to appear in case the cause was forced on and keep the cause going until his return. This was done, but on his return P. refused to take any part in the cause. It appeared also that F, was led from a conversation with one of the counsel for the plaintiff to believe that the cause would not be forced on in his (F's) absence. Held, by Allen, C.J., and Fisher, J.^ that there ought to be a new trial on terms, but by Weldon'and Wetmore, JJ., that the rule for a new trial should be discharged. Jackson v. McLillan, vol. 19, 432. COMMERCIAL TRAVELLER. Power of corporation of St. John to tax for business licenses. See Business Licenses. COMMISSIONS. Evidence— Where not objected to before commissioner — Whether can be objected to on trial— Rule as to. A commission, in which defendant joined, was addressed to two commis- sioners, with power to either of them to act. One commissioner only acted and took the depositions of the witnesses produced by plaintiff, the defendant not being present or represented by counsel. Some of the evidence giveii by plaintiff's witnesses was legally inadmissible, and when offered on the trial, the defendant's counsel objected to its reception, but the presiding judge admitted it. COMMISSIONS. Held, on a motion for a, new trial, that the fact of the evidence not having been objected to on behalf of the defen- dant at the time the witnesses were examined before the commissioners, did not preclude defendant from objecting to it on the trial, and that it should have been rejected. Boston Belting Co. v. Qobel, vol. 20, 347. 2— To Examine Wiinesse5--Return--Address to Supreme Court. A commission for the examination of witnesses in England was returned endorsed with the title of the court and cause signed by the commissioners, and addressed to the clerk of the circuits of the county in which the venue was laid. Held, sufficiently addressed to- the court. Moran v. Taylor, vol. "a^ 39. See Act 48 Vic. cap. 18. 3— Commission for examination of Witnesses --Return — Wliether sliould shew liow com- missioners were sworn — Interrogatories — Answer extending to matters not in- quired of — Whether will be suppressed. On a commission to examine wit- nesses, if the answer to an interrogatory extends to matters not enquired of, and which the opposite party could not have anticipated, and therefore did not file a cross interrogatory, the answer will be suppressed. A commission directed that before proceeding to examine witnesses, the commissioners should take an oath in the form indorsed on the commission. The return stated that the commisioners were severally duly sworn, and that all things were had, done, taken, and per- formed by them as required by the commission. Held, sufficient, Barbour v. Robert, vol. 24, 211. Examination of witnesses abroad — Eetum by one commissioner — Omission of defendants commissioner to put cross COMMON SCHOOLS ACT. 47 interrogatories — Effect of — Endorse- ment of return of commissioners — Whether necessary. See Insurance 16. Examination of witnesses abroad — Interrogatories not returned with depositions — See Practice 15 Depositions taken under — Sufficiency of endorsement on envelope enclosing. See Depositions. Commission in equity. See Court General Rules 10. COMMISSIOIVER. Under Consolidated Statutes, cap. 38. — Power of — See False Imprisonment 5. — Commissioner — Parish Court — Jurisdiction. See Parish Court Com- missioners. — For taking affidavits — Description. See Affidavit 5. COMMISSIONER OF SEWERS Assessments by — Payment of, by parties claiming land. See Posses- sion 2. COMMITTEE. Appointed by municipal corporation — Limited powers. See Principal and Agent 2. COMMON CARRIERS. Bailway company must be taken to hold themselves out as. See Bailway Company 3 ; see Carrier. COMMON COUNCIL. Of city of St. John — Power to reduce pay of policeman. See Policeman. Common counts — Biscovery under, when contract repudiated. See Con- tract 12. COMMON SCHOOLS ACT. Summary remedy to compel Secretary of Trustees to give up property of incor- poration. See Injunction 1. 48 CONDITIONS. CONSIGNEE. — ^Notice of action, when party en- titled to. See Notice of Action. — Meaning of words in section 81. See Notice of Action. COMPANY. Incorporated under Joint Stock Com- panies Act — Action by — Necessity of obliging incorporation. See Joint Stock Companies Act 1. — Action on foreign judgment— ^Neces- sity of stating incorporation. See Plead- ing 8. — Admissibility of statements of Pres- ident to shew appointment of Agent. See Insurance 15. — Admissibility of declarations of members to shew who compose the company. See Landlord and Tenant 3. — President attending office in St. John — Whether inhabitant of city within the meaning of the St. John Assessment Act of 1882, See Assess- ment 6, COMPENSATION. Bailway company entitled to — Where no special agreement. See Bailway Company 3. COMPOSITION DEED. Where creditor may oppose applica- tion for discharge under. See Insolvent Act. COMPUTATION OF TIME. Day of arrest should be included in. See Supersedeas. CONDITIONAL SALE. Lease — Monthly rent — Not bill of sale. See Contract 6. CONDITIONS. Of sale must be strictly performed. See Sale of Land 2. — Precedent, whether condition in insurance policy, that amount of loss shall be determined by arbitration, is a condition precedent to plaintiff's right of action. See Insurance 8. CONDUCTOR OF RAILWAY. Bight to eject passengers who refuse to pay fare. See Eailway Passenger 1. — His duty as to waiting for passen- gers to g.et on train. See Eailway Con- ductor 1. CONFESSION. Given by one partner for himself and his CO- partner with his consent — Effect of. See Execution. Judgment by. See Judgment 4, 5. CONFIRMATJON. Of discharge — Necessity of filing objections with assignee. See Insolvent Act of 1875. CONSIDERATION. What sufficient amount of, to support written agreement. See Agreement 3. — Transfer of property alleged io have been made to defraud creditors. See Judgment Creditor 5. — Illegal in part— Lease. See Bailway Company 1, — Bight to dispute, under plea of non- assumpsit. See Assumpsit 5. — Original — ^May sue on, when note given for, is unstamped. See Promissory Note 3. —Promise to third party. See Agree- ment 4. —Sufficiency of, to sustain promise. See Agreement 5. —Deed in trust. See Deed 2, 3, 4. CONSIGNEE. Obtaining goods without bill of lading and without paying for goods — ^Liability of. See Bill of Lading 1. CONTRA ACCOUNT. CONTRACT . 49 — Passing of property. See Sale of Goods 5. Consolidation — Of Mortgages. See Mortgage 2. CONSTABLE. His duty when executing a warrant to levy on a person's goods or take his body. See False Imprisonment 1. Arresting, without search for goods and chattels — Execution issued out of Justice's Court. See Palse Inprison- ment 1. — Contempt of ment 6. Court. See Attach- Construction of Acts of Parliament — Bule 'for. See Inspection 1. —Of Will. See Willi. CONTEMPT OF COURT. Disobedience not wilful. See Attach- ment 6. Constable selling goods after having been served with certiorari containing stay of proceedings. See Attachment 7. — Warrant of commitment for — Irre- lar — Justification to ofi&oer. See Crim- inal Law 7. CONTESTATION. Of claim by assignee — County Court Judge has power to award costs against assignee on. See Costs 10. CONTINUING TENANCY. Evidence of — Should be left to the jury. See Landlord and Tenant 1. CONTRA ACCOUNT. Allowance of, as part payment — Suf- ficient to take case out of Statute of Frauds. See Statute of Frauds 1. S.D. CONTRACT— (See Agreement.) 1 — Novation— Sale of land — Delivery of deed for inspection — Receipt for — Action on. A new contract by novation cannot be created without the assent of the original creditor. Anderson v. Fawcett, vol. 19, 34. See Addenda 34. 2 — Building — Forfeiture clause — Liqui- dated damage — Architect's Certificate. Plaintiff, in June, 1876, entered into a contract to build a house for the defendant on his (defendant's) land and to complete it by 1st December follow- ing, the defendant to pay a certain sum when the house was boarded in, and 1300 monthly thereafter, if in the- opinion of the architect the work pro- gressed with sufficient speed to ensure its completion by the 1st December, and it was provided that if the house was not finished by the 1st Deoemher the plaintiff should forfeit |10 per day for each day's delay, to be deducted from the last payment. The house was not complete till the. latter part of January, 1877, when the defendant got possession. Held, in an action to recover an alleged balance on the contract, that the defendant was entitled to deduct 110 per day as stipulated damages, and that he need not obtain certificate of the architect that the work was not progressing with sufficient speed. Gar- ter V. Landy, vol. 19, 516. 3 — Under Seal — Variance — Substituted parol agreement — Building contract — Extra »rork — Architect's Certificate. Plaintiff contracted under seal to erect a building for defendant accord- ing to plans and specifications. The contract provided that if any change in the plans were desired, their value 4 50 CONTKACT. CONTEACT. should be agreed upon and endorsed on the contract, otherwise no allowance should be made for them. The plain- tiff was to be paid a certain percentage on the value of the work as it pro- gressed, on the certificate of the archi- tect ; but the last payment was not to be made until all the claims for extras had been agreed upon. The plaintiff proceeded with the building, and did a considerable amount of extra work, but before the completion of the building it was destroyed by fire. Held, in an action on the contract, 1. That plaintiff was entitled to recover the percentage on the value of the work done, though the building was never completed. 2. That he could not re- cover for the extra work, because its value had not been agreed upon and indorsed on the contract. 3. Plaintiff having contended that the contract under seal had been abandoned, and a parol contract substituted, he should have asked the judge to submit the question of abandonment and substitu- tion to the jury ; and not having done so, the court could not consider it on an application to increase the amount of the verdict pursuant to leave reserved at the trial. Flood v. Morrissey vol. 20, 5. 4— Void— By-law — Pleading. A contract was made on the 26th September to erect a proper and legal building in the city of St. John. Two days afterwards a by-law of the city of St. John was passed prohibiting the erection of buildings such as the one contracted for, and declaring them to be nuisances. Held, per Weldon, J., that the by-law avoided the contract, and the building erected under it was a nuisance. Per Wetmore, J., that even the by-law did not make the building a nuisance, the plaintiff could not, under the pleadings in the case, have the benefit of it. McMillan v. Walher, vol. 21, 31. See Addenda 32. 5— Parties to— Policy of insurance— Ben> eficiary not entitled to bring action In her own name. By a policy of insurance on the life of the husband, effected by him for the plaintiff his wife, the defendant com- pany agreed to pay the sum assured to the plaintiff or her executors, admin- istrators or assigns, and in the case of her death in his life time to his exec- utors, administrators or assigns. By her application for the insurance, the husband agreed that his answers to certain questions should form the basis of the contract, and he agreed to pay the premiums. Held, by Allen, C.J., Wetmore, Duff, and King, J. J., (Weldon, J., dissenting) that the plaintiff could not maintain an action on the policy on her own name. Abbinett v. North Western M. L. Ins. Co., vol. 21, 216. 6— Written — Fraudulent misrepresentation —Tender— Consol. Slat., cap. 75— Bill of sale under. A. being in treaty with the plaintiffs for the purchase of a sewing machine, signed an agreement, stating that he had received the machine of the value of $65.00, which the plaintiffs had leased to him for nine months, at the rent of 86.00 per month, $15.00 being paid in advance at that time ; that he would take care of the machine, and not part with the possession of it, and in case he made default in paying the rent, or in the performance of the agreement, that the plaintiff's might take possession of the machine, and he would forfeit any rent paid; and the plaintiffs agreed if A. paid the rent they would sell the machine to him for one cent at the expiration of nine months. A. having made default in paying the monthly CONTRACT. CONTEACT. 51 rent, the plaintiffs demanded the ma- chine, which was in possession of the defendant under a bill of sale from A. Defendant refused to give it up, but afterwards, and before aolion brought, tendered the plaintiff 914.00, the balance of the 165.00 unpaid. In trover for the machine, A. swore that there was a verbal sale of the machine to himi for $65.00, of which he paid $15.00 at the time ; that he did not read the agree- ment, and the plaintiff's agent told him at the time he signed it that it was an agreement to secure the balance of the purchase money by monthly instal- ments. The jury having found a ver- dict for the defendant on a question left to them whether the plaintiff's agent had fraudulently represented to A. the contents of the written agree- mient. Held, per Weldon, Wetmore, Palmer and King, J. J., (Allen, C.J., dubitante) that if there was fraudulent misrepre- sentation respecting the writing, the property in the machine passed to A. under the verbal agreement, and he had a right to transfer it to the defendant. Per Weldon, Palmer and King, J.J., that even if the property did not vest in A. till the whole price was paid, the tender of the 114.00 before action would prevent the plaintiff from recovering. Per Allen, C.J., that the evidence of misrepresentation of the contents of the ■writing was unsatisfactory. Per Allen, C.J., and Wetmore, J., that if the property in the machine did not vest in A. till the whole price was paid, there was a wrongful conversion by the defendant, which would not be affected by the subsequent tender of the balance of the purchase money. An agreement for a conditional sale of a chattel, with a lease of it in the meantime at a monthly rent, is not a bill of sale under Consol. Stat. cap. 65. Wheeler & Wilson Manuf. Co., v. Charters, vol. 21, 480. 7— Sale of goods— Payment— Appropriation —Rescission ot contract. The Albert Mining Company brought action to recover for coal sold and delivered to defendants during the years 1866, 1867 and 1868. The action was commenced on 1st September, 1873. Defendants were partners carrying on business under the name of the Alber- tine Oil Company — the defendant fur- nishing the capital. The contract for the coal was made by S., who was 'a large stockholder in the plaintiff's company, and entitled to yearly dividends on his stock. The agreement, as proved by plaintiffs, was, that S. purchased the coal for the Albertine Oil Company, the members of which he named ; that the then president of the plaintiff company told S. they would look to him for pay- ment, as the other partners were poor ; that the terms of sale were cash on deli- very on board the vessels ; and that S . agreed that the dividends payable to him on his stock, should be turned in in payment for the coal, that in conse- quence of this arrangement the plaintiffs credited the Albertine Oil Company with the amount of S.'s dividends, as they were declared from time to time down to August, 1869, leaving a balance of 9912.00 due to S. In the latter part of the year 1868, S. repudiated the agree- ment to appropriate his dividends to the payment of the coal, and refused to sign the receipts therefor in the plaintiff's books. He had signed the receipt for the dividend of 1866. He afterwards brought an action against the plaintiffs for the dividends; the action was referred to arbitration, and an award was made in favor of S. for upwards of $15,000, which the plaintiffs paid in July, 1874. The receipt given for the payment stated that it was in full satis- 52 CONTRACT. CONTRACT. faction in the judgment in the suit of S. against the Albert Mining Company, and(, it appeared (though the evidence was ' objected to) that it included the dividends for the years 1867 and 1868. It appeared that the coal delivered was charged in the plaintiff's books to the Albertine Oil Company, and that the bills of lading on the shipments of the coal were also made out in their name, and that some time afterwards a notice, signed by S. and M., (the other defen- dant) was given to the plaintiffs, com- plaining of the inferior quality of the coal, and claiming damages in conse- quence. Weldon, J., before whom the cause was tried, was of opinion that the coal was sold to S. alone ; that the agree- ment by him for the appropriation of his dividends to the payment of the coal had not been rescinded when this action was brought, and that the subsequent payment of the dividends by the plain- tiffs had no effect ; he accordingly non- suited the plaintiffs. Held, by Allen, C.J., Wetmore and King, J.J., (Weldon, J., dissenting) that the nonsuit was improperly granted. Albert Mining Co. v. Spears, vol. 22, 346. Appeal to Supreme Court of Canada allowed. See Addenda, No. 14. 8— Illegal— Money paid— Liquor bought for purpose of sale in violation of Canada Temperance Act — Onus of proof. Plaintiff purchased and paid for lipuor at the request of the defendant, and sent it to him in the County of C, where the " Canada Temperance Act, 1878," was in force. In an action to recover the money paid, it was proved that the plaintiff knew the defendant was in the habit of selling liquor, and that he knew the purpose for which the liquor in question was bought, — not stating what the purpose was. Held, that it did[not necessarily follow that the plaintiff knew the defendant intended to sell the liquor in violation of the law ; and that the burthen was on the defendant to shew that the plain- tiff knew that it was to be so sold. Hotham v. Phillips, vol. 23, 136. 9— By correspondence- -Construclion of. Where it is sought to establish a con- tract from a correspondence, the whole of the correspondence which has taken place between the parties must be taken into consideration ; accordingly where a letter written by plaintiff to defen- dant, and replied to by the latter, made a complete contract, but before the con- tract was performed or there was any breach, other letters passed between the parties from which it appeared that both parties still treated the matter as being in negotiation. Held, that there was no binding con- tract. Jones V. Dewolf, vol. 23, 356. Appeal to Supreme Court of Canada dismissed. See Addend-a 54. 10 — Order for goods — Acceptance. Where an order for goods is sent by letter, the acceptance of it to create a contract must be unconditional. The answer to the letter must be a simple acceptance of the offer without any new terms. Clarke v. Kimball, vol. 23, 412. 11 — Agreement to tow raftof lumber— Wliere portions owned in severally by different persons — Loss of portion owned by one- Right of action. Defendant agreed with A. to tow a raft of lumber through the falls of the river of St. John for a certain fixed sum. A. in making the agreement, was acting as the agent of the plain,tiff, and four other persons who severally owned por- tions of lumber in the raft, but this was not communicated to the defendant, who knew nothing about the ownership of the lumber. In going through the CONTRACT. CONTEACT. 53 falls the raft was broken up, and part of the lumber lost. Held, per Weldon, Wetmore and Palmer, J.J., (Allen, C.J., and King, J., dissenting) that as the plaintiff's interest in the subject matter of the contract was separate, he could sue alone for the loss of his lumber. Held, per Allen. C.J., and King, J,, 1st. That as there was a distinct joint contract for the towage of the entire raft for a certain sum, one of the owners of lumber in the raft could not sue alone for the loss of his part of it. 2ud. That the fact of one of the owners having taken his lumber out of the raft after the towing was commenced, did not put an end to the express contract, and create a new implied agreement with the plaintiff as to the towage of his lumber. Elliott v. Pa.rks, vol. 23, '611. 12— Voidable contract— Repudiation by one party — Recovery under common counts by other parly for worl< done under the contract — Statute of frauds. Defendant agreed verbally to advance money to plaintiff to enable him to build a house on land of which he was to obtain a lease for a term of j'ears ; the lease to be made in the defendant's name as security for the money advanced, and to be assigned to the plaintiff on his paying the advances. The defendant advanced the money which was expended in building the house, the plaintiff contributing towards it labor and materials, and the lease was made to the defendant as agreed. The defendant then repudiated the agree- ment, claiming the property as his own. Held, that the plaintiff vCas entitled to recover on the common counts for his work and materials expended on the house. McHugh v. Jl/urraj/jVol. 24, 12. 13 — Sale of two descriptions of goods — Entire contract — Acceptance of part — Inferior quality of remainder — Action for contract price. Plaintiff agreed to sell defendant a quantity of Muscatel raisins, and a like quantity of London Layer raisins — both to be of the best quality. Before re- ceiving the raisins the defendant sold a portion of the Muscatels, and on their receipt, /and before he had an opportu- nity of examining them delivered them to the purchaser. He soon afterwards discovered that the London Layers were of inferior quality, and so informed the plaintiff, stating that he would not accept them, but offered to pay for the Muscatels. The plaintiff refused this, and brought an action for the contract price of the whole. Held, 1. That as the contract was entire, and one of the conditions on the part of the plaintiff was not performed he could not recover, 2. That the defendant by accepting the Muscatels, did not preclude himself from objecting that the others were not according to contract. Henry v. Bostwick, vol. 24, 414. See Thomson v. Dyment, Supreme Court Canada, vol. 13, 305. 14— Contract to deliver portable steam engine and mill machinery — Failure to deliver within specified time— Nominal damages — Defect in machinery — Evi- dence — Former statement of plaintiff as to quality of mill — Whether admissible — Expert testimony. Defendants contracted to make for plaintiii one of their portable steam engines with mill machinery complete to be delivered by a certain day, and put the mill in complete operation — the plaintiff to provide the building, founda- tion, stone and mason work — defen- dants not to be responsible for delays caused by iire, or disturbance among 54 CONTRACT. CONTRACT. employees. In an action for breach of the agreement, in furnishing defective machinery, and not delivering at the time agreed upon, the plaintiff gave evidence of the had quality of the machinery, and that it would not manu- facture good lumber, nor lumber of a certain length stated in the agreement ; also, that he had been delayed in getting his mill in operation for want of the machinery ; and that the mill was of very little value. The defendants in answer gave evi- dence that there had been a disturbance among their workmen shortly before the time when the machinery should have been delivered, and that the plain- tiff on being told of it, did not object to the delay in the delivery ; but it did not appear that the work had been delayed by the disturbance among the workmen, or that the defendants had delayed their efforts to complete the work by anything the plaintiff had said. Evi- dence was also given of the good quality of the machinery ; that it was capable of cutting lumber of the size specified, that the plaintiff on applying to insure the mill, had represented it to be first- class iii every respect, and the machin- ery to be valuable. In order to account for the lumber cut in the mill being defective, evidence was given that the bed of the carriage was not level ; and a witness who owned a mill of the defen- dant's manufacture in another part of this province, and who had examined the foundation of the plaintiff's mill, gave it as his opinion that the founda- tion was insuf&oient, and that part of^ would be liable to heave with the frost,, and throw the mill out of level. Held, 1. That the plaintiff's declara- tion of the value of the mill when he applied for insurance, was evidence to contradict him as to the inferior charac- ter of the mill. 2. That without evi- dence to the effect that the defendants relaxed their efforts to complete the machinery in consequence of what the plaintiff said about the delay, it should not have been left to the jury to find whether they did so or not. 3. That though the plaintiff would have been entitled to nominal damages for non- delivery of the machinery at the time agreed upon. No evidence of actual damage having been proved, a new trial ought not to be granted on that ground. i. Per Allen, C.J., and King, J. (Wet- more and Palmer, JJ., dissenting), that the opinion of the witness as to the sufficiency of the foundation of the mill, was admissible. Morrow v. Water- ous et al., vol. 24. 442. Appeal to Supreme Court of Canada allowed. See Addenda 38. 15 — Illegality— Canada Temperance Act, 1878. A person who sells spirituous liquor, knowing that the purchaser intends to sell it in violation of law in a county where the Canada Temperance Act is in force, cannot recover the price of the liquor. Furlong v. Eussel, vol. 24, 478. 16 — Contract under seal— Breach — New agreement by parol— Accord and satis- faction—Order for goods to be manu- factured — Part payment in advance — Refusal to deliver — Recovery of advances — Tender of contract price. Plaintiff ordered from defendant, a manufacturer, goods which were to be according to specification, and made a part payment in advance, the defendant refused to deliver the goods unless unauthorized extra work was paid for. Held, that the plaintiff could recover the amount advanced in an action for money had and received, without ten- dering the contract price of the goods. Defendant made a contract under seal to build fifty railway cars for plain- tiff according to specification. After twenty-four of the cars had been CONTRACT. CONTEAOT. 55 delivered, and after the plaintiff was aware tliat they were not according to the contract, he agreed verbally to aban- don all claim for damages for breach of the contract if defendant would, make certain alterations in the remainder of the cars, which the defendant did. Held, that this amounted to accord and satisfaction of the plaintiff's claim for damages in respect of the twenty- four oars. Greene v. Harris, vol. 24, 496. 17— Contract for sale of goods — Statute of frauds— Offer by letter to sell— Accept- ance. Action for breach of agreement to sell two car loads of potatoes. — Defendant, who lived at Kestigouohe, wrote to plaintiff at St. John, stating that he could load one or two oar loads of Early Rose potatoes, and one or two of Jack- sons, and asking if plaintiff would take a couple of car loads of each kind, and how much he would give per barrel for them. Plaintiff answered . this the next day, stating the prices he would give for two car loads of each kind, and asking defendant to let him know in two or three days if he would accept the offer. On the 13th the defendant replied that he would have one car load of Early Eose ready to leave by train on the 15th, and would send another car load of the same kind the next week ; but that he could not get the Jacksons at the price named by plaintiff : and asking plaintiff to send him $200. On the 15th defendant wrote to plaintiff that potatoes were coming in very slowly, that he could not get loaded before the middle of the next week, and that he would advise plaintiff when the potatoes were loaded. On the 22nd de- fendant wrote to plaintiff that a car load of potatoes had left that day, and that he would be in St. John on a day named (about the time of the arri- val of the potatoes there.) Defendant went to St. John and told plaintiff that he had the oar load of potatoes for him, and plaintiff offered to pay him for them, but defendant wished him to see the potatoes first, which he did, and approved of them, telling defendant to call at plaintiff's store and be paid. The next day the defendant refused to deliver the potatoes. Held, per Allen, C.J., Palmer, King and Eraser, J.J. (Wetmore, J. dissent- ing), 1. That though the defendant's letter of the 13th April was not an acceptance of the plaintiff's offer of the 11th, it might be treated as a counter offer by defendant of two car loads of Early Eose potatoes, and if verbally accepted by plaintiff created a binding contract. 2. That the agreement by plaintiff to accept the car load that had arrived and to pay for them,, was an acceptance of the defendant's offer of the J3th April of two car loads of Early Eose, and created a contract for that quantity. Connacher, Appellant, and Parlee, Eespondent. Vol. 24, 585. — Made by partners not^ binding on firm unless partner had authority so to contract. See Co-partners 1. — For insurance — Depending on cor- respondence — Distinct offer and accept- ance necessary. See Insurance 12. — On demise of an unfurnished house there is no implied contract that it is tenantable. See Landlord and Tenant 2. — Contract to cut lumber — Vesting of property. See Eeplevin 4. — When required to be in writing by Statute of Frauds. Evidence adding to or varying not admissible. See Sale 2. — To pay freight — Implied, when owner got possession of goods. See Assumpsit 2. — Of Sale. What constitutes executed contract. See Property, passing of 2. -Safe carriage of passengers-Through 56 CONTROVERTED ELECTION'S ACT. CONVERSION. ticket — Injury on intermediate ferry owned by another company — Implied contract. See Railway Co. 6. Building contract — Enforcement of — Violation of city by-law — Liability of owner — Effect of by-law passed after contract was made. See Addenda 9 and 32. CONTRADICTORY EVIDENCE. Question for jury — Plaintiff and his witnesses. See Evidence 10. Contributory Negligence. See Kegligence. CONTROVERTED ELECTION'S ACT 1—PeHtlon— Surely— Defective affidavit of justification — Removal from files of court. The provisions of section 4, sub- sections 5 and 6, and section 5 of the Controverted Election's Act, (Co'nsol. Stat. cap. 5) are imperative and not merely directory, and where a petition was filed with an af&davit of the sureties to the recognisance which was defective in substance, it was held that an order •to remove the petition from the files of the court vj^as rightly made. Sub-section 6 of section 4, provides -that the sureties in all cases before ■entering into recognisance, severally justify by affidavit made before a per- •son authorized, etc., that they are sever- ally worth double the sums for which they are respectively bound by such recognisance, after payment of all their just debts. In this case the af&davit of each surety was in these words, — ' ' I am surety in the matter of, etc, that the sum about to enter into a recognisance as a for which I shall be bound by such recog- nisance is that of five hundred dollars. That I am worth at least double the sum for which I am bound by such recognisance, after payment of all my just debts." Held, by Allen, C.J., and Weldon, Palmer, and King, J.J., that the affidavit was ambiguous, and therefore defective. Held, by Wetmore, J., that as at the time the affidavit was made the surety had not entered into any recognisance, and was therefore not bound in any amount, it could not be read as stating that the surety was worth any amount, and was clearly bad. Lynds v. Turner ; Hoarv. Lewis, vol. 22, 286. 2 — Petition under Consol. Stat. cap. 5 — Resignation of respondent— Whether peti- tion thereby abates. Where a member elected to the Local Legislature against whom a petition has been presented under the Consol. Stat. cpa. 5, relating to controverted elections, voluntarily resigns his seat, the petition is thereby abated, and a judge has no power to proceed with the trial. Sayre v. Le Blanc, vol. 23, 147. — Dominion. See Dominion Contro- verted Elections Act. CONVERSATION. When admissible the papers spoken of are also admissible. See Sale 3. Between husband and wife. See Mar- ried Woman 2. CONVERSION. 1— Of goods— Waiver of Tori— Action for goods sold and delivered— Money had and received— Particulars of demand. Plaintiffs and defendant negotiating about the sale of lumber, they write to him offering to sell at a certain price. Before the receipt of this letter the defendant's servant without his know- ledge shipped the merchantable part of the lumber. In answer to the letter the defendant offered to give the price asked for so much of the lumber as was mer- chantable and a lesser price for the rest CONVEYANCE. CONVICTION. 57 which offer the plaintiffs refused. The defendant admitted that he had got returns for the lumber shipped. In an action for goods sold and delivered, and also for money had and received. Held, that an action for goods sold and delivered would not lie. The plaintiffs' particulars claimed for a quantity of lumber at a certain price but made no reference to either of the counts of the declaration. Held, sufficient to entitle the plain- tiffs to claim under the count for money had and received, as they gave the defendant substantial information of the plaintiffs demand. Flewelling v. Lawrence, vol. 21, 529. — When goods were delivered under a verbal agreement which was not ful- filled. See Trover 2. — What constitutes, when property held subject to a lien for charges. See Trover 3. — Third party having property. See Agreement 1. — Sale of property by one defendant and purchased by another, evidence of a joint conversion. See Trover 5. CONVEYANCE. 1 — Reservation of life estate in portion of land conveyed— Whether good. A. the grantee of a lot of land distin- guished as lot No. 10, containing 100 acres and described by metes and bounds, made a conveyance to B. in the following words : — "All that certain lot or parcel of land situate and bounded as follows: (describing it by same courses and bounds as in the grant,) containing 100 acres more or less distinguished as lot No. 10, reserving for himself (the said A.) the east half of the said lot No. 10 from the front to the rear during his natural life, then after his decease the said east half of the said lot reserved to revert and return to B., his heirs and assigns. Habendum, the said lot and parcel of land thereby granted be or meant and intended so to be, and every part thereof with the appurtenances unto the said B., his heirs and assigns for ever. A. afterwards conveyed all his right, title and interest in lot No. 10 to the plaintiff. Held, that the exception in the deed to B. was not repugnant to granting part of the deed and that the east half of the lot was reserved to A. Quaere, Whether a life estate in A. could be created by the exception in the deed. If it could not, the title to the east half of the lot remained in him as it was before the deed to B., and in either case his right vested in the plaintiff. Bennet v. Murdocle, vol. 20^ 317. — Must be prepared by vendor of land. See Sale of Land 3. — When conveyance void, agent ex- ceeding authority. See Power of Attorney. CONVICTION. Admissible in evidence, though de- fective. See False Imprisonment 1. — Joint indictment — Where jury dis- agree as to guilt of one prisoner and find the other guilty. See Criminal Law 8. — Joint conviction — Partners — Pen- alty must be separate. See Summary Conviction Act, 21. — Before a Justice of the Peace, to what court to be returned. See Justice of the Peace 1. — Conviction by Supreme Court of Nova Scotia — Warrant to commit. See Warrant 1. — Whether court has power to amend where penalty imposed is greater than Canada Temperance Act authorizes. See Canada Temperance Act 9. — Disqualifying interest in justice. See Justice of the Peace 3. 58 CORONER. COSTS. — Justification under. See Canada Temperance Act 19. — Uncertain as to time of offence. See Canada Temperance Act. — Under Seaman's Act. See Seaman's Act, 1873. See Summary Convictions Act. COPY OF PROCEEDINGS. Not necessary on an application for a certiorari — The substance should be set out. See Certiorari 3. Co-partners — See Partners— Partner- ship. 1 — Money borrowed by one partner — Lia- bility of firm for. Held, by Allen, C.J., and Wetmore and Duff, 3.3., that the mere fact that money borrowed by a member of the firm has been applied to partnership purposes, is not sufficient, of itself, to render the firm liable, at law, to repay it when there is no actual or implied authority to borrow, and there has been no ratification of the loan. The auth- ority of one partner to bind the others by his contracts, is a branch of the law of agency ; and the test of the partner- ship liability is — not whether the money came into the business of the firm, but whether the partner had any authority, express or implied, to borrow it. Held, by Weldon and Fisher, 3.3., that where money belonging to the plaintiff was received by one partner, and by him handed to the cashier of the firm, who deposited it in a bank to the credit of the firm, plaintiff was entitled to recover it from the firm, irrespective of what might be the private agreement between the partners, Robertson v. Jones, & Co., vol. 20, 267. CORONER. When venire may issue to. See Chal- lenge 1. Fees — Mandamus to compel munici- pality to pay. See Mandamus 2. CORPORATION. Not liable for doing what by law they are directed to do. See Assessment 3. — Of&cial of — Cash book kept by — Entries showing balance against self — Admissions to auditors. See Evidence 14. — Municipal — Committee appointed withspecifio duties--Extent of authority. See Principal and Agent 2. —St. John^ — Power to raise level of street and erect fence. See Addenda 40- CORPUS. Whether it should be sold to pay annuities. See Will 3. CORRESPONDENCE. Contract for insurance depending on — Offer and acceptance. See Insur- ance 12. — Letter — Making evidence for one's self. See Evidence 9. — Contract by — Construction of. See Contract 9. COSTS. 1 — Certificate for — Action for assault — Where plaintiff does not recover over $100— Refusal. In an action by a constable against defendants for assaulting him while endeavoring to arrest a person against whom he had an execution, the jury gave a verdict for the plaintiff for 883 damages. Held, by Allen, C.J., and Weldon, Fisher and Duff, JJ., (Wetmore J., dissenting) that the judge who tried the cause was right in refusing to certify for costs. Tail v. Sherrach, vol. 19, 93. COSTS. COSTS. 59 2— Certiorari to remove a rate levied under St. Jolin Assessment Act, 1859 — Dis- charging rule for, Where grounds pre- vtously decided. Section 114 of Chapter 100 of the Consolidated Statutes which authorizes the court in discharging any rule for a certiorari to remove any rate to award costs against the person or persons obtaining such rule, applies to cases where the rate is levied under the St. John Assessment Act, 1859. Where the grounds upon which the rule for a certiorari to remove a rate had already been decided by the court, the rule was discharged with costs. JSx parte Jones, vol 19, 104. 3 — Of the day — Witnesses fees — Several suits by same plaintiff. Where the trials of two causes at the suit of the same plaintiff against dif- ferent defendants are put off on the payment of costs 'of the day, and the same persons attend as witnesses in both the cases, plaintiff is entitled to tax their mileage and attendance in both cases. Chapman v. Providence W. Ins. Co. Same v. Delaware H. In. Safety Ins. Co., vol 19, 496. 4 — Taxation of — Where takes place on different day from that appointed— Exe- cution. On a motion for an execution against defendant for non-payment of costs on setting aside an attachment, it appeared that the clerk's appointment to tax was on the 8th while the taxation actually took place on the 10th. It did not appear that defendant was represented at the taxation, nor was any explana- tion given of the taxation taking place on a later day than that appointed. The court were equally divided as to whether the taxation was sjif&cient to entitle plaintiff to the execution Maclellan v. Barnes, vol 19, 590. 5— Consolidated Statutes, cap. 51, sec. 50 — Certificate for — Award-Conclusiveness as to amount of demand. An action of assumpsit for work and labor, brought in the Supreme Court, was referred to arbitrators who awarded the plaintiff a sum less than S200. Held, per Weldon, Fisher, Wetmore and Palmer, J.J,, (Duff, J., dissenting) on an application for a certificate for costs under Consol. Stat., cap. 51, sec. 50, that if upon the whole evidence there appeared reasonable ground for bringing the action in this court, the amount of the award was not conclusive as to the amount of the demand, though the evi- dence as to the amount was conflicting, and that a certificate should be granted . Per Duff, J., that if the evidence as to the amount of the demand was con- flicting, and the award was consistent with any view of the evidence, it was conclusive as to the amount of the demand and no certificate should be granted. Smith et al v. Morrissey, vol. 20, 1. 6— Of showing cause against rule nisi for new trial not taxable where plaintiff reduces his verdict on one count to nom- inal damages rather than submit to new trial — Notice of motion — When neces- sary. The plaintiff in accordance with the terms of the rule of this court made on motion by the defendant for a new trial, consented to reduce his verdict on the 5th count to nominal damages rather than submit to a new trial. Held, that as he was substantially unsuccessful in resisting the applica- tion for a new trial, he was not entitled to the costs of showing cause against the rule nisi. Semble, where the clerk refuses to tax costs claimed by the plaintiff, the latter need not give notice of motion to 60 COSTS. COSTS. review the taxation. Derry v. Derry, vol' 20, 90. 7 — Execution for Consolidated Statutes, cap. 38, sec. 27 — Court cannot give execution against a corporation. Section 27 of Chapter 38 of Consoli- dated Statutes does not authorize the court to grant an execution against a corporation for the non-payment of costs ordered to be paid. Chapman v. The Providence W. Ins. Co., vol. 20, 91. 8 — Appeal — Attactiment. Plaintiff sued defendant in the county court and was nonsuited. The nonsuit was set aside with costs on appeal. Plaintiff applied for an attachment under Consol. Stat., cap. 38, see. 26, for non-payment of the costs. Held, the court had no power to grant the attachment. Law v. Harding, vol. 20, 120. 9 — Certificate for — When parly suing in Supreme Court, and not recovering more ilian might have been recovered in County Court. The plaintiff having made use of abusive language to the defendant, the latter laid an information before the police magistrate of Portland, upon which a warrant issued, and the plain- tiff was arrested and imprisoned in the look-up for several hours before he obtained bail. He was afterwards con- victed, bat the conviction was set aside. The plaintiff paid out thirty dollars for expenses in procuring his discharge. In an action against the police magistrate the plaintiff recovered one hundred and fifty dollars. The right of the magis- trate to issue the warrant, and his right to try the complaint were both raised by the pleadings. The question of granting a certificate for costs, having been referred to the Court, it was held by Weldon, Wetmore and Duff (Allen, ex., and Palmer, J., dissenting), tha this was not a case in which a certi£cate should be granted. Robinson v. Clarke, vol. 20, 156. 10— Insolvent Act of 1875— Sec. 95— Power to award — Appeal. Held, on appeal, that the County Court Judge had power to award costs under section 95 of Insolvent Act of 1875, against the assignee on his contes- tation of a claim filed against the estate ; and as the judge had such power, the appeal was dismissed, it being a well settled rule of practice that an appeal will not be allowed on a question of costs. Tait V. Dowling, vol. 20, 265. 11— Demurrer — Taxation of costs while other issues are pending — Setting aside taxation. When the plaintiff obtained judgment on demurrer under the Rule of Michaelmas Term, 9th Victoria, because the defendant had not delivered demur- rer books, and taxed his costs under the 208th section of cap. 37 of the Consol. Stat. And there were at the time of taxation issues in fact to be disposed of, the court set aside the taxation on the ground that the costs of the demurrer should not have been taxed until the final determination of the case. Ander- son V. Fawcett, vol. 20, 82. 12— Attachment for— Delay in applying for attachment — Costs taxed on day other than that apnointed for taxation— Irreg- ularity — When court will grant attach- ment. When as appeared by the clerk's allocatur, costs were taxed on a day later than that named in the clerk's appointment for taxation, and no expla- nation of the irregularity was offered, the court refused an attachment for contempt in not paying the costs so taxed. COSTS. COSTS. 61 In Hilary Term, the plaintiff applied for an attachment for non-payment of costs taxed on a rule of court of the pre- ceding term. The application was withdrawn, it being doubtful whether the allocatur which was in the clerk's handwriting expressed the amount to be 877.70, or $27.70. The application was renewed in Easter. Held, by Weldon, J., that the second application was too late ; but by King, J., that neither the lapse of a term nor the absence of an af&davit accounting for the delay, was an objection to the appli- cation as the facts were within the knowledge of the court, and the delay was not caused by the fault of the plaintiff. Held, by Weldon, J., that as the application was against one of two defendants, and no reason was shown why a demand for payment was not made on the other defendant, the attachment ought not • to be granted. Sinclair v. Sinclair, vol. 20, 566. 13 — Certificate for — Where action is in this court and jury find less than $100 — Title to land not brought in question — Certifi- cate granted. The defendant having leave to cut lumber on land adjoining the plaintiff's, was warned by the plaintiff to be care- ful that he did not cut on his land. The defendant paid no attention to the warning, and took no trouble to ascer- tain where the line was, but told his men to continue cutting, saying that he would make it all right. In an action brought for the trespass, the defendant did not question the plain- tiff's title. The plaintiff recovered less than 9100. The Chief Justice granted the plaintiff a certificate for costs. Held, by Allen, C.J., and Weldon and Duff, J.J., (Wetmore and King, J.J., dissenting) that the certificate was right- ly granted. Carnier v. McKee, vol. 21, 1. 14— Court below— Appeal. Direction as to costs not a ground of appeal even though this court might not have come to the same conclusion as the court below. Merrit v. Wright, vol. 21, 135. 15 — Of the day — Affidavit not disclosing that the cause was at issue — Where cause had been noticed for trial and entered at the circuit — Court will presume cause was at issue. The plaintiff gave notice of trial and entered the cause on the docket at the circuit. An application to set aside a rule for costs of the day for not pro- ceeding to trial, was made on the ground that the af&davit on which the rule for costs was obtained did not show that the cause was at issue. Held, that as against the plaintiff the court must presume that the cause was at issue. McCarthy v. Providence W. Ins. Co., vol 21, 165. 16— Death of judge before certificate granted. Certificate for — Where judge who tried the cause has died without giving the plaintiff a certificate for costs, he is without remedy, as another judge can- not grant the certificate. Nicholson v. Temple, vol. 21, 192. 17— Taxation of— On a day other than that appointed for taxation — Review of. When it appeared that the clerk by his appointment to tax costs obtained by the plaintiff, appointed the 8th &b the day for the taxation, and the costs were not taxed until the 10th, and it did not appear that the defendant was represented at the taxation, and no explanation was given of the taxation taking place later than that appointed, the court made absolute a rule to review the taxation. McLellanv. Barnes, vol. 21, 226. 62 COSTS. COSTS. 18 — Offer to suffer judgment by one of sev- eral defendants in trespass — Of making cause a remanet part of the general costs of the cause — Affidavit for taxation of witness fees — Sufficiency of — Cost of writing letters to each of several defend- ants—Whether taxable— Costs of dis- charging rule where point raised is new. Where in an action of trespass one of several defendaiits offered under Con. Stat., cap 37, sec. 127, to suffer judg- ment by default for $50, and the plain- tiff recovered against all the defendants for that sum. It was held that the plaintiff was entitled to costs against all the defendants. The cause had been made a remanet at the circuit preceding that at which it was tried. A new trial was granted on payment of costs. On the second trial the plaintiff again had a verdict. Held, that the plaintiff was entitled to the costs of making the cause a remanet as part of the general costs of the cause. The affidavit of the attendance of ■witnesses stated that a paper annexed *' was a statement of the number of the witnesses who attended for the plaintiff on the trial of the cause, the number of the days each one travelled, and that the plaintiff believed they were material and necessary witnesses." Held, sufficient (Allen, C. J., doubting.) Semble, that the plaintiff is entitled to the costs of sending a letter to each of several defendants. The point raised being new, the rule was discharged without costs. (Wet- more and Palmer, J. J., dissenting.) Gognon v. Chapman, vol. 21, 251. 19 — Of acquitted defendant — Joint action of Tort — Time for taxing. An acquitted defendant in a joint action of tort is prima Jacie entitled to | an aliquot portion of the joint costs though all the defendants appeared by the same attorney and counsel and pleaded jointly. The acquitted defendant's costs should be taxed at the same time the plaintiff 's costs are taxed. Keenan v. Trustees re Baptist Church, vol. 22, 11. 20 — Trespass to land — Action in Supreme Court— Offer to suffer judgment by default for $8— Whether plaintiff entitled to full costs. In an action for trespass to land brought in the Supreme Court, defen- dant filed an offer and consent to suffer judgment by default for S8. Held, by Allen, C.J., and Weldon, Palmer and King, J. J., (Wetmore, J. dis- senting) that in order to deprive plain- tiff of full costs, and bring him within the provisions of the Act, 45 Vic, cap. 9, sec. 7, the onus was on the defendant of showing that the action could have been brought in the county court and that the title to land was not in dispute. Cornell v. McLeod, vol. 22, 310. 21 — Taxation of — Without notice — Where defendant only pleads to. one count of declaration — Judgment — Setting Aside of. A declaration contained two counts, to only one of which the defendant pleaded, and plaintiff therefore had his costs taxed without notice to the defendant's attorney and signed judg- ment on the other count for want of a plea. Held, irregular, as notice of taxation should have been given, and the judg- ment was set aside with costs. Deforest V. Holland, vol 23, 411. 22- Reserving question of allowance of costs — Appeal. Where a judge in equity reserved the question of costs on refusing to COSTS. COSTS. 63 make an order for imprisonment for breach of an injunction order, it was held that the court on appeal could make no order concerning the costs in the court below. Sayre v. Harris, vol. 18, 677. 23 — Action in Supreme Court — Wliere amount recovered is wltiiin the jurisdic- tion of county court — 45 Vic. cap. 9, sec. 7. If in an action in the Supreme Court the plaintiff recovers an amount within the jurisdiction of the county court, the costs of the proceedings are to be taxed under the Act, 45 Vic. cap. 8, according to the scale of fees in county courts ; and not county court costs only. Good V. Merrithew. vol. 24, 160. 24 — Telegrapii company — Cutting trees— Justification under Act of incorporation- Title to land— Costs. In trespass for cutting trees, the defendants (a Telegraph Co.) justified the cutting under an Act of parliament, authorizing them to enter on land and cut trees, if it was necessary to do so, for the purpose of constructing their line ; and this was the only issue in the case. A verdict having been found for the plaintiff for less than 8200 damages, the court were equally divided in opinion whether on this issue the title to land was in question, and whether the plain- tiff was entitled to Supreme Court costs under the Act, 45 Vic. cap. 9, sec. 7. Taylor v. The Dominion Tel. Co. ; Ray- mond v. The Dominion Tel. Co., vol. 24, 337. 25— St. John City Court — Costs — Tax- ation of. In actions in the St. John city Court, the city alderman and common clerk should tax the costs of the successful party at the time of giving judgment. Where a judgment was signed on the 22nd November, including in the costs an amount paid for witness' fees, and there was no affidavit made of the pay- ment of the fees to the witness, as required by the Consol. Stat, cap, 119, until the following day, the court, on review, reduced the judgment by the amouAt taxed for witness fees. Inter- colonial Express Co., v. McKensie, vol. 24, 616. 26— When costs on appeal not allowed— Decision of county court judge on case overruled. Costs not allowed on appeal from the county court, where the judge had decided on the authority of a case in this court, which was overruled on the appeal. Bussel, Appellant, and Buckley, Respondent, vol. 25, 264. 27— Security for costs— Nominal plaintiff insolvent. If the plaintiff in a suit is insolvent, and the action is brought solely for the benefit of a third person, the defendant will be entitled to security for costs. Gerow v. Providence W. Ins. Co., vol. 26, 279. 28— Summons not moved with costs. Costs will not be given on granting application when summons not moved with costs. Cullen v. Allen, vol. 25, 369. — Where plaintiff gives notice of hear- ing in equity suit, but does not attend, costs of the day should be ordered. Wilbur V. Jones, vol. 19, 536. —Costs as part of judgment — Whether discharged with debt. See Bankruptcy. — Should be allowed defendants, when trial postponed in order to allow name of defendant to be amended. See Practice 2. — Treble — Whether takes away com- mon law — Eemedy. See Insolvent Act 1. 64 COSTS. COUNTY COUET. — On conviction under Canada Tem- perance Act may be awarded against defendant. See Canada Temperance Act 2. — On action for slander where plain- tiff recovered ?8. See Slander 3. On motion to appeal from county court — Eefused. See Appeal 5. . — Refused on motion to amend Itule. See Amendment 1. — Court has no power to grant in dis- charging a rule nui for a certiorari unless such power is given by statute. See Certiorari 8. — Attachment for contempt of court — Interrogatories. See Attachment 7. — Eespondent may move to dismiss county court appeal with, if appellant does not appear when case is reached. See County Court Appeal 1. — The court on an appeal from a county court has no control over the costs in the court below. See County Court Appeal 3. v — Notice of motion for a new trial — Party not appearing to support motion. See Practice 11. — Of arbitration — Whether court has power to review. See Arbitration 1. — -Of execution for taxes — Arrest for, under second execution. See False Im- prisonment 8. — Of review from justices court — Where not in discretion of judge — Judgment " wholly reversed." See Dam- ages 2. — By reason of increased jurisdiction. See County Court 3. — Action in Supreme Court — Where amount recovered is within jurisdiction of county court. See Costs 23. — Of former suit — Second suit for 'same matter. See Stay of Proceed- ings 2. — Costs in equity — Eight of court of appeal to vary. See Injunction 3. COUNCILLORS. Of parish — When they may appoint an officer to fill vacancy. See Parish Officer. COUNSEL. Where defendants appear by same attorney and are represented by sep- arate counsel — Whether both counsel have right to cross examine witnesses and address the jury. See Practice 6. — Bight to examine witness on matters brought out on cross examination. See Ships' Husband. — Argument of — Whether parties to suit bound by. See Practice 16- ^Agreement at trial — Power of court to depart from. See Practice 14. — Admission of — How far client bound by. See Master and Servant 2. — A party arguing his own cause can- not be heard by. See Bankruptcy. COUNTY COURT. 1 — Replevin — Jurisdiction — Statement of value of goods necessary in declaration — Power of court to give judgmenL In actions of replevin in the county court, the declaration should shew that the value of the goods does not exceed $200, otherwise it will be demurrable. Though a county court has no juris- diction to try a cause, it may neverthe- less give judgment for the defendant on that ground with costs. Morrice, Appel- lant, and i'isher, Eespondent, vol. 25, 1. 2— Acceptance to offer to suffer judgment by default for $8 — Costs. Where in an action for debt in the county court, the plaintiff accepted an offer of the defendant to suffer judgment by default for $8, the court was equally divided as to whether the costs neces- sarily followed the judgment, or whether COUNTY COURT. COUNTY COURT. 65 the plaintiff's right to costs depended upon his having reasonable ground for bringing the action in the county court. Fraser, Appellant, and Ullock, et al, Exe- cutors, Bespondent, vol. 25, 55. 3 — Offer to suffer judgment — Notice of, be- fore filing Act, 45 Vic. cap. 9 — Additional costs by reason of increased jurisdiction. An offer and consent to suffer judg- ment by default under the Consol. Stat. cap. 37, sec. 127, must be filed in the clerk's office before giving notice of it to the plaintiff. Per Wetmore, J., that the Act, 45 Vic. cap. 9, giving additional costs by reason of increased jurisdiction, applies to the successful party, whether plaintiff or defendant. Chestnut, Appellant, and Doyle, Respondent, vol. 25, 505. 4 — Jurisdiction — City court of St. John having. In an action brought in the King's county court, it appeared on the trial that the sum claimed did not exceed $80, and the cause of action arose in the city of St. John, and that the plain- tiff and defendant both resided there. Held, that the county court had no jurisdiction, the city court of St. John having jurisdiction in such a case, to the exclusion of the county court. Thompson, Appellant, and Sivwnson, Eespondent, vol. 25, 122. 5— County Court Act section 44— Abate- ment of suit. An action brought in a county court by a female does not abate by her mar- riage. White, Appellant, and Eiley Bespondent, vol. 24, 476. 6— Jurisdiction in action of tort— Damages — Abandonment— Action for escape — Proof of drainage. S.D. The writ and particulars in an action in a county court against a sheriff for not arresting D. on a capias, and for a false return of non est, claimed $200 damages. In order to prove the damage he had sustained by the neglect to arrest D., the plaintiff testified that he had lost his debt of 8393. The jury gave verdict for $150. Held, (Wetmore, J., dissenting), 1 That as the writ and particulars shewed the case to be within the jurisdiction of the court, it was not taken away by the plaintiff's statement that in consequence of the sheriff's neglect to arrest D. he had lost the amount of his debt which exceeded the jurisdiction in actions of tort. 2. That the power given to a plaintiff by Consol. Stat. cap. 51, gee. 41, to abandon part of his claim, did not apply to actions of tort. 8. That to sustain the action, the plaintiff must prove actual damage, or delay of his suit ; .and in the absence of such evidence, the verdict for |150 could not stand, as the jury might have been influenced by the plaintiff's statement that he had lost his debt by the neglect to arrest D. Chapman, appellant, and Doherty, respondent, vol. fe^ 271. 7 — Pleading — General issue. Held, (Palmer, J., dissenting), that non assumpsit was a good plea in an action on a promissory note in a county court ; that neither the provisions of the Consol. Stat. cap. 37, relating to plead- ing, nor the Aet, 43 Vic. cap. 8, applied to county courts ; and that whatever was the general issue in suits in these courts before the Act, 36 Vic. cap. 31, could still be pleaded. McCatherine v. Lewis, vol. 25, 429. — Bemitting caifte to Supreme Court where title to land is brought in ques- tion. See Trespass 10. 66 COUNTY COUET APPEAL. —Power to give costs. See Appeal 5. —Plea of never indebted — Whether applicable to county courts. See Plea 4. COUNTY COURT APPEAL. 1— Where appellant does not support— Dis- missing appeal. A cause having been entered on the county court appeal paper before it was reached, the counsel for appellant and for respondent appeared in the case, and when the respondent's counsel requested that the case be heard out of its turn, the appellant's counsel stated that he did not intend supporting the appeal. The respondents' counsel then asked to have it struck off the paper, which was ordered accordingly without ob- jection. HeW, that the respondent was entitled on the next common motion'day to have the appeal dismissed with cost. Burns V. Botsford, vol. 19, 5. 2— Dismissal of— Rule 2 Mich. T. 40 Vic. If the appellant in a county court appeal does not appear when the case is reached on the paper, the respondent may move to dismiss it with costs, and is not obliged to wait until a common motion day. (VVetmore, J., dissenting.) McLcllan v. Bankine, vol 22, 146. 3— Rule — Where Appeal allowed — Costs. Where an appeal is taken to the Supreme Court from an order of a county court judge granting a nonsuit, and the Supreme Court directs that the nonsuit be set aside, it is not necessary for the rule to go farther than state that the court allows the appeal and orders that the nonsuit granted in the court below be set aside. Eastabrooks v. Mc- Gowan, and Ward v. Beed, vol. 22, 455. COUNTY COURT APPEAL. 4— Omission of appellant's attorney to enter cause on the appeal paper.— Dismissing A defendant in a county court case having given the bond and completed the other proceedmgs necessary for an appeal, afterwards attended at the clerk's of&ce to enter the cause on the appeal paper, but was unable to do so because the judges of the county court had not returned the proceedings. At the next term he again attended for the same purpose, but being still unable to enter the cause he requested the deputy clerk to do so when the return should be filed. A few days afterwards the return was filed but the deputy clerk forgot to enter the cause, and on the last day of the term on application of the respondent, the appeal was dismissed because the cause had not been entered! Held, that the order dismissing the appeal was regular ; that it was the duty of the attorney to see that the cause was entered, and having made the deputy clerk his agent for that purpose, he was responsible for the clerk's omission. Ferguson v. Savoy, vol 23, 87. 5— Entry of Appeal— Summary Conviction Notice of appeal in service of — Duty of judge to hear Mandamus. Under the Dominion Act, 33 Vic. cap. 27, it is sufficient to serve a notice of appeal on the convicting justice with- out stating that it is for the prosecution. If the appellant has taken the proper steps to perfect his appeal under the Act, it is the duty of the clerk of the county court to make any necessary entry of the appeal, and the judge of the court cannot refuse to hear the appeal because the appellant's attorney has entered it without authority and im- properly named a party as respon- dent. COUNTY COURT APPEAL. CREDIT. 67 The judge may direct how an appeal should be entered. Ex parte Doherty, vol. 25, 38. 6— County court appeal— Dismissal wliere appellant neglects to appear — Subsequent leave to hear. Where an appeal was dismissed because no counsel appeared to sup- port it when it was reached on the paper, the court was equally divided on an application in the following term to restore the case to the paper,' and to allow the appeal to be argued. The only ground for the application being, that the appellant's counsel had forgot- ten to attend at the proper time. Quaere, whether after an appeal had been dismissed, the court had power to restore it to the paper. South-West Boom Co., V. Farley, vol. 25, 41. 7 — Judge certifying proceedings — Time within which appellant must apply for — Bond on appeal— Perfecting of— Notice of to judge. A county court judge cannot refuse to certify proceedings on appeal to the Supreme Court, although the appellant does not apply to him to do so until more than thirty days have elapsed after the filing of the bond with the clerk. Held, by Allen, C.J., and Fraser, J., (Weldon and Wetmore, J.J., dissenting) that when a party is desirous of appeal- ing from the decision of the county court, it is his duty to furnish the judge with evidence that the bond on appeal has been perfected and deposited with the clerk. Ex parte Clarke, vol. 24, 128. 8— Return of proceedings— If defective- Amendment. If the return on an appeal from the decision of a judge of a county court omits to state any of the grounds taken before the judge, and intended to be relied on by the appellant, he should apply to have the return amended. Woods, Appellant and McCann, Respon- dent, vol 25, 253. 9 — Grounds available on agreement. On an appeal from an order of a, county court judge, the appellant will be confined to the objections taken in the court below, as stated in the return. Harriett, appellant, and Wry, respon- dent, vol. 25, 258. Quaere — Whether the proceedings under the Garnishee Act, 45 Vic. cap. 17, are the subject of an appeal under the County Courts Act, Consol. Stat. cap. 51, and whether they should he brought up by certiorari. Ibid. COUNTY COURT JUDGE. Jurisdiction of —Under Seaman's Act 1875. See Ship 1. — Review — Where j adge does not exceed his jurisdiction — Whether certio- rari will lie. See Certiorari 9. COUNTERFEIT NOTES. False pretences — Obtaining money by. See Criminal Law 6. COUNTERSIGNING. Policy of marine insurance issued by foreign corporation — Whether counter- signing by agent may be waived. See Insurance 14. COUPONS. Interest on, is not recoverable. See Debentures. CREDIT. To whom given — Evidence. See Evi- dsnoe 20. 68 CEIMINAL LAW. CREDITORS' ASSIGNEE. Title is derived from sheriff in case of compulsory liquidation. See Insolvent Act of 1869, 2. — Necessity of calling meeting of, to consider consent to discharge. See Insolvent Act of 1875. Trust deed — Assent of trustees. See Deed 2, 3, 4. CRIMINAL LAW. 1— Indictment -Omission of word "felon- iously" — Effect of — Reserving question for consideration of court— Words " dur- ing trial in Rev. Stat. cap. 129, sec. 22. An indiotment|charged that the " pris- oner did steal, take and carry away,'' etc., v?ithout charging that it was done feloniously. Before pleading, the pris- oner's counsel moved to quash the in- dictment. After argument, the presid- ing judge allowed the indictment to be amended under 3a & 33 Vic, cap. 29, sec. 32, by adding the word " felon- iously." The prisoner was found guilty upon the amended indictment. Held, on a case reserved that the indictment without the "feloniously" was bad. Held, by Allen, C.J., Weldon, Fisher and Duff, JJ., (Wetmore, J. dissenting) that although the objection to the indict- ment in this case was taken before plea pleaded, and that technically the trial does not begin till after the prisoner has pleaded to the indictment, and the jury are being called and sworn, yet that such a liberal construction should be put upon the words " during the trial " in Bev. Stat., cap. 159, sec. 22, Consol. Stat., p. 1088, that the provisions of this chapter relating to reserving ques- tions for the consideration of the court should be held to apply to any of the proceedings in ijhe court below after the CEIMINAL LAW. indictment has been found. Regina v. Morrison, vol. 18, 682. 2— New trial— Right of crown. A new trial will not be granted to the crown in a criminal cause ; neither has the crown an appeal to the Supreme Court of Canada from a, judgment quashing a conviction. Tfte Queen v. Tower, vol. 20, 168. 3— Acts of Canada 32 & 33 Vic, cap. 21 — Larceny of an unstamped promissory note — Wliether valuable security within the meaning of the Act. Held, by Allen, C.J., Duff and King, JJ., (Weldon and Wetmore, JJ., dis- senting) that an insufficiently or defect- ively stamped promissory note, the holder being ignorant of the insufficiency of, or defect in the stamping, may be the subject of larceny, as a valuable security under the Act, 32 & 33 Vic. cap. 21, see. 15. Regina v. Dewitt, vol. 21, 17. 4 — Jury — Separation of, during trial— What sufficient to avoid verdict — Order under cap. 41, Consol. Stat. — Court can inquire into facts although return shows prisoner to be properly in custody. The prisoner was tried before the York county court on a, charge of lar- ceny and found guilty. During the trial the jury, while in charge of two con- stables, were allowed to separate by walking on different sides of the street. One or two other separations of a similar nature were complained of, but there was nothing to shew that any of them had any conversations ^ith any person, not a juror, in reference to the case. This was brought to the notice of the county court judge, and an application was made to him to delay passing sen- tence, and to treat the verdict as a nullity. This application was refused, CRIMINAL LiW. CEIMINAL LAW. 69 and the prisoner was sentenced and re- manded to jail, pending his removal to the penitentiary. An order to the keeper of the gaol having been obtained under the provisions of cap. 41 of the Oonsol. Stat., upon the return of this order, Held, by Allen, C.J., Wetmore, Duff, and Palmer, JJ., (Weldon and King, JJ., dissenting) that the separation of the jury was such as to avoid the ver- dict. Held,'hy Allen, C.J., Wetmore, Duff and Palmer, JJ. (Weldon and King, JJ., dissenting), that although the return of the gaoler shewed that the prisoner was properly in custody under the sen- tence of a court of competent jurisdic- tion, the court has power to inquire into the facts of the case, and that the prisoiier is not bound to proceed by a writ of error. Ex parte Ross, vol. 21, 257. 5— Indiciment — Misjoinder of counts — Amending reserved case. An indictment contained two counts, one charging the prisoner with murder- ing M. on the 10th November, 1881 ; the other with manslaughter of the said M. on the same day. The grand jury found " a true bill." A motion to quash the indictment for misjoinder was refused, the counsel for the prosecution electing to proceed on the first count only. Held (Palmer, J., dissenting), that the indictment was sufficient. The prisoner was convicted of man- slaughter in killing his wife, who died on the 10th November, 1881. The im- mediate cause of her death was acute inflammation of the liver, which the medical testimony proved might be occasioned by a blow or a fall against a hard substance. About three weeks before her death the prisoner had knocked his wife down with a bottle. She fell against a door, and remained on the floor insensible for some time. She was confined to her bed soon afterwards and never recovered. Evidence was given of frequent p,ots of violence com- mitted by the prisoner upon his wife within a year of her death, by knocking her down and kicking her on her side. Held, per Allen, C.J., Wetmore, Duff and King, JJ. (Palmer, J., dissenting), that there was evidence to leave to the jury that the disease which caused her death was produced by the injuries in- flicted by the prisoner, and that the evidence of violence committed within a year of the death was properly received. Where it was objected at the trial that there was not evidence against the pri- soner to leave to the jury, but the judge was not asked to reserve the point, the case reserved was allowed to be amended at the argument in order to raise the point. (Weldon and Wetmore, JJ., dis- senting). Regina v. Theol, vol. 21, 449. Appeal to Supreme Court of Canada dismissed. See Addenda No. 11. 6 — False pretences — Obtaining property by — Whetlier necessary to complete tlie offence. The prisoner wrote to the prosecutor to induce him to buy counterfeit bank notes. The prosecutor in order to en- trap the prisoner and bring him to jus- tice pretended to assent to the scheme, arranged a meeting, of which he in- formed the police, and had them placed in position to arrest the prisoner at a signal from the prosecutor. At such meeting the prisoner pro- duced a box which he said contained counterfeit bank notes, which he agreed to sell the prosecutor on payment of a sum agreed upon. The prisoner gave a box to the prosecutor which he pre- tended to be the one containing the notes, who then gave the prisoner $50 and a watch as security for the balance which he had agreed to pay. 70 CEIMINAL LAW. The prosecutor immediately gave the signal to tbe police and seized the prisoner and held him until they arrested him, and took the money and watch from him. On examining the box given the prosecutor, it was ascertained that the prisoner had not given him the one containing the notes as he pre- tended, but a similar one containing waste paper. The box containing the notes was found on the prisoner's person. It was cl^ar and undisputed that the motive of the prosecutor in parting with the possession of the money and watch, as he had done, was to entrap the prisoner. The prisoner was found guilty of obtaining the money and watch of the prosecutor by the false pretence of giving him the counterfeit notes, which he did not give. On a case reserved for the opinion of the court, Held, by Allen, G.J., and Palmer, J., that in order to complete the crime of obtaining property by false pretences, there must not only be the false pre- tence but an actual parting, and inten- tion to part with the property of the party imposed upon by the pretence ; that the prosecutor here never intended to part with his property in the money and watch, and that the conviction should be quashed. They were also of opinion that as the prosecutor only expected to receive from the prisoner counterfeit notes, which were of no value, it was extremely doubtful whether he could be said to have been defrauded because he received worthless goods of another kind. Held, by Weldon, Wetmore, King and Fraser, JJ., that the prisoner was rightly found guilty, and that the con- viction should be affirmed. Regina v. Ca^ey, vol 22, 543. CRIMINAL LAW. 7— Indjclment— Assault— Warrant,— Where irregular — Justification to officer —Atlacli- ment. A prisoner was found guilty on an indictment charging that he made an assault upon A., " and him, the said A. did beat, wound and ill-treat," etc. There was no evidence of any wound- ing. Held, by Weldon, Wetmore and King, JJ., that the indictment was substan- tially one for a common assault, and that the conviction was right. Where a county court has jurisdiction to issue a warrant of commitment for contempt under the Gonsol. Stat. cap. 38, sec, 20-22, the warrant, though irregular, is a justification to the of&cer for arresting the party under it, and he is guilty of an assault if he resists the of&cer. S. was served with an order to appear before a commissioner to be examined under the Consol. Stat. cap. 38, sec. 20, and neglected to appear. A notice was afterwards served upon him that an application would be made to the county court on a certain day, for an attachment against him for contempt in disobeying the order of the commis- sioner. S. did not appear in the county court pursuant to this notice, and the judge thereupon ordered an attachment to issue against him, directing him to be imprisoned for thirty days for his contempt. ' Held, per Weldon, Wetmore and King, JJ., (Palmer, J., disssenting) that the county court had power to issue the attachment — that the direction in it to imprison S. for thirty days was at most an irregularity ; and that he was not justified in resisting the officer in executing it. Per Palmer, J., that the attachment was a nullity ; that the court had no authority to order S. to be imprisoned for thirty days ; and that he was justi- CKIMINAL LAW. CRIMINAL LAW. 71 fied in resisting his arrest. Regina v. Shannon, vol. 23, 1. 8— Joint indictment — Where jury disagree as to guilt of one 'prisoner and find the other guilty — Conviction —Whether war- ranted. H. and W. were jointly indicted and tried for stealing. On the trial H. was found guilty, but the jury were unable to agree upon a verdict as to W., and were discharged from giving a verdict as to him. Held, that the verdict warranted the conviction of H. Regina v. Hamilton and Walsh, vol. 23, 540. 9— Previous acquittal of principal felon— When no defence— Indictment— Amend- ment. On the trial of the prisoner on an in- dictment charging him with receiving property which one M. had feloniously stolen, etc., the evidence shewed that he had stolen the property, and that the prisoner was guilty of receiving the same, knowing it to have been stolen. For the defence, it was proved that M. had been previously tried on a charge of stealing the same property and acquitted. The counsel for the prosecution then applied to strike out of the indictment the allegation that M. had stolen the property, and to insert the words " some evil disposed person," etc., which the judge allowed. Held, 1st. That the record of the pre- vious acquittal of M. formed no defence on the trial of this indictment, and was improperly received in evidence. 2nd. That the amendment was im- properly allowed. Regina v. Ferguson, vol. 20, 259. 10— Taking with intent to defraud— Stating value in indictment — Bona fide claim of right. An indictment under 32 & 33 Vic. cap. 21, sec. 110, for unlawfully taking and appropriating property with intent to defraud, need not state the value of the property taken ; although perhaps a pris- oner could not be tried under the second clause of the section if the value was not stated. Held, also, on the trial of such an in- dictment, to be a proper direction, to tell the jury they should acquit the prisoner if they thought he bona fide believed he had a. claim of right in the property taken. Regina v. Horseman, vol. 20, 529. 11 — Habeas corpus — Returnable forthwith — Prisoners brought in once — Whether orders to bring in again can be made without issuing new writs. Writs of habeas corpus were made re- turnable forthwith. The prisoners were brought into court on Tuesday, and the matter directed to be argued on the following Saturday. The same day the sheriff took the prisoners back to the gaol from which he had brought them. The writs and returns had been filed the day the prisoners were brought in, and by order of a judge taken off file again and returned to the sheriff. Held,hY Allen, C.J., Fisher and Duff. JJ., (Weldon and Wetmore JJ., dis- senting) that the court could direct the sheriff to bring in the bodies of the prisoners on the day set for the argu- ment, without directing new writs to issue. Regina v. Tower, vol. 20, 478. 12 — Crime committed in a foreign country. Murder being an extraditable offence under the treaty of Washington, 1842, the courts of this country will take notice that it is punishable as a crime in the United States. Porter v. McMahon, vol. 25, 211. — Extradition — Treaty of Washing- ton, 1842 — Trial for offence other tlan 72 COURT — GBNERAIi RULES. COURT GENERAL RULES. that for which prisoner was surrendered. See Extradition. — Indictment for murder — Short form — Whether prisoner can be con- victed of assault under. See Indict- ment 1. — Joinder of offences. See Indict- ment 2. — Intent to defraud — Statement of value. See Intent to Defraud. — Confession of prisoner. See Evi- dence 23. — A-dultery — Indictment for — Mar- riage in foreign country. See Adultery. Criminate — Refusal of witness to answer questions tending to. See False Imprisonment 4. Crown grant — Statement upon, in handwriting of grantee's agent that he had fold the land — Admissibility of. See Possession 2. COURT— GENERAL RULES. 1 — Appeals — Demurrer bool(s — Hilary Term, 1881. 1. It is ordered that all appeals from the decision of a judge in- equity and all special cases, be printed and filed with the clerk of the pleas before the opening of the court on the first day of the term at which such cases are to be argued, and that copies for each of the judges be filed with the clerk at the same time ; and that until such appeals and special cases are so filed no entry thereof shall be made on the respective papers. 2. That the attorneys for the respec- tive parties shall deliver to the clerk of the pleas before the opening of the court on the first day of term, the copies of the demurrer books required to be deli- vered to the judges by the Rule of Hilary Term, 6th, William IV. ; and that no entry of the cause shall be made on the special paper until the party demurring shall have delivered to the clerk the demurrer books which by the practice he is required to deliver. 3. So long as the court shall sit in two divisions under the provisions of the Act, 42 Vic. cap. 8, it shall not be neces- sary to deliver more than three demur- rer books, two of which shall be made up and delivered by the plaintiff's attorney. 4. That no entry of any appeal from a probate court or from any county court, shall be entered on the appeal paper until the return of the judge of the court appealed from shall be on file in the office of the clerk of the pleas. 5. That hereafter all entries upon the modon, crown, special, or appeal papers, shall be made before the opening of the court on the first day of each term, and that no entry shall after- wards be allowed, except for good cause shown by affidavit, and upon motion made to the court on one of the common motion days. 6. Crown cases reserved shall come on for argument immediately after the Crown paper, or if there should be no Crown paper, then immediately after the conclusion of the motion paper. 1 a— General rule of— Issues in law and fact —Trial— Hilary Term, 43 Vic. It is ordered that no cause in which issues in law and in fact are joined, shall hereafter be entered for trial at any circuit unless the plaintiff, when he enters the cause, intends to try it in its order when it is reached on the docket. 2— Michaelmas Term, 45 Vic. — Admission of Barristers. 1. Whenever any attorney of this court shall desire to be called to the Bar as a barrister, he shall apply by petition to the court, stating the date of his admission as an attorney, which petition COURT — GBNEKAL RULES. COURT — GENERAL RULES. 73 shall be filed with the clerk on or before the first day of the term in which he intends to apply. 2 Thursday in the first week, and Thursday in the third week of each term, at the opening of the court on such days shall be times for the admis- sion of barristers, and no attorney shall be admitted to the Bar at any other time, unless it shall be shewn by affi- davit to the satisfaction of the court that the person applying was prevented by reasonable cause from being present at the time appointed. 3— Hilary Term, 46 Vic— Filing docket. Whereas the rule of Hilary Term 7th, William IV., relative to the filing of entry dockets, ip inapplicable to writs of summons and capias issued under the Con. Stat. cap. 37. It is ordered that in all actions com- menced after the end of the present term, and which have not been settled or discontinued, the attorney shall enter the return, and make and file with the clerk of the court a docket of the return to such writs of summons or capias, together with the said writs, within thirty days after the expiration of the two months within which such writs are required to be executed or served ; and that the plerk of the court do not in future receive or file any docket, or enter any such cause, after the said thirty days without the order of a judge to be obtained on affidavit properly accounting for the delay. 4— Easter Term, 46 Vic. (1883)— Equity appeals. Whenever hereafter an appeal is made from a decree or order of a judge sitting in equity, such judge, or in case of his absence or inability to attend, some other judge of the court shall, on the application of the appellant and on notice to the solicitors of the respon- dents, settle and order which part of the pleadings, evidence, judgments, and other proceedings shall be printed for the use of the Appellate Court ; and the court may at the hearing of the appeal refer to and use any other part of the pleadings, evidence, and other' proceed- ings in the suit as they may think necessary. 5 — Divorce Court appeals. On appeals from the Court of Divorce and Matrimonial Causes, the judge of such court may, where in his opinion a copy of the pleadings and evidence is not necessary for the hearing of the appeal, state a case for the opinion of the Court of Appeal, subject, however, to he amended by such further return of the pleadings, evidence, judgment, and other proceedings in the cause as the Court of Appeal may think neces- sary. See Rule 3, Trinity Term, 1868. Easter Term, 46 Vic, 1883. 6 — Practise in Equity. That from and after the present term all bills, interrogatories, answers, pleas, demurrers, and other pleadings in suits in equity shall be written or printed on foolscap paper, instead of parchment as heretofore used. 6 a — It shall not hereafter be necessary to issue any commission in suits for partition or for dower ; but the com- missioners to be appointed in any such suits shall act under the order of the court appointing them, and directing the partition or assignment of dower in the same manner as has been here- tofore done under commissions issued for that purpose. Easter Term, 46 Vic, 1883. 7— Plea— Time allowed to file— Service- Hilary Term, 1884. Where the attorneys for the respec- tive parties reside in the same county > 74 COURT GENERAL RULES. COURT GENERAL RULES. Ijut more than ten miles distant from each other, the defendant's attorney shall be allowed four days after demand of plea wherein to file the plea and serve a copy thereof on the plaintiff's attor- ney, unless the demand be accompanied by a direction to deliver the copy of plea to some person resident in the same place in which the defendant's attorney resides ; in which case such copy of plea must be delivered within twenty-four hours, according to the present practise. 8— Election Court. The following fees shall be taken by the clerk under the Dominion_ Contro- verted Elections Act, 1874 : EASTEE TEEM, 1884. Entering petition $ 60 Eeceiving and care of deposit 2J per 6ent Certificate of deposit 40 Comparing andforwarding copy of petition for publication, per folio 05 Entering appointment and address of agen t 40 Signing and sealing every process.. 30 Certified copies of all papers, per folio 20 Copies of all papers, per folio 10 Taxing costs in contested cases.. . . 1 50 Taxing costs in all other cases .... 70 Each notice " . . 60 Piling each paper 20 Entering every order or dismission 50 Each search 20 9 — Con. Stat cap. 38— Fees under Michael- mas Term Act, 1884. It is ordered that the fees to be taken for the several services of attorneys, counsel, witnesses, clerk, and sheriff, under the provisions of chapter 38 of the Consolidated Statutes, be the same as provided or similar services on the law side of the Supreme Court by chapter 119 of the Consolidated Sta- tutes. 10— Commission to examine witnesses. Con. Stat. cap. 49. Supreme Court in Equity. General rules. Hilary Term. 1885. See vol. 24, page 515. 11— County Court appeals — Easter Term, 1885. 1. It is ordered that rule 1 of Michael- mas Term, 1876, relating to County Court appeals, be rescinded, and the following rule be substituted therefor : That the appellant from the decision of a Judge of a County Court shall enter the cause on the appeal paper of the term immediately succeeding the re- ceipt of the proceedings by the Clerk of the Pleas ; but when any such proceed- ings are received after the opening of the court in any term, the causes shall be entered by the appellant on the appeal paper of the next succeeding term. See Earle's Bules 195. 2. It is ordered that the stamp now used in the office of the Clerk of the Pleas, bearing the representation of a crown encircled with the words "Sigil, Cur. Svp. Nov. Bruns." may be used as the seal of the court upon all writs,, pro- cesses, and other documents required to be under seal, either on the crown side, or on the common law or equity sides of the court. 12 — Mictiaelmas Term, 1885 — County Court Eule 1. It is ordered that no appeal from the decision of a County Court shall be entered on the appeal paper, unless the proceedings duly certified by the judge have been received in the office of the Clerk of the Pleas seven days before the first day of the term at which it is intended to be entered. 2. It shall be the duty of the appel- lant to prepare and file with the Clerk of the Pleas for the use of the court, on or before the first day of the term, a brief statement of the material facts in the COURT- -GENEEAL ETJLES. DAMAGES. 75 case, plainly and legibly written, to- gether with the grounds of the appeal, numbering the same consecutively, and referring to the page or pages of the proceedings to which the several grounds respectively relate ; and such statement shall be framed as near as may be as the notices of motion for new trials required by the Eule of Hilary Terra, 1867, and the appellants on the argu- ment of -the appeal shall be confined to the grounds so stated. A copy of such statement and grounds of appeal shall be filed for each of the judges of this court. 3. Eule 1 of Michaelmas Term, 1876, Earle's Eules 195, relating to County Court appeals, is hereby re- scinded, and in lieu thereof it is ordered that the appellant, having filed the statement hereinbefore required, shall enter the cause on the appeal paper of the term in which such statement is so filed. 4. In case the appellant Shall neglect to enter the appeal on the appeal paper, according to the last preceding rule, or having entered it, shall not argue it when reached in due course on the paper, or pursuant to any order of the court made in respect thereof, then and in either of such cases, the respondent may, on the case being reached on the paper, or upon any subsequent common motion day, move that the said appeal be dismissed. Kule 2 of Michaelmas Term, 1876, is hereby rescinded. 5. The Clerk of the Pleas shall, on the application of the attorney of any appel- lant, deliver to him the proceedings, certified by the Judge of the County Court (taking a receipt therefor), in order that the statement required by Eule 2 may be prepared, and such attorney shall return such proceedings to the said clerk before the opening of the court on the first day of the term. 13— Easter Term, 1885. 1. It is ordered that Eule 1 of Michael- rnas Term, 1876, relating to County Court appeals, be rescinded, and the following rule be substituted therefor : That the appellant from the decision of a Judge of a County Court shall enter the cause on the appeal paper of the term immediately succeeding the receipt of the proceedings by the Clerk of the Pleas ; but when any such proceedings are received after the opening of the court in any term, the causes shall be entered by the appellant on the appeal paper of the next succeeding term. See Earle's Eules 195. COURT HOUSE. Control of building — Personal injury — Principle governing liability. See Municipality of St. John 1. COVENANT. In insurance on stock that amount of claim shall be settled by arbitration, does not apply where there has been a total loss. See Insurance 8. — Not to assign — Mortgage of chattels. See Addenda 45. — Action for breach of — Necessity of setting out in declaration the agreement sued on. See Pleading 4. DAMAGES (See Land Damages. 1 — Action on the case^ — Maliciously Induc- ing one to record deed. Held by Duff, J., that where defen- dant had induced a person with whom a deed had been entrusted as an escrow to prove and record it ; and the jury found that in so inducing her, he was actuated by a fraudulent and malicious motive towards the plaintiff, the latter had a good cause of action, and the jury were not confined to the actual pecuni- ary damages which plaintiff had sus- tained in consequence. 76 DAMAGES. DAMAGES. Held by Welden and Wetmore, JJ., that the deed though registered could not operate to pass the title, and as plaintiff had proved no actual legal damage the verdict should be reduced to nominal damages. Derry v. Berry, vol. 19, 621. 2 — Cosis of review from Justices' Court — Wliere not in discretion of Judge — Res Judicata. On review from a judgment of non- suit in a justice's court, the county court judge set aside the nonsuit, with- out costs. Previous to the order for review being obtained, an execution had been issued by the justice on which plaintiff had been arrested, but on the order for review being granted, he was released. In an action for false imprisonment — Held by Allen, C.J., and Welden, Palmer, King and Fraser, JJ., (Wet- more, J., dissenting) that as the county court judge had " wholly reversed " the judgment of the magistrate, the award- ing of costs to him should have fol- lowed, and was not a matter in the discretion of the judge, and that the plaintiff was entitled in this action to recover the expenses to which he had been put in securing such reversal of judgment. Carman v. Dunn, vol. 23, 335. 3 — Defective Machinery— Bad Sawing there- from — Limitation of damages after defect lunt, and that he was to be jointly interested with the company in the deals so sawn; that the deals replevied were sawn from logs so pur- chased, and that K. was a joint owner with the company of the said deals. Held', that this sufficiently shewed a joint ownership of the deals between the plaintiff and B. Quare, whether an allegation that R. was jointly" interested with other per- sons in the deals or that he ffr&a jointly interested in the profits to arise from the manufacture and sale of the deals, was sufficient to shew ■ that he was a joint owner. Plaintiff claimed the logs from which the deals in question were cut, through the P. Lumber Company, , Held, that the declarations of mem- bers of that company made at the time of a purchase of the logs by them for the company were admissible to Ishew who LANDLORD AND TENANT. LANDLORD AND TENANT. 143 were the persons composing the com- pany. Guy V. Rankin, vol. 23, 49. 4— Agreement for a lease — Demise— Right to distrain. Plaintiff being in possession of land belonging to the defendant, and negotia- ting.for a lease, signed a memorandum, which, after describing the property, stated as follows — " twenty-five years $50 a year, commencing from 1st September, 1880." The plaintiff re- mained in possession more than a year after this ; but the parties having dis- puted about the terms of the lease, it was not executed and no rent was paid. Held, that the agreement amounted to an actual demise at a fiyed rent ; and that the defendant could distrain. Buckley, et al., appellant, v. Russell, res- pondent, vol. 24, 205. 5 — Landlord and tenant — Consol. Stat., cap. 83, sec. 8-11 — Seizure of tenant's goods under execution — Landlord's claim lor rent — Notice to sheriff— Evidence of value of goods seized. In an action against a sheriff for sell- ing goods under execution without pay- ing a year's rent to the judgment debtor's landlord, evidence that the value of the goods seized exceeded the amount of the rent due is sufficient, in the absence of evidence by the defendant of the amount which the goods realized on sale". Sheriff v. Vye, vol. 24, 572. 6 — Distress — Breaking outer door of building — Distress after sunset — Irregularity. Breaking open a tenant's building or house in ' order to distrain for rent, renders the distress illegal and not merely irregular. A distress made after sunset is illegal Where a distress is illegal in its incep- tion, trespass lies, and sec. 7, of cap. 83, Con. Stat., respecting " irregularity " in distraining is not applicable. Myers v. Smifli (4 Allen 207), not followed. Russell, appellant, v. Buckley, respon- dent, vol. 25, 264. 7— Agreement that landlord might occupy premises for a certain lime to make im- provements — Eviction — Evidence of. Plaintiff demised a building to S. for a term of years — the lease containing a provision that the plaintiff might enter and occupy the building up to a certain day, in order to make repairs and im- provements, and that he should not enter after that day without the consent of S. The repairs not having been completed within the time fixed, the plaintiff continued to occupy — claiming the right to do so — and to make repairs without the consent of S., who objected that he was deprived of the possession of the property, and notified the plain- tiff that he should claim damages there- for. Held, that this was evidence of an eviction, and was not a mere trespass upon S. Where there has been an intentional interference by the landlord with the tenant's beneficial enjoyment of the demised premises so as to prevent him from occupying any part of them for any considerable time, this amounts to an eviction, and operates as a suspension of the rent. Ferguson v. Troop, vol. 25, 440. — Summary ejectment by landlord. See Summary Ejectment. Lands — Agreement for sale of — Mis- take in description — Specific perform- ance. See Agreement 6. Land owners— Adjoining — Line agreed upon. See Possession 1. Larceny — Unstamped promissory note — Whether "valuable security." See Criminal Law 3. 144 LIEN. LIMITATIONS. Lease — Entire rent reserved — Consi- deration illegal in part. See Railway Company 1. — When assignee may terminate. See Insolvent Act of 1875. — An agreement for a conditional sale of chattels under a lease, not bill of sale. See Contract 6. — Of unfurnished house — No implied contract that it is tenantable. See Landlord and Tenant 2. — Eight of vifidow to lease where in- come and profits of estate devised to her during widowhood. See Will 9. — Agreement that landlord might occupy premises to make improvements. See Landlord and Tenant 7. Letter — Evidence— Written by party — Seeking to put in. See Evidence 9. Leave — Not reserved at trial to move for nonsuit. See Amendment 2. Leave and license — Bidding at sheriff's sale — After having forbidden sale, not evidence of. See Sheriff's Sale 1. Legacy — Payment of. See Will 3. Library fees — Whether each member of a firm of attorneys must pay. See Attorneys 4. License — Business — Power of city of St. John to compel commercial travel- lers to pay for. See Business License 1. — poaohman in Portland. See Hack- ney Coaches 1. LIEIV. Timber driver — Where entitled to take charge of timber drive. Con. Stat. cap. 109. In order to give a timber driver a lien on timber for services performed under the Con. Stat. cap. 109 ; it is necessary that the timber should be within the limits of the parish for which he was appointed, at the time he first takes charge of it. Sinclair v. Holland, vol. 24, 529. —Persons entitled to hold goods, for refusal to deliver until other charges were paid— Waiver. See Trover 3. — Not applicable as plea in trover. See Pleading 1. — Of Judgment creditor of a mort- gagor. See Mortgage 2. Life insurance— There being no binding contract — An acknowledgment in the policy that the advance premium had been paid amounts to nothing. See Insurance I. Life Estate— Reservation of, in land conveyed by deed — Whether good. See Conveyance 1. Liglits — Carrying as required by 31 Vic. ,cap. 58 — Onus of proof. See Collision 1. LIMITATIONS. 1 — Statute of — Abatement for matter of form —Section 13 of cap. 85, Consol. Stat. An action was begun in a justice's coijrt by the title of "the estate of the late R. K " against the defendant, and a nonsuit was granted because the name of the executrix was not stated in the summons. Held, that the suit abated for a matter of form, and prevented the plaintiff's claim being barred by the statute of limitations under sec. 13, of cap. 85, Consol. Stat. Kerr v. Squires, vol. 22, 448. 2— Statute of — Tenant by curtesy— Right of entry in heir — Wlien it accrues. A son has no right of entry in land of which his mother died seized, during the life time of his father, who has the right to possession as tenant by the curtesy, and the statute of limitations will not run against him until bis LIMITATIONS. LIMIT BOND. 145 father's death. Doe dem Budeaux v. Bud- reau, vol. 22, 559. 3— Statute of —Mortgage— Extinguishment of right— Recovery of mortgage in eject- ment by default and obtaining possession after right extinguished— Effect of. In ejeotment, it appeared that the land in question had belonged to defen- dant's grandfather, who mortgaged it to one H., and afterwards remained in possession for twenty years without paying rent or interest, or making any written acknowledgment of H.'s right and died in possession leaving eleven children. After his death, H. recovered in ejectment against two of the children and heirs and took possession. Held, 1. That H.'s right under the mortgage was extinguished by the lapse of the twenty years. 2. That the previous recovery in ejectment, neither displaced the title so acquired by the mortgagor, nor estopped his heirs from setting up their rights ; such judgment being at most pririia facie evidence of title in H. which could be disproved. Doe dem Hasen v. Laskey, vol. 23, 481. 4— Statute of. The plaintiff advanced money to his father at different times between the years 1860 and 1867, on a promise by the father to devise the plaintiff a farm. The father died, but did not devise the farm as agreed. Held, per Fisher and Wetmore, JJ., in an action to recover the money to which the statute of limitations was pleaded, that the plaintiff could only recover the money advanced within six years before the commencement of the action. Per Weldon, J., that, as by the Pro- bate Act the plaintiff had a year after the testator's death to file his account against the estate, he could recover for S.D. the money advanced within six years preceding his father's death. Friar v. Wilmot, et al., executors, vol. 19, 520. 5 — Payment by one joint maker of a note. Payment of interest for several years on a joint and several note, by one maker, will not prevent the statute from operating in favor of the other makers. Price V. Whiting, vol. 19, 620. — Statute of — In first action, part of claim barred by — Action for sums dis- allowed alleging special agreement res adjudieata. See Former Recovery 2. — Acts of possession of unreclaimed land — Sufficiency of. See Possession 2. — Limitation of actions — Partition by agreement of land owned by tenants in common. See Adverse Possession 1. — Of time within which to bring action under insurance policy. See Insurance 9. — Covenant in mortgage deed — Pay- ment by co-obligor, cap. 84, sec. 40, and cap. 85, sec. 126, Con. Stat., N. B. — Liability of personal representatives and heirs and devises. See Addenda 27. LIMIT BOND. 1— Action on, order of commissioner for debtor's discharge— What it should set out. In an action on a limit bond the defendant put in evidence an order of a commissioner granted under the Consol. Stat., cap, 38, sec. 15, discharging the principal defendant from the limits. Held, that the order was bad in not setting forth the preliminary circum- stances which were necessary to justify the commissioner in making it, and that the general statement that the debtor " had in all respects conformed himself to the provisions of the chapter" was insufficient. Connell, assignee v. Trexa^ vol. 19, 537. 10 146 MANDAMUS. MANDAMUS. Line — Adjoining properties. See Acquiescence 1. Liquor Licenses — Expiration of. See Canada Temperance Act 5. Liquor License Act, 1883 — Sale of liquors without license in counties where the Canada Temperance Act, 1878, is in force — Prosecutions for — Procedure. See Canada Temperance Act 17. Liquor License Act, 1883 — Seizure of liquors under sec. 82 of tliai Act— Dis- missal of complaint for unlawfully l which was managed by A., there being also a bookkeeper, B., at the mill. A workman in the defendant's employ at the mill having been injured, A. and B. employed the plaintiff, a surgeon, to attend him. Held, per Allen, C.J., Fraser and Tuck, JJ., (Wetmore, J., dissenting), 1. That such engagement was beyond the scope of their duties as agents, and that the de- fendant was not bound by it. 2. That an admission made by the defendant's counsel in an interlocutory proceeding, that A. and B. had employed the plaintiff, was not an admission that they had any authority to bind the de- fendant. Guy, et al. Appellants, and Brady, Respondents, vol. 24, 563. Negligence — Injury to servant — Fel- low servant's sub-contractor. See Neg- ligence 5. MILLTOWN. MONEY HAD AND EECBIVED. 149 MEDIXNIKIKS BOOM COMPANY. Duties of boom master — Who liable ior services in sorting lumber — Con- struction of Acta, 8 Vic. cap. 49, and 27 Vio. cap. 61, Held, 1. That the Act, 37 Vic. cap. 61, imposed no liability on the owners of lumber passing through the booms, ex- ■cept to furnish men to assist in sorting the lumber in the boom and passing- it through to the river St. John. 2. That the boom-master could not maintain an action against an owner of such lumber for boomage under sec. ■6, of the Act, 8 Vic. cap. 49 ; but that his remedy was against the company. Semble, that the toll imposed for boomage by sec. 6 of the Act of incor- poration, applies only to lumber intend- ed for the use of the mills. Medixnikiks Boom Co., Appellants, and Dolton, Res- pondent, vol. 25, 28. Mill-owner — Logs delivered to be sawn into deals^Privileged from distress. See Landlord and Tenant 3. Mill privilege — Eight for flowage. See Easement 2. MILLTOWN. 1 — Town of — Police magistrate — Appoint- ment of — Continuance in office. The Act incorporating the town of Milltown authorized the town council at the first meeting after every annual ■election, or at any subsequent meeting, to appoint a justice of the peace, to act as police magistrate, or to recommend any other person to the government to be appointed. The government had. on the recommendation of the council, ap- pointed G., who was not a justice of the peace, to be police magistrate, and the following year after the annual election of councillors, the council appointed G. ior another year. Held, (Weldon, J., dissenting), that whether the appointment by the town council was valid or not, G.'s appoint- ment by the government would continue in force until a new appointment was legally made. Ex parte Coughlin, vol. 24, 308. — Whether a "city" or county within meaning of Ca,nada Temperance Act. See Canada Temperance Act 10. Minors — Warrant against estate of non-resident, under asesssmentiwithout order of county court judge is bad. See Certiorari 5. Misappropriation — Of money by one partner of firm of attorneys — Liability of co-partner. See Attorneys 6. ■ Misconduct — Neglect to attend a trial when subpoenaed. See Attorney 3. Misdirection — Slander — New trial. See Slander 5. — As to passing of property. See Sale 5. — Infringement of patent. See Pat- tent. Misfeasance — Liability of railway conductor for. See Railway Conductor 1. Misjoinder — Of counts in indictment. See Criminal Law 5. Misnomer — Trial postponed in order to allow name of defendant to be changed. See Practice 2. Misrepresentation— Policy of insurance — Must be material. See Insurance 5. Moncton — Town of — Civil court — Re- view from — Affidavit for — Before whom to be sworn. See Review 4. MONEY HAD AND RECEIVED. Where plaintiff was suspected of having taken money from a bank, and it was afterwards proved, and the defendant, a police officer, represented to plaintiff's wife, that her husband was in prison for the taking, and she 150 MORTGAGE. MORTGAGE. paid over a sum of money to the defend- ant, plaintiff can recover on count for money had and received, there being no evidence that the money so paid over was the specific money taken from the hank. See False Imprisonment 4, Ellis V. Power, vol. 20, 40. When action may lie for. See Con- tract 16. — Proceeds of sale. See Bankruptcy 2. — Action for — Waiver of tort. See Conversion 1. — Evidelice of admission to auditors of correctness of entries showing bal- lance against official where cash hook kept by himself. See Evidence 14. — Becovery of advances made in part payment of goods ordered to be manu- factured. See Contract 16. Money lent — Barred by statute of limitations. See Limitations, Statute of, 4. Money paid— Illegal contract. See Contract 8. MORTGAGE. 1 — Alleged payment — Where mortgagor and mortgagee dead — Evidence — Onus of proof. In a suit brought for the foreclosure and sale of mortgaged premises, it ap- peared that both the mortgagor and mortgagee were dead and that the mortgage and mortgagee's books were destroyed. A reference was made to a barrister to take accounts of the pay- ments made on the mortgage, and although there was some slight evidence of an additional payment beyond the amount credited by the plaintiff, the barrister disallowed it. Held, that the burthen was on the defendant to discharge themselves from their liability on the mortgage, and that the barrister properly disallowedl the defendant's claim, as the evidence of payment was entirely insufficient^ particularly after the mortgagee's death. Colwell v. Rohinson, vol. 23, 69. 2— -Consolidation of— Registry Act— Judg-^ ment creditor— Tender of interest andl costs after commencement of foreclosure suit— Amendment of BiO on Appeal. Plaintiff agreed with D., as agent of the defendants, to lend them $25,000,. to be secured by mortgage on twO' adjoining lots of land. The defendants^^ required the money for the purpose of erecting a, warehouse, which was tO' cover the principal part of both lots. At the time of the agreement the titles to one of the lots was in the defendants, and they executed a mortgage to the plaintiff of that lot, to secure the pay- ment of $15,000 and interest. The- title to the other lot was in D., who- held it as trustee of the defendants, and he, in pursuance of the arrangement, also executed a mortgage of it to the plaintiff for $10,000— the balance of the sum agreed to be loaned — and gave the plaintiff his bond for $10,000 and- interest. Immediately after giving this mortgage, D. conveyed to the defen- dants his equity of redemption in the- lot. The interest on both mortgages, being in arrear, the plaintiff brought a suit for their foreclosure, after which the defendants tendered the interest due on 115,000 mortgage, and the costs- of the suit, and claimed that the mort- gage should not be foreclosed. Held, that as the whole sum secured was the debt of the defendants, the mortgage given by D. was in effect their mortgage, and they could not redeem their own mortgage without also pay- ing the mortgage given by D. When a mortgage becomes forfeited by non-payment of the interest, and a. suit for foreclosure is brought, the suit can only be terminated by payment oE MORTGAGE. MOTION PAPER. 151 the principal, interest and costs, under Con. Stat., cap. 39, sec. Ill ; and in such a case, a tender of the interest due and costs of the suit is of no avail. The lien of a judgment creditor of a mortgagor, subsequent to the mortgage, is subject to the pre-existing security of the mortgagee, and can only attach upon any surplus that may remain after the mortgage is satisfied. In a suit to foreclose two mortgages given to the plaintiff, one by the defen- dant and the other by C, who after- wards conveyed his equity of redemp- tion to the defendant, it was objected by the answer that the plaintiff could not consolidate the mortgages, because they were given by different persons. Evidence was then received on the part of the plaintiff to shew that the two mortgages were one transaction, and were given to secure a loan to the defendant for whose benefit D. held the property mortgaged by him in trust. Held, on appeal, that such evidence should not have been received, without amending the bill, and alleging facts to warrant its admission ; but that such amendment might be made on hearing the appeal. Maritime Warehmising and Dock Co. and The Maritime Bank of the Dominion of Canada, appellants, and Nicholson, respondent, vol. 24, 170. 3 — Foreclosure of mortgage — Staying 'pro- ceedings— Wiiether defendant entitled to statement of ttie amount due before ap- pearance — Con. Stai. cap. 49, sees. 40 Where » suit has been commenced for foreclosure of a mortgage, the defen- dant offering to pay the amount due, is entitled under the Con. Stat. cap. 49, sec. Ill, to be furnished with a detailed statement of the amount of principal, interest and costs ; and on payment of the amount, to have the suit stayed without entering an appearance. Where a plaintiff refuses to give such statement, or to produce the bond and mortgage to the judge in equity, he has the right to refer the matter to a barris- ter to ascertain the amount due. Smith et al.,Exrs.,etc., v. Cormier, vol. 25, 487. — Statute of Limitations, cap. 84, sec. 4, and cap. 85, sees. 1 <& 6 Con. Stat. N. B. — Covenant in mortgage deed — Payment by co-obligor. See Addenda 27. — Extinguishment of mortgagee's right — Recovery by mortgagee-in eject- ment by default — Effect of. See Limi- tations 3. — Whether right in judgment passes to assignee of mortgage. See Eject- ment 2. — Not a due execution of a trust for sale and conversion. See Will 3. — Chattels — Mortgage of, not an assignment under condition in fire policy; See Addenda 45. Mortmain — See British Statutes. IMOTION PAPER. 1 — Notice of Motion. A notice under Eule 2, Hilary Term, 6 Wm. IV., that a rule nisi would be moved for, is irregular, and the court will not hear the motion though the affidavits have been served, and notice of motion, given and the cause entered on the motion paper. Shettijn v. Milliken, vol. 22, 53. — Cause directed to be entered on — Stay of proceedings — Whether can give notice of motion for new trial pending stay. See Judge's Order. — Affidavit used on motion — Applica- tion for time to answer. See Prac- tice 20. Multifariousness— Bill in equity— De- murrer. See Equity. Frankev.McGrath. 152 MUNICIPALITY. MUNICIPALITY OF ST. JOHN. MUNICIPALITY. 1— Liability of, (or deMs of. sessions— Estop- pel— Debentures issued under seal of the general sessions of the peace by Sessions of Albert, under 38 Vic. cap. 85— County estopped from disputing its liability— Con. Stat. cap. 99, sec. 106— Plea alleging conclusions of law, bad. To an action of debt brought to re- cover interest on debentures, bearing the seal of the General Session of Albert County, and issued under the Act, 38 Vic. cap. 85, passed " to facilitate the construction of the Pettioodiao and Elgin Branch Eailway, the defendant corporation pleaded several pleas setting up that certain proceedings required by the Act to be taken before the debentures could be issued, had not been taken. The General Sessions of the County of Albert vyas not a borporate body, but the Act incorporating that county with others, declared that all debts due by the county or session should be paid by the municipality, Con. Stat. cap. 99, sec. 106. By the 10th section of the Act, 38 Vic. cap. 85, it was enacted that upon the issuing of the debentures, or any part of them, it should be taken and considered that everything required by the Act, in order to the issuing of such debentures, Jiad been done, accord- ing to the terms of the Act. Held, that the defendant corporation was liable on the debentures, that the liability of the sessions devolved upon it ; that it oould not be allowed to de- feat the action by shewing the facts alleged in the plea ; that the County of Albert was estopped from disputing its liability to pay, and in like man- ner the defendant corporation, which stood in the place of the county, was estopped also. A plea stating only conclusions of law, without any facts to support them is bad. Jones v. The Municipality of County of Albert, vol. 20, 78. MUNICIPALITY OF ST. JOHN. 1— Court house- Injury to person falling down stairway leading to Court-room owing to want of light— Where fee vested in the Mayor, etc. of the city of St. John, in trust for holding of courts and city and county offices— Where municipality has partial control of building — Whether bound to keep building and approaches safe— Principle governing liability in such case— Circular , stairway— Whether want of light is proof of negligence. The corporation of St. John being the owners in fee of the court house, execu- ted a deed in 1826, by which they declared that they held it (inter alia) for the sitting of the courts of justice, and for the public city and county offices, and that it should not. be used for any other purposes than those expressed, without the consent of the justices in session of the city and county. The contingent expenses of the court house, such as fuel, light, and the care of the building, were paid by the sessions out of the assessments on the county under the Municipalities Act, 40 Vic. cap. 3, by which all the powers theretofore vested in the sessions to impose rates and do any other things were to be exercised by the municipa- lity ; and since that time the meetings of the municipal council have been held in the court house. The rooms appro- priated for the sittings of the courts were in the second story of the building, and were reached by a spiral staircase of twenty-four steps. The plaintiff had gone into the court room late in the afternoon, while the court was sitting to see a person there, and remained till after dark, and in coming down the stairs he fell and was injured. There was no light on the stairs, nor in the hall between the court room and the stairs, though there were brackets for gas jets in both places, and also a gasa- lier near the foot of the stairs. NEGLIGENCE. NEGLIGENCE. 153 Held, by Weldon, Wetmore and King, JJ., in an action against the defendants for negligence in not lighting the stairs, that there was no duty imposed on the defendants by law to light the stairs, and that the plaintiff could not recover against them. Held, also, per Weldon and Wetmore, JJ., that the plaintiff could not recover because the title to the court house was in the corporation of St. John. Per King, J., that though the plain- tiff had a right to be in the court house, he was not there on any business in which the defendants were interested, and they were not bound to protect him against ordinary risks, and that the non- lighting of the stairs was not evidence of negligence. Per Allen, C.J., and Palmer, J., that it was the duty of the defendants to keep the approach of the court room in a reasonably safe condition for persons attending there, and that as the plain- tiff had a right to go there he was entitled to recover for itbe injury sus- tained by the defendants, omitting to light the stairs. Beach v. The Municipa- lity of St. John, vol. 23, 249. — Mandamus issupd to — Who to make return. See Mandamus 2. Murder — An indictment for, in short form, prisoner cannot be convicted of assault. See Indictment 1. Naturalization — Who must sign certi- ficate of. See Aliens 1. NEGLIGENCE. 1 — Of contractor— Liability of employer. S. contracted to erect a building for W. on his (W.'s) land. W. engaged B. to superintend the erection ; his duty being to enforce the conditions of the contract, furnish drawings, etc., make estimates of the amount due, and when the building was completed to issue a certificate, which, if unconditional, would be an acceptance of the contract. W. also reserved the right to alter or modify the plans and specifications and to make any deviation in the construc- tion, detail or execution of the work without avoiding the contract, and in case of unnecessary delay or of the inability of S. to perform the work within a given time, W. might, on giving notice in writing, take possession and carry on the work to completion, charging the same to S. The building to be at the risk of S. until accepted by W. Held, by Weldon, J., that by the terms of the contract, W. retained control over the work, and was liable for an injury to the plaintiff's building which was the result of S.'s improper and careless execution of the contract. Per Wetmore, J., that W. was not by the terms of the contract liable for the injury, and if it was sought to make him liable on the ground that he inter- fered and controlled S. in the execution of the work, that was a question for the jury. McMillan v. Walker, vol. 21, 31. Appeal to Supreme Court of Canada dismissed. See Addenda No. 9. 2 — Placing anchor of dredge In channel of public harbor — Master must place buoys or signals — When dredge the property of the Crown and being used in improving navigation — Liability of master for acts of fellow servants of the Crown. By the fi^rst count of the declaration, it was alleged that the master of a gov- ernment dredge placed the anchor of the dredge in the main channel of a public harbor, with the fluke of the anchor sticking up and so left it for an unreasonable length of time without placing any proper buoy or signal to mark the place of the anchor, and with- out taking any proper means to guard against accidents to vessels navigating 154 NEGLIGENCE. NEGLIGENCE. the harbor, and that the plaintiff's mariners having occasion to pass out of the said harbor with the plaintiff's vessel, without any default on their part, ran upon the anchor and injured the vessel. Held, that the count described a good cause of action, that the master of the dredge should have placed a buoy to the anchor to warn vessels navigating the harbor. By the third count it was alleged that the master of a dredge placed the ahchor of the dredge in a part of the channel of a public harbor usually navigated by vessels in a dangerous and improper position, and permitted the same to remain in such dangerous and improper position and that the plaintiff's vessel in passing out of the said harbor in charge of their mariners, without any knowledge on the part of the latter of the improper and dangerous position of the anchor, and without any default on their part, ran on the anchor and was injured, etc. Held, that the count disclosed a good cause of action. By the plea the de- fendant, the master of the dredge, alleged that the dredge was the property of Her Majesty, and was being used in dredging out and improving a public harbor, that for this purpose, dredging, it was necessary to anchor it, and that he directed A. M. and others to put the anchor out and that they placed it in the manner alleged in declaration, with- out any knowledge on his part that it was carelessly and improperly put out, and that A. M. and the others were not employed by him but were his fellow servants in the employ of Her Majesty. Held, that the plea did not afford an answer to the declaration, that the master of the dredge having directed the men to put out the anchor in a, place where it might be dangerous to navi- gation, could not excuse himself by saying the men were his fellow servants in Her Majesty's employ, and that he did not know it was negligently or' improperly placed there. Lunt v. Lloyd, vol. 21, 202. 3— Where plaintiff offers no evidence to con- nect defendant witti act of negligence- Effect of such evidence on cross-exami- nation — How far plaintiff entitled to benefit of. • Where in an action for negligence the plaintiff offered no evidence to connect one of several defendants with the negligent act complained of, and the only evidence of such connection, and that very slight, was elicited from the defendanthimself in cross-examination. Held, that there should be a new trial unless the plaintiff consented that a verdict should be entered for such defendant. Keenan v. The Trustees of Leinster Baptist Church, vol. 21, 211. 4— Ferry boat— Injury lo passenger— Con- tributory negligence— Acts shewing invi- tation to land. Plaintiff was a passenger in defen- dant's steam ferry boat plying across the harbor of St. John. A movable chain was placed across the end of the boat to prevent passengers and teams from going beyond it while the boat was in motion. When the boat arrived at the wharf or landing place it stopped, and the passengers began to go on shore, though the boat had not been moored to the wharf, but a gangway, or plat- form, on which teams were accustomed to pass to and from the boat, was in the course of being placed in its position for that purpose. The plaintiff was a, stranger, and while following the other passengers, and while in the act of stepping from the boat to the wharf in the dark — the guard chain having been let down — fell into an open space be- NEGLIGENCE. NEW TRIAL. 155 tvreen the end of the boat and the wharf, and was injured. Held, Per Palmer, King, and Fraser, JJ., (Weldon, J., dissenting), that the taking down the guard chain, and put- ting out the gangway, were tacts from which it might be inferred that the de- fendants had led the plaintiff to believe that the trip of the boat had ended, and that he might safely go ashore ; and, therefore, that there was evidence of negligence to leave to the jury. Mc- Donald V. Mayor, etc., of St. John, vol. 24, 370. 8uH Ban i o n a nc, R ni ilway Com pany No . 0, -^a l. a 5, - 31Q r „ ' . 5— Miiiier and senant— Injuiyno servant of sub-coniraclor — Negligence by servant of principal eontractor — Fellow servants — Contributory negligence. Defendants having agreed with the town of W. to construct waterworks for the town, sub-let to P. the digging of the trenches for the water pipes and re-filling them after the pipes were laid. P. employed the plaintiff in that work, part of his duty being to see that the earth was clear from the end of each pipe so that the joints could be caulked, and while he was in the trench attend- ing to his duty, an iron pipe, which was being put into the trench by the defendants' servants, fell upon him and injured him. The usual mode of lower- ing the pipes into the trench was by means of ropes at each end, whereby the pipes were let down gradually ; but on this occasion only one rope was used, the other end of the pipe being pried in with a handspike, in consequence of which it fell into the trench suddenly and struck the plaintiff. The men in charge of the pipe knew, or ought to have known, that the workmen were in the trench at the time. Held, 1. That the plaintiff, having been employed and paid by P., was his servant, and not the fellow-servant of the men who caused the injury; 2. That there was negligence on the part of the defendants' servants in the man- ner of putting the pipe into the trench ; 3. That there was no evidence of con- tributory negligence on the part of the plaintiff, and that he was entitled to recover. Belong v. Burrell-Johnson County Iron Co., vol. 2S, 140. Railway Company— Liability to fence. See Railway Company 2. — Contributory negligence. See Eail- way Company 5. — ^Negligence — Injury to passengers while landing from ferry owned by an- other company. See Railway Com- pany 6. Railway conductor — Accident to pas- senger — Eight of action — Contributory negligence. See Railway Conductor 1. Negligence — Want of light at stair- case in public building. See Munici- pality of St. John 1. — Loss of goods — ^Whether necessary to give affirmative evidence of negligence in action against carriers. See Car- rier 2. — Loss of scow — Evidence of expert. See Evidence 19. — Question for jury. See Evidence 13. Newcastle civil court — Commissioner of — Jurisdiction to try offences against the Canada Temperance Act. See Canada Temperance Act 15. NEW TRIAL. 1— Agreement to leave all matters to jury— Binding effect of— No cause of action shewn. Where both parties on the trial of a cause, by their counsel agreed that the claims which they were putting forward on both sides should all be left to the jury without any objection being made 156 NEW TEIAL. NEW TRIAL. as to the legal liability upon sjioh claims, and the jury found for plaintiff ; Held, that defendant could not after- ward move for a new trial on the ground that plaintiff failed to show any cause of action. Foxwell v. Smith, vol. 18, 489. 2 — Trespass — Joint and several— Election and abandonment— Damages not plainly appearing to be confined to one act ot trespass— Evidence at separate trespass —Effect of time of election— Judges dis- cretion. In an action of trespass, qu. el. fi., against several defendants, a joint act of trespass was proved against C. and his co-defendants, by C. entering on the land with the other defendants and making a survey and running the lines, after which several distinct trespasses were committed by the other defendants, in which, however, C. took no part. Plaintiff being required to elect, stated that he would go for the trespass of entering on the land and running the lines and the consequence which would follow therefrom ; and in addressing the jury he urged that defendant C. was liable for the necessary consequences of his survey, and that plaintiff's land had been damaged to the extent of £300. The jury found a verdict for plaintiff , for $250. On motion for a new trial, the court granted the application, not bring satisfied that the jury had con- fined the damages to the one act of entering on the land and running the lines, or that they had not taken into consideration the subsequent acts of the other defendants cutting down the wood, etc., imposing, however, on defendant terms of payment of costs. Held, also, that plaintiff by giving evidence of separate trespasses by some or one of the defendants did not thereby abandon the joint trespass previously proved against all. It must be in the judges discretion whether he will require plaintiff's counsel to elect at close of his case or at a later period of the trial. Gagnon v. Chapman, et al, vol. 18, 440. 3— Opinion expressed by judge— Question left to jury. In an action where the question being tried is the competency of the testatrix to make a will, it is no misdirection for the judge to state as his opinion that the party contesting the will has failed to establish that the testatrix' was sub- ject to delusions, provided the evidence relied on as showing delusions, and the question of sanity or insanity are left -to the jury. Doe dem, Hasen v. Hector, etc., St. James Church, vol. 18, 479. 4— Cause tried out of its turn— Costs. Where a cause was tried out of its order in the absence of the defendant, on the statement of the plaintiff's counsel that it was undefended, the court granted a new trial without costs, on an affidavit of the defendant's attorney that the defendant had a good defence and intended to defend the action. Mcintosh v. Hamilton, vol. 18, 654. 5 — Action on account stated — Where jury only allowed half the amount — Quantum meruit — Evidence. Where plaintiff claimed $1,000 as the amount of an account stated between himself and a deceased person as due plaintiff 's wife for board and lodging for a number of years, and the jury allowed $500; there being nothing to warrant a verdict for that amount, a new trial was granted on application of defendant, plaintiff having sued on the quantum meruit for nursing the in- NEW TRIAL. NEW TRIAL. 157 testate in bis last illness, put in evi- dence, subject to objection, the inven- tory of the estate. Held, improperly received, the only question for the jury being, what were the services worth ? not, what was the intestate worth ? Powell v. Wark, vol. 19, 57. 8— Where party applying for, knew at the time that he was related to the judge and did not disclose the fact — Application re- fused — Certiorari to bring up the pro- ceedings before county court judge. On a trial before a county court judge the defendant knowing that he was re- lated to the judge, did not disclose the fact of this relationship, but took the chances of the trial. The judge was not aware of the relationship. The verdict having gone against the defen- dant, he obtained a stay of judgment, and made application for a new trial. At the hearing, the defendant produced an affidavit in which he deposed to the relationship, and asked for a new trial on that ground. The judge refused to allow the affidavit to be read, and de- clined to hear the application on that ground. Held, that defendant under those cir- cumstances was not entitled to a new trial, but that the judge ought to have received the affidavit. Quare, whether the court would in any case grant a certiorari to bring up proceedings had before a county court judge. Ex f arte Ferguson, vol. 19, 117. 7 — Evidence where improperly received and afterwards withdrawn by judge from jury. Held, under authority of Wilmot v. Venwart, 1 P. & B. 456, that where evi- dence which has been improperly re- ceived has been withdrawn by the judge from the consideration of the jury, such improper admission of evidence is not a ground for a new trial. Stewart v. Snow- ball, vol. 19, 597. See Addenda 49. 8— On verdict being against evidence- Rule as to granting. In an action on a policy of insurance where the defence set ,up was fraud in the assured. On the first trial a verdict was found for the plaintiffs, but a new trial was granted on the ground of the question of fraud not having been sub- mitted to the jury. On the next two trials the juries disagreed. On the last trial a verdict was again found for the plaintiffs, the issue of fraud being fairly and properly left to the jury. Allen, C.J., and Duff, J., being of opinion that the evidence established the fraud of the plaintiff 's without any moral doubt, thought that the case should be submitted to another jury, but Weldon, Fisher, and Wetmore, JJ., being of opinion that there was evidence to' sustain the finding, and the case being one peculiarly for a jury, and having been already before four juries, thought that there ought not to be an- other trial, and the rule was discharged. Gibson v. The North,British & Mercantile Ins. Co., vol. 19, 652. 9— Appeal— On question of fact— Bills of Sale Act— Verbal defeasance. Appeal from an order of a county court judge refusing a rule for a new trial on the ground of the verdict being against evidence, the court will not in- terfere with the finding of the court below. Qtuere, whether a bill of sale absolute in its terms but subject to a defeasance, which is not reduced to writing and filed, is void against the persons named in section 1, of the Bills of Sale Act, Con. Stat., cap. 75, sees. 1 petition to prove a will in solemn form, may be appealed from, though it may not be the final decision of a contested case, (Weldon, J., dissenting). In re Charles McMullen, vol. 23, 382. — Questions of fact decided from the evidence sent up on appeal irrespective of the finding of the judge of probates. See Appeal 7. — Proceedings, ministerial, may not be removed by certiorari. See Certiorari 5. PROCEDENDO. 1— Conviction removed and confirmed, en- forcement of conviction. Where a conviction under the second part of the Canada Temperance Act has been removed by certiorari and after- wards confirmed, a procedendo will issue to carry back the record of the proceed- ings to the magistrate, in order that he may enforce the conviction. Regina v. Grimmer, vol. 25, 480. 2— Rule to take return off file when not ne- cessary — ^Validity of conviction. Where proceedings have been removed into this court by certiorari and affirmed, it is not necessary to take out a rule to take the return off file before applying for a procedendo, it being suf&oient that leave has been granted to remove the return from the files. 182 PROMISSORY NOTE. PROMISSORY NOTE. Where a conviction has been removed by certiorari and affirmed, the court will not, on an application for a procedendo to the convicting justice, examine into the validity of the conviction on grounds not taken on the motion to quash it. Begiiia v. White dk Perry, vol. 25, 483. Proclamation — Under Canada Temper- ance Act — Declaring second part of the Act in force — Evidence. See Canada Temperance Act 7. Progeny — Of mare, conveyed by bill of sale, passes with mare. See Bill of Sale 2. Prohibition — Writ of — Application for — To restrain county court judge from proceeding with scrutiny of votes in election under Canada Temperance Act. See Canada Temperance Act 8. PROMISSORY NOTE. 1— Payment— Usury. Defendant purchased property from an administrator under an agreement that the amount of a joint note, which he held against the intestate and one of the administrators for money lent, should be deducted from the purchase money. Held, in an action for the purchase money, that the defendant was only en- titled to dedtict the amount which he had actually loaned, that a sum retain- ed by him as usurious interest at the time of the loan, could not be included in such amount. Trueman, administra- tor v. Wood, vol. 19, 522. 2— Endorsement before delivery by one not payoe. When one not a payee of a promissory note, payable to B. or order, puts his name on it before it is delivered to the payee to take effect as a note, with in- tent to give it credit, he will be held liable as a maker. Bull 20, 721. Moffat, vol. 3— Original eons' deration — Unstamped — Presumption. E. being indebted to S. in $30, gave him an unstamped note for the amount. Held,' that S. might sue B. on the original consideration without shewing that the note was not outstanding, and could not be made available against him ; and that the note being prima facie of no value when delivered, would in the absence of evidence, be presumed to continue so. Richard v. Simpson, vol. 20, 118. 4— Note payable in bankable currency — whether payable "otherwise than in money," within Act, 30 Vic. cap. 84. See Dunn v. Allen, vol. 24, 1. 5— Indorsement in blank— Transfer by widow of indorsee— Title of transferee — Executor de son tort. The mdorsee of a promissory note in- dorsed in blank, died intestate, and his widow without administering, sold and delivered the note, the plaintiff apply- ing the proceeds in payment of the funeral expenses and debts of the de- ceased. Held, that no property in the note passed to the plaintiff and that he could not sue the maker. Geroio, appellant, and Holt, respondent, vol. 25, 412. 6— Accommodation paper— Liability of in- dorsee to pay under agreement with payee— Extinguishment of debt. A., being indebted to plaintiff and other persons, gave plaintiff a bill of sale of his goods, plaintiff agreeing to pay A.'s borrowed money and accom- modation notes Among the accommo- dation notes was one made by the defen- dant in favour of A., who endorsed it to the plaintiff without notice that it PROMISSORY NOTE. PROPERTY, PASSING OF, ETC. 183 was an pooommodation note. The note was discounted by a bank, and the pro- ceeds reaeived by &.., and the plaintiff was obliged to pay it at maturity. In an action by the plaintiff to recover the amount of the note, Held, 1. That as it was one of the conditions on which A. gave the bill of sale, that the plaintiff should pay his (A.'s) accommodation notes, he could not recover in the action, as his pay- ment of the note in pursuance of his agreement was an extinguishment of the debt, though he did not know that it was an accommodation note. 2. That though the plaintiff's agree- ment to pay the accommodation notes was made with A., the defendant could avail himself of it as a defence to an action on the notes. Peters v. Waterbury, et al., vol. 24, 154. — Accommodation — Liability of maker where payee has been dis- charged. See Accommodation Note 1. — Befusal of court to receive in evi- dence, note on which action was brought as the stamp was not cancelled. See Evidence 3. — Given for debt, and afterwards re- turned. See Accord and Satisfaction 1, — Trover — Executor — Action by — Measure of damages where executor the maker of note. See Trover 4. — Unstamped — Stealing of —Whether " valuable security " within meaning of Act of Canada, 32 & 33 Yio. cap. 21, See Criminal Law 3. — Eight to affix double stamps. See Bill of Exchange. — Initials — Affidavit to hold to bail. See Affidavit 6. — Of third party, given in settlement of bill of exchange — whether accepted in satisfaction and discharge of bill. See Agreement 7. Proof of former trial. See Evidence 6. PROPERTY, PASSING OF — VESTING OF. 1 — Sale — Acls to be performed by seller — Trover. Plaintiffs contracted with P. to put up 30,000 cans of lobsters for them dur- ing the fishing season of 1879, he to paint, label, and prepare the cans ready for shipment before delivery ; the plain- tiffs to pay 5 J cents per can, and furnish the cans, paint, etc., property in the fish to be the plaintiffs' from the time the cans were filled. Held, in an action of trover against B., a purchaser at a sale under an exe- cution against P. of 33 cases of cans put up by P., which at the time of seizure, and sale were not ready for delivery, that the fact that something remained to be done by P. before they would be ready for delivery did not prevent the property vesting in the plaintiff. Mur- ray, et al. V. Bourgeois, vol. 20, 149. 2 — Coniract of sale — Goods not specified— Pretention to pass property in — Appropria- tion. T. a brick maker sold 50,000 bricks out of a kiln containing 100,000 to the plaintiff, who paid the contract price, and hauled away about 16,000. The balance remained in the kiln in 'T.'s yard, and were never in any way separ- ated from the rest of the kiln, or appro- priated to the plaintiff. The defendant (the sheriffi subsequently sold them under an execution at the suit of W. against J. Plaintiff brought trover against defendant, claiming property in 34,000 of the bricks. Held, per Weldon and Fisher, JJ., that the contract was executed, and the property in the bricks passed to the plaintiff at the time of sale. Per Wetmore, J., that there being no specific identification or appropriation of the bricks, the contract was executory, and the property did not pass to the plaintiff. Close v. Temple, vol. 20, 234. 184 RAILWAY COMPANY. EAILWAY XSOMPANY. Appeal to Supreme Court of Canada allowed. See Addenda 53. — Vesting of. See Keplevin 4. — To be acquired — Passing of bill of sale. See Bill of Sale 1. — Property in lumber, ownership and control of lumber until payment of draft given for stampage under the agreement — Construction of agreement. See Addenda 28. Prospective damages — Husband and wife — Injury to wife. See Husband and Wife 4. Provincial Legislature. See Ultra Vires. Quashing conviction — Judgment — Crown has no appeal from. See Indict- ment. Quantum meruit— Improper admission of evidence to influence jury as to. See New Trial 5. — Work done under a written agree- ment — Action for. See Assumpsit 4. Quarries — -Bight to open new ones where right to quarry reserved in mutual deeds of partition; See Par- tition 1. Questions tending to criminate — Witness not bound to state his reasons for re- fusing to answer. See False Imprison- ment 4. Quit — Where a continuing tenancy exists — The tenant must receive notice to. See Landlord and Tenant 1. RAILWAY. 1 — Meaning of centre line of — Descrip- tion of lands— Evidence. See Eject- ment 4. RAILWAY COMPANY. Riglit to grant running powers over its line to another company— Power of, to con- tract after the time limited by Act of in- corporation — Specific performance of contract — When equity will enforce — Lease— Entire rent reserved— Consider- ation illegal in parL The Grand Southern Railway Com- pany was incorporated by 35 Vic. cap. 47, passed 11th April, 1872, for the pur- pose of constructing a railroad from the city of St. John to St. Stephen, the cap- ital stock to consist of at least $2,000,000, and the liability of the stockholders re- stricted to the amount of stock they held ; $50,000 of the stock subscribed to be paid in before the operations of the company commenced: and that to en- title the company to the privileges of their charter, the construction of the road should commence within three years, and should be bona fide continued from year to year, so that the whole be completed within eight years from the passing of this Act. No stock hav- ing been paid in under this Act, the time for commencing the construction of the road was extended by 37 Vic. cap. 85 ; but the time for completion re- mained as before, and the company was authorized to commence the construction of the road as soon as $20,000 of the stock was "subscribed" for, $24,000 was subscribed for, but only $1,240 was paid in. The company did not com- plete the road within the time limited (11th April, 1830), and the legislature refused to extend the time. On the 20th January, 1876, the com- pany contracted with the government to construct the railway mentioned in the Act of Incorporation, to commence work by the 31st December following, and to complete the road by the 11th April, 1880, the government having power to terminate the contract by a six month's notice, unless the com- pany gave satisfactory proof that the work was proceeding so as to be com- pleted within the time limited. In January, 1879, the government gave the company a notice under the terms of the agreement. By Act, 33 Vic. cap. 39, the Carleton Branch Railway Company was incor- porated for the purpose of constructing EAILWAY COMPANY. RAILWAY COMPANY. 185 a railway from the west side of the har- bour of St. John to the European and North American Eailway, near Fair- ville, with power to take and hold laud etc., and provided that lands taken by the company should be held as lands taken and appropriated for highways On the 30th April, 1880, the Grand Southern Eailway Company (respon- dents), entered into an agreement with the Carleton Branch Bailroad Company (appellants), whereby the appellants granted to the respondents for a term of fifteen years the right to connect their railway with the appellant's rail- way, and to run their train over it, and to lay down sidings, etc., and also de- mised to the respondents certain lots of lands with the right to build station houses and freight houses on one of the lots, reserving to the appellants for the lands demised, and the rights and priv- ileges granted, an annual rent. It was also agreed that if during the fifteen years the respondent could not use the track on the Carleton Branch Bailroad for certain specified causes, they (respon- dents) might built a track for their own use alonside of the appellant's railway, with necessary earthworks, etc., and in case such track was constructed, the re- spondents should pay the appellants a certain specified rent per annum for so long thereafter as they should use the land for that purpose, and that they should have the right to use and main- tain the second track at the special rents for 999 years. The respondents filed a bill, alleging that on the 2nd June, 1880, they com- menced to grade their line of railway so as to connect with the Carleton Branch road, but were prevented by the appel- lants. The bill prayed that it might be declared that the Carleton Branch Eail- way Company was bound to perform 4nd execute the agreement entered into with the respondents, and should be enjoined from preventing or obstruct- ing the respondents from uniting their railway with the appellants' line, and from interfering with or hindering the respondents from passing with their locomotives, etc., over the appellants' road in accordance with the agreement of the 30th April, 1880. An injunction order having been granted in the terms of the prayer ; Held, on appeal, by Allen, C.J., and Duff, J., (Weldon, J., dissenting.) 1. That the bill was in effect a bill for specific performance of an agreement, and before the court would enforce it, it must be satisfied that there was no rea- sonable ground to contend that the agreement was illegal, or against the policy of the law. 2. That the agreement of the 30th April, 1880, having been entered into after the time limited by the Act incor- porating the Grand Southern Eailway Company for the completion of the road, was ultra vires and void. 3. That the agreement was not such a one as a court of equity would at- tempt to enforce ; and whether it was valid or invalid, in view of the financial condition of the Grand Southern Eail- way Company, it was not an agreement which the court ought to be active in enforcing. 4. Semble, that though the Carleton Branch Eailway Company might grant to another company a right to connect with their railway, and have running power over it, it had no power to grant to another company a right to construct a separate track alongside its own line, or to make such a demise of its lands as purported to be made by the agreement of 30th April, 1880. 5. That if the demise of the lands to the Grand Southern Eailway Company was illegal, it vitiated the grant of the easement or running powers over the Carleton Branch Eailway, because one entire rent was reserved in respect of 186 EAllWAY COMPANY. EAILWAY COMPANY. both ; and the legal part of the consid- eration could not be severed from the illegal part. Held, per Weldon, J., that as the effect of the injunction order was merely to preserve the status quo, until the rights of the parties could be determined on the hearing, the appeal should be dis- missed. The Carleton Branch Railway Co. V. The Grand Southern Railway Co., vol. 21, 339. 2— Liability to fence — Occupier of adjoining land— 41 Vic. cap. 92, sec. 22. By Act, 41 Vic. cap. 92, sec. 22, a railway company were bound to erect and maintain sufficient fences on each side of their line where it passed through enclosed or improved land, and were made liable for all damages sustained by reason oE neglect to maintain such fences. Plaintiff's cow strayed from his land into the highway, and thence into land belonging to H., adjoining the railway, and from thence out upon the railway track through a defective fence, and was killed by a train, but without any negligence in the management of the train. Held, that the obligation to fence was general, and not merely as against the occupiers of land adjoining the railway ; and that the company were liable for killing the cow. St. John Railway Co. v. Montgomery, vol. 21, 441. 3— Freight— Reasonable charge— Common carriers' implied promise — Action to recover back excessive charges. By Act, 27 Vic. cap. 43, and 41 Vic. cap. 92, the Legislature gave power to the defendant company to construct and maintain a railway from St. John to the main boundary for the purpose of trans- portation of persons, goods and property of all descriptions, giving them all powers and privileges necessary to carry into effect such purposes and objects, and empowering them to purchase and hold engines, oars, and other necessary things for the transportation of persons, goods and property of all descriptions, and granting to them a toll upon all pas- sengers and property of all descriptions, which may be conveyed or transported by them upon such road, at such rate as may be established from time to time by the directors of the company. Defendants having their line of railway in operation, plaintiff's builder at St. John delivered to them for transpor- tation six platform cars. Nothing was said about the rate of freight previous to the six cars being carried, and no rate of transportation had been established by the directors for such description of property. Defendants refused to deliver the cars unless plaintiff paid at the rate of $23 a oar, which he did under pro- test. Afterwards the builder at St. John sent seventeen more cars to the defendant's line, and they were by them received and transported in the same manner, nothing being said about the rate of freight. The like sum of $23 a car was demanded before delivery and paid under protest, and plaintiff there- upon brought action to recover the amount paid in excess of a reasonable charge. Held, 1. That prima facie, and in the absence of proof of a more limited provision, the defendants must be taken to hold themselves out as carriers of all descriptions of property capable of be- ing reasonably and conveniently trans- ported over rails by a locomotive engine, to the extent to which they have the means and accommodation for such traffic ; 2. That as to the six cars first sent, the defendants were entitled only to a reasonable compensation, as there was no established toll and no special agree- '• ment : RAILWAY COMPANY. RAILWAY COMPANY. 187 3. As to the remaining seventeen oars, that the defendants were bound to trans- port them for a reasonable remunera- tion at least, in the absence of a, rate of freight established according to statute ; that there was no implied promise on plaintiff's part to pay the same freight as on the six cars previously sent, the proper inference to be drawn from the transaction being, that the plaintiff re- lied on his right to have the goods carried at such rate as the law should declare to be the proper rate. Green v. The St. John and Maine Railway Co., vol. 22, 252. 4 — Action against for killing horse— Act 33 Vic. cap. 49 — Evidence — Sufficiency of— Fencing railway— Necessity of Jiom- pany siiewing that lands were unim- proved — Where fences had been erected by company. In an action against a railway com- ;pany for negligently killing the plain- tiff 's mare, he proved that on the night of the 13th October, the train was stopped while passing through or near his land, and that a passenger on the train saw the conductor, and some of the other men employed on the train, examining a mare which was lying at the foot of an embankment near the railway, and unable to rise without assistance ; that early the next morning the plaintiff's mare was found dead near the same place, with several of her ribs broken, and that she had been grazing about there the previous evening, and was then uninjured. Held, that there was sufi&oient evi- dence to leave to the jury that the mare which the conductor of the train was examining the previous night was the plaintiff's mare. By Act, 33 Vic. cap. 49, a railway company was required to fence the sides of their road where it passed through enclosed or improved land ; they put up a fence but allowed it to get out of repair, in consequence of which a horse strayed on the railway and was killed by the engine ; Held, in an action for killing the horse, that the defendants were bound to shew that the land where the horse was killed was not improved, so as to bring themselves within the exception in the Act. New Brunswick Railway Co. V. Armstrong, vol. 23, 193. 5 — Fire set by sparlhould be re- coverable ; and to impose penalties for any breach of the same, etc. The by- law or ordinance in question discrim- inated between resident and non-resi- dent merchants, traders, etc., by imposing a license tax of $20 on the former and S40 on the latter. Held, that assuming the Act, 83 Vic, cap. 4, to be intra vires of the Legislature of New Brunswick, the by-law made under it was invalid, because the Act ir question gave no power to the common council of St. John, of discrimination between residents and non-residents, such as they had exercised in this by- law. Appeal allowed with costs. Supreme Court of Canada Reports, vol. 5, 356,- 20 N. B. R. 64. Louis J. Almon, et al. and James D. Lewin, et al., Appellants, Respondents. On Appeal from the Supreme Court of New Brunswick. Will— Annuities, sale of corpus to pay. J. B. died on the 3rd August, 1876, leaving a will dated 6th August. 1875, and a codicil dated 21st July, 1876. By the will he devised to his widow an an- nuity of §10,000 for her life, which he declared to be in lieu of her dower. This annuity the testator directed should be chargeable on his general estate. The testator then devised and bequeathed to the executors and trustees of his will, certain real and personal property par- ticularly described in five schedules, marked respectively A, B, C, !D, and E, annexed to this will, upon these trusts, viz. : Upon trust, during the life of his wife, to collect and receive the rents, issues, and profits thereof which should be, and be taken to form a portion of his " general estate ; " and then from and out of the general estate, during the life of the testator's wife, the executors were to pay to each of his five daughters ADDENDA. ADDENDA. 251 the clear yearly sum of $1,600 by equal quarterly payments, free from the debts, contracts, and engagements of their re- spective husbands. Next, resuming the statement of the trusts of the scheduled property speoifially given, the testator provided that from and after the death of his wife, the trustees were to collect and receive the rents, issues, dividends, and profits of the lands, etc., mentioned in the said schedules, and to pay to his daughter, M. A. A., the rents, etc., ap- portioned to her in schedule A ; to his daughter, E., of those mentioned m sche- dule B ; to his daughter, M.. of those mentioned in schedule C ; to his daugh- ter, A., of those mentioned in schedule T> ; and to his daughter, L., of those mentioned in schedule E ; each of said daughters being charged with the insur- ance, ground rents, rates and taxes, re- pairs and other expenses with or inci- dental to the management and uphold- ing of the property apportioned to her, and the same being from time to time deducted from such quarterly pay- ments. The will then (iirected the executors to keep the properties insured against loss by fire, and in case of total loss, it should be optibnal with the parties to whom the property was apportioned by the schedules, either to direct the insurance money to be ap- plied in rebuilding, or to lease the pro- perty. It then declared what was to be done with the share of each of his daughters in case of her death. In the residuary clause of the will there were the following words : " The rest, residue and remainder of my said estate, both real and personal, and whatsoever and wheresoever situated, I give, devise and bequeath the same to my said executors and trustees, upon the trusts and for the intents and purposes following." He then gave out of the residue a legacy of $4,000 to his brother, D. E., and the ultimate residue" he directed to be equally divided among his children upon the same trusts with regard to his daughters, as were thereinbefore de-. clared, with respect to the said estate in the said schedules mentioned. The rents and profits of the whole estate left by the testator proved insuffi- cient, after paying the annuity of $10,000 to the widow and the rent of and taxes upon his house in L., to pay in full the several sums of $1,600 a year to each of the daughters during the life of their mother, and the question raised on the appeal was whether the executors and trustees had power to sell or mortgage any part of the corpus, or apply the funds of the corpus Of the property to make up the deficiency. Held, on appeal, that the annuities given to the daughters, and the arrears of their annuities, were chargeable upon the corpus of the real and personal estate, subject to the right of the widow to have a sufficient sum set apart to provide for her annuity. Appeal allowed with costs. Supreme Court of Canada Reports vol. 5, 514, N. B. B. 284. Nicholas Power, Appellant, and Thomas Ellis, On appeal from the Supreme Court of New Brunswick. Witness — Kefusal to answer questions on cross-examination — Privileged communications — Improper ruling- Misdirection. Plaintiff (respondent), a teller in a bank in New York, absconded with funds of the bank, and came to St. John, N.B., where he was arrested by the de- fend"<.nt (appellant), a detective residing in Halifax, N.S., and imprisoned in the police station for several hours. No charge having been made against him he was released. While plaintiff was a 252 ADDENDA. ADDENDA. prisoner at the police station, the defen- dant went to plaintiff's boarding house and saw his wife, readtoher a telegram, and demanded and obtained from her money she had in her possession, telling her that it belonged to the bank and that her husband was in custody. In an action for assault and false im- prisonment and for money had and received, the defendant pleaded, inter alia, that the money had been fraudu- lently stolen by the plaintiff at the city of New York, from the bank, and was not the money of the plaintiff ; that de- fendant, as agent of the bank, received the money to and for the use of the bank, and paid it over to them. Several witnesses were examined, and the plain- tiff being examined as a witness on his own behalf did not, on cross-examina- tion answer certain questions, relying, as he said, upon his counsel to advise him ; and on being interrogated as to his belief that his doing so would tend to criminate him, he remained silent, and on being pressed he refused to answer whether he apprehended serious conse- quences if he answered the question pro- posed. The learned judge then told the jury that there was no identification of the money, and directed them that, if they should be of opinion that the money was obtained by force or duress from plaintiff's wife, they should find for the plaintiff. Held, (Henry, J., dissenting), that the defendant was entitled to the oath of the party that he objected to answer be- cause he believed his answering would tend to criminate him. Appeal allowed with costs. Supreme Court of Canada Eeports, vol. 6, 1, 20 N. B. B. 40. John Dewe, Appellant, and David H. Wateekury, Respondent. On appeal from the Supreme Court of New Brunswick. Slander — Public officer — Privileged communication. The appellant, D., having been ap- pointed chief post office inspector for Ca- nada, was engaged, under directions from the Postmaster-General, in making en- quiries into certain irregularities which had been discovered at the St. John post office. After making enquiries, he had a conversation with the respondent, W., alone in a room in the post office, charg- ing him with abstracting missing let- ters, which respondent strongly denied. Thereupon the assistant-postmaster was called in, and the appellant said, " I have charged Mr. W. with abstracting the letters. I have charged Mr. W. with the abstractions that have occurred from those money letters, and I have con- cluded to suspend him." The respon- dent, having brought an action for slan- der, was allowed to give evidence of the conversation between himself and ap- pellant. There was no other evidence of malice. The jury found that appellant was not actuated by ill-feeling towards the repondent in making the observation to him, but found that he was so actuated in the communication he made to the assistant postmaster. Held, on appeal, 1st. That the appel- lant was in the due discharge of his duty and acting in accordance with his instructions, and that the words ad- dressed to the assistant postmaster were privileged. 2. That the onus lay upon respondent to prove that the appellant acted under the influence of malicious feelings, and as the jury found that the appellant had not been actuated by ill-feeling, the respondent was not entitled to retain l;iis verdict, and the rule for a non-suit should be made absolute. Appeal allowed with costs. ADDENDA. ADDENDA. 25S Supreme Court of Canada Eeports, vol. 6, 143, 19 N. B. E. 225. John Walker and "William Speaeb, Appellants, and James McMillan, Respondent. Appeal from the Supreme Court of New Brunswick. 41 Vic, caps. 6 and 7 (N. B.)— By-law of city of St. John — Building erected in violation of — Negligence of contractor — Liability of employer — Several de- fendants appearing by same attorney — Separate counsel at trial — Cross appeal — Kent, loss of — Damages. On the 26th September, 1877, S. con- tracted to erect a proper and legal build- ing for W. on his (W.'s) land, in the city of St. John. Two days after, a by-law of the city of St. John, under the Act of the Legislature, 41 Vic, cap. 6, " The St. John Building Act, 1877," was passed, prohibiting the erection of buildings such as the one contracted for, and declaring them to be nuisances. By his contract, W. reserved the right to alter or modify the plans and specifica- tions, and to make any deviation in the construction, detail or execution of the work without avoiding the contract, etc. By the contract it was also declared that W. had engaged B. as superinten- dent of the erection — his duty being to eijiforoe the conditions of the contract, furnish drawings, etc, , make estimates of the amount due, and issue certificates. While W.'s building was in course of erection, the centre wall, having been built on an insufficient foundation, fell, carrying with it the party wall common to W. and MoM., his neighbour. On an action by McM. against W. and S. to recover damages for the injury thus sustained, the jury found a verdict for the plaintiff for general damages, $3,- 952 and #1,375 for loss of rent. This latter amount was found separately, in order that the court might reduce it, if not recoverable. On motion to the Su- preme Court of New Brunswick for a non-suit or new trial, the verdict was allowed to stand for $3,952, the amount of the general damages found by the jury. On appeal to the Supreme Court and cross appeal by respondent to have verdict stand for the full amount award- ed by the jury — Held, (Gwynne, J., dissenting), 1. That at the time of the injury complained of. the contract for the erection of W.'s building being in contravention of the provisions of a valid by-law of the city of St. John, the defendant W., his cop- tractor and his agent (S.) were all equally responsible for the consequences of the improper building of the illegal wall which caused ,the injury to McM. , charged in the declaration. 2. That the jury, in the absence of any evidence to the contrary, could adopt the actual loss of rent as a fair criterion by which to establish the actual amount of the damage sustained, and therefore the verdict should stand for the full amount claimed and awarded. Fer Gwynne, J., dissenting, that W. was not, by the terms of the contract, liable for the injury, and, even if the by-law did make thebuilding a nuisance, the plaintiff could not, under the pleadings in the case, have the benefit of it. The defendants appeared, by the same attorney, pleaded jointly by the same attorney, and their defence was, in sub- stance, precisely the same, but they were represented at the trial by separate counsel. On examination of plaintiff's witness, both counsel claimed the right to cross-examine the witness. Held, (affirming the ruling of the judge at the trial), that the judge was right in allowing only one counsel to cross-examine the witness. 254 ADDENDA. ADDENDA. Appeal dismissed with costs, and cross appeal allowed. Supreme Court of Canada Reports, vol. 6, 241, 21N. B.K.31. See No. 32. James McSorley, Appellant, and The Mayoe, etc., of the city of St. John, and William Sandall, Respondents. On appeal from the Supreme Court of 1 New Brunswick. False imprisonment — Arrest — Assess- ment — 41 Vic, cap. 9, N. B. — Execu- tion issued by receiver of taxes for city of St. John — "Respondeat su- perior." The 41 Yic, cap. 9, entitled " An Act to widen and extend certain public streets in the city of St. John," author- ized commissioners appointed by the Governor in Council to assess the own- ers of the land who would be benefitted by the widening of the streets, and in their report on the extension of Canter- bury street, the commissioners so ap- pomted assessed the benefit to a certain lot at $419.46, and put in their report the name of the appellant,' (McS.), as the owner. The amount so assessed was to be paid to the corporation of the city, and, if not, it was the duty of the receiver of taxes, appointed by the city corporation, to issue execution and levy the same. McS., although assessed, was not the owner of the lot. S., the receiver of taxes, in default, issued an execution, and for want of goods McS., was arrested and imprisoned until he paid the amount at the chamberlain's office in the city of St. John. The action was for arrest and false imprisonment, and for money had and received. The jury found a verdict for MoS. on the first count against both defendants. Held, (reversing the judgment of the Supreme Court of New Brunswick), that S., who issued the warrant, founded upon a void assessment, and caused the arrest to be made, was guilty of a tres- pass, and being at the time a servant of the corporation, under their control, and specially appointed by them to collect and levy the amount so assessed, the maxim of respondeat superior applied, and therefore the verdict in favour of McS. for $635.39 against both respond- ents on the first count should stand. (Eitchie, C.J., and Taschereau, J., dis- senting) . Per Gwynne, J., that the corporation had adopted the act of their officer as as their own by receiving and retaining the money paid, and authorizing McS.'s discharge from custody only after such payment. Appeal allowed with costs. Supreme Court of Canada Reports vol. 6, 531, 20 N. B. B 497. Tektullus Theal, Appellant, and The Queen, Respondent. Criminal appeal — Indictment — Mis- joinder of counts — Evidence. An indictment contained two counts, one charging the prisoner wich murder- ing M. J. T. on the 10th November, 1881 ; the other with manslaughter of the said M. J. T. on the same day. The grand jury found " a true bill." A motion to quash the indictment for misjoinder was refused, the counsel for the prosecution electing to proceed on the first count only. Held, (affirming the judgment of the court a quo), that the indictment was sufficient. The prisoner was convicted of man- slaughter in killing his wife, who died ADDENDA. ADDENDA. 255 on the 10th, November, 1881. The im. mediate cause of her death was acute inflammation of the liver, which the medical testimony proved might be occasioned by a blow or a fall against a hard substance. About three weeks before her death, (17th October preced- ing), the prisoner had knocked his wife down with a bottle ; she fell against a door, and remained on the floor insen- sible for some time ; she was coiifined to her bed soon afterwards and never re- covered. Evidence was given of fre- quent acta of violence committed by the prisoner upon his wife within a year of her death, by knocking her down and kicking her in the side. On the reserved question, viz., whether the evidence of assaults and violence committed by the prisoner upon the deceased, prior to the 10th November or the 17th October, 1881, was properly received, and whether there was any evidence to leave to the jury to sustain the charge in the first count of the indictment ? Held, (afiarming the judgment of the Supreme Court of New Brunswick), that the evidence was properly received, and that there was evidence to submit to the jury that the disease which caused her death was produced by the injuries inflicted by the prisoner. Appeal dismissed. Supreme Court of Canada Eeports, vol. 7, 397, 21 N. B. B. 449. DOMINION CONTEOVEETED ELECTIONS ACT, 1874. Election Petition for the County of Glou- cester, Province of New Brunswick. Dennis Commeau, and Appellant, Kennedy Btjkns, Bespondent. On appeal from the Supreme Court of New Brunswick. Appeal on election petition — 42 Vic, cap. 30 (the Supreme and Exchequer Court Amendment Act of 1879), sec. 10 — Construction of — Rule absolute by court in banc to rescind order of a judge in chambers — Preliminary objection. A petition was duly filed and pre- sented by appellant on the 5th of August, 1883, under the "Dominion Controverted Election Act, 1874," against the return of respondent. Preliminary objections were filed by respondent, and before the same came on for hearing, the attorney and agent of respondent obtained on the 13th October from Mr. Justice Weldon an order authorizing the withdrawal of the deposit money and removal of the petition off the files. The money was withdrawn, but shortly afterwards, in January, 1883, the appellant, alleging he had had no knowledge of the proceedings taken by his agent and attorney, obtained, upon summons, a second order from Mr. Justice Weldon, rescinding his prior order of 13th October, 1882, and directing that upon the appellant repaying to the clerk of the court the amount of the security, the petition be restored, and that the appellant be at liberty to pro- ceed. Against this order of January, 1883, the respondent appealed to the Supreme Court of New Brunswick, and the court gave judgment rescinding it. Thereupon petitioner appealed to the Supreme Court of Canada. Held, that the judgment appealed from, is not a judgment on a preliminary ob- jection within the meaning of 42 Vic, cap. 39, sec. 10, (the Supreme Court Amendment Act, 1879), and therefore not appealable. Dickie v. Woodfuth, 8 Can. S. C. E. 192, followed. Appeal quashed with costs.- Supreme Court of Canada Eeports, vol. 8, 204, 22 N. B. E. 573. 256 ADDENDA. ADDENDA. J. H. Chapman, Appellant, and Fbanois and James A. Ttiftb, Respondentt. Unstamped bill of exchange — 42 Vic, cap. 17, sec. 13 — Knowledge — ^Ques- • tion for judge. The action was brought by T. et al. against C. to recover the amount of a bill of exchange. It appeared that the draft when made, and when received by T. et al., had no stamps ; that they knew then that bills and promissory notes required to be stamped, but never gave it a thought, and their first know- ledge that the bill was not stamped was when they gave it to their attorney for collection on the 26th February, 1880, and they immediately put on double stamps. The bill was received in evidence, leave being reserved to the defendant to move for a non-suit ; the learned judge stating his opinion that though as a fact the plaintiffs knew the bill was not stamped when they received it, and knew that stamps were necessary, they accidentally and not intentionally omit- ted to affix them till their attention was called to the omission in February, 1880. Held, 1. That the question as to whe- ther the holder of a bill or draft has affixed double stamps upon an un- stamped bill or draft so soon as the state of the bill was brought to his knowledge, within the terms of 42 Vic, cap. 12, sec. 13, is a question for the judge at the trial, and not for the jury. (Gwynne, J., dissenting). 2. That the " knowledge " referred to in the Act is actual knowledge, and not imputed or presumed knowledge, and that the [evidence in this case shewed that T. acquired this knowledge for the first time on the day he affixed stamps for the amount of the double duty, 26th February, 1880. 3. That the want of proper stamps or proper stamping in due time is not a defence which need be pleaded. (Gwynne, J., dissenting.) Appeal dismissed with costs. Supreme Court of Canada Eeports vol. 8, 543, 22 N. B. K. 195. James DeWolfe Spube and John N. MooKE, Appellants, and The Albert Mining Company, Respondents. On appeal from the Supreme Court of New Brunswick. Contract — Sale of goods — Payment — Appropriation — Non-suit. The Albert Mining Co., (respondents), brought this action to recover for coal sold and delivered to appellants during the years 1866, 1867 and 1868. S. and M. and one McG. were part- ners carrying on business under the name of the Albertine Oil Company, the defendant S. furnished the capital. The contract for the coal was made by S., who was a large stockholder in the plaintiff company, and entitled to yearly dividends on his stock. The agreement, as proved by plaintiffs, was that S. pur- chased the coal for the Albertine Oil Company, the members of whieh he named, that the president of the plain- tiff company told S. they would look to him for payment, as the other partners were poor ; that the terms of sale were cash on delivery on board the vessels ; and that S. agreed that the dividends payable to him on his stock should be applied in payment for the coal; that in consequence of this arrangement the plaintiffs credited the Albertine Oil Company with the amount of S.'s divi- dends as they were declared from time to time down to August, 1866, leaving a balance of 8912 due to S. It also ap. ADDENDA. ADDENDA. 257 peared that the coal delivered was charged in the plaintiffs' books to the Albertine Oil Company, and that the the bills of lading on the shipments of the coal were also made out in their name, and that some time afterwards a notice signed by S. and M. was given to the plaintiffs, complaining of the infe- rior quality of the coal, and claiming damages in consequence. In the latter part of the year 1868, S. repudiated the agreement to appropriate his dividends to the payment of coal, and refused to sign the receipts therefor in the plaintiffs' books. He had signed the receipt for the dividend of 1866. The present action was then brought (in 1873) against S. and M., the surviving partners of the Alber- tine Oil Company, McG. having died, to recover the value of the coal. S. shortly afterwards brought an action against the plaintiffs for the dividends ; the claim was referred to arbitration, and an award was made in favour of S. for upwards of $15,000, which the plain- tiffs paid in July, 1874. , The receipt given for the payment stated it was in full satisfaction of the judgment in the suit of S. against the Albert Mining Company, and it appeared, (though evi- dence of this was objected to in the pre- sent action), that it included the divi- dends for the years 1867 and 1868. The learned judge before whom the action was tried non-suited the plain- tiffs, but the Supreme Court of New Brunswick set aside the non-suit. Held, (reversing the judgment of the court below. Strong, J., dissenting), that there being clear evidence of the appro- priation of S.'s dividends.in pursuance of asreement made with him. and there- fore of the plaintiffs having been paid for the coal in the manner and on the terms agreed on, the plaintiffs were properly non-suited. Appeal allowed with costs. Supreme Court of Canada Reports, vol. 9, 35, 22 N. B. R. 346. S D. William H. Vennino, and James Steadman, William H. Venning, and Bduab Hanson. William H. Venning, and James Dewolfe, Spdkr, Appellant, Respondent. Appellant, Respondent. Appellant, Respondent. On appeal from the Supreme Court of New Brunswick. -31 Vic, cap. 60, ss. 3, 19, (D.) — Order-in-counoil, 11th June, 1879 — Construction of — Fishery officer, action against — Notice not necessary — Damages, excessive. Three several actions for trespass and assault were brought by A. B. & C, re- spectively, riparian proprietors of land fronting on rivers above the ebb and flow of the tide, against V. for forcibly seizing and taking away their fishing rods and lines, while they were engaged in fly-fishing for salmon in front of their respective lots. The defendant was a. fishery officer, appointed under the Fisheries Act, 31 Vic, cap. 60, and justified the seizure on the ground that the plaintiffs were fishing without licenses in violation of an order-in-coun- oil of June 11th, 1879, passed in pur- suance of section 19 of the Act, which order was in these words : — "Fishing for salmon in the Dominion of Canada, except under the authority of leases or licenses from the Department of Marine and Fisheries is hereby prohibited." The defendant was armed and was in coijipany with several others, a sufficient number to have enforced the seizure if resistance had been made. There was no actual injury. A. recovered $3,000, afterwards reduced to $1,500 damages, B. 11,200, and C. $1,000. Held, that sections 2 and 19 of the Fisheries Act, and the order-in-counoil 17 258 ADDENDA. ADDENDA. of the 11th June, 1879, did not authorize the defendant in his capacity of Inspec- tor of Fisheries to interfere with A., B. & C.'s exclusive right as riparian pro- prietors of fishing at the locvs in quo ; but that the damages were in all the cases excessive, and therefore new trials should be granted. Held, also, (Gtwynne J., dissenting) that when the defendant committed the trespasses complained of, he was acting as a Dominion officer, under the instruc- tions of the Department of Marine and Fisheries, and was not entitled to notice of action under C. S. N. B., cap. 89, sec. 1, or cap. 90, sec. 8. Appeal allowed without costs. Supreme Court of Canada Reports, vol. 9, 206, 22 N. B. B. 639. Patkiok Gteorge Cabvill, G-eobge Mc- Kean and Gkoeqe T. Cakvill, (Defen- dants, Appellants, and Ueokge a. Sohofield, Thomas Gilbert and James Nevis, (Plaintiffs), Eespondenis. On appeal from the Supreme Court of New Brunswick. Charter party — Damages to ship — Un- avoidable delay — Refusal of charter- ers to load — Action by shipowners. By a charter party of December 11th, 1878, it was agreed that plaintiff's ves- sel, then on her way to Shelburne, N.S., should proceed with all possible dispatch, after her arrival in Shelburne, to St. John, and there load from the charter- era a cargo of deals for Liverpool ; and if the vessel did not arrive at Shelburne on or before 1st January, 1879, the char- terers were to be at liberty to cancel the charter party. The vessel arrived at Shelburne in December, and sailed at once for St. John. At the entrance of the harbor of St. John she got upon the rocks and was so badly damaged that it became necessary to put her on the blocks for repairs. Although she was repaired with all possible dispatch, she was not ready to receive her cargo until 21st of April following, prior to which time—on 26th March — the charterers gave the owners notice that they would not furnish a cargo for her. The owners sued for breach of the charter party, and on the trial defendants gave evidence, subject to objection, that freights between St. John and Liverpool were usually much higher in winter than in summer; that lumber would depreciate in value by being wintered over at St. John, and also as to the rela- tive value of lumber during the winter and iij the spring in the Liverpool market ; and it was contended that the time occupied in repairing the damage was unreasonable and had entirely frustrated the object of the voyage. The judge directed the jury that if the time occupied in getting the vessel off the rocks and repairing her was so long as to put an end, in a commercial sense, to the commercial speoulatiqn entered into by the ship-owners and charterers, they should find for the defendants. The verdict being for the defendants, the court below made absolute a rule for a new trial. On appeal to the Supreme Court of Canada, it was Held, (affirming the judgment of the court a quo) that as there was no con- dition precedent in the charter that the ship should be at St. John at any fixed date, and as the time taken in repairing the damage was not unreasonable, and the delay did not entirely frustrate the object of the voyage, the charterers were not justified in refusing to carry out the contract. Appeal dismissed with costs. Supreme Court of Canada Reports, vol. 9, 370, 22 N. B. R. 558. ADDENDA. ADDENDA. 259 Gideon Vernon and Maky E. Veknon (Plaintiffs), Appellants, and Waeken Oliver, (Defendant), Respondent. On appeal from the Supreme Court of New Brunswick. Arbitration and award — Misconduct of arbitrators — Bill to rectify award — Prayer for general relief — Jurisdiction of court — Practice — Factum — Scan- dalous and impertinent. The bill in this case was filed to rectify an award made under a submis- sion to arbitation between the parties, on the ground that the arbitrators con- sidered matters not included in the sub- mission, and had divided the sums received by the defendant from the plaintiffs, because that defendant's brother and partner was a party to such receipt, although the parinership affairs of the defendant and his brothers were excluded from the submission. The bill prayed that the award might be amended and the defendant decreed to pay the amount due the plaintiffs on the award being rectified, and that, in other respects, the award should stand and be binding on the parties ; there was also a prayer for general relief. Held, (af&rming the judgment of the court below) , that to grant the decree prayed for, would be to make a new award which the court had no jurisdic- tion to do, but. Held, also (reversing the decision of the court below) , that under the prayer for general relief the plaintiff was en- titled to have the award set aside. The plaintiffs' factum, containing re- . flections on the judge in equity and the full court of New Brunswick, was or- dered to be taken off the files as scanda- lous and impertinent. Appeal allowed without costs. Award ordered to be set aside and plaintiffs' factum to be taken off the files of the court. Supreme Court of Canada Beports, vol. 11, 156, 23 N. B. R. 292. The Millville Mutual Marine and Fire Insurance Co., (Defendants), Appellants, and Bartholomew J. Dkiscoll and John M. Drisooll (Plaintiffs), Respondents. Appeal from the Supreme Court of New Brunswick. Commission frbm Supreme Court of N. B. — Con. Stats., cap. 37 — Directed to two commissioners — Return signed by one only — Failure to administer inter- rogatories — Marine Ins. — ^Total loss — Notice of abandonment — Waiver. A commission was issued out of the Supreme Court of New Brunswick directed to two commissioners — one named by each of the partiep to the suit — to take e\idenoe at St. Thomas, W. I., with liberty to plaintiffs' commissioner to proceed ex parte if the other neglected or refused to attend. Both commis- sioners attended the examination, and defendants' nominee cross-examined the witness, but refused to certify to the return, which was sent back to the court signed by one commissioner only. Some of the interrogatories and cross-interro- gatories were put to the witnesses by the commissioners. Held, that the failure to administer the interrogatories according to the terms of the commission was a substan- tial objection and rendered the evidence incapable of being received. Per Ritchie, C.J., and Strong, Four- nier, and Henry, JJ., that the refusal of 260 ADDENDA. ADDENDA. one commissioner to sign the return was merely directory and did not vitiate it. Per Gwynne, J., tliat the return should have been signed by both commissioners, and not having been so signed was void, and the evidence under it phould not have been received. On a voyage from Porto Kioo to New Haven, respondents' vessel sustained damage, and put into Si. Thomas. A survey was held by competent persons appointed by the British consul, and according to their report the cost of putting her in good condition would exceed her value. The captain, under instructions from owners, to proceed Under best advice, advertised and sold the vessel, and purchaser had her repaired at a cost much less than the report, and sent her to sea. Held, that there was no evidence to justify the jury in finding that the vessel was a total loss. Owners of vessel gave notice to agent of underwriters, that they would aban- don, which agent refused to accept. Qwners telegraphed to captain that they had abandoned and for him to pro- ceed under the best advice. Held, that this act of telegraphing to the captain did not constitute a waiver of the notice of abandonment. Appeal allowed with costs. Supreme Court of Canada Eeports, vol. 11, 183, 23 N. B. E. 160. Thomas K. Jones, Boeeet T. A. Scott, and NoKMAN Eobeetson, (Plaintiffs), Appellants. and William H. Tuck, (Defendant), Respondent. On appeal from thfe Supreme Court of New Brunswick. Arbitration by order of court at pisi prius — To be entered as a verdict — Motion to set aside — Judge's order — Special paper Supreme Court, N. B. — Affidavits in reply — New matter — Discretion of court below. The cause was referred by court of nisi prius to arbitration, the award to be entered on the postea as a verdict of a jury. After the award the appellants obtained a judge's order for a stay of proceedings, apd for the cause to be en- tered on the motion paper of the court below, to enable the appellants to move to set aside the award and obtain a new trial, on the ground that the arbitrators had improperly taken evidence after the case before them was closed. Before the term in which the motion was to be heard, appellants abandoned that portion of the order directing the cause to be placed on the motion paper, and gave the usual notice of motion to set aside the award and postea, and for a new trial, which motion, by the prac- tice of the court, would be entered on the special paper. Defendant, in oppos- ing such motion, took the preliminary objection that the judge's order should be rescinded before plaintiffs could pro- ceed on their notice, and presented affi- davits on the merits, and plaintiffs re- quested leave to read affidavits in reply, claiming that defendant's affidavits dis- closed new matter. This the court re- fused, and dismissed the motion, the majority of the judges holding that plaintiffs were bound by the order of the judge, and could not proceed on the special paper until that order was rescinded, the remainder of the court refusing the application on the merits. On appeal to the Supreme Court of Canq,da, Held, that the cause was rightly on the special paper, and should have been heard on the merits, and the court should have exercised its discretion as. ADDENDA. ADDENDA. 261 to the reception or rejection of affidavits in reply ; Strong, J., dissenting, on the ground that such an appeal should not be heard. Per Eitohie, C.J., a court of appeal ought not to differ from a court below on a matter of discretion, unless it is a,bsolutely clear that such discretion has been wrongly exercised. The statute, (Con. Stats. N. B., cap. 37, sec. 173), ap- plies as well to motions for new trials, where the grounds upon which the mo- tion is made are supported by affida- vits, as in other cases. It makes no dis- tinction, but applies to all " motions founded on affidavits." Appeal allowed. Supreme Court of Canada Reports, vol. 11, 197, 23 N. B. B., 447. Austin J. Bobebts, Defendant. Appellant. and LoKENZo H. Vacghan, Thomas A. Vau- GHAN, BoBEBT M. Vaughan, (Plaintiffs), On appeal from the Supreme Court of New Brunswick. Bill of exchange — Not stamped by drawer — Affixed by drawee before being discounted — Double duty affixed at trial — ^^Knowledge of law relating to stamps— 42 Vic, cap. 17 — Plea that defendant did not make draft — Con. Stats., N. B. cap. 37, sec. 83, sub-sees. 4 and 5 — Evidence of want of stamp — Special plea. E. remitted by mail to V. a draft on Bay of Fundy Quarrying Co., Boston, Mass., in payment of an account of the Co., of which E. was superintendent. The draft, when received by V., was un- stamped, and V. affixed stampsrequired by the amount of the draft, and initialed them ss of the date the draft was drawn, which was at least two days prior to the date on which they were actually fixed. The draft was not paid, and an action was brought against E., who pleaded, according to provisions of Con. Stats. New Brunswick, cap. 37, sec. 88, sub- sec. 4, " that he did not make the draft.'' On the trial the draft was offered in evidence and objected to on the ground that it was not sufficiently stamped, the plaintiff having previously testified as to the manner in which the stamps were put on, and having also sworn that he knew the law relating to stamps at the time. The draft was admitted, subject to leave reserved to move for a non-suit, and at a later stage of the trial it was again offered with the double duty affixed. The trial resulted in counsel agreeing that a non-suit should be entered with leave reserved to plaintiffs to move for verdict, court to have power to draw inferences of facts. On motion pur- suant to such leave reserved, the Supreme Court of New Brunswick set aside the non-suit and ordered a verdict to be entered for the plaintiffs on the ground that the defect in the draft of want of stamp should have been spe- cially pleaded. On appeal to the Supreme Court of Canada : — Held, (Strong and Gwynne, J J. ,dissent- ing), that double duty should have been placed on the note as soon as it came into the hands of the drawee unstamped, and that it was too late at the trial to affix such double duty, the plaintiff having sworn that he knew the law relating to stamps, which precludes the possibility of holding that it was a rriere error or mistake. Held, also, that under the plea that de- fendant did not make the draft, he was entitled to take Advantage of the defect for want of stamps. 262 ADDENDA. ADDENDA. Per Strong, J., that the note was sufficiently stamped and plaintiffs were entitled to recover. Per Gwynne, J., that if the note was not sufficiently stamped the defence should have been specially pleaded. Appeal allowed with costs. Supreme Court of Canada Keports, vol. 11, 273, 23 ISr. B. E. 843. The Town of Portland, (Defendants), Appiillants, and William Gkipfiths, (Plaintiff), Mespondent. Negligence — Defective sidewalk — Law- ful use of streets — Contributory negli- gence. In an action against the town of Port- laud for damages arising from an injury caused by a defective sidewalk, the evidence of the plaintiff shewed that the accident whereby she was injured hap- pened while she was engaged in wash- ing the window of her d'welling from the outside of the house, and that in taking a step backwards her foot went into a hole in the sidewalk, and she was thrown down and hurt ; she also swore that she knew the hole was there. There was no evidence as to the nature and extent of the hole, nor was affirma- tives evidence given of negligence on the part of any officer of the corporation. The jury awarded the plaintiff $300 damages, and a rule msi for a new trial was discharged. Held, per Henry, Taschereau, and Gwynne, JJ., that there was no evidence of negligence to justify the verdict of the jury, and there must be a new trial. Per Ritchie, C.J., and Fournier, J., that the plaintiff was neither walking nor passing over, travelling upon, nor lawfully using the said street as alleged in the declaration, and she was therefore not entitled to recover. Appeal allowed with costs, and new trial granted. Supreme Court of Canada Reports, vol. 11, 333, 23 N. B. H.,559. John Tayloe (Defendant), Appellant. and EOBEKT, G. MoBAN, Benjamin Wishakt,. KoBEKT Gallawat and David Smith, (Plaintiffs) , Bespondents. On appeal from the Supreme Court of New Brunswick. Marine insurance — Voyage policy — Sail- ing restrictions — Time of entering Gulf of St. Lawrence — Attempt to enter. In an action on a voyage policy con- taining this clause, " warranted not to enter or attempt to enter or to use the Gulf of St. Lawrence prior to the 10th day of May, nor after the 30th day of October^ (a line drawn from Cape North to Cape Kay, and across the Strait of Canso to. the northern entrance thereof, shall be considered the bounds of the Gulf of St. Lawrence,)" the evidence was as fol- lows : — The captain says : " The voyage was from Liverpool to Quebec, and ship sailed on 2nd April. Nothing happened till we met with ice to the southward of Newfoundland. Shortened sail and dodged about for a few days trying to work our way around it. One night ship was hove to under lower main top- sail, and about midnight she drifted into a large field of ice. There was a heavy sea on at the time, and the ship sustained damage. We were in this ice three or four hours. Laid to all the next day, could not get further along on account of the ice. In about twenty- ADDENDA. ADDENPA. 263 four hours we started to work up to- wards Quebec." The log-book showed that the ship got into this ice the 7th of May, and an expert examined at the trial swore that from the entries in the log-book of the 6th, 7th, 8th and 9th of May, the captain was attempting to enter the Gulf of St. Lawrence. A verdict was taken for the plaintiffs by consent, with leave for the defendants to move to enter a non-suit, or for a new trial ; the court to have power to mould the verdict, and also to draw inferences of , fact the same as a jury. The Supreme Court of New Brunswick sustained the verdict. On appeal to the Supreme Court of Canada, Held, reversing the judgment of the court below, Henry, J., dissenting, that the above clause was applicable to a* voyage' policy, and that there was evi- dence to go to the jury that the captain was attempting to enter the Gulf con- trary to such clause. Appeal allowed with costs. Supreme Court of Canada Reports, vol. 11, 347, 24 N. B. R. 39. Ex parte James D. Lewis. On appeal from the Supreme Court of New Brunswick. St. John City Assessment Act, 1882, 45 Vic, cap. 59, N. B. — Chartered b^nk — Assessment on capital stock of — Par value — Real and personal property of bank — Payment of taxes under pro- test. By sec, 25 of the St. John City Assess- ment Act of 1882, it is provided that "all rates and taxes levied and imposed upon the city of Bt. John shall- be raised by an equal rate upon the value of the real estate situate in the city, and part of the city to be taxed, and upon the personal estate of the inhabitants and of persons deemed and declared to be inhabitants or residents of the said city And upon the capital stock, income or other thing of joint stock companies, corporations, or persons asssooiated in business." And after providing for the levying of a poll tax, such section goes on to say that " the whole residue to be raised shall be levied upon the whole ratable property, real and personal, and ratable income and real value, and amount of the same as nearly as can be ascertained, provided that joint stock shall not be rated above the par value thereof " Sec. 28 of the same Act provides that " All joint stock companies and cor- porations shall be assessed, under this Act, in like manner as individuals ; and for the purposes of such assessment, the president, or any agent, or manager of such joint stock company or corpora- tion shall be deemed and taken to be the owner of the real and personal estate, capital stock and assets of such company or corporation, and shall be dealt with and may be proceeded against accord- ingly." J. D. L., the president of the Bank of New Brunswick, was assessed, under the provisions of the above Act, on real and personal property of the bank valued, in the aggregate, at $1,100,000. The capital stock, of the bank at the time of such assessment was only 11,000,000, and he offered to pay the taxes on that amount, which was refused. It is not disputed that the bank was possessed of real and personal property of the as- sessed value. On appeal from the Supreme Court of New Brunswick, refusing a certiorari to quash the said assessment. Held (Fournier, J., dissenting), that the real and personal property of the bank are part of its capital stock, and that the assessment could not exceed the par value of such stock, namely, $1,000,000. 264 ADDENDA. ADDENDA. The chamberlain of the city of St. John is authorized, without any previous proceedings, to issue execution for taxes, if not paid within a certain time after notice. In order to avoid such execution the bank of New Brunswick paid their taxes under protest. Held, that such payment did not preclude them from afterwards taking proceedings to have the assessment qualified. Appeal allowed with costs. Supreme Court of Canada Beports, vol. 77, 484, 28 N. B. E. 591. The New Bbunswick JJailway Company, (Defendants), Appellants. and IssACHEB N. EouiNSON, (Plaintiff), Respondent. On appeal from the Supreme Court of New Brunswick. Eailway company— Sparks from engine — Proper care to prevent emission of — Use of wood or coal for fuel — Con- tributory negligence. B. owned a barn situated about two hundred feet from the New Brunswick Bailway Company's line, and such barn was destroyed by fire, caused, as was alleged, by sparks from the defendants' engine. An action was brought to re- cover damages for the loss of said barn and its contents. On the trial it ap- peared that the fuel used by the com- pany over this line was wood, and evi- dence was given to the effect that coal was less apt to throw out sparks. It also appeared that at the place where the fire occurred there was a heavy up- . grade, necessitating a full head of steam, and therefore increasing the danger to surrounding property. The jury found that the defendants did not use reason- able care in running the engine, but in what the want of such care consisted did not appear by their finding. Held, reversing the judgment of the court below, that the company was under no obligation to use coal for fuel, and the use of wood was not in itself evidence of negligence ; that the finding of the jury on the question of negligence was not satisfactory, and that therefore there should be a new trial. Appeal allowed with costs. Supreme Court of Canada Eeports, vol. 11, 688, 23 N. B. K., 323. EoEEKT A. Chapman and W. J. Eobinson, Appellants. and Silas W. Eand, Respondent. On appeal from the Supreme Court of New Brunswick. Can. Tem. Act— Election under^Scru- tiny — Powers of county court judge — Matters affecting the election. A judge of the county court, in hold- ing a scrutiny of the votes polled at an election under the provision of the Can- ada Temperance Act, has only to deter- mine the majority of votes cast, on one side or the other, by inspection of the ballots used in the election, and has no power to inquire into offences against the Act, and allow or reject ballots as a result of such inquiry (Henry, J., dubi- tante.) Appeal allowed with costs. Supreme Court of Canada Reports, vol. 11, 312. (N. E. R. 374). John P. Lawless, Appellant. and James Sullivan, et al.. Respondents. On appeal from the Supreme Court of New Brunswick. ADDENDA. ADDENDA. 265 Taxes — Foreign corporation — Branch Bank — "Income," as distinguished from "net profits"— 31 Vic. cap. 3, sec. 4 (N. B.) L., manager of the Bank of B. N. A., a foreign banking corporation, having a branch in the city of St. John, derived from such business during the fiscal year of 1875, an income of $46,000, but, during the same period, sustained losses in its business beyond that amount. The bank, having made no gain from said business, disputed the corporation's authority to assess them under 22 Vic. cap. 37, 31 Vic. cap. 36, and 34 Vic. cap. 18, on an income of $46,000. Held, that under the Acts of Assembly relating to the assessing of rates and taxes in the city of St. John, foreign banking corporations doing business in St. John are liable to be taxed on the gross income received by them during the fiscal year ; and that L. had been properly assessed, (Henry, J., dissent- ing-) Appeal dismissed with costs. Supreme Court of Canada Reports, vol. 3, 117, 18 N. B. E. 520. Above judgment reversed by Privy Council on appeal. The tax imposed by sec. 4 of New Brunswick Act, 31 Vic. cap. 36, upon "income" is leviable in respect of the balance of gain over loss made in the fiscal year, and where no such balance of gain has been made there is no in- come or fund which is capable of being , assessed. There is nothing in the said section or in the context which should induce a construction of the word "in- come " when applied to the income of a commercial business for a year, other- wise than its natural and commonly accepted sense as the balance of gain over loss. 6 App. Cas. 373 L. E. James D. Lewin and G. Sidney Smith, surviving trustees under the marriage settlement of Martha M. S. Eobert- son. Appellants. and Geoegiana Wilson, Benjamin Lawton, and James Harkis, Respondents. On appeal from the Supreme Court in Equity of New Brunswick, without any intermediate appeal to the Su- preme Court of New Brunswick. Statutes of Limitations — Cap. 84, sec. 40, and cap. 85, sees. 1 & 6 Con. Stats. N. B. — Covenant in mortgage deed — Payment by co-obligor. J. H. borrowed $4,000 from M. C. on the 27th of September, 1850, at which date J. H. and J. W. gave their joint and several bond to M. C. conditioned for the repayment of the money in five years, with interest quarterly in the meantime. At the same time, and to secure the payment of the $4,000, two separate mortgages were given ; one by J. H. and wife on H.'s wife's property, and one by J. W. and wife on W.'s pro- perty. Neither party executed the mort- gage of the other. The mortgage from J. W. contained a provision that upon repayment of the sum of £1,000 and interest, according to the condition of the bond by J. W. and J. H., or either of them, their or either of their heirs, etc., then said mortgage should be void ; a similar provision being inserted in the mortgage from J. H. The bond and mortgages were assigned to L., et al., (the (appellants) in 1870, and the prin- cipal money has never been paid. J. W. died in 1858, and by his will devised all his residuary real estate, including the lands and premises in the above men- tioned mortgage, to J. W., (one of the respondents) and others. J. W., in his lifetime, was, and since his death, the respondents have been in possession of the premises so mortgaged by J. W. 266 ADDENDA. ADDENDA. Neither J. W., nor any person claiming by, through, or under him, ever paid any interest on said bond and mortgage, or gave any acknowledgment in writing of the title of M. C. or her assignee, J. H., the co-obligor, paid interest on the bond from its date to 27th March, 1870. On 20th- January, 1881, under Con- solidated Statutes of New Brunswick*, cap. 40, a suit of foreclosure and sale of the premises mortgaged by J. W. was commenced by the appellants in the Supreme Court of New Brunswick in Equity, and the court gave judgment for the respondents. On appeal to the Supreme Court of Canada, — Held, affirming the judgment of the court below, (Strong, J., dissenting.) 1st. That all liability of J. W.'s per- sonal representatives, and of his heirs and devisees to any action whatever upon the bond was barred by sees. 1 & 6 of cap. 85, Consolidated Statutes of New Brunswick, although payment by a co- obligor would have maintained the action alive in its integrity under the English Statute 3 & 4 William IV., cap. 42. 2nd. That the right of foreclosure and sale of the lands included in the J. W. mortgage was barred by the Statute of Limitations in real actions. Con. Stats. N. B., cap. 84, sec. 40. Per Gwynne, J. The only person by whom a, payment can be made, or an acknowledgment in writing can be signed, so as to stay the currency of the Statute of Limitations to a point which, being ireached, frees the mortgaged lands from all liability under the mortgage, must be either the original party to the mortgage contract, that is to say, the' mortgagor, or some person in priority of estate with him, or the agent of one of such persons, and that moneys paid by J. H. in discharge of his own liability had none of the characteristics or quality of a payment made under the liability created by W.'s mortgage. Appeal dismissed with costs. Supreme Court of Canada Reports, vol. 9, 637. EzEKiEL MoLeoe, (Assignee of Jewett & Co.,) Appellant, and The New Brunswick Eailway Co., Respondents. On appeal from the Supreme Court of New Brunswick. Construction of agreement — Property in lumber — Ownership and control of lumber until payment of draft given for stumpage under the agreement. The respondents, owners of tiniber lands in New Brunswick, granted to 0. & S. a license to cut lumber on 25 square miles. By the license it was agreed inter alia : " Said stumpage to be paid in the following manner : Said company shall first deduct from the amount of stump- age on the timber or lumber cut by grantees on this license as aforesaid, an amount equal to the mileage, paid by them as aforesaid, and the whole of the remainder, if any, shall, not later than the 15th April next, be secured by good endorsed notes, or other sufficient secu- rity, to be approved of by the said com- pany, and payable on the 15th July next, and the lumber not to be removed from the booms or landings till the stump- age is secured as aforesaid. " And said company reserves and retains full and complete ownership and control of all lumber which shall be cut from the aforementioned premises, wherever and however it may be situa- ted, until all matters and things apper- taining to or connected with this license shall be settled and adjusted, and all ADDENDA. ADDENDA. 267 sums due or to become due for stump- age or otherwise, shall be fully paid, and any and all damages for non-perfor- mance of this agreement, or stipulation herein expressed, shall be liquidated and paid. " And if any sum of money shall have become payable by any one of the stipu- lations or agreements herein expressed, and shall not be paid or secured in some of the modes herein expressed within ten days thereafter, then, in such case, said company' shall have full power and authority to take all or any part of said lumber wherever or how- ever situated, and to absolutely sell and dispose of the same either at private or public sale for cash ; and after deduct- ing reasonable expenses, commissions, and all sums which may then be due or may become due from any cause what- ever, as herein expressed, the balance, if any there may be, they shall pay over on demand to said grantees, after a reasonable time for ascertaining and liquidating all amounts due, or which may become due, either as stumpage or damages." For' securing the stumpage payable to respondents under this license C & S. gave to the respondents a draft upon J. & Co., which was accepted by J. & Co., and approved of by the respondents, but which was not paid at maturity. After giving the draft C. & S. sold the lumber to J. & Co., who knew the lumber was cut on the plaintiff's land under the said agreement. J. & Co. failed, and appellant, their assignee, took possession of the lumber and sold it. Held, per Strong, Taschereau and Gwynne, JJ., afBrmingthe judgment of the court below, (Ritchie, C.J., and Fournier and Henry, JJ., dissenting), that upon the case as submitted, and by mere force of the terms of the agree- ment, the absolute property in the lum- ber in question did not pass to C. & S. immediately upon the receipt by the company of the accepted draft of C. & S. on J. & Co., and that appellant was liable for the actual payment of the stumpage. The Court being equally divided the judgment of the court below was af- firmed. Appeal dismissed with costs. Supreme Court of Canada Reports, vol. 5, 281. The QuEDDY EivEE Deivino Boom Co. and Hugh E. Robertson and Lambert L. L. Bevan, Appellants, and William Davidson, Respondent. On appeal from the Supreme Court of New Brunswick. Obstructions in tidal and navigable rivers — 45 Vic. cap. 100, (N. B.) ultra vires— B. N. A. Act, 1867, sec. 91. Professing to act under the powers contained in their Act of Incorporation 45 Vic. cap. 100, (N. B.), the Q. R. B. Co. erected booms and piers in the Queddy river which impeded naviga- tion, the booms being in that part of the river which is tidal and navigable. Held, that the provincial legislature might incorporate a boom company, but oould not give it power to obstruct a tidal navigable river, and therefore the Act, 46 cap. 100, N. B., so far as it authorizes the acts done by the com- pany in erecting booms and other works in the Queddy river obstructing its navigation, was ultra vires of the Ne%v Brunswick legislature ; over-ruling to this extent McMillan v. Southwest Boom Co., 17 N. B. R. 715. Appeal dismissed with costs. Canada Supreme Court Reports, vol. 10, 222. (See post 31.) 268 ADDENDA. ADDENDA. James H. Bay, et al., Appellants. and The Anndal Confekenoe op New Bkcns- wiOK and Pkinoe Edwabd Island, in connection with the Methodist Church of Canada, et al., Respondents. On appeal from the Supreme Court of New Brunswick. Will — • Construction of — Surplus — Whether residuary personal estate of the testator passed. Among other beqaests the testator declared as follows : — " I bequeath to the worn-out Preachers' and Widows' Fund in connection with the Wesleyan Conference here, the sum of £1,250, to be paid out of the moneys due me by Eobert Chestnut, of Prederioton. I be- queath to the Bible Society £150. I bequeath to the Wesleyan Missionary Society in connection with the Con- ference the sum of £1,500." Then fol- low other and numerous bequests. The last clause of the will is : — ' ' Should there he any surplus or defici- ency, a pro rata addition or deduction, as may be, to be made to the follow- ing bequests, namely : the worn-out Preachers, and Widows' Fund ; Wes- leyan Missionary Society ; Bible So- ciety." When the estate came to be wound up, it was found that there was a very large surplus of personal estate, after paying all annuities or bequests. This surplus was claimed, on the one hand, under the will, by these charitable institutions, and on the other hand by the heirs-at-law and next of kin of the testator, as being residuary estate, un- disposed of under his will. Held, affirming the judgment of the Supreme Court of New Brunswick, that the " surplus" had reference to the tes- tator's personal estate out of which the annuities and legacies were payable ; and therefore a pro rata addition should be made to the three above named be- quests. Statutes of Mortmain not being in force in New Brunswick. Fournier and Henry, JJ., dissenting. Appeal dismissed with costs. Supreme Court of Canada Beports, vol. 6, 308. The South West Boom Co., Appellants, and Daniel McMillan, Respondent. On appeal from the Supreme Court of New Brunswick. Additional plea, Supreme Court no power to allow. D. McM., the respondent, and S. W. B. Co., the appellants, to recover dam- ages alleged to have been sustained by reason of the obstruction of the Eiver Miramichi by appellants' booms. The pleas were not guilty, and leave and license. On the trial the counsel pro- posed to add a plea that the wrong complained of was occasioned by an extraordinary freshet. The counsel for the respondent objected on the ground that such plea might have been de- murred to. The learned judge refused the application, because he intended to admit the evidence under the plea of not guilty. On appeal, the counsel for the appel- lants contended that the obstruction complained of was justified under the statute, 17 Vic. cap. 10, N. B., incor- porating the South West Boom Co. Held, that the appellants, not having put in a plea of justification under the statute, or applied to the Supreme Court of New Brunswick in banco for leave to amend their pleas, could not rely on that ground before this court to reverse the decision of the court below. ADDENDA. ADDENDA. 269 Appeal diBmissed with costs. Supreme Court of Canada Reports, vol. 3, 700. 17 N. B. R. 715. See ante, 29 ; post, 39. Joshua Speaes and William C. Speaks (Plaintiffs), Appellants, and James Walkeb, Respondent. On appeal from the Supreme Court of New Brunswick. Building contract — Enforcement of — Violation city by-law — Liability of owner — Effect of by-law passed after contract was made. S. & Co., contractors for the erection of a building for the respondent in the city of St. John, N.B., brought an action claiming to have been prevented by re- spondent from carrying out their con- tract. The declaration also contained the common counts, part of the work having been performed. By the terms of the contract the building, when erected, would not have conformed to the provisions of a by-law of the city passed, under authority of an Act of the General Assembly of New Brunswick, 41 Vic. cap. 7, two days after the con- tract was signed. , On the trial of the action the plain- tifiEs were non-suited, and an application to the Supreme Court of New Brunswick to set such non-suit aside was refused. Held, (Henry, J., dissenting), that the by-law of the said city of St. John made the said contract illegal, and therefore the plaintiffs could not recover. Walker v. McMillan, 6 Can. S. C. E. 241, fol- lowed. Per Henry, J., that the erection of the building would not, so far as the evidence showed, be a violation of the by-law, and therefore the non-suit should be set aside and a new trial ordered. Appeal dismissed with costs. Canada Supreme Court Eeports, vol. 11, 113. fSee ante No. 9.) James Flanagan and Johanna, his wife. Defendants, and John Doe, on the demise of Gilbekt R. Elliott, et al.. Plaintiffs. On Appeal from the Supreme Court of New Brunswick. Assessment on real estate — In name of occupier— Description as to persons and property — Con. Stat. N. B., cap. 100, sec. 16 — Several assessments in one warrant — One illegal assessment — Warrant vitiated by. Sec. 16, of cap. 100, Con. Stat. New Brunswick, relating to taxes and rates, provides that "real estate, where the assessors cannot obtain the names of any of the owners, shall be rated in the name of the occupier or person having ostensible control, but under such de- scription as to, person and property * * as shall be sufficient to indicate the property assessed and the character in which the person is assessed." T. G., owner of real estate in West- moreland county, N.B., died leaving a widow, who administered to his estate and resided on the property. The pro- perty was assessed for several years in the name of the estate of T. G., and in 1878 it was assessed in the name of " widow G." Held, affirming the judgment of the court below, that the last named assess- ment was illegal, as not comprising such descriptions of persons and property as would be sufficient to indicate the pro- perty assessed, and the character in which the person was assessed. Where a warrant for the collection of a single sum for rates for several years 270 ADDENDA. ADDENDA. included the amount of an assessment which did not appear to be either against the owner or the occupier of the property ; Held, affirming the judgment of the court below, that the inclusion of such assessment would vitiate the warrant. Appeal dismissed with costs. Supreme Court of Canada Reports, vol. 12, 435. N. B. Reports, vol. 25, 154. Agent — Sale of lands — Authority to de- liver deed and receive purchase money — Agent exceeding authority — Memo to agent — New agreement. One W. sold land under power of sale in a mortgage, and F. became the pur- chaser, and paid ten per cent, of the purchase money, it being agreed that the balance was to be paid in notes. Shortly after the plaintiff A. brought a deed to I", and demanded the notes. P. wished to show the deed to hia attorney, and it was left with him on his deliver- ing to A. a writing as follows : " Re- ceived from E. A. a deed given by W. for a certain piece of. land bought at auction, Saturday the thirtieth day of September, 1876, at Midgic. The above mentioned deed I receive only to be examined, and if lawfully and properly executed, to be kept ; if not lawfully and properly executed, to be returned to Edward Anderson'. When the said deed is lawfully and properly executed to the satisfaction of my attorney, I, the said Charles Fawcett, will pay the amount of balance due on said deed — five hun- dred and seventy-two dollars — provided I am given a good warranty deed, and the mortgage, which is on record, is properly cancelled if required." The deed was not returned to A., and an action was brought by him to recover the said sum of f572, named in the above memorandum. The action was tried twice, and on the last trial a verdict was given for the defendant, under the direction of the judge, and leave was reserved to the plaintiff to move for a verdict in his favor for nominal damages, the purchase money having in the meantime been paid to W. On plaintiff moving for such leave, a majority of the Supreme Court of New Brunswick set aside the verdict of the jury, and entered a verdict for the plaintiff. (19 N. B. R. 34.) On appeal to the Supreme Court of Canada, Held, reversing the judgment of the court below, (Strong, J., dissenting), that the said memorandum did not con- stitute a new contract between the plain- tiff and defendant to pay the purchase money to the plaintiff, who was merely the agent of W., and therefore the ver- dict for the defendant should stand. Per Strong, J., that the said writing did constitute a new agreement between the parties ; but that if A. was merely an agent of W. in the transaction he could still sue, as his principal had not interfered. Appeal allowed with costs. Fawcett V. Anderson, 22nd June, 1885. Assessment and taxes — Inhabitant of the city of St. John — Taxation — Wife's separate property. Plaintiff was a resident of the city of St, John up to June, 1877, when he went with his family to Nova Scotia. In 1878 he returned to the Province of New Brunswick with his wife and fajnily, and after leaving them in the town of Portland, went to Boston, in search of employment. He remained in Boston until the spring of 1880, having been employed in business, and paid taxes there. Whilst plaintiff was absent, his wife's father assigned to her a lot of leasehold property in the city of St. John. In the fall of 1878 she and family moved into the city and resided on her ADDENDA. ADDENDA. 271 property until the spring of 1880, when the plaintiff returned from Boston and lived with his wife. For the taxes for 1879, assessed against him in respect of his wife's property, and for an income tax against himself, both being included in one assessment, he was afterwards arrested and taken to jail, where he remained two days, when he paid the amount under protest, and was released. He brought an action for false imprison- ment, and obtained a verdict for 1150. The full Court of New Brunswick set aside the verdict, and granted a new trial, a majority being of the opinion that the plaintiff was constructively an inhabitant of St. John, and as such was liable to be assessed," and that there ought to be a new trial, as it did not very distinctly appear that objections were taken at the trial, or upon what the motion for a non-suit was to depend. On appeal, to the Supreme Court of Canada Held, that the plaintiff was not liable to assessment, and that the verdict should stand. Appeal allowed with costs. Edwards v. The Mayor, etc., of St. John, 1st May, 1883. Canada Temperance Act, 1878 — Justice of the Peace — Conviction — Canada Temperance Act-, 1878 ; sec. 105 — Absence — Wrongful arrest — Justifi- cation. A. and B., Justices of the Peace for King's county, were sued for issuing a warrant of commitment under which B., (appellant) was imprisoned. The facts, as proved at the trial, were as follows : — A prosecution under the Can- ada Temperance Act, 1878, was com- menced by two justices, A. and B., and a summons issued. On the return of the summons, on the application of the defendant, A. and B. were served with a subpoena, to give evidence for the de- fendant on the heariiig ; whereupon two other justices (the respondents) at the request of A. and B., under the pro- visions of sec. 105 of the Act, heard the case and convicted the appellant. A. and B., though present in the court room as witnesses, took no part in the proceedings. The Supreme Court of New Brims- wick ordered a non-suit to be entered. On a])peal to the Supreme Court of Canada : Held, affirming the judgment of the court below, Henry and Taschereau, JJ., dissenting, that, as the conviction was good on its face, until set aside it was a justification for respondents for anything done under it. Held, also, that upon the facts dis- closed, A. and B. were " absent," within the meaning of sec. 105 of the Canada Temperance Act, 1878. Appeal dismissed with costs. Byrne v. Arnold, 22nd June, 1885. quired prope'rty — Partus sequitur ven- trem— Novus actus interveniens — Trover against sheriff. The plaintiffs were the grantees, and one Haokett, the grantor in a bill of sale, by way of mortgage, which con- veyed among other property a certain mare. In the mortgage there was a proviso that until default Haokett might remain in possession of all the property mortgaged, but with full power to the plaintiffs, in default of payment, to take possession and dispose of the pro- perty as they should see fit. After de- fault in payment of principal and in- terest the mare dropped a foal. This foal, together with a horse, also in pos- session of Hackett, were seized by de- fendant (sheriff) under an execution against Hackett. 272 ADDENDA. ADDENDA. On appeal from the Supreme Court of New Brunswick. See 4 Pugs. & Bur. 248. Held, that the foal, having been dropped while plaintiffs were owners and entitled to possession of the mare, was their property — partus sequitur vent- rem. Appeal dismissed with costs. Temple v. Nicholson, 3rd March, 1881. Contract — Condition precedent — Direc- tion to jury— Implied promise, when part performance. In April, 1872, the defendant Mor- row, gave the plaintiffs, Waterous, etal., an order by letter for certain mill ma- chinery, which the plaintiffs were to put in complete operation to the defen- dants satisfaction in a building to be provided by the defendant. All the machinery, with the exception of a slab-saw, was supplied, and the mill was put in operation in the summer of 1872. The defendant found fault with the machinery, and after alterations and repairs made by the plaintiffs in 1873, the defendant put additional ma- chinery into the mill and worked it until 1875, when it was destroyed by fire. The defendant had insured the whole machinery, including that sup- plied by the plaintiffs, for $7,700 ; the additional machinery put in by himself being valued at $2,500. The defendant received, the benefit of the insurance to the full amount of the loss. The con- tract price was $4,250, together with freight and expenses, making in all $4,790. Some payments were made, but the defendant refusing to pay a balance of $1,900, the plaintiffs brought an action of assumpsit, adding the com- mon counts. At the close of the plaintiffs' case a non-suit was moved for on the ground that it was a condition precedent to the defendant's liability accruing that the work should be done to his satisfaction, and it was contended that the plaintiffs' own evidence showed that the defendant never was satisfied, but that he was complaining all along. This point being overruled, the defendant undertook to show that the machinery was not what was represented, but defective, and in many parts had to be repaired, and that he had already paid as- miich as it was worth. Much evidence was given on this issue, and the plaintiffs endeavored to show that any defect in the working of the mill was attributable to the shift- ing of the foundation, erected by the defendant himself, and to the want of skill of the men employed by him. The learned judge left it to the jury to say whether the machinery was reasonably fit and proper for the purpose for which it was intended, and if not, directed them that the defendant was only bound to pay as much as it was worth. The jury returned a verdict for the plaintiffs for $1,850, having deducted $200 for the defects and |80 for that part of the machinery not supplied. A rule nisi to set aside the verdict and grant a new trial was made abso- lute by the Supreme Court of New Brunswick (2 Pugs. & Bur. 11), on the ground that the learned judge should have directed the jury that, the length of time that the defendant used the machinery, the complaints he made about it from time to time, and all the circumstances connected with it, should have been left to the jury, with a direc- tion for them to consider whether from the defendant's dealings with it they could infer a new implied contract on his part to keep the machinery and pay what it was worth, though less than the contract price. On appeal to the Supreme Court of Canada, Held, that in suing upon this contract it was not necessary for the plaintiffs ADDENDA. ADDENDA. 273 to have averred, as a condition prece- dent to their right to recover, that the work, besides having been skilfully, pro- perly, sufSciently, and in a workmanlike manner executed, was completed to the satisfaction of the defendant. In cases in which something has been done under a special contract, but not m strict accordance with the terms of the contract, although the party cannot recover the remuneration stipulated for in the contract because he has not done that which was to be the consideration for it, still, if the other party has derived any benefit from the work done, as it would be unjust to allow him to retain that without paying for it, the law implies a promise upon his part to pay such a remuneration as the benefit conferred upon him is reasonably worth. The jury in this case having decided upon the evidence that the defendant had derived a greater benefit from the work done than was compensated by the amount he had already paid, and the plaintiffs were entitled to retain the benefit of the verdict, and the rule granting a new trial should be dis- charged with costs. Appeal allowed with costs. Watercms V. Morrow, 12th December, 1879. Contract — Contract to out lumber - Vesting of property — Writ of replevin — Sheriff's possession under — Tres- pass — Pleading — Jus tertii — Justifica- tion by sheriff under writ — Amend- ment, power of, by Supreme Court of Canada. In November, 1874, one Arbo entered into a written agreement with one Muir- head to get logs off land under Muir- head's control, the logs to be Muirhead's property as cut. In December following one Marooney agreed with Arbo to out and haul logs for him from land speci- fied in the agreement between Arbo and Muirhead, which logs were to be Arbo's S.D. property at the landing, Arbo agreeing to furnish Marooney with supplies to get the logs. Marooney cut logs under this agreement and hauled them to the landing. In November, 1875, the logs not having been driven, and Arbo not having furnished sufficient supplies, he and Marooney rescinded their agree- ment, Marooney giving his note to Arbo for the supplies delivered. The loge remained on the landing, and in Feb. ruary, 1876, they were seized as the property of Arbo, who had become in- solvent, under a writ of attachment issued under the Insolvent Act of 1875. In May, 1876, Marooney sold the logs to the plaintiff, who drove them to the boom of the S. W. Miramichi, where they were replevied by the assignee of Arbo's estate. The plaintiff put in a claim of property in them, and the sheriff returned the writ of replevin, with such claim, to the attorney who issued the writ. No writ de prop. prob. having been issued, the sheriff kept pos- session of the logs, and the plaintiff brought trespass against him for taking them. The defendant pleaded : 1. Not guilty. 3. Goods, not the plaintiff's. 3. Goods the goods of the assignee of Arbo, and defendant did acts complained of by license of such assignee. 4. Goods, the goods of Muirhead, and defendant did acts complained of by license of Muir- head. 5. Goods, property of defendant. A verdict was entered for plaintiff by consent for |1,554, the value of all the logs, subject to be reduced to $420.47, the value of the logs not cut by Maroo- ney, if the court should be of opinion that plaintiff was not entitled to Ma- rooney's logs. The Supreme Court of New Brunswick reduced the verdict to the said sum of 1420.47. See 4 Pugs. & Bur. 26. On appeal to the Supreme Court of Canada, 18 274 ADDENDA. ADDENDA. Held, per Ritchie, C.J., that the judg- ment appealed from should be affirmed on the following ground: It having bsen proved on the trial, without objec- tion and made part of the case, that the logs in question were seized by the defendant, as sheriff, under a writ of replevin issued out of the Supreme Court of New Brunswick, directing him to take the logs in question, the sheriff was justified in taking the logs there- under, and that as against the plaintiff it was no wrongful taking or conversion ; that this defence could be given in evi- dence under the pleadings in the cause, or if it could not be so given, this being a strictly technical objection, and this defence having been put forward on the trial without objection, and no such technical point rpserved on the trial, if necessary the record should be amended. Per Strong and Gwynne, JJ. — The parties at the trial having rested their rights upon the question of title, viz., were the logs the property of the plain- tiff, or were they the property of Ellis, as assignee of Arbo, or of Muirhead ; and the plaintiff claiming title through Ma- rooney, it was necessary for him to show title in Marooney, which he had failed to do, and therefore he could not recover for the Marooney logs. Per Fournier and Henry, JJ. — The logs when taken were the property of the plaintiff, and lie was therefore entitled to judgment on all the issues raised. Per Fournier, J. — The defendant might have justified under the writ, and the court might grant leave to add such a plea, but in that event the costs should be paid by defendant. Per Henry, J. — No effort having been made in the court below to add such a plea, it was too late and contrary to precedent and justice now to admit it. Per Gwynne, J. — When the plaintiff fails to show in evidence that he was in actual possession at the time of the taking, and is therefore driven to rest on the goodness of his title to the pro- perty, a defendant may, in rebuttal of the evidence of such title, set up a hare jug tertii without showii^g he had any authority from the third person having such title. So a sheriff, sued for taking the goods of the plaintiff, may show, under this issue, that the goods belonged to a third party against whom he took them in execution. The several matters therefore alleged in the 3rd, 4th and 5th pleas were matters which could have been given in evidence under the issue joined upon the 2nd plea. As to the 5th plea, in view of the evidence, it was quite inappropriate to such evidence, for the writ of replevin placed in the hands of the defendant as sheriff to be executed, did not vest in the defendant any property in the goods, the taking of which was complained of, so as to enable him to justify the taking as his own pro- perty, as is done in the 5th plea. Appeal dismissed with costs. Swim V. Sheriff, 10th June, 1881. Corporations— St. John city — Power of Mayor, etc,, to raise the level of the streets — Raising a street in part and erecting fence on part so raised by which access to the street is cut off — Non-suit^Charterof city — Municipal councils, powers of. By the charter of the city of St. John the corporation was given power to alter, amend and repair streets, there- tofore laid out, or thereafter to be laid out. The charter is confirmed by 26 Geo. III., cap. 46, and the right to alter the levels of streets is recognized by 9 Geo. IV., cap. 4. Church street was not one of the streets originally designated on the plan of the city. It was made a public street in 1811, on petition of the ADDENDA. ADDENDA. 275 owners of the land through which it passes, who gave the land for the street. In 1874, the corporation raised Church street below Canterbury street, filling it in to within four or five feet of the plaintiff's house and shop. On the em- bankment so made in front of the plain- tiff's house and shop the corporation erected a fence. By reason of this the plaintiff had no access from the street to his house and shop ; but reached them from the narrow passage left next the house and shop running easterly towards Canterbury street and westerly toward Prince William street. An action having been brought against the Mayor, etc., of the city for the dam- age sustained by the plaintiff by reason of so filling in the street and erecting the fence, the plaintiff was non-suited by Duff, J., on the ground that the Charter and Acts of Assembly gave the defendants full authority to raise the level of the street, and that in them was vested the sole discretion as to the time and manner of doing it, and that having exercised a bona fide discretion in the matter and raised it the damage sus- tained by the plaintiff was not the sub- ject of an action ; that as to the erection of the fence on the wall it was neces- sary for the protection of the public, and that it was the duty of the defen- dants to put it there for that purpose. This non-suit was set aside by the Supreme Court of New Brunswick, it being there held by Weldon, Piaher and Wetmore, JJ.; (Allen, C.J., and Duff, J., dissenting), that the corporation had no right to fill in the street in the manner in which they did it, and to erect the fence on the embankment in front of the plaintiff's house and shop, and that the manner in which the corporation had filled in the street and erected the fence, was of itself evidence that they had acted oareleisly and without rea- sonable skill and care, and that the con- sideration of this should not have been withdrawn from the jury. See 2 Pug. & Bur. 636. On appeal to the Supreme Court of Canada, Held, that the non-suit should not have been set aside ; Fournier and Henry, JJ., dissenting. Per Gwynne, J., (Taschereau, J., con- curring), that the defendants have, under the several Acts of Parliament which confirm and amend their charter, com- plete legislative power to raise or lower the level of the streets to any extent that the irregularities of the ground may seem to the corporation and its council, as representing the public, to require for the benefit and convenience of the public, cannot be doubted ; the councils of these municipal corporations are themselves a deliberative law-mak- ing assembly, chosen by the people to do whatever, within their jurisdiction, may in their judgment be necessary for the public benefit, and the power con- ferred upon them must therefore have a liberal construction in view of the public rather than of private interests. The power of altering, amending, re- pairing and improving the streets, which is a power vested in the corporation for the benefit of the public, whose repre- sentatives the council of the corpora- tion are, is restricted by no condition save only the implied condition that what shall be done in the name of the public, and ostensibly for their benefit and convenience, shall not be done in such a manner as in reality to consti- tute a public nuisance. The plaintiff has never rested his right to maintain this action upon the ground that the act complained of is a public nuisance, from which he sustained pecu- liar injury, and as he could not succeed without establishing the act of which he complained to be such public nui- sance, the non-suit was right and should be af&rmed. 276 ADDENDA. ADDENDA. Appeal allowed with costs. The Mayor, etc., of St. John v. Fattison, 23rd Febru- ary, 1880. Damages — Action on the case — Injunc- tion, declaring alleged order for, ob- tained maliciously — Demurrer. Action for maliciously obtaining an ex parte injunction order from a judge, whereby the plaintiff was restrained from disposing of certain lumber, in consequence of which he had sustained damage as was alleged. The declaration set out that plaintiff was possessed as of his own property of certain lumber ; that defendants wrong- fully, improperly, maliciously, and with- out any reasonable or probable cause, and without any notice to plaintiff, made an ex parte application to a judge of the Supreme Court of New Brunswick for an injunction in a suit commenced by them in said Supreme Court on the equity side, in which suit defendants were plaintiffs, and the now plaintiff with others were defendants, and pro- cured from said judge an ex parte order of injunction whereby, etc., which order defendants caused to be served on plain- tiff ; that plaintiff afterwards appeared to the said suit and put in his answer, but defendants did not further prosecute their suit, which was dismissed with costs, and the order of injunction became of no further effect; that by reason of obtaining a service on plaintiff of said order he was hindered and prevented from manufacturing, etc., said lumber for a long space of time, whereby said lumber was greatly injured and part thereof lost, and the plaintiff lost large gains, etc. To this declaration plaintiff demurred. The demurrer was sustained by the Supreme Court of New Brunswick. See 2 Pugs. & Bur. 469. On appeal to the Supreme Court of Canada^ Held, affirming the judgment of the Court below, that the declaration dis- closed no cause of action. By the Statute of New Brunswick, 2 Kev. Stats., p. 77, such an order is granted on a sworn bill, or on the bill and an affidavit, and may be granted ex parte, subject to be dissolved on suffi- cient ground shown by affidavit on the part of the defendant. Here there was no allegation that the injunction was dissolved, or that any application was made for its dissolution, or that the order was obtained by any suggestio falsi, or suppressio veri on the part of the plaintiff, and for ought that appeared in the declaration, the judge exercised a sound discretion-in granting the order. Appeal dismissed with costs. Collins V. Everitt, 12th December, 1879. Damages — Adjoining land owners — Where defendant has allowed cellars to remain after building destroyed — Damage from water collecting in them and running against wall of house built by plaintiff — Whether defendant liable — Action on the case — Declara- tion — Non-suit. The plaintiffs owned a building lot in the city of St. John, on which they ex- cavated a cellar and foundation, and built a large and valuable building. The soil of the bottom of the cellar and under the foundation was clay. The defen- dants owned the adjoining lot, on which, in 1848, the time their ancestor Stephen- son purchased it, there was a house. There was a cellar under the house adjoining the plaintiffs' land. Stephen- son, or his tenant, dug another cellar joining the first one, and put up another house on the same lot. Those houses stood until 1871, when they were burned, leaving the cellars uncovered, thus mak- ing one large uncovered hole, bounded on the west by Charlotte street, and on the north by the plaintiffs' lot. These ADDENDA. ADDENDA. 277 holes collected large quantities of water in them from the street and from the surface, and also by percolation from the land adjoining. When the plaintiffs' house was built, the cellars being oo-ter- minous with the foundation of the plain- tiffs' building, and the soil being clay, these holes retained the water, until it gradually softened the clay under plain- tiffs' foundation wall, and also gradually destroyed the foundation wall itself, and escaped in that way into the plain- tiffs' cellar, and thereby caused the side of the plaintiffs' building to settle and the building itself to topple over, and damaged it to a large extent. The declaration contained two counts, the first count for wrongfully, carelessly, negligently and improperly removing the earth and soil off the defendants' lot, and negligently continuing it so re- moved, so that there remained holes and excavations, which the defendant so negligently managed and left uncovered that large quantities of water collected and remained in the holes, which they permitted to flow and escape against, under and through the plaintiff 's foun- dation wall, and thereby did damage. Second count, that the defendants improperly and negligently collected water, etc., and by their carelessness caused it to flow into plaintiffs' premises and did damage. The only plea was the general issue of not guilty. A rule for a non-suit pur- suant to leave reserved at the trial was made absolute by the Supreme Court of New Brunswick, on the ground that damage and injury must both concur to afford a party a right of action, and the evidence showed only an ordinary and legitimate use of the defendants' own land, which did not constitute an in- jury, and therefore they were not Uable. See 2 Pug. & Bur. 523. On appeal to the Supreme Court of Canada, Held, that the declaration did not cover the appellants' case, and therefore the non-suit was correct. Appeal dismissed with costs. The Trustees of the St. John Yowng Men's Christian Associations. Hutchinson, et al. 23rd February, 1880. Easement — Light and air — Twenty years' uninterrupted use of — Prescrip- tion — Misdirection — Damages — Mea- sure of. Action on the case for obstructing plaintiff's lights. The plaintiff and de- fendant were owners of contiguous houses. The defendant's house was built some time prior to 1853 for one Burns, who in April of that year sold and conveyed it to one Seely, who after- wards deeded to one Hogan, from whom the plaintiff purchased under a regis- tered deed. In the summer of 1853, whilst the defendant's house was in the occupation of one Mrs. Kanny, a tenant of Seely, the house owned by the plain- tiff was built for one Adams, from whom, through several mesne convey- ances, the plaintiff derived his title. In the fall of 1853, whilst the plaintiff's house was in course of erection, two windows were placed in the gable end of it to afford light and air to the bed- rooms in the attic. These windows overlooked the house which Burns had erected. Mr. Adams began to live in the house about December, 1854. The windows remained where they were placed, and unobstructed until August, 1874, when the defendant by raising his house and putting a mansard roof upon it, caused the obstruction com- plained of, by closing up the lower half of the windows. There was no evidence of an express grant of an easement, the plaintiff re- lying upon the fact of twenty years' un- 278 ADDENDA. ADDENDA. interrupted enjoyment as entitling him to recover. For the defendant it was shown by Seely that he never gave Adams permission to put the windows there, and also that he did not notice them till after he had parted with his title (which was in 1857). Seely stated, however, that he saw Adams' house being built. The defendant swore that he had examined the county records, and that there was no grant of an ease- ment in the lights in question on record. He also testified that he was ignorant of the windows when he bought, which was in the spring of 1874, and did not know of them till the obstruction was made. The evidence was not certain to when Mrs. Kanny's tenancy termi- nated. No question appears to have been raised at the trial as to the time her lease terminated, nor was this point left to the jury, the con- tention of the plaintiff's counsel being that the time began to run from the period when the windows were put in, and that tenancy haS nothing to do with the question. The learned Chief Justice of New Brunswick, before whom the case was tried, directed the jury that "if Mr. Seely, the owner of the land, did not occupy the land himself, but it was oc- cupied by his tenants, then he would not be bound by the user, unless he knew of the windows being there ; if he knew of the windows being there, and did not obstruct them within twenty years, he would be bound, and the tenancy had nothing to do with the question." And as to the measure of damages the learned Chief Justice charged that : " The fair measure would be what it would cost the plaintiff to make such alterations in his house as would admit the same quantity of light and air as he had before the defendant raised his roof." The jury found a verdict for the plain- tiff for $400. A rule nisi for a new trial was dis - charged. On appeal to the Supreme Court of Canada, Held, 1. That the duration of Mrs. Kanny's tenancy was a proper question for the jury, and it should have been left to them without the qualification that it made no difference if Seely had know- ledge of the existence of the windows ; for if the tenancy continued subsequently to August, 1854, there was manifestly no user for twenty years with the con- sent or acquiescence of the defendant and those through whom he claimed, for Seely, the then owner of the fee, would have no right to enter upon the posses-, sion of his tenant for the purpose of obstructing the light. 2. There was also a misdirection as to the measure of damages; the plaintiff should have been limited to a recovery in respect of the loss and inconvenience caused by the darkening of his windows up to the time when the action was brought, and for future damages he could bring successive actions from time to time as long as the nuisance con- tinued. The court below went at length into the question regarding the nature and effect of the presumption of a lost grant arising from twenty years' use of an easement, and the right of rebutting such presumption by evidence, and also dealt with the question as to the effect of a registered conveyance upon a title to an easement founded upon such a presump- tion. See the case as reported in 2 Pugs. & Bur. 303. As to the first of these questions see Angus v. Dalton, 6 App- Cases, 740. Appeal allowed with costs, and rule nisi for a new trial made absolute. Pugsley v. Ring, 12th December, 1879. ADDENDA, ADDENDA. 279 Insolvency — Insolvent Act — Demand of assignment, when annulled, action for making — Reasonable and probable cause — Order of judge annulling de- mand not prima facie evidence of. In 1874, the firm of James Domville & Co. was composed of James Domville and James Soovil ; and the firm of ' Esta- brooks & Gleeson was then composed of John P. Estabrooks and the plaintiff. The latter firm carried on business then in the city of St. John as dealers in flour, meal, etc., and there had been dealings between the firms for about two years previously, but not, so far as ap- peared, to any very large extent. In the fall of that year, three promis- sory notes, made by Estabrooks & Glee- son in favour of Domville & Co., which had been endorsed by the latter firm, and which had been discounted for them by the Bank of Montreal, were lying in that bank when they matured. The first was a note for $409.81, and it fell due on the 23rd November, 1874 ; the second was for $109.71, due 4-7 Decem- ber, and the third was for $137.13, due 11-14 December. On the 23rd November, when the first of these notes became due, the plaintiff called at the of&oe of Messrs. Domville 119 Wetmore, in re 19. 639 25 White, ex parte 20, 509, 552 34, 41 V. Eiley . - 24, 476 65 Wheeler and Wilson Manuf. Co. v. Charters 21, 480 51 Wilbur V. Jones 21, 4; 19, 536 13, 63, 91 Willett v. Lockhart 19, 637 164 Wilson, ex parte 25, 209 109 Williamson, ex parte 24, 64 140, 162 Woods V. McKay and wife 21, 109 ; 20, 262 93. 207 V. McCann 25, 253 11, 67 Woodward, ex parte 21, 221 .' 135 Woodman v. Town Council of Moncton 19, 333 174 Worral v. Brideau 22, 562 195 Toungclaus v. Wallace 24, 365 27