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23 WEST MAiN STSEET

WEBSTER, N.Y. 14580

(716) 872-4503

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1987

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^OVA SC0TI4

PROVINCE HOUSE

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IN THE

^xmt Court 0f Canak. ML

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Cause — WILLIAM H. CREIGHTON, Assignee of LEWIS P. FAIRBANKS,
Plaintiff and Appellant,

vs. *

SAMUEL CHITTICK et al., Defendants and Respondents,

and
Cause.— WILLIAM H. CREIGHTON, Assignee of LEWIS P. FAIRBANKS,
Plaintiff and Appellant,

vs.
TIMOTHY GRAHAM, Defendant and Respondent.

APPELLANT'S FACTUM.

JNO. S. D. THOMPSON,

Appellants Attorney.
RIGBY & TUPPER,

Respondents Attom^s.

HALIFAX :

Wu. Maonab, Priktbb, 12 Pbinob SifiEwr.

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Cause— WILLIAM H. CREIGHTON, Assignee under the Insolvent Act of 1875
of the estate and effects of LEWIS P. FAIRBANKS, Plaintiff

AND Appellant,

vs.

SAMUEL CHITTICK, JOSEPH CHITTICK and JOHNSTON
CHITTICK, Defendants and Respondents.

APPELLANT'S FACTUM.

In *he year 1826 a corapany called the Shubenacadie Canal Company was formed in
Nova Scotia for tv . construction of a Canal between the waters of Halifax Harbor and the
waters of the Bay of Fundy in that Province. A statute passed in 182 1 authonzed the
Governor of the Province to issue Letters Patent uader the Great Seal of the Province to such
Company when formed, and conferred great powers and facilities. The Letters Patent were
issued in 1826 a.id the Company commenced operations. The Line of Canal was to be
" through the Dartmouth Lakes, the lakes and channels or course of the River Shubenacadie
or by or along the banks of such lakes and river to such part of the River Shubenacadie
between its place of discharge into the Basin of Minas and the Great Lake, (sec. 5, Act of
1826) The Company had power under this Act to do all things necessary for making a
canal through these waters, including the right of directing and damming the same. Also to
make towing paths along the line of water communication. By section 8 "The course and
channel of such canal or water communication and the works to be erected thereon, and the
waters and streams of the said river and lakes, so far as the same were o^ should be required
or necessary to be used," &c, for such canal, " and all lands or real estate purcnased or obtained
for such canal and through which it should be made, and the towing or tracking paths or
roads wen. made the sole and exclusive property of the company for ninety-mne years, and
this title was made perpetual by the Act, chap. 17, of 1827. By section 13 f f^l^^^^r^o^;^
tion Act of 1826, it was provided, that wheneve., for the course, channel or site of such

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canal, or the works thereof, or for cufctin;:^ or opening such canal, or for making or erecting
any of the locks, dains, reservoirs, or einhankinents thereof, or for any of tiie other purposes
mentioned an<l authorised, the (>)rporation should rind it necessary that any lands lying in the
course or direction of the Canal or contiguous thereto, or upon the shores or banks of the said
river, lakes or streams, shoidd he purchased \)y, or vested in, the C'orpoiation, to enable them
to make and complete and benericially use the said canal; then it should be lawful for the
Corporation to adopt and take such course and proceedings iji "egard to such lands and the
obtaining the same fc- ili use as by any present or future law of this Province, were or should
be enacted or in fnica, (,oiii:liiug C.v. niakinu "i' altirin ,' auy public highway through the lands
or any private persoii iu tl'-' Province ; and sucli proceedings as wore <>'■ aiiglit be requisite for 10
divesting the right and interest of the individual owner of the land required for a public
highway, and appropriating such land for the use of the public should l)e used for divesting
the estate and 'nterest of the respective proprietors of the lands required for the use of the
Corporation, and vesting sueli lands in tlie Corporation. And in every such case, after such
proceedings had, and after 'erdic*. of a juiy taken and confirmed, and the damages assessed in
favor or the proprietor paid a'ld ..'.Listied, and all other provisions an<l requisites in force as
respects high \, 'ays in all v^r<''uls,rs observed and confirmed, the said lands and tenements
described in, and fori !;g tbt .U'',jcct matte:- of, such proceedings, should bo vested in and
appropriated to the use of t^o said Corpori.tion, a,i.d should be and reuiain to, and be enjoyed
by, the said Corpora.ti .n. in tee .-.iuii'e.

By Lector- Patent i.st June, 1S>'J. thet-e powers ve-o expressly given to the Company,
which had th^ a bee. forricVi. Also '■ucb powers as had p.f viouHy been granted to Canal Com-
panies in (xreat Britain, or Mhich inigiit be ff^asoaabi.! and necesssary. The Letters Patent
also provided that their provisions shoulcl' be " taken, construed and adjudged in the most
favorable and beneficial sense i'or the liest ad-antage of the Company."

The principal parts of the line of water connnunication, (as regards extent and value),
were the First and Second Dartmouth Lakes ; the locus in dispute is part of the First and
Second Lakes and also part of the shore of both.

In August ,32G, the Company desired to put in force the provisions above recited, in
reference to the expropriation of lands, and accordingly presented to the Gustos and other
Justices of the Peace of the County of Halifax the petition set forth in the case, and obtained
the certificate of three persons who were appointed by the Court of Sessions to report
upon their petition, to the effect that the pieces and parcels of land therein described were
necessary to be vested in the Company to enable them to complete the canal. The statutory
provisions then in force in the Province relating to the expropriation of property for highways
are to be found in chapter 2 of the Provincial Acts of 1826, and are as follows :

Section XTIF.— And be it further enacted. That where any new highway or common road
from town to town, or place to place in any County or District in this Province, shall be want-
ing, and wh«re old highways or roads with more conveniency may be altered upon application
being made to the Court of General Sessions of the Peace within the said County or District, 40
the said Court is hereby authorized and required to appoint three persons, being freeholders of
the adjoining Townships, having most occaeion for the said highway, to enquire into the
necessity and conveniency thereof, and to make their report thereon, and the same being
judged to be of common necessity or conveniency, the said Court shall issue a warrant to the

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Sheriff or his Dopnty to summon a jury out of the afljoinin;^ Townships to mnet at some con-
venient ;lay and place therein mentioned, to view ami lay out or alter such hij,'hway or road,
who shall have an oath administered to them by the said Sheriff or his Deputy, v/lio is lierehy
authorized to ailminister the same, to lay out or alter such hi^^liway or road aemrdinj,' to their
best skill and judgment, with most eonvenicney to the put)lic and least preiudiee or flamage to
the owner or owners of the lands on which the said highway is to be laid out or altered, and
to assess the damages to the own^r or owners of such lands as the said jury shall think reason-
able for the value of the land and improvements made on the same ; and also for the making
of fe"ces on the sides of siicli li".,diway. wliie'i liiivini; done, the saiil Sliei'iff or his Deputy
shall make a return theriuf on the day appointed by the said Court, as well under his own as 10
the hands of jurors by whos(! oath the same is laid out or alteretl, to the end the same may be
allowed of ami recorded and after known fur a public highway ; and all public highways
liereafter to be laid out as aforesaid, shall noc be less than sixty-six feet wide.

The Sessions issued to the Sheriff of the County of Halifax the Piecept set out in the
case on tk» 8tli August, 182G, and the hKiuisitioii and Keiiirn thereon are also set forth at
large. It is claimed that the deseriptiun in the Return beginning " On the second section of
the canal line," covers r strip all arouml the shore of the First and Second Lakes, and includes
the locus on which the ice-liouse of the defendants and the embankment under the ice-house,
were afterwards constructed, and (jn which the defendants afterwards cut ice. These lands were
at that timo low and swampy, and were afterwards submerged by the raising of the waters 20
consequent on the construction of the Company's dams and other works. The Company
entered into possession of the tracts included in the return mentioned.

.'Ust May, 1831, the Company executed a mortgage to the Hon. S. S. Blowers and Sir
Rupei-t D. George, Trustt-es for the Britisli Government fConniii.ssioners of the Treasury), who
made a loan of £20,000 stg. to the Company under the Imperial Act of 1st Wm. IV., entitled
"An Act to authorize the advance of a certain sum out of the Consolidated Funds for the
completion of the Shubenacadie Navigation in Nova Scotia." This mortgage inckded the two
Dartmouth Lakes as well as the other portions of the canal line and also the lands which had
been acquired under the Sheriff's infjuisition.

En 1837 an act was passed in aid of the Company, and of this act the following abstract 30
is given : —

An Act for increasing the Capital Stock of the Shubenrcadie Canal Company, and the number
of Shares therein, for conferring further powers on that Corporation, and for other
puiposes.

(Pa.''8e(l 21st day of April, 1837.)

Whereas, by an Act of the General Assembly of Nova Scotia, passed in the year of our
Lord one thousand eight hundred and tvventy-f jur, and entitled " An Act to authorize the
Incorporation of a Company for making a Canal by the River and Lakes of the Shubenacadie,"
it was enacted that whenever a si^tRcient number of persons should have associated themselves
together for opening and making a navigable cut canal or water communication, between the 40
harbor of Halifax and the Easin of Minas, by, along or near to the course of the river Shuben-
acadie, and the lakes thereof, and shall have agreed to raise sufficient moneys to effect the
same, it shoi:ld and might be lawful for the Governor, Lieutenant-Governor or Commander-in-

«*-«•

(^hief for the time bong, at any ihw within li vo years from the pas^inj? ,.f that Act, V.y lottors
patent under ♦he ^M-eat seal of this Province, to make, erect and incorporate, all un-l singular,
the person, who from time to time should he .mI venturers in or parties to the sai.l un.lertaking
and their assigns, into one body, politic and corporate, in dee.) and in nanie, und.r the t.tl.> of
• The Shuhenaeadi.- Canal Compan, ," an-l hy that namn to have succession, to sue; a.id be
sued to have a common seal, and to possess and enj.\v sueti powers, v.ith respect t.. the choice
of a president an.) other officers, making by-laws, and rey.ilating the affairs of the said com-
pany, as should he expressed in the same letters patent ;

^nri i»;/*.m««,' purMinnt to the said .tatrt.', lett.Ts patent, under the great seal of this
Proviacd, an.l .lated the Hrst deXe ..f June, one thousand eight hundred an.l twenty-six, were l"
duly and' in conformity to thj said Act mad.' an.l granted, whereby certain persons, inhabitauts
of Halifax, particularly name.l in the sai.l letters patent, an.l their associates, successors nn.l
assigns, were incorporated by the name an.l title, an.l for th.- purposes aforesaid, with a capital
or joint stock or.Hine.l in the first instance to consist of the sum of sixty thousan.l poun.ls of
lawful money of Nova Scotia, divide.l into two thousan.l and four h- ' ,).! shares, each share
being of the sum of tweaty-five pounds ; out with power to the sav, . rporati.m te increase
such capital stock to such greater sum r.s the object of the company might require; and the
sai.l corporation, under the authority of the sai.i letters patent an.l of the statute aforesaid,
therein recited, an.l un.ler the additional powers and reg-lationsvion' aed in another Act of the
the general Assembly, passed in the year one thousand eight hundred an ^ twenty-seven entitled 20
" An Act in a.l.lition to the Act entitle.l An Act to authorize the Incorporation of a Company for
makin:r a Canal by the River and Lakes of the ShubenauJie," and also, under the by-laws an.
ordinances of the said company, estaUished by a general meeting of the proprietors of the saul
..ompany. held in Halifax on the 21st day of February, one thousand eight hundred and
twenty-eight, and subsequently duly approved of an.l establishe.l by the then Lieutenant-
Governor an.l His Majesty's Council, commenced their said undertaking, an! construct .d many
lar^e and expensive works for the purposes of the said inland navigation, and proceeded the'-e-
with until the en.l of the year one thousan.l eight hundred and thir.y one, at an experoe for
the said canal works of seventy-two thousand pounds an.l upwar.ls. exclusive of other large
sums paid for the purchase of lan.ls f..r the purposes of the undertaking and^ for the salary of
the engineer employed thereon, and for other charges thereof; when the lunds ,.f the said
corporation, .lerivsl from the grant of fifteen thousan.l pounds made by th. Genera. Assembly
of the Province in ai.l of the undertaking, from ..art of the capital stock subscnbed for m th,«
Province, to the extent of seven hundred and twelve shares from another portion of the said
stock subscribed for in England to the extent of twelve hundred and fi%jha'-es, and from the
loan of twentv thousand povrds sterling made in aid of the said work by His Majestv s Govern-
ment on the "security of the canal, and the iolls and profits thereof, pursuant to an Act of the
Imperial Parliament, having become wholly exhausted, the said corporation was compelled to
suspend all further proceedings in their said enterprise ; and since the said year on. thousand eight
hundred and thirty-one the works and construction, then in progress have remained and yet 40
are unfinished, for want of the necessary funds required for their completion, and for opening
the navigation from the harbor of Halifax to the Basin of Minas.

And xvhereas, upon a particular survey and examination recent'y made of the whole line
of the said intended water communication, rarious alterations have been recommended to be

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adopted in the line and direction theieof, in its deptb and width, and in the position, nature
and dimensions of tiie works, as originally designed, whereby the said canal would he rendered
more suitable to the purposes for which a great inland water comnujnication through the Pro-
vince, with its capital, is required, and be made more conveniently navigable by steamboats
and sea-going vessels ; and plans and estimates have be^n made for the further prosecution of
the said enterprise in an improved mod.e, and by works of a more durable character, and of
greater extent and magnitude than were first intended, for the expense of which large addi-
tional funds will be required by the said corporation ; and forasmuch as the completing of the
said enterprise is deemed an object of great public utility and importance, it has therefore
become expedient to autlxn-ize the said company to extend its present capital stock and nr.m-
ber of shares, and also to grant uTito the corporation certain other and further powers and
authorities, and make other regulations as hereinafter contained, for facilitating the enterprise
anil works of the company, and for the more convenient management and conduct of its affairs.
1. lie it thevfore enacted by the Lieutenant- Govern or, the Coitncil avd Asspjnbbj.—
(Marginal notes.) Joinu stocic may be incre'' ;ed to £2.")(),000; proviso ; preamble.

Be it further ew«.o<e(Z.— (Marginal notes.) Board of directors ; preamble.

Be it therefore further enac<e(Z.— (Marginal notes.) Lieutenant-Governor may appoint
four additional directors ; vacancies occurring in the board of <lirectors.

4. And be itfurthe, enacted. —{MdY<^ina.\ note.) Directors may be re-elected.

5. And be it further enacted.— {M&r^in^'i note.) Omitting to choose directors at annual 20

meeting.

(). And be it further enacted.— {JAfir<^ma\ notes.) Omitting to hold annual general
meeting ; nev/ board of directors to be brought into operation.

7. And be it further enacted.— (M&r<fina\ notes.) Restriction on corporation respecting

holding real estate repealed ; preamble.

8. Be It therefore enact- '.—(Marginal note.) Additional powers, authority and privileges
conferred on corporation.

9. And be it further ena"*ed, that all water powers and privileges, ami all quantities of
water, to be procuret^ by means of any weirs, dams, embankments, aboiteaux, or other works,
now or hei-eafter to be by the said company built, constructed, raised or formed, in, upon, across
or near to the said navigation, or the said rivers, creeks, streams or brooks thereof, and all
deposits of soil, accretions and alluviums in the present channels, caused by or necessp.rily
consequent upon any of such their works, shall be vested in the said corporation, and shall or
may be sold, lea.sed, or otherwise disposed, appropriated and applied, f<jr such payments, and
under such conditions as to them .shall seem fit.

10. Ami be it further ew<(c<erf.— (Marginal note.) Coi^wration making bridge over
Rhubenacadie entitled to toll.

11. And he it further enacteil.—iM&YgmaX no\>e'A) Complaints of damages by canal to
adjoining lands ; provi.so.

12. .471'/ he it farther enacted, that all such parts of the said river Stewiacke, the Nine 40
Mile Tiiver, or other rivers, creeks, brooks and streams flowing into the river Shubenacadie on
either side, as shall be rendered navigable by the works of the said company, shall be and be
deemeu part and parcel of the canal or navigation authorized to be constructed by the said
corporation.

And n-hereaji, tlie lUL'thod now liy law piovided for ciialiling the said company to obtain
the title and possession of any land or real estate requireil for the purposes of the said navi-
gation has been found very expensive and incovenient, — For remedy whereof :

13. Be it further eimc^erf.— (Marginal note.) Lands in vicinity of canal required by
corporatiun.

14. ^1})^ he it further enacted. — (^Marginal note.) Fee simple in lands secured.

1.5. And I)e it further fni^f'^f.'f/.— (Marginal note.) Land may be taken by appraisement.

IG. And lie if fnrfher enacted, that all and singular the provisions of the thirteenth
section of the additional .\ct, aforesaid, with respect to the pi'oceedings touching the appraise-
ment of damages occasi()nc<l by the acts of the company, shall be applicable to, and be 10
observed and in force, with regard to all the proceedings hereby authorized to be taken for
vesting lands in the said corporation, and as fully as if the .said thirteenth section were herein
repealed for that purpose.

17. And he H farther riun'/r(/.— f Marginal notes) Vested right in land commences when

award is paid ; preamble.

18. Be it farther enarted.—(M avyma] note.) Appropriation, kc, of award.

And whcreitfi, by reason of the suspension of the operations of the company as afo.esaid,
nfter the choice of the new members for the board of directors made at the general meeting of
the company, held in February, one thousand eight bundre<l and thirty-two, to supply the
vacancies tlien existing; and by reason of their having since been no annual meeting held for
supplying vacancies in the said boanl, the affairs and business of the company have been since
managed by the hoard, constituted of the then continuing and of the newly chosen directors,
or by such of the latter as attended the meetings of the said board.

10 Be it therefore enacted, that the board of directors of the said corporation as com-
posed of the directors who continued in othce on the first day of Maich, one thousand eight
hundred and thirty-two, and of such of the new directors as then came into office, and have
since attended the meetings of the board, shall be and l)e deemed and continue to be the board
of directors of the said company, by the statutes, charter and by-laws aforesaid. Provided,
until tlu! ! w board of directors designed by this Act shall be established, and all resolutions,
orders, acts, affairs and business, made, transacted oi' done, or to be hereafter made, tra\>sacted go
or done, by the said board, when seven members attended or shall attend thereat, .shall be
deemed and be resolutions, orders, acts, ati'airs and business, made, transacted and done by the
board of the Shubenacadie Canal Company, until the new board aforesaid be established.
Provided nhoai/n, that nothing herein contained shall prevent any member of the existing
board from resigning his ottice at his pleasure.

The mortgage to Blowers and George wr. ^ foreclosed, and the property sold by James W.
Nutting, a Master in Chancery, 11th June, 1851, to the Hon. James McNab.

On the 1st May, 1852, the Sheriff of the county of Halifax .sold under execution again.st
the company, and conveyed certain lands which may not have been expressly included in the
mortgage to Blowers and George. At this sale also the Hon. James McNab was the purchaser. 40

On 21st September, 1852, the same sheriflT, under another Igment .sold and conveyed
certain other lands of the company to Hon. James McNab.

On tst Januaiy, ISo.*}, Hon. Jann^s McNali inado ilcclaration^* of trust, \<y wliicli he
(leclared tliaf undor the three conveyance's last recited he held tlie [iroperties therein conveyeil
for the benefit of the Province, and that he would convey the same to such |ieisons as lu.'
niiifht be divecte(l to convey them to by the Lieut. -Go^'ernor in Council.

On 4th April, ""oS, the followinj); Act was passed by the Legislature of Nova Scotia: — •

Al^ ACT TO TNCORPORATE THE INLAND NAVIGATION CO.

(P<iss('(l thf ',th ihi;i of April, A. D. isr,:!.)

Be it enacted by the (Jovernor, Council and A.ssembly as follows : —

1. James F. Avery, Andrew McKinlay, William Stairs, William B. Fairbanks, William
Lawson, David Alli.son, Lawrence Harts' n-ne, Thomas Bolton, James Thompson, Charles W^ 10
Fan-banks, George A. S. Crichtoii, and all otlier persons who shall liecome proprietors in the
company, hereby established, their successors and assigns, shall lie a Viody corporate, by the
name of ''The Inland Navigation Company."

2. The comj)any may puichase and iiold real estate, and sell or let the same ; the real
estate to be held at any op*i time not to exceed in value tlie sum of ten tliousand pounds.

:}. The capital stock of the company shall bo thirty thousand pounds, to be divided into
one thousand and five liundred .shares of twenty pounds each.

■!•. Any of tlie persons named herein may, immediately after the passing hareof, open a
subscription book for .shares, and give public notice of the opening thereof for at least thirty
days, in two or more of the newspapers published in Halifax ; and no person .shall be allov/ed 20
to take more than twenty -five shares, until the expiration of such thirty days, when, if bny
of the shares shall then remain unsubscribed for, any person may subscribe therefor, notwith-
.standing such person may have before taken twenty-five shares.

o. As soon as the sum of ten thousand pounds of the .stock shall be subscribed for, and
one thousand pounds paid in on account thereof, the shareholders may hold their first meeting,
and thereat appoint their otticers, namely : a president, two directors, an engineer-in-chief, and
such subordinate officers as they may deem necessary.

G. When the company shall bo invested by the Provincial Government, in consideration
of such sum oT money as may be nnitually agreed upon, not to exceed five thou.sand pounds,
with the land, and land covered with water, locks, and other works and appurtenances, for- 30
merly belonging to the Shub( nacadie Canal Company, or any part that may be required by
the company and agreed to by the (Jovernment, it shall be lawful for the company to open
and cut a sufiicient canal or water communication fnmi the waters of the harbor of Halifax
through the Dartmouth lakes, .so called, the lakes and channels or course of the river Shuben-
acadio, or along the sides and banks of such lakes and river to such part of the river between
its place of discharge in the Basin of Minas and the Great Lake, and in so doing, to use,
deepen, contract or widen, or otherwise alter the channel formerly cut and opened by the
Shubenacadie Canal Company, as shall be proper for making a continuous navigable channel
or canal for the passage of boats or vessels to and from the Basin of Minas and the harbor of
Halifax, respectively, and for such purpose to dig, excavate and clear such locks, pits, cham- 40

IHM

M<B*»«MaaWI.«M«HINMMIMP«

ujiiriii

bers or basins, an.l make, buil.l or renew such locks, slnices, wears, dams or embankments, in,
over RC-oss or upon the course of such river, or along the sides tliereof, or at or near the
several lakes or streams connected therewith, as may be necessary for effecting' sucli iidand wator
communication, at all parts of such river, lakes or streams, and in such courses and directions,
from one part to another of the same as may be deeme.l proper, and to V.uild any slips or lines
of railway which mav be necessary in tbo course of such inland water com-nunication, an.l to
use the channels and waters of such rivers, lakes an.l streams, in every way necessary for
constructing such inland water communication, and f..r ivn.lering and keeping the same at all
times navigable and in operation.

7. The company shall have p.)wer to make all necessary towing paths or roads along
the shore, banks, or sides of the inland water communication, for the tracking or towing boats
or vessels along the line thereof.

8 The inlan.l water communication and towing paths shall, at all convenient times after
the construction hereof, be kept open for the use of the public, their boats, vessels, go.xls,
horses and cattle, upon the pavment of a certain rate of toll money, to be regulated by the
company, and approve.l of by the Governor in Council, and revised every hve years.

9 Whenever the line of such inland water communication shall be crossed by any pub-
lic hi.^hway now existing, or hereafter to be by law established, the company, at its own cost,
shall be obliged to erect a convenient and substantial bridge for the use of such highway, to
be open to the public at all times.

10 Whenever it .shall be necessa.y in the construction of such inland water communica-
ti.m that the company shall be investe.l with any lands in the line thereof, or contiguous
thereto an.l no agreement can be made for the purchase thereof, it. shall be lawful for the
president an.l directors to apply, by petition, either in term time or vacation, to any two of
the Jud-es of the Supreme Court, setting forth the nature and situation of the lands require.!,
thenam^es of the owners therof, and praying Ae conveyance thereof to the company,--
wluMvupon such Ju.lges shall appoint a time and place for considering such petition, and shall
.lirect a proper notice in writing to be .served on the owners of the ands, if m the Pmvince.
an.l if absent, to be publishe.l for the perio.l of one month, in at least two of the Hahiax
newspapers, requiring them to attend, either in person or by their agent or attorney, at such
time and place ; an.l in case such owners .shall attend, the Judges shall require the presiden
an.l directors to nominate one appraiser, and such owner two appraisers ; and the Judges .shall
nominate two appraisers ; but in case such owners do not attend, the Judges shall, on proof of
such service or publication ..f such notice, nominate four appraisers, and shall, by an order in
writin- direct the said five appraisers to value the lands so required ; and the appraiser., hav-
ing first subscribc.1 an affidavit in writing, to be sworn to before a Justice of the Peace, to be
annexed to such or.ler, to the effect that they will faithfully make such appraisement, shall,
with all convenient spee.l, procee-l to and appraise such lands, and shall make such appraise-
ment in writing, and return it with such order and affidavit to the two Judges, who, if they
approve thereof, .shall confirm the same; and the company, upon paying c" tendering .he 40
amount of such appraised value, and the expenses of the owners in such ^ppra^senaent and
rcdsterin- such or.ler, affidavit, appraisement and confirmation in the office of the Kegistrar
of^)eeds,''in the county where such lands lie, who is hereby required to register the same,
shall be considered the owners of such lands.

m.ma!M.Mim msgmmm imAmmmMAm.

11. Tho company niny, from time to time, piiUm' upon any lands nut mulrr cniltivation,
and there cut down anv trees, prepare any timher, and (jiiarry and dig any nxd. or otluT

materials tliere found, ami work, prepare, and carry away tlie sa for tlie use of siieli iidand

watei' communication ; and if the parties having the property in such lands, or materials, shall
refuse to agniC with the Company therefor, and for any damages occasioned therehy, or shall
refuse such reasonahlo compensation as may he tendered therefor, the same shall he settled hy
arbitration, under chapter eighty-seven of the Revised Statutes, hut the company shall not
take or use any such materials as may have 1 e.-n previously wrought or i.reimred without the
consensent of the parties entitled thereto.

12. In case any wear or embankment shall be made across the present course of the river 10
Shubenacadie below the Great lake, the company shall make and maintain a sutticient tish
ladder or waste gate, with proper grates and valves, for allowing at all proper seasons the
passage of fish up ami down such river, tlu' company in I'espect of making and maintaining
such tish ladder or waste gate, to be subject to the rules, tines and forfeitures contained and
imposed in .^nd by chapter \)!y of the revised statutes, " Of river tisheries," and all acts in amend-
ment thereof.

13. The company sl,all not divide over twelve per cent, on the paid up capital thereof,
after the payment of the curient expenses, but may put the surplus receipts over the above
twelve per cent, into a casualty fund until such fund amounts to a sura equal to one fourth of
the capital stock of the Company, and which may be invested in mc'i stock or securities as the
companv may think tit, and then the surplus earnings of the company, over and above twelve
per cent, may be used in the repairing, improving, or extension of the works of such inland
water communication.

U. No shareholder shall be liable on account of the <lebts of the company for a greater
amount than double the amount of the stock held by him, deducting therefrom the amount
paid to the coirpany on account of such stock, unless he .shall have rendered himself liable
therefore by becoming security for the debts of the company.

15. The legislature may, at its option, at any time after twenty years from the passing
of this act, take such inland water communication, with all the works and appurtenances
thereof, and keep the same in operation f(jr tho benetit and under the control of the govern-
ment, on paying to tho company a sum equal to twenty years' purchase of the annual profits
divisible upon the subscribed and paid up capital stock of the company, provided such avrrage
rate of i)rotits shall not be le.ss than eight per cent.

1(). Full and true accounts shall at all times be kept hy the directors o2 the company of
all sums of money received and paid on account of such inland water communication ; and the
company shall once in every half year cause a half yearly account in abstract to be prepared,
shewing the total receipt and expenditure on account of the said inland water communication
for the Iialf year ending the thirtieth day of June, and the thirty-first day of December
respectively, under distinct heads of receipt and expenditure, with a statement of the balance
of such account, duly audited and certified under the hands of two or more of the directors of 40
the ('ompany, and shall send a copy of such account to the Provincial Secretary, on or before
tho last days of August and F'ebruary respectively ; and it shall be lawful for the governor in
council, if they shall think fit, at all times, to appoint any proper person or persons to inspect

thn accounts and liooks of the company ; and it shall he lawful for any person so authorised,
at all rcasonahle times, upon pnxlticing his authority, to examine the l)Ooks, accounts, vouchers,
and other documents of the company, at its principal office or place of husiness, and to take
copies or extracts thertifrom.

17. No tolls shall lie char<»ed for the conveyance of Her Miijesty's mails or of troops, or
of troops and munitions of war, over the inland watc communication established by this act.

On 10th June, 18.54, Hon. James McNab, with the consent of the Provincial Government,
conveyed to the Inland Naviijjation Honipany all the lands which had been conveyed to him
by the deed from Nutting and the deeds from the Sheriff.

On 30th April, 1800, the Inland Navi;jatJon Company mortgaged all their lands to George 10
H. Starr, John Stairs, and Martin Pinkney Black, for £10,000.

On 1st Septemhei', 1800, the Inland Navigation Ccmpany mortgag ;d the same properties
to the same parties for £1."),000.

These mortgages were made in pursuance of powers given in the Act next set forth, and
after reciting the same.

CHAPTER 89.

An Act for the relief of, and in further amendment of the Act to Incorporate

the Inland Navigation Company.

(Passed the 15th day of April, A. D. 1859.)

Bo it enacteil by the Governor, Council and Assembly, as follows : — 20

1. The period of five years limited in and by the deed, dated the tenth day of June, in
the year of our Loid one thousand eight hundred and fifty-four, from the Honorable Jamea
McNab, the then Receiver-General for the Province of Nova Scotia, to the above named com-
pany, of the lands, lands covered with water, locks and other appurtenances, formerly belonging
to the Shubenacadie Canal Company, for the completion of the canal or luland water com-
munication, for the passage of boats or vessels to and from the Basin of Minas and the Harbor
of Halifax, respectively, is extended to the further period of three years, to be computed fiom
the tenth day of June, which will be in this present year of our Lord one thousand eight
hundred and fifty-nine.

2. The sum of five thousand pounds, heretofore loaned by the Honorable Provincial 30
Government to the above company, and all interest since accrued thereupon, is remitted to
such company, and the directors thereof, and all the property and works of such company are
released from all charge or liability for, or in respect of, such sura and every part thereof, and

all interest, as aforesaid.

3. Ttie board of directors of the Inland Navigation Company is authorized to borrow all
and eveky such sum or sums of money as they may deem necessary, for finishing such canal

I mi 1 1 'III iijiw I

or inlHn.l water cn.n.aut.icat;.,.. into tin- llarl.-.r ..f Halifax, or wbicb tbcy, at any tnno ..r
tin.es hereafter, u.av n-nuire for finishing' -uwl .u.ni>I..(i..4 .!..> san,.-, an.Ull worlc.uu.l unpn.ve^
„K.nts,a.af.resai.l,'which tlu-y ..ay rlunk n.-cssary th.-r.-fur, h.-I uKo for tl,. p.,r,H,se of
payi.iiran.i ,ii,sH,ar;iin^Mill l.-^al an.l just outstamlin;,' d.in.s a^-ainst tlu- .•om,mny. oul.er l.y
way of niort-a^e or preferential stock scc.re.l ..jkm, the eon.pany's property an, works, an.l a
and upon sncl, rate of inCrest as they n.ay he enah|e,l t., nhtain the san.e an. that all an.
every' lee.l. convevance, or n.ortgaKo nm-le an.l .'xeeMt.-l hy the .unetors of such co.npany ..f
the property an.l v. -U of the con.pany, for seenring th.- payment ot all an. ..v.-ry s,K-h son,
or snnm of money to be borrowed in the tern,s of this Act. shall be a ^....-1, le,^a and vah.l
ohann. rn-l lien np.m sneh property an.) works, bin-lin^- the sa.ne, an-i eve.y imrt tb.-reo fn.n.
the time such -lee.l, conveyance or mort«a.,n, is yiv..., any clause, matter or thm- in tb. sanl
,lee.l fron, the H.t.orable Jan.es McNab to such con.pany. or in the Act mcorp.nat.ng s...-h
..o.npany, or in the several Acts ther..af.e. pas.e.l altering', a,.,en.linjr, or in .-elat.on thereto, to
the contmry notwithstan.lino. P.ovi.le.i, bowev. •. that no .t.,ckbol,l..r of s..eh c.....panv, or
snb.,e,ibc.r io such preferential stock, shall be liable for or in .espect of such sun. or sun.s of
money so bor.owe.l .....ler the te....s of this Act. or interest to accrue th .e,., n. for any
farther or other j^reater sun. than the actual a,..ount or s,.m so taken or subscribe. ..-. and to
such stock by such stockhobbn- or s.,bscriber, respectively, notwithstan.l.nK any Act. cku»e,
...atter or thin^' eont.ary thereto containe.l in the Act incorporating such Inland Navn,'at.on
Company, or the several Acts thereafter passe.l alt«rinjr, amen.ling, or in .elation tc such Art.

4 The .lirectors of s.. 'h company shall, at any time, and at all times hereafter be at.
lil,e.-ty t.. sell a...l .lispose of all ...• any part ..f the la.-ls an.t p.-operty cntained in the before-
n,e,',tione.l .lee.l, which th.-y ..ay .leem not actually ..quired for the d-.e and convenient
workin.roF su-l. canal or u.lan.l water co.u.nunication. anything contained in the befo.e-
mentiore<l dee.l, in s.ich Act ..f L.corpo.ation, an.l the several Acts he.eto.ore mentioned
altering, amending, or in relati.Mi tl.eret.., to the cont.a.-y notwithsUnding.

.^ ' The presi.ient and any one or more of the diroctG.3 shall make and execute a bond to
the Receive.-(Jene.al of the Province, or to such pe.son or persons as Her Majesty s Provincial
Governn.ent shall anpoi..t, bin.lb.g them^ .Ives in a su... cjual to that raised by them by any
of the ...eans aforesai.l, to expen.l nil and every such su.n u. the hrst instance towards ^L. 30
tinishin.^ an.l co...pletion of the works a-s aforesaid to the waters of HP^Iifax Harbor, and then
to the paynent of ti.e outsta.uling debts of the company now or hereafter to be incurred.

On 19th Februa,-y, 1802. a certificate was giyen by the Provincial Government that the
Inlan.1 Navigation Company ha.l con.plie.l with the term, impose.l under the deed which
transfere.1 tl.; property to them by con.pleting a water communication between the harbor of
Halifax an.l the Basin of Minas. and .lecla.ing that the said property was free from any claim
'JO the part of the Government.

In point of fact, the Canal ba.1 then been completed.

The mortcracres by the Inlan.1 Navigation Company to Starr, Stairs and Bla'-k, were tore-
clos a and sold, and the property conveyed by the Sheriff of Halifax County^ to Samuel Gray >,o
and John Stai.-s 18th June, 1862 ; and these persons, on the 9th December, 1862. declareo tha.

muLwum

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mmm fm mM.jm

they held the property in trust for the Lake and River Navigation Company, to which ( '(.nipany
they conveyed, on Ist May, iS67. This Company was formed under a statute of the Province
called "An Act for the Incorporation and windinj,' up of Joint «tock Companies," the declara-
tion of the Shareholders and other documuiits pertaining to the organization forming part of
the case.

The Lake and River Navigation Company conveyed all the property to Lewis P.
Fairbanks by Deed uf April Lst, 1870.

On .Slst May, 1«70, Lewis P. Fairbanks assigned, under the Insolvent Act of 1875, to the
Plaintiff and Respondent, who afterwanls became creditors' as:;ignee of his estate and effects.

This concludes the principal chain of title, and it is claimed that thereby the waters of 10
the First and Second Dartmouth Lakes and the lamls covered with the waters thereof, and the
margins of these lakes became vested in the Plaintiff.

In addition to this chain of title, however, there is another chain by which the rights or
allied rights of other persons in th se lands and waters (including the persons u.ider whom the
Defendan't's claim) became, at an early period, vested in the Plaintiff's grantors, and formed
part of the property embraced in the later conveyances above enumerate<l. Thus :

By conveyance of 4th April, 1791, James Creighton conveyed to Lawrence Hartshorne and
Jonathan Tremain, the right to enter upon, etc., his lan.is through and contiguous to which a
brook ran which brook issued from the First Dartmouth Lake, for the purpose of lowering the
bank or nmr<rin of the lake where said broolc issued, an,l to clear out the bed thereof, and to
erect dams on the brook, and to overflow the land of the grantor around the First Lake in
order CO <ret a head of «-ater for their mill. This agreement created easements such as may
have induced the Sheriff's Jury to treat the owners of that portion of the margin of the lake
as " ilivers persons unknown."

On 20th Feby., 181.5, the executors of said James Creighton conveyed to Lawrence
Hartshorne, one of the above parties, a ti act of land on the .south ea.stern side of the First
Lake as per plan, marked A A., including the principal part of the locus trespas,sed on.

On 12th October, 1815, Lawrence Hartshorne conveyed to Richard Tremain one half this
and other propertv, describing it as " that certain lot, etc., lying between vhe two roads leading
from the main road through Dartmouth to the lake as purchased lately at auction, at the ,^ale 30
of James I'reighton's estate."

By Deed of 14th June, 1810, Jonathan Tremah. conveyed his moiety of the same tract to
James Tremain. Jonathan had at that time no title to this moiety, but had an equitable right
thereto as partner with Lawrence Hartshorne. (See next recited Deed.)

On 25th October, 1828, the Executrix and Executor of Lawrence Hartshorne, cn&de a
deed to j"ames Tremain. It recites that said Hartshorne and Jonathan Tremain were jointly
interested in these lands, although vhe title was held by Hartshorne. Also, that Hartshore, in
his life-time, had convevc;. a moiety to Richard Tremain as agreed on between them. Also,
that Jonathan Tremainhad conveyed a moiety to James Tremain, although no deed had been
given to Jonathan Tremain. Also, that James Tremain, had applied to the Executrix and
Executor for a deed of the moie'v so conveyed to him by Jonathan Tremain. Then the deed
conveys a moiety of the property so held by Hartshore, the other moiety of which he had
already conveyed to Richard Tremain.

■"sgsaBaE^

i^Wyn— »■ > .I I I

By <lee(l .if 12th April, 1S31, Ridmnl Tivmaiii and Jainos Tiemain convcyeil all thesis
lands to 1. • ^luibi'nac'ulir Canal Company, and from this period tliey foinitMl pn-f (jf the pro-
pe.ty of t.' il Company inchi(h!<l in tlie chain of conveyances first above given, and covficd
by the mor.^age from that Company to S. S. Blowers and Sir Rupeit IX George.

Thus the Plai.iiiir claims under the Statutes before iletailed, the In(pnsition, and the deeds
above recited, a complete title to these Lakes and all the adjacent shores and banks and
especially such portions of the margin as were flooded by the raising of the waters consequent
on the Company's works.

The defendants cut a quantity of ice on the First Dartmouth Lake and took it awa\.
On the .shore of the Second Lake they erected an embankment and ice-house thereon, and cut 10
and took away a quantity of ice in front and from the vicinity of the embankment. As to the
trri.spasses on the north-western part of the First Lake, they .seek to justify under license from
(leorge A. S. (^Jrichton, who, they allege, owned the lake and the land thereunder at that part
where the ice was cut.

They put in a deed from the executors of James Crichton, Senior, to James Crichton,
dated 1st Novemiier, 1S19. Also a deed from James Crichton to Thomas Maynard et «/., in
trust for G A. S Crichton, dated 19th August, 1829. Also a deed from Thomas Maynar 1 et
al. to George A. S. Crichton, of 22nd July, lS:3o. The finst of the.se deeds includes land on the
opposite or north-west side of the First Lake, containing about 36 acres. The 36 acres were,
however, exclusive of the lake, because James Crichton, Senior, by agreement of 1791, — put 20
in among plaintiff's exhibits,- bad conveyed extensive easements "n relation to the lake and
its shores to Hartshorne and Tremain. Before the second deed pas.sed the title of the Shuben-
acadie Canal Company had been acquired, and the proceedings for expropriation were put
into force (1826), an<l the secomi deed, after descril)ing the property, adds : " Save and except
out of this deed such portion of the .said land at Dartmouth on the lake as hath been assigned
and set over by a jury to the Shubenacadie Canal Company." No grant from the Crown is
produced, whereas the i)laintitf claims that the Crown and the Legislature ceded the lake to
the company, as recognized by this deed.

As regards the embankment, ice-house and cutting at the Second Lake, the defendants
claim title thus :— Grant to Christian Bartlin in 1782, of 200 acres. This grant is not identified 30
as being a grant of any land near the iocas. Tht. boundaries given in it are not traceable on the
"round, and the grant says, "according to the plan annexed," while no plan is produced.

It is alleged that this grant was partitioned among the heirs, and that lot No. 5 on the
partition fell to Susan Bartlen, who married Moreland and died a widow ; she devised it to
her executor, who renounced, and hei' administrator with the will annexed, conveyed to
Michael Hurley, who in 1856 cenveyed to Peter Laidlaw. Peter Laidlaw's widow married
Samuel Chittick, and the other defendants claim to be his servants or partners. The defend-
ants contend that this title covers the shore of the Second Dartmouth Lake or. which the
embankment and ice-house stand, and they contest the expropriation by the company.

As legards the cutting of ice on the south-eastern shore of the First Lake, the defendants 40
claim a title as follows :— They begin with the deed put in evidence by the plaintiff from the
executors of James Creighton to Lawrence Hartshorne, dated 20th February, 181.5. Pa,s.sing
by the deed from Hartshorne to Richard Tiemain, 13th October, 1815, and the deed from

. .^ ■ '■iim. JIBJ.'iiHWU.lMii^k l".».Ayai^

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ill

executrix and executor f)f Hartshnrnc to .Tames TriMiiaiii, 2')tli October, 1828, tlirnn^,'!) wliieli
the title passed out of Hartsliorne (so far as tl>e uiai'sin of tlie lake is concerned) to tlte
Shnbenacadie Canal (^onii)any ; tliey go on to tlie will of Lawrence Hartshorne,— set out among
])laintitf's exhibits in the Bill of Complaint in the cause of [v(jhs et <iL v. H(trfsl,on,e et aJ.
This will directed his real estate, exceptint,' his dwelling house, to he divided among his children,
who were seven in number, and who entered into the Chancery partition suit of Imjlcx d a!.
V. Hiii-tshoiiie et al, tV proceedings in which are given among plaintiff's exhibits, the same
being put in evidenc ' ■ /ay of rebuttal. The object of this suit was to divide the real
estate made divisibl }.y th will, and a tract of upland 7}rin- the Second Lake, but on the
southern side of the road shown on plan AA. was so divided. 8ee plan of division in 7»r//s.s
ef al. V. H'lrtfihorne et al According to this plan the following division of the upland tiact
tract was made : — •

Lot No. 1 to Lucy Short, and marked L. S.
2 to Susan Scott, " S. S.

" 3 to Lawrence Hartshorne, Jr., and marked L. H.

4 to Mary Hartshorne, " M. H.

5 Ann Tremain, " A. T.
" () to Hugh Hartshorne, " H. H.

7 to Mrs. Inglis, " C. I.

This closed the partition proceedings and afterwards by various conveyances the.se lots 20
l)ecame vested in Hugh Hartshorne. These lots however, do not cover any part of the locus
trespassed on, which was on the lower side of the road. After this suit was thus disposed
of, and all the real estate mentioned in the inventory in that suit (which was an
inventory of the real estate of which Lawrence Hartshorne died seized), Lawrence Hartshorne
the executor attempted to convey to each one of the heirs a water lot in front of his or her
upland lot, and these last lots went below the road, included the margin of the lake and part
of its waters, taking indeed— if such conveyances could — the tract conveyed in two moieties,
one moiety by the testator Lawrence Hartshorne to Richard Tremain, the other moiety by the
executrix ami executor to James Tremain, and the whole of which had been conveyed in
1831 by Richard and James Tremain to the Shubenacadie Canal Company. All the seven 30
heirs of Lawrence Hartshorne conveyed this second range of lots (being fictitious, according
to the plaintift"s contention.) to Hugh Hartshorne.

TIh> declaration charges, in the first count, a l>ieaking and ertering of plaintiff's close and
lands known as section No. Two of the Shubenacadie Canal, and forming the reservoir thereof,
and called the First and Second Dartmouth Lakes, kc, and on the lands bordering the said
lakes, anil upon the margin thereof, and with throwing large quantities of stone thereon, and
driving posts and stakes therein, and erecting buildings and cutting ice thereon. The second
count i-epeats the same chai'ge and a<lds that defendants cut and carried away the ice formed
thereon and con\erted the same to their own use. The third count is in trover for 5000 tons
of ice. Three other counts are added, charging these trespasses as having been committed 40
against Lev's P. Fairbanks, the insolvent.

The defendants plead to the first and second counts, 1st, that they did not commit the
alleged trespasses; 2nd, that the close and ice were not the property of plaintiff, and denying

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his possession ; 3ni, tliat tlif close aiul ice wen; tli- property of defendants ; 4tli, that the close
and ie. were the property of Johnston Chittiek and Jessie T'hittick his wife and Annie
Lai<lhiw, and tliat lie in his own rii,dit, and tiie other defendants as their servants, did what is
complained of; -)th, license and coinnian.l of George A. S. Oichton. To the third count the
pleas are, 1st, a denial of the conversion; 2nd, a denial of the plaintiff's property. To the
remaining count thev ;)lcad a denial of the conversion charged as having l.een made against
the insolvent, atu) tliat the ice was not his. The concluding plea is as follows:—" And for a
plea to the plaintirs declaiation the defendants say that the said William H. Creighton was
not nor i.-, such assignee as alleged."

Tiie Supreme Court of Nova Scotia gave judgment for defendants on the ground that

Fa'rhanks was not a trader.

EEASONS IN SUPPORT OF THE APPEAL.

1st. There was ample evidence that Fairhanks was a trader. The Assignee said at line
Vd, ■' Fairbanks bought and sold all sorts of things. I had dealings with him. He bought,
oats and wood and inm." The Supreme Court sai.', '^ We all do that when necessary," and
thence concluded that Fairbanks could not be a trader.

Insol. Act of 1875, Sec. 1,

Doria, 1874, p. 113, cited in Worther.spoon, p. 3.

Patman v. Vaughan, 1 'I'. R., o72.

Cannon {'. Dennan, 10 Bing., '292.

Ex-parte Moule, 14 Ves. OOS.

Ex-pu:tti, McGinnis, Rose, 84.

2nd. It was not necessary, as the Supreme Court of N. S. seemed to adjudge it to be, that
in order to make the Insolvent a trader within the meaning of the Act, he should have assets
and books wliich had resulted from his trading bu.siness.

Ex-parte Devvdney. 1'), Ves. 495.
Bamford, 15, Ves. 458.

Doe ('. Laurar^ce, 2 C. & P., 134.

Baillie /•. Grant, Bing., 121, G Bligh, 459.

WiUoughby v. Thornton, 1 Selw., N. P. 175.

Dane v. Holdsworth, Peako, G4.

3rd. The Supreme Court of N. S. had no ground for the assertion that " his bu.siness had
relation solely to this Canal property," and even if it had, he might still have been a trader. If
he bought the Canal property for the purpose of dividing it, selling it in parts, and selling the
machinl^ry, in course of his general business, (which he says he did sell at line 127,) that would
be evidence that he was a trader.

4tli. There was no reason for the Court assuming that the debts incurred by the Insol-
vent, as a trader, were barred by the Statute of Limitations. This was mere conjecture.

5th, The only ph'a raisint^ this issue, was the last, which denied that Plaintiff was
Assignee The Assignment and the evidence of the meeting of creditors, etc., were proofs oi 40
this'' The issue only required Plaintiff to shew that he was de -facto Assignee. The pro-
ceedings in Insolvency should be sufficient until set aside.

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0th. Tlif .l.'niiil of Fairhanks '.oing a tradi^, should havf Kocn inaile oxplicitly in the pleas,
fspeciali;, in view of thL- following section, 152 of chapter 94, Revised Statutes of N S., 4t}i
Series : " The general issue and all general pleas are abolished, and every piea<ling shall specify,
partieuiaily ami concisely, the facts ii\tenik'd to he denied."

(irotto vs. Farish, Thomson's Rep. 2!)1.

Church wardens vs. Vaughan, 2 lluss. k Ches., 44.*?.

7th. Thf ccrtiHcati" from the officer of the Court was at least i>rimti fiuic evidence of
Fairbanks being an Insolvent, and having regularly and properly a.ssigned, and of the plaintiff'",
appointment, and of the regularity of all proceedings, antecedan t to the certificate.

Insol. Act of 1875, Sec. 144.

8th. On the que.stion of fact as to Fairbanks having been a trader, there was some evi-
dence at least for the Plaintiff, an.l none for che Defendants The verdict in the Plaintiffs
favor, therefore should not have been disturbed, and was a finding of that issue in plaintitt's
favor.

!)th. Plaintiff showed a complete title to the locus, and proved the trespasses thereon,
and the vjrdict affirmed his evidence as to all the trespas.ses alleged.

•

10th. Defendants' attempts to prove title, failed. Their defence of license from G. A. S.
Crichton could not avail them. Their title did not go back far enough, and it contained a
reservation (jf the rights of the Shubenacadie Canal Company, the plaintiff's grantors. Their
defence under the Hartshorne title cannot avail them, because Lawrence Hartshorne in his
life time and his Executrix and Executor after his death conveyed all the property between
the road and the Lake and in the Lake to the Tremains who conveyed to the Shubenacadie
Canal Company. The making of conveyances after his death and after all his real estate had
been partitioned in the suit of Ingles, et. al., v. Hartshorne, et. al., to cover this tract, was
dearly an after-thought, -^d an attempt to make title, as the absence of any such property
from the Inventory Inglis, et. al., vs. Harthorne, et. al, shows. The attempt to establish title
under the Bartlen grant failed— the grant could not be located — it professed to grant " accord-
ing to plan annexed " and the plan was not produced. Mr Hendry's attempt to locate it
would make it apply as well to any other part of the country ; there was no internal evidence
of the land granted being near any of the lakes, much less being part of the lakes as was con-
tended ; reputation of part of the locus being considered part of the grant would not suffice ;
the Administrator of Moreland could not convey, he was not the devisee, and no proof was given
that he took any of the proceedings by which, without devise, such a person can convey, or
that he really was Administmtor.

11th. The plea that the locus, ice house, etc., was the property of Johnston Chittick and
Jessie Chiitick and Annie Ch.ittick, was not proved.

12th. There was at any rate no defence made as to the trespasses and conversion connected
with that part of the locus in front of the embankment and ice house, or as to the hauling of
the ice off the First and Second Lakes. Defendant, Samuel Chittick admitted (line 202) vir-
tually that he did not own any lands in or under the Lake ; he says his property is bounding
on the Lake.