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M>ii/iir. fir. '-'lO, mikIlt liciiil On pa^^e II, .Mil line from liofldiii. lur " hiws" rciid "land '• "." '.H- !;";!!' li'"' *''■•"" '"'t^'"". »■'»• •■ A-ivmcnl " .va.l' •■ Anin init i(, r.tth line from to|), tor •• vol. 'Jti" w.id "vol •'.". " " (>.'>, nmlor Niiml)ur "li," " Clnstmit \. Ih,,,!,'-' u "vol.-il." C.tli lim. from t.-i., for "iiftcr" rcud ",m> motion for." ^'Otli line from top, uftur "vol." insert " "21. '" Till line from bottom, for ".">(ll " ]X'\u[ ";i(u"." of St. Jnliii. Appeiil to S. ('. ( J^i-l'i'i'ts H. V. C, vo,. .,, |„ Woodstock,' CISC <:r itartc DibMc is omitted; ,.,„, " lliu Aet, 1.. \iu. Clip. 7,s, providing' that no person, who i.^ not ii ralei)iiyer m Town of Woodstock, shall em;a^'e in any trade, etc., therein without a license from the mayor nitm riirs the Provincial lA'i^'isiature nndi'r iiiii\i)r, is sfctiuu of , 11(1".."' iru correct iitii ill this (est ill the s, are now nice to tliu ABATEMENT. For matter of form. Action in Jus- tice's Court, section l;{, cap. 8;"), Con- solidated Statutes. An action was brought in a -Justice's Court, by the title of " The estate of the late U. K." a-^'ainst tlie 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, bein<< barred by the Statute of Limitations, under section IS, of cap. 85, Consolidatad Statutes. Kerr Exc- rittri.v, etc. V. Squires, vol. 22, 448. Action brouf^ht in County Court oy a female, does not abate by her marriafio. See County Court 5, I — Giviiif,' evidence of separate tres- I pass — No abaiidonmont of joint tres- pass. See New Trial 2. I — Hlection (if trespass— time for—in judfje's iliKcretion, Iliid, ABSCONDING DEBTOR. ABANDONMENT. Notic3 of— Loss of vessel— Waiver. Sao Insurance, 1(1. —Of possession of land where wroii^'- ful entry by another. Whether tres- pass cm afterwards be maintained. See Trespass, 8. —Of exce.s3 in particulars filed. See Certiontri, 8. —Not applicable to actions of tort. See County Court 6. S.D. 1 Consolidated Stat. Cap. 44 -Warrant to attacli property— Affidavit stating belief of witnesses only— Supersedeas— Certi- orari— Delay In applying. Merely stating belief of absconding or concealment, not suflicicnt— facts should bo 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 Uth 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 eerti- (iniri to quash the proceedings, I Such an application might be made tl lough two terms had elapsed since the warrant issued. Ex parte Moore, vol. 23, 229. ABSENCE. The mere absence from parish, of parish officer, does not create such a vacancy as will authorise the appoint- I •> ACCOMMODATION NOTK. iiicnt of a pcTHoii to till tlie ol'ticc by the ooiuicillorH. Till- (fiicf)i v. C'/imc, vol, l'.», r,{\'l, — Mciuiint^ of Ciiimda 'roiMi>eriince Art. Sfc Caniidii Temp. Act I'.i. ACCEPTANCE. — Wlmt coiiblitiitos such under Stat- ute of Frauds. See Statute of Frauds. —An acceptance of ^oods 8ub8e/ Sew Bniiixirirh v. Broirii, vol. lit, 10(1. — Agreement to i)ay — J>ill of sale given in consideration of. Sec Promis- sory Notes (i. ACCORD AND SATISFACTION. Plea of— Taking defendants' promissory note— Note iiot stamped— Where given back— 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- missory note 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 tlie first plea), tliat he did not receive the note in satisfaction and discharge of his debt, and that after lie 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, but that the replications were also good on i ■ACTION. lol-U'iH, dirt- •oiii all Iiiibi- Fisher, JJ. uit the pleu, 111. liiiiih i\l' A. 11), 10(5. ISill (if Hiile Hoc I'rdinis- LCTION. >' promissory -Where given ), duplicity. oils sold and I. Ist. That intiff's claim nieiit of the scharged tlie ring to plain- ed, etc. which iccepted and I discharge of the accru- ., (as in first •ed to plain- and received eof, his prc- »le to plaintiff next, which commence- ff replied to notes were provisions of to the first e the note in of his debt, I it, he re- accepted it ■getl it, and ay plaintiff's so to do. replications, ctions to tlie re good, but iilso good on I ACCOfNT HTATF.n. dfiMiirrcr, uinl tlmt pliiiiititi' was cuti- tk'd to jiidgiiiciit. //('/(/, uIho, that th()ii^;h the '2iid riv lilii-ati'iiiwiiH opiiii t(){)l)j('('li()ii for diiiili- , tiiat was not a ground of general di'iunrror. Cniirhnlunil. v. Mr.iriti/, vol. 2— Where the plaintiffrt demand is for a ii. — llestraining by injunction. See In- junction 2. — Court House — Injury to person falling down stairway leading to court room, owing to want of light — When fee vested in Mayor, etc., of St. John, in trust, etc. Partial caution in muni- cipality — Principle governing liability. See Municipality of St. John 1. — Splitting up claim — Whole amount due at time of first suit — Subsequent suit and arrest. See Arrest. National Park Bank v. Kllix, vol. 18, 547. — Action on life policy by person bene- ficially interested. See Stay of Action 2. See Contract li. — Action on agreement to indemnify. See Sheriff 2. — Separate or joint interest — Loss of lumber— Plaintiff's interest — Right to sue. See Contract 11. Action for goods sold and delivered, and for money had and received, where will lie. See Conversion 1. ACTION ON THE CASE. 1 — Adjoining land owners — Defendant allowing cellar to remain after building destroyed, water collecting and running against plaintiff's wall — Plaintiff's de- fault — When action not maintainable. Trnxteeg, etc.,\. Hutchinson, vol. 18, .523. See Addenda 42. 2 — Tort duty arising out of contract of employment — Traversing the employ- ment ;— the proper mode of denying the existence of the duty to use due dili- gence. See Domville v. (yUrien, vol. 18, 056. Joint owners in vessel — Action by owner against joint owner for taking vessel and launching her in a negligent manner— Joint ownership no answer to action. Ibid. 3 — Corporation — St. John City — Power to raise level of the streets — Evi- dence of exercising powers carelessly — Withdrawing evidence of same from jury — Setting aside nonsuit. See Pat- terson V. Maijor, etc., St. John, vol. 18, G3G. 4 — Obtaining injunction — Averment that same was obtained wrongfully and !A8E. ADULTERY. AFFIDAVIT. 5 ion in muni- ling liability, hn 1. Hiole amount —Subsequent St. National 547. person bene- ;ay of Action ,0 indemnify. 'est — Loss of it — Right to ul (lelivereil, ieived. where ASE. — Defendant fter buildinj^ and runniuf^ laintiff's de- laintainable. vol. 18, 523. contract of ;he employ- denying the se due dili- ricn, vol. 18, - Action by • for takini» a neglif^ent o answer to aim City — treets— Evi- carelessly — same from i. See I'at- 9. See Addenda 41. j should have been proved that the mar- Master and Servant.— Injury to ser- ' •'ia'ge was valid under the law of Maine, \ ant— Death of Master -Survival of i ^•nd the conviction was quashed. liegina action. SeeConnelly v. .S'A(r.s-, vol. 18, 606. v. Ellis, vol. 22, 440. 'i ACTS OF PARLIAMENT — Should be construed so as to give effect to all parts of the Act. See Inspection 1. ACTS —To be performed by seller A. not prevent property from vesting in ven- dee so as to prevent him from recover- ing in trover, where goods were seized under execution of the contract of sale. See Property, passing of 1. Adjoining Land Owners.— Acts of pos- session—Time agreed upon. See Pos- session, 1, 2. See Acquiescence 1. ADMINISTRATION. Granted in different countries — Rights of -\dministraters. See Hus- band and Wife 3. —Evidence of probable expenses un- der plea of 2)h'ne tulminMrovit, inadmis- sible See Evidence 15. Admission — Accounts — Previous set- tlement with third party— j:ffect of— Evidence. See Evidence 11. — By Counsel, how far client bound by. See ^Master and Servant 2, — ]3y Infants— Fraud. SeeEstoppel3. ADULTERY. j Marriagj— In foreign slate— Necessity of proving marriage law of such state. i 1.— On an indictment of E for adultery I with L. Il„ it was proved that L. R. and J. R., who were citizens of the ; United States, were married in the i State of Maine by a clergyman who testified that it was a part of his ., who refused to let him have it unles.s a charge of 10 for work done on it origi- nally for B., besides his charges for the present repairs and storage was paid. Held, that C. could maintain trover against D. for the value of the sleigh, and that the latter could not complain of the Judge leaving it to the jurv to find whether the title to the sleigh wiis in B. or C. Hell v. Cirlijle, vol. 22, 4r,H. 2— Whiten— Charter paity— Parol evidence —When admissible. In an action for a breach of a charter party, which stated that defendant's vessel, then on a voyage from Ireland to S. for orders, would on her arrival there at once proceed to C. and there load from the charterers' agent a full cargo of coal and proceed to St. John and deliver *lie same to the charterers. ! 8 AGREEMENT. Breach. — That the vessel was not at the time of the agreement on a voyage from Ireland to S. for orders, but was on a voyage from Ireland to St. John, and did not proceed to C. and load with coal, whereby plaintiffs were obliged to charter another vessel for that pur- pose. At the trial the charter party was proved as alleged, and also that the vessel did not call at S., but came direct from Ireland to St. John and did not deliver any coal to plaintiffs. De- fendants offered evidence to shew a verbal agreement made contemporan- eously with the signing of the charter party ; and while one of the defendants (by whom it was signed as agent for the other owners) was in the act of handing it over to plaintiffs, and while he had the control of it, he said to plaintiffs, " Now you are not to have the charter party, or it is not to be l)inding if the vessel does not go to S.;" t') which one of the plaintiffs said "yes," or words to that effect. And upon plaintiffs assenting to receipt it on these terms, he gave them the char- ter party. This evidence was rejected, and plain- tiffs obtained a verdict. Hi'ld, by Allen, C.J., and Weldon, Wetmore, Palmer and Fraser, J. J., (King J., dithitaiitc) that the evidence should have been received— that the object of it was not to vary the terms of a written agreement, that the parties Iiad already entered into, but to rihew that the writing which tliey had signed, but which was not then a complete agreement, was not to operate at all unless the vessel called at S. Wdltcrs V Milligau, vol. '22, (i'i'i. 3 -Written— What is a sufficient considera- tion— Avernment of consideration— When it may be implied. The declaration set out an agreement in writing providing that, certain acts AGREEMENT. should be done by the defendant, but neither averred any request by the defendant to the plaintiff, nor any consideration moving from the plain- tiff to the defendant, except that the plaintiff should accept a deed from the defendant of certain property, and al- low the defendant to remain in posses- sion thereof for a certain specified time. Held, that the consideration was suf- ficient to support the agreement, and that in such a case a request might be implied. Drownell v. Raworth, vol. 21, 11. 4— Deb'or and creditor — Novalion — Sub- stitution of hability of third person— Dis- charge of principal debtor— Considera- tion— Statute of Frauds. Defendant being indebted to the plain- tiff, it was verbally agreed between them and G., for whom the defendant was cutting lumber, that the plaintiff should discharge the defendant and accept G. as his paymaster, and G. thereupon promised to pay the plaintiff the amount due him from the defendant. G. was not indebted to the defendant at the time or afterwards. Ilihl, per Allen, C J., Palmer and King, JJ., that there was a sufficient consideration for G.'s promise, and tliat the defendant's indebtedness to the plaintiff was extinguished. Per Wetmore, Fraser and Trick, JJ., that G.'s promise, not being in writing, was void under the Statute of Frauds, and that the defendant's indebtedness was not extinguished. Coulthard, App. and Caverhill, Eesp., vol. 25, 81. 5— Sale of land— Deed handed to purchaser by agent of g<-antor for purpose of exam- ination— Reseipt containing promise to agent to return deed or pay purchase money— Whether agent has right of ac'.ion — Pleading — Non assumpsit — Rig'it to dispute consideration under pleao'. W. sold land to defendant at auction, the terms of sale being 10 per cent, down, and the balance in two annual AOKEEMENT. AORKEMENT. 9 nidant, but jst by the , nor any the plain- [)t that the d from the •ty, and al- 1 in posses- cified time, on was auf- jment, and It might be , vol. 21, 11. ilion — Sub- lerson— Dis- -Considera- otheplain- ;ween them iiidant was itiff should , accept G. thereupon lintiff the defendant. defendant ihner and sufficient nise, and ;odnos3 to Frick, JJ., in writing;;, Df Frauds, lebtedness lard, App. 81. I purchaser >e of exam> liromise to purchase htof ac'.ion — Rig it to )ao'. i, but i''?' '\ a receipt shewing the manuo< ■ ',-■' the account was settled, and t.^.^.i ■ evidence of the agreement v.'csi ■ sible. An agreement to accept a note full settlement and payment " of a debt is evidence of accord ..nd satisfaction. Per Palmer, .J. That the amount signed by the plaintiff contained the agreement between the parties, that as it did not shew that the note was accepted in satisfaction of the bill, parol evidence was inadmissible, and I'y in T. AGREEMENT. AMBIGUITY. 11 bis note to It of the hiil iree montlis, i an accnniit iterest wcie md R.'s note ount; under ^d as above," Under this note to be R." lefendant as iided accord evidence by the phuntitf settlement . Tliis was bo testified is colhiteral he bill. A for the dc- sldon, Wet- ner, J., dis- not havinrf ot move for at the parol ceived, and Jen directed ;he plaintiff 1 which the ; amount to. signed by 'lint to f\n rre-' 'v ^.- ivcn ■ iis- 1 note " in " of a debt isfaction. le amount itained the ies, that as note was '. the bill, ssible, and I the jury should have been directed to find for the plaintiff, though no such contention was made at the trial. Also that the evidence of R. did not prove that his note was taken in satis- faction of the bill. Harbour ft al, v. Robert, vol. 24, 211, 8— Sale of goods— Price subject to be re- duced—Recovery under count for goods sold and delivered. Where, on the sale of a chattel by the plaintiff to the defendant for $130, it was agreed that the price should be reduced to *()5, if the defendant pro- duced a deed from the sheriff shewing that he had previously sold the chattel to the defendant under an execution ; the plaintiff may recover the price in an action for goods sold and delivered. It is the defendants' duty to produce the sheriff's deed, if he claims to reduce the price to the lesser sum. Woods, -Vpp,, and McCann, Resp,, vol. 25, 253. — By mortgagee of ship not to charter without consent of mortgagor — Notice of charter by telegram— Acquiescence of mortgagor. See Ship 2. —Agreement to indemnify. See Sheriff 2. — Agreement to deliver lumber to be measured by a named surveyor — Survey bills, how far conclusive. See Estoppel 5. — Conditional sale— Representation — Estoppel. See Trover (i — Construction of agreement— Pro- perty in lumber— ownership and con- trol of lumber until payment of draft given for stumpage under the agree- ment. See McLeod, App., and N. B. Railway Co , Resp. Addenda 28. —Of counsel at trial— Power of Court to depart from. See Practice 14. — Agreement under seal— Subsequent parol agreement. See 16. — Verbal— To devise form in payment for advances— Statute of Frauds. See Former Recovery 2. — Agreement for a lease. See Land- lord and Tenant C. —Written— Work done under — Action for — Qiiiiiituin meruit. See Assumpsit 4. — Ante Nuptial — Voluntary convey- ance. See Husband and Wife 5. —For towage of raft of lumber made by j agent Where portions of raft owned in severalty by different persons— Loss of portion owned by one — Right of owner to sue alone for the loss. See Contratt 11. — Where property held undei* — Party holding to repay himself for expenditure from profits — Premises destroyed by fire —Who entitled to insurance money. See Insurance 13. — As to determination of (}uantity, where guage has been tampered with. St Sales. Sale of property, agreement to give security — Evidence to jury. See Sale of Goods 5. ALIENS. 1 — Naturalization — Certificate — Person taking oath of allegiance, etc.— IMust grant. The certificate re(iuired by sec. 4 sub- sec. 3 of the Act 31, V. c. (JfJ, respecting aliens and naturalization must be signed j by the person who administers the oaths of residence and allegiance required by sub-sees. 1 and 2. He Deseter, an Alien, vol. 20, 2t)7. — Juror — Objection to, how taken. See Juror. ALLEGIANCE. Oath of — Who must sign certificate. See Aliens. AMBIGUITY. In desc-iption of laws— Acts of person under deed may be evidence to explain. 1— When there is any ambiguity in the description of the land conveyed by a deed, the acts of a person under a deed .J» 5e^ mi! 12 AMENDMENT. AMENDMENT. I I would be evidence to explain it ; but mere declarations alleged to have been made by former owners offered in evi- dence with a view of affecting the titles, lire not admissible. Defendant con- veyed to plaintiff a piece of land des- cribed as follows : " One-fourth share or part of that one hundred and sixty-six acre lot conveyed by H. to H. B., J. B. and G. B., which one-fourth contains forty-one and one-half acres more or less.and is bounded west by land conveyed to J. B. by G. B. and J, his wife, north by W., east by D. ; and to extend south- erly till it comprises said one fourth of said one-hundred and sixty-six acres ot, being forty-one and a half acres more or less." In the deed, defendant covenanted with plaintiff that he was seised of the premises therein described and thereby conveyed, that he had good right to bar- gain and sell the same in manner and form therein written, and that he would warrant and defend the same unto the plaintiff his heirs and assigns for ever against the lawful claims and demands of all persons whomsoever. Hi'hl, that this covenant in law amounted to a covenant that the defen- dant was solely seised of tlie property described in the deed, and that he had a legal right to grant, bargain and sell the land so described in fee simple to the plaintiff ; and that as the whole block contained by actual measure- ment 171J acres instead of lOG acres as stated in the deed— the plaintiff's deed from the defendant entitled him to the full one quarter, and the defendant was liable upon his covenant to what- ever quantity of land the plaintiff was deficient in such quarter. Somers v. Jnibiir, vol. 20, 502. AMENDMENT. Application for— Discharged without costs. On demurrer to defendant's plea, there was judgment for the plaintiff with leave for the defendant to amend on payment of costs. The defendant did not amend, and plaintiff applied to have the rule amended by striking out that part which allowed defendant to amend. After the rule uigi was granted the parties went to trial. Held, that the application was un- necessary, and the rule was discharged, but without costs, as the rule was taken out without costs, and could not be made absolute with costs, and there was no necessity for the defendant to shew cause. Tower v. Outhouse, vol. 21, 302. 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. MttUin 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 U. — Conviction under Canada Temper- ance Act. See Summary Conviction Act, 3, 4, 7. —Agreement of conviction. See 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 amr^ndment would make Court demurrablfi. See False Imprisonment 7. — Amendment on appeal. See Ad- denda 31, 39. APPEAL. APPEAL. 13 Hit to amend le defendant iff applied to ' striking out defendant to was granted ion was un- 3 diBcharged, lie was taken ould not be I, and there iefendant to louse, vol. 21, Act 42, Vic. nder Act 42, I that defen- i non-suit or ;s, and leave he trial, the ! defendants move for a vol. 20, 122, ida Temper- ilty imposed authorises — anada Tem- ida Temper- Conviction n. See Can. nts - - Judt{e See Prac- both lessor died while itment 3. 1 allowable. When pro- make Court risonment 7. 1. See Ad- i — When jud^e at iiini priun has power to refuse. See Partnership 1, — Of Bill in Equity— Foreclosure. Bee Mortgage 2. — Election petition under Dominion Controverted Election Act — Variance ill copy served — Whether may be amended. See Dominion Controverted Election 2. Ancient Document. — Statement in Crow 1 grant of sale of the land — Admissibility of. See Possession 2. ANNUITY To wife of testator — ^ ' the particular property upon which it was made a charge sliould prove insufficient for that purpose, the amount should be paid in full out of the residuary estate. See Will o. — 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 o. APPEAL— r-S'ct' 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 stt aside by County Court Judge — Interfering w.th 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. Dunphrj, 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 certify— Power of Court to grant— Consol. Stat. C. 51. SS. 31 a.id 51. An order of a Judge of a County Court setting aside a judgment and allowing the defendant to come in and defend on terms, made under section 31 Consol. Statutes, chap. .Il, 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 tiio 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 Semhle — 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 mandamus 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, the Court will not inter- fere with the finding of the Court below. Sherati)i v. Wlielpley, vol. 20, 75. 5— From County Courl— Where abardoned by appellatit and notice given— Motion to dismiss with costs 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. Imviiij^ a I'oiiiedy by appliciitiou to the .hidj^o of the County Court under Con- sul. Stat. cap. ill, sec. o'2. Kiininir v. J!!,irl;, vol. "21, 'iT-'. 6 Chatham Police Act 22 Vic. cap. 46, and 26 Vic. cap 40— Appeal under 11 Vic. Lap. 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 contlictinj^, the Court refused to interfere with the decision of the Justice. K.v parte liulstead, vol. 21, 227. 7 — Probate Court — question of fact — Decision of. Tlie 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. 52 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 Wetmoi'e, 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 Went Boom Co., vol. 19, 64G. 9 —To Supreme Court of Canada— E.x- tending time. Held, that a Judge has power from j time to time to e.\t(3iid 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, will not prevent a Judge from making an order settling the appeal. Copp v. Held, vol. 19, Oil. — 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 If). 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 bo extended by an ex parte order. Jackson v. McLellan, vol. 18 694. — Summons for now trial not disposed of —Refusal 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 — Rule —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. i AUHITUATION. AUHF.ST, 15 Ciinadii— K.\- i power from ! time for pcr- iipreme Court aviiifi decided liould be, will II making' an C'opp V. lieid, what caae me Court of ppeal to the t from jud>4- 1. See Evi- tJme. )wed by the Court Act cap 11, sec. y an eximrte n, vol. 18 not disposed ;ion of costs. )ellant does ached See Court al- )nnty Court t appealed on other icli it was appellants' e did not peal. See set aside grant at- bs8. 1 of costs. i — Can only he in reference to point actually taken and decided in Court ))elinv. See Carrier 2. —From an order of a Judf,'eof C'ounty Court relievinj^ bail. See lUil I. — PermisHion to enter cause on ap- peal proper —Tractice. See County Court Appeal I. — Servinj^ notice of— Statement of j^roundH. See Jviuity Appeal 2. —Costs— Question of— Whether ap peal will lie. See .S'((;//v v. Hdfrin, vol. IS. ti77. —Procedure on appeal. See Court General Rules. --County Court — Jud^^e certifying proceedings— Time within which appli- cant must apply for— Bond. See County Court Appeal 7. —On Appeal to Supreme Court of (Jaiuida — 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. Appsal Papers — Equ ty — When to be printed— Entry of cause— Application to strike cause off doci(et— Rule of Hillary Term, 1881- Practise. The Court, (Wetmore, J. dissenting) refused to strike a eause off the Equity Api>eal 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. CoIweU v. Piohin- son, vol. 21, 18!). Appropriation — Agreement for— wheth- er payment— Rescission of. See Con- tract 7. Appropriating with intent to defraud — Stating value in iiidictment for. See Intent to Defraud 1. ARBITRATION -(See Award) . Costs of— Power of Court to review. 1 — Where an order of reference to arbi- tration made at nui prims provided that the costs of the arbitration shouKl be taxed by the clerk as costs in the cause, the (-'oiirt has no power to review tlie clerk's allowance of the costs of the aibitrator. Sitmrhdll v. Miiirliead, vol. 22, r,i\l. — Power of agent to refer to, without authority of principal. See Agent 1. — When clause in Act iJt Vic. cap. 52, CO construct lines of Telegraph applies. Kee Trespass (>. — 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, fc'ee Insur- ance 0. — A submissi i 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 cettficate— 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 — lies adjudicata -— Discharge from custody- -Splitting up claims — Whole amount due at time of first suit. See National Park Bank v. Ellis, vol. IB, 517. Right to arrest not taken away in actions of tort by Consol. Stat. See Mullen V. Frost, vol. 18, -103. —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 AUHKHT. AUUKST. Order to arrest one of several defendants —Attorney's name not signed to not ce on copy writ of capias— Effect of— Impossi- ble di«te— Wtien defendant not mis'ed. — iv.. iittidiivit to ()l)tiiiii nil order for the arrest of (lefeiidaiit uiulcr Ht-c. 1 f, Mill p. W CoiiHol. Stat, (wliere an onltr is ncccHsarv under tliat section), need s'atc in affidavit tha* defendant about to quit thcfprovince— Orthat arrest not made for purpose of vexing or harrassing defen- dant-Amount for wh'cli bail to be given in Judge's discretion. //,/, ill. 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 .Tune, 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 ihe 2ilrd day of June, 1879 " — the defendant was arrested on tlie 2oth June. Held, that the irregularity was not sufficient to justify the sotting aside of the arrest, the defendant not having been prejudiced by it. O'SulUvdu v. O'Sitlli- vmi, vol. 19, 39(). 2— In an action for malicious prosecution— Consol. Stati c. 38— Not necessary to 3— Under a Judge's order for a tort— Exa- mination and disclosure under Consol. S'a'. cap. 38, sec. 7— Wlietlier Act applies to suet) casp. Held, by Allen, C. J., and Duff, J. (Palmer, J., dissenting), that the provi- sions of the Consolidated Statutes Cliap. 3H, 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 a Judge's order for a tort. Heste v. lierastain, vol. 20, IOC. 4.— Affidavit of agent— Statemcnt.tiiat arrest not made for purpose of vexing or haras- sing debt:r— Affidavit of attorney not suf- ficient. The agent of an incorporated com- ARREST. ASSAUL'^ 17 ndant about to arrest not made irrassing defen- lail to be given and Duff, .1., Imt tlic ri<_'lit •r ill action nf :Wtli Cluip. of lot iicccHHiiry to obtain tlie not made for larrasfiiii),' tlio livsl. 2 V. iV and Duff. J. tlmt an afli- •der to hold to t in not necoH- idaiit is about li the Judf^e iction of tort , a matter of by him witii losed by the pplication is lit, vol. ID, a tort— Exa- nder Consol. ler Act applies nd Duff, J. it the provi- atutes Chap. to make a authorizing circumstan- where the a Judge's ra.'! title to 2 H u\ 18 ASaESSMENT. land admissible— Magistrate rsfusing to certify for review — Certiorari. The defendant in a prosecution for an assault under cap. G'2 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. 02 of the Consolidated Statutes the court granted a certiorari. Kx parte Kstahrookx, vol. 19, 283. — When action is brought in the Supreme Court and plaintiff does not recover over $100 — Costs refused. See 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 furnisiied— Right of assessors to assess. Where assessors under authority of Act, 31 Vic , cap. 3(), 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 ba>ik within the City of St. John for a ASSESSMENT. fiscal year preceding May 1st, 1877." And the manager rendered a statement as follows: "Net profits or income de- rived from business done within the city— ni7." Held, that as he had treated the terms "income" and "net profits" as sy- nonymous, the statement was uncertain and ambiguous, and that the 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. 20. 2— St. Jolin City— Wiietlier party applying for certiorari must give bond required by sec. 110, cap. 100, Consol. Stat. Held, by Allen, C.J., and DufT, J., that sec. 110 of Consolidated Statutes, cap. 100, relating to rates and taxe::, requiring a bond to be given before a party complaining of an assessment shall be entitled to a rule Jiisl, for cer- tiorari is not applicable to assessments made in the City of St. John. Held, by Palmer, J., that the section api)lied, but if it did not, it would be because it was inconsistent v;ith 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 I'equired by the former, nor taken the appeal required by the latter, certiorari should be refused. K.v parte Lcwin, vol. 1'.), 425. 3— False imprisonment — Action for an arrest by virtue of an execution issued for assessment under 41 Vic, cap. 9— Wliere 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 .8t,1877." And statement as ir income de- le within the ated the terms ofits " as sy- was uncertain the assessors it, and assess- ig to the best less, ex parte, n appeal. Ad- party applying ond required by . Stat. and Diifif, J., ated Statutes, ies and taxes, ;iven before a ,n assessment Ic iuni, for cer- o assessments ohn. at the section it would be ent with tlie Vic, cap. 37, nmon council, neither j^iven I former, nor by the latter, ed. A'.r imrte ction for an ition issued for ap. 9— Where on account of made— Exe- lain of city— le it— Whether berlain liable. ted under ;i endant San- )r the City of St. John, for non-payment of an amount assessed iipor him under the Act, 41 Vic, cap. 9, providing, among other matters, for the exiention of Canter- bury street. The assessment was made by com- missioners appointed by the Lieut. - Governor-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 neithc. 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 the city, but employing agents there to collect and pay moneys. S. being a resident ot St. John died leaving property consisting of mort- gages, bank stock, debentures, etc, ond 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 oliice of pilot commissi juer 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 111') moneys collected. T. kept the accounts in his office, where some of the trustees came occasionally to make in- (juiries 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. Iteghia v. Wihon, vol. 21, 178. 5—" Employment" within meaning of St.John Assessment Act of 1882—" Inhabitant of city "—President of a company attending ofh'ue 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, tha: 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 188;' jc. 2o, 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 c.f 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 inluibitants 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 subsefjuent 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 As.sess- ment Act on real estate valued at i $12,200, and personal estate of »1,0.37,800, making together $1,100,000. j Held, per Allen, C.J., Wetmore and j 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 value of such estate ex- i ceecled the par value of the joint stock < of the bank. | Pej' Allen, C.J., and Wetmore, J., that the words "capital stock " in the Act, meant the shares into whicli 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. Kx parte Le%vin. vol. 2B, 5',)1. 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 |fi00 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 teiminated at any time by the Railway 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 Railway, 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 hi" 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 rightlv made. Ackinan v. Town of Moncton ; i Landry v. Toicn of Moncton, vol. 24, 103. thd ej; an ASSESSMENT. ASSESSMENT. 21 100 per year, services as 30 employed i-B, but such iminated at Department, tice. A. did )erannuation Canada, and such service Civil Service It did not s salary was eral in Coun- 3 said town of i on his said n being stated t, ,er. King and , dissenting), the principle c B. 487), and lot subject to Intercolonial painter of cars ly, at the town He was paid lugh the man- if teen cents per he was so em- iithly therefor, lent mentioned employed for loyment might lie by the Rail- living fourteen assessed iu the licipal purposes om such labour Weldon and Fraser, JJ., dis- ! did not comu ex parte Owen, ■nt was rightly It'll of Moncton ; '.ton, vol. 24, 103. 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, io 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 Moncton, 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 suflicient to pay the assessment and expenses. Under this warrant the sheriff seised and sold part of the land on whicli 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 ejactment by the heirs of G. against the purchaser. Held, per Allen, C.J., King, Wetmore and Fra8er,'JJ. (Palmer, .J., dissenting). 1. That the assessment for 1875 while G. was living, was improperly made against his "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 net 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 and Fraser, 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., Qucere. 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 ileiii 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 terra. 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 ladnig — 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 18(59. 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. Lxmt, vol. 18. 2— Implied contract to pay freight— Where 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. it Co., on paying freight. On arrival of the ship in St. John, defendant, to whom the bill of lading had beoii 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. IleUl, (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. Ferpuson v. Domville, vol. 19, 576. m ATTACHING ORDER. ATTACHMENT. 23 to the time awleflge of all o accept de- lot set up the ed time as a reduction of 'offat V. hunt. reight— Where the goods — overy of the 111 carried in to St. John, was shipped lid, who re- usual bill of were made D. C. & Co., rival of the it, to whom ent, claimed jxplained to lad omitted g. He also tiff still de- without an iron, how- larf, and it ide waiter, ection, and station by hauling bj' aintiff ren- defendant, e tendered plaintiff to isher, JJ., nder these e justified on defend - as not en- Domville, 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. llurdinn, vol. li), rm. 4— Written agreement— Work done under— Action for quantum meruit— Where 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 witliout objection to prove his case on the quantum meruit without pro- ducing the agreement. Held, by Allen, (J J., and Wcldon and Frassr, JJ., that this made out a prima t'acii' case, and tlie 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. StcevcK v. Fox- u-ell, vol. 23, 470. — Jontract 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. McIntO!
  • 47. — Of arbiti-ators — Amendment — When allowable. See E(]uity 1. — Conclusiveness of — As to amount of demand. See Costs ;">. BAIL -Relief of— In action in the County Court — Consol. Sfat. 0. 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 i-elieve 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. Senihh',—\n appeal lies to this Court from an order of a .Judge of a County Court relieving bail. McRorij v. Mc Al- pine, vol. 20, 5.57. 2— Execution delivered to sheriff to fix bail —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 Clam V. Wallace, vol. 24, 3C5. Jirti 28 BANK. 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 4. Where defendant had entered, and been rendered-- Delay in siyninj^ jud;;- ment. See Di8cliart,'e 1. The amount of bail to be given in action of tort — In Judges discretion. See Arrest 2. Affidavit to hold to — Time of filing. See Practise 12. Arrest of Debtor — Affidavits 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 assigimient 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 execu- tion of the capias. Jones v. Landnj, 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 G. Bankable Currency— Whether a note for a stated sum " payable in bankable cur- BANKRUPTCY. rency " is a promissory note— Meaning of. See Dunn v. Allen, vol. 24, 1. BANKING ACT. Charter— Continuation of— Riglit to transact business— Proof c. 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 such 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. Senihle, that if the existence of the corporation is not denied by plea, it is admitted. La Banque Xationale v. Beckett, vol. 2.5, 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. ^ DILL OF EXCHANGE. BILL OF EXCHANGE. 20 ote— Meaning . 24, 1. ght to transact c. cap. i), con- banks enume- the Act, and •unt bills and .siness at any >ank as indor- t is not neces- r of the bank stence of the by plea, it is Rationale v. nd 13 Vic. cap. the Courts of on a judgment cause of action f the Insolvent spective— What i>rocedure and s of law only— irt judgment— lebt. vol. 19, 315. ent partner — ustee appointed -Jurisdiction of Eind B. carried and also in ng in lingland 3k. The tirni letitioned the lidation under 18C9," which rustee of the QxKcre, Wliether the provisioiiH of the Bankrupt Act, 18(10, 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, 180!)," 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. 2. That no sufficient application had been made to this Court by the English Bankruptcy Court, under the 74th sec- tion, to justify tliis 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 afitidavit on which the application was made need not be entitled in the suit in which the judg- ment was obtained. K.r parte Oliddon ; in re Maritime Bank v. CarviU ct al., vol. 24, 250. BILL. In equity— Amendment of— Prayer— Ceneral 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 ne.vt; 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 Insolvci'* Act, whereby the bill of exchange became vested in liis assignee ; that the alleged indorsement was made without the knowledge orcon- 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. l)avid.itin, vol. 20, 338. Stamp Act— Right to affix double stamps— Knowledge— What constitutes. See Tuft>i V. Chapman, vol. 22, 185 ; see also Addenda No. 12, case on appeal. Double stamping by payee— Where allowed. Defence of insufificient stamping — Whether must be pleaded. See Vaughan V. liohert.i, vol. 23, 343 ; see also Addenda No. 20, case on appeal. Double stamping — Reasonable time. See Bank of Nova Scotia v. t'usliing, vol. 21, 408. 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, ■g" 30 BILL OP LADING. HILL OF HALE, 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 pliiiatiffH, a biinkiiif^ company doiiifi business at Cliarleston, S. C, were aflaignecs of a bill of ladinj,', 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 11. of St. John, N. B., the consignee. They forwarded the draft to their af^ents with instructions to deliver the bill of lading to 11. when the draft was paid. The draft was dated Aufjuat 2, 1875, and was payable twenty days after date. R. accepted the draft, but did not pay the same, and the bill of lading was retained by plaintiffs' aj^ents. The invoice was sent from Charleston to R., to whom the captain of the vessel by which the fjoods were shipped, delivered the goods without the production of the bill of lading. Subsetjuently R. 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 R. »1,000. The defen- dants after advertising the sale sold the turpentine at public auction and paid the balance of the net proceeds to R., on September 21, iHlii. 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. //('/(/, that plaintiffs were entitled in an action of trovor to recover fnun 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. //<•/(/, that the instructions from plain- tiffs to their agents to deliver the bill of lading upon payment of the draft, was admishiole evidence in an action by plaintiffs against the defendants. The I'eoplr'x XiitioiKil Blink of Cliarleston v. Stewart, vol. 18, 2(58. On appeal to S. C. C, judgment con- firmed, 10th -Tune, 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 certain proi^erty 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 ^.ought in for 11. at a sale had at his direction to satisfy a lien which he claimed for keep. II. nuide 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 actvial 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. //('/(/, 1. That the property in the horse did not vest in the plaintiffs by niLIi OF SALE. JULL OF 8ALK. m ided the tur- re entitled in recover from ' the tiirpen- 'o interest on ,iff8 from the I, 18 from plain- ver the bill of he draft, was i,n action by jndanta, TIte Cliarleston v. ud(,'ment con- ed property— s— License to on jus tertii— {grantees, and of sale, which conveyed, and lausc:— " And be owned by ewal stock or by mo." H. ssession of a olt was the ed by the bill ^>ouf^ht in for direction to claimed for 1 delivery of lie plaintiffs, them to hold sale ; but H. al possession. ff) seized and der an execu- ;ho plaintiffs erty was in perty in the plaintiffs by the bill of Halo, and that the Bymbolic ' delivery by 11. to then) with no oaten- i siblo chant,'t^ of poHHcHHinn, was not a nonm actn-i ititerri'iiicns, nor wn i it an exerciso by them of a license Lo take | poHsession under the bill of sale. 2. That the colt beinj,' the progeny of | a nuire conveyed by the bill of sale, passed to the plaintiffs. H. That the sheriff having; seized and solil the horse and colt under an execu- tion aj^ainst II., could not set up that H. had no title, in answer to an action by persons claiming through II. Xichuiion et ((/., v. Temple, vol. 20, 218. Appeal to S. C. C. dismissed. See Addenda 37. 2— 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 (juantity of gi'ain, 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. //('/(/, 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 uemand of possession was necessary. ;5. That it was not misdi- rection to tell the jury that they i..ight tind as damages the full value of the horses. Coatea v. Go-sliiir/, vol. 20, i{23. 3— Registry— Grantor continuing in posses- sion— Wliether conclusive evidence of fraud. When an absolute bill of sale is given, the fact of the grantor continuing in posHOHsion, though evidence of f rand.dopB not necessarily nuike the transfer void ; and it is for the jury to say whether, from all the circumstances, the trans- action is hiiiKi jiiU, or merely colorable to defeat an execution creditor. When the bill of sale is registered, one of the circumstances always relied on to show fraud, nanjely, the secrecy of the transaction is wanting. Shcrijl v. McKiru, vol. 23, IHJ. ■1. Consol. Htat. cap. 7."j — Debtor and creditor accounts — Credit of chat- tels — Registration. A. being indebted to B., an account was nuide out by B. shewing the amount which A. owed him, and crediting cer- tain articles, including a wagon, leaving a snuill 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 hnn to be completed in consideration of the balance due on the account. There was no other evidence of a lale of the wagon from A. io B. Hcld-Vcr Palmer, King & Fraser, .TJ., (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 Consol. Stat, cap. To, the wagon was liable to seizure under execution against B. I'l'r 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 Yye, Respon- dent, vol. 24, ">72. — Subject to a defeasance, necessity of filing— Schedule should be attached. SecBillsof Sale Act, 1. — Conditional sale-agi'eement — Rep- resentation when not considered as bill of sale. See Trover C. m f m BILL OF SALES ACT. I' — Whether a bill 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. See Sheraton v. Whelpley, vol. 20, 75. — Insolvency — Future advances-Reg- istry. See vol. 20, 7.j. — 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 Begistratiou 1. BILL OF SALES ACT. UltraVires— Defeasance— Filing of— Sched- ule. |— The Bills of Sale Act Consol. Stat., 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 Cii 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, t t the bill of sale was inoper- ative, ant: ested 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. Qucere — per Allen, C.J., whether the bill of sale was not theieby rendered in- operative. In re Deveber, vol. 2i, 397. BOOKS. 2— Matters of insolvency — 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 pleading 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 TEMPERANCE ACT. 33 —Bill of sale dealing with ■ Bill of sale ne of registry idulent pref er- ic, cap. 5, sec. ex parte Bank 401. considered as loration of, no or navigable ,29. under Attach- ee Attachment eased on — At- wner after be- tachment 2. — Defective — .aintiff's attor- •ge of agent's (unty Court — ;he Judge. See sufficiency of. - Statute of kla 27. jr— Where par- [nded— Stay of King, JJ. — bsenting), that [ng demanded lim prevented order for in- 3ks until an ier section 94 of C. L. r. Act (Consol. ;Stat.), to re- move the stay of proceedings created by tlie demand of particulars. Mr. Justice Duff having referred the matter to the Court yielded his opinion to that of Wetmore and King, JJ., ai.d the order was refused. Juiie^ v. Mdritime 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 when he has not raised objection before 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. See Medux- nikik Boom Co. Boundary line. See Acquiescence. BREACH OF PEACE. Assault on wife by husband is breach of peace. See Husband & Wife G. BRITISH STATUTES. Mortmain. The Statute of Mortmain, 9 Geo. II. cap. 36, is not in full force in this pro- vince. Doe dem Ilasen v. Rector, etc, St. • James' Church, vol. 18, 479. BUJLDING. Overhanging land of adjoining owners -Entry to prevent falling — Justifl- tation. See Trespass 1. — For faithful discharge of agent's i duties. See Pleading 9. —On appeal from County Court — Perfeoting of— Notice to the Judge. See ^ County Court Appeal 7. S.D. — Bail — One surety — Sufticiency 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, 3.3 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 vircx as being in conflict with the powers of Parliament to regulate trade and commerce. Ex parte Fairburn, 2 P. & B. 4, approved, Jones V. Gilbert, vol. 20, 01 ; Jones v. Marshall, vol. 20, 04. Appeal to Supreme Court of Canada allowed. See Addenda No. H. BY-LAW of City of St. John — Retrospective oper- ation of— Previous contract for build- ing avoided. See Contract 4. The common couMcil of St. John have no ijower 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. llegina v. Gilbert, vol. 18, 019. CANADA TEMPERANCE ACT. 1— Certiorari— Whether taken away. Certiorari is by the Canada Temper- ance Act of 1878, taken away in all cases 3 34 CANADA TEMPERANCE ACT. CANADA TEMPERANCE ACT. where the magistrate has jurisdiction. Kx 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 of 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 con.ic- tion under the Act costs may be awarded against the defendant. Ex parte White, vol. 20, 552. i 3— Conviction under— Must prove second part of Act in force— Evidence that licen- ses have expired. Where the proclamamation in the Canada Gazette contained an order in council declaring the second part of the Canauu xumperance 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. .-.42 4-Gazeiite containing proclamation mutt be put in evidence to shew second parf of Act in force— Certiorari where magistrato acts without jurisdiction. Before a person can be legally con- victed of selling liquor under the Canada Temi>erance Act 1H78, it must be proved before the magistrate that the second part of tlie 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 M il- Ham Russell, vol. 20, 536, 5— City within meaning of. — Licenses — Expiration of. The town of Moncton, in County of Westmoreland, was incorporated by Act of Assembly, whereby the whole Ifjcal government of the town, and the exclusive jxiwer 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 iu 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 expire numb Westii the.Gc Ijeen I order i the Ai effect i from a annual sale of county At tl isjsued, of Hquc l>y the t of West cipality, eat peri( Held, (King, J, '■ity with I'empera vote of tl been takJ tlie Act i apply to Held, I a city ^v and that county, inination either in The i council Decembe Hiunicipa licenses meeting tlie third were grai •-'ith Jam Held, ^ tliat ever Moncton, till the 2J Canada '. force in CANADA TEMfKRANCK ACT. CANADA TEMPERANCE ACT. 35 expire.' A petition from the requisite number of electors in the County of Westmoreland havinjj been presenteil to thejGovernor- General, and a vote having been taken adopting,' tiie petition, an order in council was made declaring that the Act should be in force and take effect in the County of Westmoreland from and after the day on wliich 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 I'ity 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- nrination of the latest expiring licences either in the town or county. The licences granted by the town council of Moncton expired on the loth December, 1880. A by-law of the municipality declared that all tavern licenses shot Id expire at the annual meeting of -^ council, which was on the third Tues. . 'n January. Licences were granted by the muncipality on the 'itth 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 riOt run for 3G5 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 li m JrT^ 50 CONTRACT. f '^ should be agreed upon and endorsed on the contract, otherwise no allowance sliould be made for them. The plain- tiff was to be paid a certain percentage on the value of the work as it pro- f^ressed, on the certificate of the archi- tect; but the last payment was not to be made until all tlie claims for extras had boon 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. //('/(/, in an action on the contract, 1. That plaintiff was entitled '^o recover the percentage on the value of the work done, though the building was never completed. '1. That he could not re- cover for the extra work, because its value had not been agreed upon and indorsed on the contract. ;{. Plaintiff having contended that tlie contract under seal had been abandoned, and a imrol 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. Morrixnetj vol. 20, 5. 4— Void— By-law— Pleading. A contract was nnido on the '2(')th Septemi)er 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 iu the case, have the benefit of it. CONTRACT. McMillan v. Wdllcer, 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 iustii-ancc on the life of the husband, elfuctcil by him for the plaintiff his wife, the defendant com- pany agreed to pay the sum assured tu the plaintiff or her executors, admin- istrators or assigns, and in the casi; 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 ii^. Co., vol. 21, 210. 6 — Written — Fraudulent misrepresentation —Tender— Consol. Stat., cap. 75— Bill oi sale under. A. being in freaty v/ith the plaintiffs for the purchase of a sewing machine, signed an agreement, stating that ho had received the machine of the value of ^(in.OO, which tlie plaintiffs had leased to him for nine months, at the rent nf S().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 lie 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 mm 1. See e— Ben- an in her 10 life of for the nt corn- sured to , aclmiii- ;lie case his exec- ;ns. By ancc, tlir swcrs til tliJ basi-^ .1 to pay n-o, Duff, issentin.m liutaiu an \vn name. ■.. [lis. Co., resentation Bill of 75 plaintiffs machine. i<^ that lu' the valuu had leaseil he rent of nil, paid in ho would d not part in case hf rent, or in ;ment, that issession of forfeit any s agreed if »ld sell the int at tlie A. having le monthly CONTIIACT. rent, the plaintiffs demanded the ma- cliine, which was in possession of the defendant under a bill of sale from A. Defendant refused to ^^ivc it up, but afterwards, and before ad ion brou^'ht, tendered the plaintiff iiill.OO. the balance of the 'fii()5.00 unpaid. In trover for the machine, A. swore that there was a verbal sale of tlie machine to liim for IfG.l.OO, of wliidi he paid '^iri.OO at the time; that he did not read the aj^i-eo- nient, and the plaintiff's a^ent told him at the time he signed it <^hat it was iin agreement to secure tlie balance of the purchase money by monthly instal- ments. The jury having found a ver- ilict for the defendant on a question left to them whether tiie plaintiffs agent had fraudulently represented to A. the contents of the written agree- ment. llelil, per Weldon, Wetmore, Palmer iind King, J..!., (Allen, C.J., diihitdiitc) that if there was fraudulent misrepre- sentation respecting tlie writing, the property in the machine passed to A. miller tlie verlial 'groement, 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 fl 1.(10 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..T., and Wetmore, J., that if tlie 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 liy 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. 05. CONTRACT. 51 IFIu'eh'r& ]l'ihoii MnniiJ. Co., v. Clmrters, vol. '21, IHO. 7— Sale of goods— Payment — Appropriation — Rescission ot contract. 'I"he Albert ^Mining Company brought i action to recover for coal sold and I delivered to defendants during the years bSOC), lH(i7 and 18(1.^. The action was commenced on 1st September, 1873. Defendants were i)artiiers ;arrying on business under the name of the Alber- tine Oil Company — the defendant fur- nishing tlie capital. The ccmtract for tlie coal was made by S., w' was a large stockliolder in the plaii. 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 CNjmpany, the members of which he named ; that the then president of the plaintiff company told J5. they would look to him for pay- ment, as the other jiartners were poor; that the terms of sale were cash on deli- very on board the vessels ; and tliat S. agreed that the dividends jiayablo to him on his stock, should be turned in in payment for tlie coal, that in conse- (luence of this arrangement the plaintiffs credited tlie Albertine Oil Company with the i mount of S.'s dividends, as they were declared from time to time down to August, 18()(), leaving a balance of »'J1'2.00 due to S. In the latter part of the year 18(38, S. repudiated the agree- ment to appropriate his dividends to the payment of the coal, and refused to sign the receipts therefor in the plaintiffs books. lie had signed the receipt for the dividend of 18(j(5. Ho 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- n .1 52 CONTRACT. \l' faction in the judf^ment in the suit of S. against the All)ert Mininf{ Company, and it appeared (though the evidence was objected to) that it iuchided tlie dividends for -he years 18()7 aud 18()8. It appeared that the coal delivered was charged in the plaintiff's books to the Albertine Oil Company, and tliat the bills of lading oa the shipments of the coal were also nuide out in their name, and that some time afterwards a notice, signed by 8. 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 tiie 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 ; ho 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 Miniiuj Co. v. Spt-avn, vol. 22, 346. Appeal to Hujn-eme 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 plain.tiff knew the defendant was in the iiabit of selling licpior, and that he knew the purpose for which the iiquor in iiuestion was bought, — not stating what tlie purpose was. Held, that it did.'not necessarily follow that the plaintiff knew the defendant CONTRACT. 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. lloUuim v. Phillips, vol. 23, 13G. 9— By correspondence- -Construciion of. Where it is sought to establish a coii- ; 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 I'eplied to by the latter, madu a complete contract, but before the con- tract was performed or there was any breach, other letters passed between the l)arties 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, 35(1. Appeal to Supreme Court of Canada dismissed. See Addenda 54. 10— Order for goods— Acceptance- Where an oi'der 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 raft of lumber— Where portions owned in severalty by different persons— Loss of portion owned by one- Right of action. Defendant agreed witl\ A. to tow ;i raft of lumber through the falls of tlif river of St. John for a certain fixed sum. A. in making the agreement, was actiiiu' as the agent of the plaintiff, 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 ownersliij' of the lumber, In going through tlie CONTRACT. falls the raft was broken up, and part of the lumber lost. HeliJ. j)er Weldon, Wetmore and Pahner, J. J., (Allen, C.J., and King, J., dissenting) that as the plaintiff's interest in the snbjpot 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 tlie loss of his part of it. 2nd. That tlie 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 tlie express contiact, and create a new implied agreement with tlie ])laintitf as to tlie towage of his lumber. Elliott v. Parht, vol. '2:^, (ill. 12— Voidable contract— Repudiation by one party— Recovery under common counts by other parly for worl< done under tlie 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 years ; 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 bouse, the plaintiff contributing towards it labor and materials, and the lease was made to the defendant as agreed. The defendant then repudiated the agree- nicnt, claiming the property as his own. IIAd, that the plaintiff was entitled to recover on the common counts for his work and materials expended on the house. McIImjh v. Muryay, vol. 24, 12. CONTRACT. 53 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 (piantity of ISIuscatel raisins, and a like ipiaiitity of London Layer raisins — both to be of the best (juality. 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. lie soon afterwards discovered that the London Layers were of inferior (piality, and so informed the plaintiff, stating that he would not accept them, but offered to pay for tlie Muscatels. The jilaintiff 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 coiulitions on the part of the plaintiff was not performed he conlil not recover. 2. That the defendant by accepting the Muscatels, did not preclude himself from objecting that the others were not according to contract. Hcnnj v. llnstiricl;, vol. 24, 414. See ThDiiKoii v. Ihpiient, Supreme Court Canada, \()1. 115, IlO-j. 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 plaintiff 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 i plaintiff to provide the building, founda- , tion, stone and mason work — defen- dants not to be responsible for delays I caused by fire, or disturbance amonfi '\\ 1 1 !,■'." 64 CONTRACT. CONTRACT. I! I eniploycea. In an action foi- broach of the afjreemcnt, in furnisliing defective macliinury, and not deHverin>,' at the time ajjrecd ui)on, the plaintiff t^ave ovidonco of tlio bad (|iiidity of the machinery, and that it wouhl iintinaiui- j facturc <,'ond hnuber, nor hunher of a certain lunj^th stated in the af^reement ; also, that lie had been delayed in getting his mill in operation for want of the macliincry ; and that the null was of very little vahie. The defendants in answer t,'avc evi- dence that there had been a disturbance amon^,' their workmen shortly before the time when the machinery should have been delivered, and that the plain- tiff on bein;^ told of it, did not object to the delay in the delivei'y ; but it did not appear that the work had been delayed by the disturbance amon;^ tlie workmen, or that the defendants had delayed their efforts to comi)lete the work by anytliinj^ the plaintiff had said. Evi- dence was also given of tlie j^oo.l quality of the nuichinery ; that it was capable of cuttinf,' lumber of the size specified, that the plaintiff on applyinj^ to insure the mill, had rejiresented it to be first- class ill every respect, and the machin- ery to be valuable. In order to account for the lundier cut in the mill beinji defective, evidence was friven that the bed of the carriaj^e was not level ; and a witness wlio 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, },'ave it as liis o})inion that the founda- tion was insnfticient, and tluit part of it would be liable to heave with the frost, and throw the mill out of level. //('/(/, 1. That the plaintiff's declara- tion of the value of the mill when he applied for insurance, was evidence to contradict liimas 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 lind whether thoy did so or not. li. That thout^h the plaintiff would have been entitled to nominal damages for non- delivery of the machinery at the time af,'reed upon. No evidence of actual dama>,'e having been i)roved, a new trial ought not to be granted on that ground. 4. Per Allen, C..T., and King, J. (Wet- more and Palmer. JJ., dissenting), that the opinion of the witness as to the sutticiency of the foundation of the mill, was admissible. Marroic v. ]rater- (lus et (il., vol. 24. 112. Appeal to Supreme Court of Canada allowed. See Addenda 88. 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. FitrloiiiT v. Ixussi'l, vol. 21, 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 bo according to speciiication, 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 x'eceived, 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. CONTRACT. 5o delivered, and after the pliiintiff was aware that they were nut according; to the contract, lie agreed verbally to aban- don all claim for dania>,'es for breach of the contract if defendant wonld, make certain alterations in the renniinder of the cars, which the defendant ditl. Held, that this amounted to accord and satisfaction of the plaintiff's claim for dania^e>; in respect of the twenty- four cars, (ircenew Ilanii, vol. 2-1, 4',l(). 17— Contract for sale of goods— Statute of frauds— Offer by letter to sell— Accept- ance. Action for breach of af,'reement to sell two car loads of potatoes, — Defendant, who lived at Itestigonche, wrote to plaintiff at St. John, stating that he could load one or two car loads of Early Ilosc 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 luiow in two or three days if he would accept the offer. On the 13th the defendant replied that he would have one car load oE ICarly Rose 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 tlie price named by plaintiff : and asking plaintiff to send him §.200. On the ITith defendant wrote to plaintiff that potatoes were coming in very slowly, that be 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 tliat 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 ])laiutiff that he had the car load of potatoes for him, and plaintiff offered to pay him for them, but defendant wished him to see the potatoes lii'st, which he did, and ajjproved of them, telling defendant to call at plaintiffs store and Ix? paid. The next day tlie defendant refused tu deliver the potatoes. Held, jirr Allen, C.J., Palmer. Kin-^ and Fraser, J.J. (Wetmore, J. dissent- ing), 1. That though the defendant's letter of the 1.3th April was not an acceptance of the ])laintiff's offer of the nth, it might be treated as a counter offer by defendant of two car loads of I'^arly Rose jiotatocs, and if verlially 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 d'ifendant's offer of the 13th April of two car loads of Early Rose, and created a contract for that quantity. Connncher, Appellant, and Varlce, Respondent. 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 Insui'ance 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 Replevin 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 1 1\ 6G CONTROVERTED ELECTION'S ACT. ticket — Injury on intermediate ferry owned by another company — Implied contract. Mee Railway Co. 6. Bnildinf,' contract — I^nforcement of — Violiitioii of city by-law —Liability of owner — Kffect of by-law passed after contract was made. See Addenda 9 and 32. CONTRADICTORY EVIDENCE. Question for jury — Plaintiff and his witnesses. See Evidenca 10. Contributory Negligence. See Ne<»lit,'ence. CONTROVERTED ELECTION'S ACT 1— Petition —Surety— Defeclive affidavit of justification— Removal from files of court. The provisions of section 1, sub- sections i") and ('). and section '> of the Controverted Election's Act, (Consol. Stat. cap. ")) are imperative and not merely directory, and where a petition was filed with an affidavit of the sureties to the recoj^nisance which was defective in substance, it was held that an order to remove the petition from the files of the court was rif^htly made. Sub-section (5 of section 1, provides that the sureties in all cases before enterinfj into i-ecognisance, severally justify by affidavit made before a per- son authorized, etc., that tliey are sever- ally worth double the sums for which they are respectively bouiid by such recognisance, after payment of all their just debts. In this case the affidavit 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 hound 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." CONVERSION. Held, by Allen, ('.J., and Wcldon, Palmer, and King, J.J., that theafHdavit 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. Li/ndu v. Turner ; no,ir\. Lrwi.'<. vol. '22, '28(1. 2— Petition under Consol. Stat. cap. 5 — Resignation of respondent— Whether peti- tion thereby abates. Where a men'bor elected to the Local Legislature against whom a petition has been presented inider the Consol. Stat. cpa. 5, relating to controverted elections, volnntarily resigns his seat, the petition is thereby abated, and a judge lias 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 15. 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 CONVFA'ANCR. CONVICTION. 67 whicli offer the plaintiffs refiiHed. Tiio (lofeiidant iidniitteil that he imd j^ot returns for the hunher nliipped. In an action for floods sokl and delivered, and alao for money had and received. Iffltl, that an action for {,'oods sold and delivered would not lie. The plaintiffs' particulars claimed for u r brin^'inj^ the action in this court, the amount of the award was not conclusive as to tlie amount of the denuiud, thonj^h the evi- dence as to the amount was contlictinj^. and that a certificate should be t^ranted. I'fr Duff, .1., that if tlu' evidence as to the amount of the denuind was con- llictin;,', and the award was consistent with any view of the evidence, it was conclusive as to the amount of the denuind and no certificate should bo t,'ranted. ,S'w///( ct itl v. MonLiscn, 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 ))laintiff in accordance with the terms of the rule of this court nuido on motion by the defendant for a new trial, consented to reduce his verdict on the r>ih count to nominal daiiia<^es rather than submit to a new trial. llfld, that as lie 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 ni.^i. Semble, where tlie clerk refuses to tax costs claimed by the plaintiff, the latter need not give notice of motion to GO COSTS. COSTS. review the taxation. Dernj v. Demj, vol 20, 'JO. 7— Execution for Consolidated Statutes, cap. 38, sec. 27— Court cannot give execution against a corporation. Section 27 of (Hiapter 88 of Consoli- dated Statutes does not authorize the court to grant an execution af^ainst a corporation for tiie non-payment of costs ordered to be paid. Cltapmnn v. Tlic I'nwiJfKce ir. /;(s. Co., vol. 20, !»1. 8 -Appeal— Attachment. Plaintiff sued defendant in the county court and was nonsuited. Tiie nonsuit was set aside with costs r n appeal. ]'laintiff applied for an aHachment under Consol. Ktat., cap. 88, sec. 20, fur non-payment of the costs. Held, the court had no power to grant the attachment. Jjiur v. Hunliinj, vol. 20, 120. 9— Certificate for— Wiien parly suing in Supreme Court, and not recovering more than might have been recovered in County Courl. Tiio plaii.tiff having nnide use of abusive language to the defendant, the latter laid an information Leforc the police magistrate of Portland, upon which a warrant issued, and the plain- tiff was arrested aiid imprisoned in the lock-up for several hours before he obtained bail. He was afterwards con- victed, but the conviction was set aside. The plaintiff paid out thirty dollars for expenses in procuring his discharge. In an action against the police m igistrate 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, Wetmoro and Duff (Allen, C.J., and Palmer, J., dissenting), tha tills was not a case in which a cctificate should be granted. R()l)in.''f— Without notice— Where defendant only pleads to one count of declaration— Judgment — Setting Aside of. \ declaration conLained two counts, to only one of which the defendant pleadefl, and plaintiff therefore had his cost.s ta.xed 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 ta.xation 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 qaestion of costs on refusing to COSTS. COSTS. 63 make an order for iinprisoiinuMit for breach of an injunc^tion order, it was held that tlie court on appeal could make no order concerning the costs in the court below. Sm/re v. Harris, vol. 18, ()77. 23 — Action in Supreme Court — Where amount recovered is within the jurisdic- tion of county court— 45 Vic ''ip. 9, sec. 7. If in an action in the Suprei ■ .Jourt the plaintiff recovers an amount within 1 the jurisdiction of the county court, the i costs of the proceedings arc to be taxed | under the Act, i'> Vic. cap. 8, according' | to the scale of fees in county courts ; and not county court costs only, (lood V. Merrithar. vol. 121, KiO. 24— Telegraph company— Cutting trees- Justification under Act of incorporation- Title to land— Costs. In trespass f-jr cuttin.^ trees, the defendants (a Telef,'raph Co.) justilied tiie cutting under an Act of parliament, authorizing them to enter .:4 an amount paid for witness' fees, and tilt re was no affidavit made of the pay- ment of tlie fees to the witness, as required by the Consol. Stat cap, 11'.), until tlie following day, the court, on res'iew, reduce! tin? judgment by the amount taxed for witness fees. Inter- (■iiliinidl K.iprexs Co., v. McKcnsie, vol. '21, (\\i\. 26— When costs on appeal not allowed— Decision of county court judge on case overruled. Costs not allowed on ajipcal from the county court, where the judge had decided on the authority of a case in this court, which was overruled on the appeal. Iln.ixel, Appellant, and lUirkley, Respondent, vol 'io, '2(11. 27— Security for costs- Nominal plaintiff insolvent. If the ])laintiff 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. (Icroir V. Pvovidenrc IT. Ins Co., vol. 25, '27'.). 28— Summons not moved with costs. : Costs will not be given on granting i application vhen summons not moved I with costs. iiUen v. Allen, vol. '2o, iJCil). — Where plaintiff gives notice of hear- ing in etpiity suit, but does not attend, costs of the day should be ordered. Wilhnr v. .Umex, vol. 11), W.\{\. — 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 ameiuled. See Practice '2. — Treble — Whether takes away com- mon law — Kemedy. See Insolvent Act 1. 64 COSTS. COUNTY COURT. — On conviction under Canarla Tem- perance Act may be awarded against defendant. See Canada Temperance Act 2. — On action for slander wliere plain- tiff recovered ?8. See Slander ;{. On motion to appeal from county court — llefused. See Appeal 5. — Refused on motion to amend I'.ule. See Amendment 1. — Court has no power to grant in dis- charging a rule nisi for a certiorari unless such jjower is given by statute. Seo Certiorari 8. , — attachment for contempt of court — Irterrogatories. See Attachment 7. — llcspondent may move to dismiss ccimty court appeal with, if appellant d(>es 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. — 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 Oi increased juristliction. 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 eipiity— Right of court of appeal to vary. Sec Injunction 3. COUNCILLORS. Of parish — When they may apjjoiut an otticer to fill vacancy. See I'arisli Officer. COUNSEL. Where defendants appear by same attorney and are represented by sep- arate counsel — Whetlier both counsel iiave right to cross examine witnesses and address the jury. See Practice G. — Right to examine witness on nuitters brought out on cross examination. See Ships' Husband. — .\rgument of — Whether parties tn suit bound by. See I'ractice 10- — Agreement at trial — Power of court to depart from. See Practice 11. — Admission of — How far client bound by. Seo 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 — Pov/er of court to give judgment. 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 b'islier, Respondent, 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 .'i'S, the court was ecpuilly divided as to whether the costs neces- sarily followed the judgment, or whether m 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. Franer, Appellant, and Ullock, et id, F.xe- cutor.i, Respondent, vol. 25, o5. 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- lUeut by default under the Consol. Stat. cap. H7, sec. 127, must be tiled in the clerk's oftice 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. Clicitnitt, Appellant, and Doyle, Respondent, vol. 25, 505. 4— Jurisdiction having. City court of St. John In an action brought in the King's county court, it appeared on the trial that the sum clainaed did not exceed |rtO, and the cause of action arose in the city of Ht. 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 Simuiinon, Respondent, 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 liiley Respondent, vol. 24, 470. 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 aipius, 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 tliat he had lost his debt of $;$!),S. 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 tlie sheriff's neglect to arrest 1). he had lost the amount of his debt which e.xceeded the jurisdiction in actions of tort. 2. That the power given to a plaintiff by Consol. Stat. cap. 51, sec. 41, to abandon part of his claim, did not apply to actions of tort. 8. That to sustain the action, tlie 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 beoi influenced by the plaintiff's statement that he had lost his debt by the neglect to arrest 1). Clitipman, apr.ellant, and Doherti), respondent, vol. 25, 271. 7— Pleading— General issue. Held, (Palmer, J., di"- nting), that )iu)i iissumpsit was a good plea in an action on a promissory note in a county court ; that neither the provisions of the Consol. Stat. cap. .'57, relating to plead- ing, nor the Act, 48 Vic. cap. 8, applied to county courts ; and that whatever was the general issue in suits in these courts before the Act, ,8(5 Vic. cap. 31, could, still be pleaded. McCuilterine v. Lewis, vol. 25, 429. — Remitting cause to Supreme Court where title to land is brought in ques- tion. See Trespass 10. 5 66 COUNTY COURT APPEAL. li j k I 1 /■Jj 1 J k .ii — Power to give costs. See Appeal 5. — Pica of never indebted — Whether applicable to county courts. Kee Plea 1. 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. Ht'W, that the respondent was entitled on the next common motion day to have the appeal dismissed with cost. liiini.s V. Jiutsfiml, vol. 10, "). 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. (Wetmore, J., dissenting.) McLeUan v. Ranlcinc, vol 22, 146. 3— Rule— Where Appeal allowed— Costs. Where an appeal is taken to the Hupreme Court from an order of a county court judge granting a nonsuit, and the Hupreme ('ourt directs that the nonsuit be set aside, it is not necessary for the rule to go further than state that the court allows the appeal and orders that the nonsuit granted in the court below be set aside. Kaxtahrookn v. .1/f- (lowiiii, and Ward v. Reed, vol.22, 450. COUNTY COUUT APPEAL. 4— Omission of appellant's attorney to enter cause on the appeal paper.— Dismissing appeal. A defendant in a county court case having given the bond and completed the other proceedings necessary for an appeal, afterwards attended at the clerk's oftice 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 tilt next term he again attended for ilie same purpose, but being stili 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 tiled 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 dismissei waste paper. The hox containing? the notes was found on the prisoner's peison. It was clear and undisputed that the motive of the prosecutor in partinji; 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, C.J., and Palmer, J., that in order to complete the crime of obtaining property by false pretences, there must not only bo 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 watcli. 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. Carey, vol 22, 543. CRIMINAL LAW. 7— Indiclment— Assault— Warranl,— Where irregular— Justification to officer— Attacii- ment. A prisoner was found guilty on an indictment charging that ho made an assault upon A., "and him, the said A. did beat, wound and ill-treat," etc. There was no evidence of any womid- ing. Hdd, by Weldon, Wetmore and King, JJ., that the indictment was stibstan- tially one for a common assault, ami that the conviction was right. Where a county court has jurisdiction to issue a warrant of commitment for contempt under the CJonsol. Stat. cap. 8H, sec. 20-22, the warrant, though irregular, is a justification to the officer for arresting the party under it, and he is guilty of an assault if he resists the officer. S. was served with an order to appear before a commissioner to be examined under the Consol. Ktat. 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 liim 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 tlie 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- ■"■pi"' CRIMINAI, LA'.V. fied ill resistiiit; his arrest. Rfijiim v. Sliaiinun, vol. '2'A, 1. 8— Joint indictment — Where jury disagree as to guilt of one prisoner and find ttie otlier guilty— Conviction — Wliether war- ranted. II. uiul W. wiTo juiutiy iiKlictcil and tried for Hteaiinn. (Jn tlic triiil J I. was found j,"iilty, bat the jury wero unabie to a^'rce upon a verdict as to W.. and were diKC'harf,'e(l from t^ivinji a verdict as to him. Ilihl, that tlio verdict warranted tlie <()nvi(,'tion of }{. Ilfiiiiui v. Iliniiil/nii ami U al.-',). 11 — Habeas corpus— Returnable forthwith- Prisoners brought in once — Whether orders to bring in again can be made without issuing new writs. Writs of hdhi'iis curiiiix 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 tlieiii. The writs and returns liad been filed the day the prisoners were brought in, and by oi'der of a judge taken off file again and returned to the sheriff. Held, by 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 p .soners on the day set for the argu- ment, without directing new writs to iKEue. lu'iiiiKi v. Tuirer, vol. 20, 178. 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. McMdhun, vol. 25, 211. —Extradition — Treaty of Washing- ton, 1842 — Trial for offence other tl au I 72 COi;UT — (lENEUAL RILES. COURT — GENERAL RULES. that for wliich prisoner was surrendered. See Extradition. — Indictment for murder — Hhort form — Wlietlier prisoner can be eon- victed of aHHault under. See In neces- sary to deliver more tlum three demur- rer books, two of which siuill be nuido up and delivered by the ))laintiff's attorney. 4. That no entry of any appeal from a probate court or from any county court, shall bo eutereil on the apiieal paper until the return of the judge of the court ajjpealed from shall be on file in the cftico of the clerk of the pleas. /). That hereafter all entries upon the motion, crown, special, or aj/peal 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 afhdavit, and upon motion made to the court on one of the common motion days. ('». Crown cases reserved shall come on for argument imaiediately 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 rri COrUT — OENERAIi RULES. tiliall be filod with tlio clerk on or before tlie firnt (Uy of the term in which he intenclH to iii)i)l.y. '2 Tlinrn(lay in the firnt week, and TliurK(liiy in tiie tiiird week of eiicii term, iit the opening of tlio court on Hiich days shall be times for the admis- sion of barristers, and no attcjrney shall be admitted to the Bar at any otlier time, unless it shall be sliewn by atli- (lavit to the satisfaction of tlie court tliat the person applyinj,' was prevented by reasonable cause from bein^ present nt the time appointed. 3— Hilary Term, 46 Vic— Filing docket. Whereas the rule of Hilary Term 7th, William IV., relative to the filint,' of entry dockets, is inapplicable to writs of summons and rapiax issued under the Con. Stat. cap. 87. 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 tile with the clerk of the court a docket of the return to such writs of summons or capitix, to^'ether 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 tliat the clerk of the court do not in future receive or file any docket, or outer any such cause, after the said thirty days without the order of a jnd<;e to be obtained on affidavit properly accountinj' for the delav. COURT — aKNERAL RULES. 7a 4— Easter Term, 46 Vic. appeals. (1883)- Equity Whenever hereafter an appeal is made from a decree or order of a judge sitting in ecjuity, 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, juy defendants, it was Held, that the damages must be con lined to the sawing for a reasonable time after the plaintiff had an opijor- tunity oi' judging of the defects and notifying defendants to have them. remedied. I Morroir v. Tlif Watfrltoiisc KiKjine Co., vr,l. IH, rm. See Addenda, :tH. — When doubtful as to what trespass damages have been given by jury. See (jiifiniin v, Cliiipmini. et uL, vol. 18, 41(t. — Adjoining land owners — Defendant not filling up cellar— Plaintiff's default — When defendant not liable. See inisi,-,,!. ,'tc. V. Hutrliinsoii, vol. \8, i>2.i. See Afldenda I'i. — Acceptance of goods subsequent to time agreed upon for delivery — When cannot be set up as defence or reduction of danuxges. See Mqlf'nt v. I.unt, vol. 18, «73. — Liability of cown for, when town raises level of streets and neglects to fence. See Streets 1. — Granted under forfeiture clause on building contract. See Contract 2. — If excessive, a new trial might be granted by county court judge. See Hnsband and Wife 1. ^Two cents — Section 11, Consol. Stat. cap. 1(0, does not apply when arrest anil imprisonment took place before convic- tion of plaititiff. See False Imprison- ment 1. — Special — ■ Test whether action of slander will lie without proof '^f. See Slanrler '2. — Light and air — Interruption of. See Afldenda oH. — K.xcessive - Where jury must have acted under intiueuce of undue motives — New trial. See Trespass 11. — Injury to pc^rson falling down stair way leadinti to court room owing to want of liglit. See Municipality of St John. — Liability of town of Portland for— Hole in sidewalk. See Portland, Town of. — Mea-.iire of, in action of trover for promisHjry note by executor, when e.xecator maker of note. See Trover 1 DEBENTURES. DEBTORS. 77 — Prospective — Action by husband ami wife, tor injuries to wif';— Loss of wife's services. See Husbiind and Wife i. -Rulw.iy Gonipauy— Action af^ainst lor killinj^ horse. See Railway Com- pany 1. — Fire set by sparks from locomotive. — When property insured — Whether ;iu answer to couipany's liability. See i{;ulway Company '>. — Whei ohiiiititf entitled to nominal diiiiHUe-- iiid no acti-al dama^ie shewn —New trial refused. See Contract 1"). — Acc(n-d and s itisfaction. See Con- tract l(i. — Interest not re ('rable as dama^'es on loss of vesf^el and freif^ht. See Collision 1. — Stipulated dam;i<;es — When such. See Contrc'i. .' — - Cont, i'-:t ' deliver steam enf,'ine and mill machinery — Faihire to deliver within specilied time. See Contract 14. — Tort — Necessary to prove actual • lamage. See County Court (i. — Injunction, obtaininji of. See Addenda 41. DATE. Impossible date, effect of, where par- ties are not ntisled. See Arrest 1. DEBENTURES. 1.— Issued under 38 Vic. cap. 85— In hands of third parties Coupons— In- terest on. //('/(/, adlierin;^ to the opinion ex- ))r. ssed in this case in 4 P. it B. 7H, that debentures issued under 88 Vic. cap. Ho, sealed with the seal of tlie {general ses- sions of the county of Albert, acquired by the 4th sec. of the Act, a negoti- able character like promissory notes payable to bearer and that in the hands of third parties, their validity could not be questior . d. Interest on coupons is not recover- able, 'lilies V. Miuiicipalily of Albert, vol. '21, -JOO. — Issued by sessions, must be re- deemed by municipality. See jMunici- pality. DEBT. — Extinguishment of accommodation note. See Promissory Note (5. — Assignment of— Suit in eipiity by assignee. See Pleadings (J. — IJills of Sale Act does not apply_to debts. See Bills of^Sale Act 2, DEBTORS. 1— Consol. Stat., cap. 38, sec. 7— Disclo- sure by debtor — Discharge from arrest — Second application for examination — Res judicata. If a debtor applying for examination undei' the Consol. Stat., cap. H8, sec. 7, is ii'able to make a full disclosure of the state of his affairs, and to answer all proper inten-ogatories witliout reference to liis books, it is his duty to produce them at the examination ; and c-.n order made for his discharge without the pro- duction of lis book.', will be iiet aside. If the puiintiff in the suit, or his attorney, resides witliin iJO miles of the place where the exannaation is to be hold, 4.S hours' notice of such intended examination is sufficieat. Per Ptihner,-]. If a debtor applies for examination, and after a hearing before the proper tribunal his discharge is refused, the matter is ;v.s Judicntd, and he cannot make a second application. Kx parte 'Ja'.rn ■, hi re ILiney, vol, 24. tl2;J. 2— Disclosure by debtor— Consol. Stat., cap. 38, sec. 7— Discharge from arrokt where debtor on gaol limits. Section 7, of cap. 38, Consol. Stat., i providing for disclosure and discharge 78 DEKD. DEED. of a debtor from arrest, is ajiplicable to a flefemlaiit who luiH J)eeii rendered in diHcliart^o of his l)ail. and is on tlie f^aol limits at tlie time of making his dis- closure. Mdlirlwntfl' ;.r ixtnc, Vi)l. 2'), — Order of dischar^'e — Refusal to answer . DEED. 1.— Voluntary conveyance— Deed to son— Bona Fides of consideration— Question for jury— Secondary circumstances con- sidered in determining matter. No certain rule can be laid dowu as to what is an honest transaction, or the opposite. Every case must stand on its own footinf4, and the Court or jur> .nust consider whether, having regard to all the circumstances, the transaction was a fair one, and was intended to pass the property for a good and valuable con- sideration, Doe ilfin .loneK and wife v. NererK, rol. ISx (i'i?. 2.— Trust deed for benefit of creditors- Further assurance— Judgment to defraud creditors— Want of consideration. S. being indebted to a number of per- sons conveyed to the plaintiff property in trust to sell, and pay certain credi- tors named in the trust deed, and to pay any surplus to such of his creditors as should execute tlie deed within a cer- tain time ; and he covenanted that he would on request execute such further assurance of the trust property as coimsel should advise. The deed con- tained a release by the creditors who executed it of all their claims and de- ma lis against S. Afterwards, certain creditors of S. who were not named in the trust deed, and v/lio had not signed it, fded a bill in equity to set aside the (ieed as fraudulent, the proceedings in which suit were pending. Soon after this, S. confessed a judgment in favour of the plaintiff for a large amount —the proceeds of which were to be divided I among the creditors named in the trust deed, upon wliich judgment execution was issued against the property of S. //('/(/, 1. 'J'hat the judgment was fraudulent and void against the credit- ors of .J. who had not signed the trust deed— the persons for whose benefit it was given, having previously released all their claims against S. 2. Tliat the judgment was not a fur- ther assurance within the terms of the trust deed —it being a security on other and different property than that con- veyed thereby. 3. That the pending of the suit to set aside the trust deed did not affect the apjilication to set aside the judgment. lianneij et al v. Slicratoii, vol. 2, ^ set aside the deed as fi-audulent, he confessed a ,jud<^- uient to one of the creditors named in tlie trust deed, who signed a paper statiiif^ that he held the judj^ment for tlie benefit of himself and other persons named |who were also named in the trust deed as creditors of H.) for specified sums. It did net appear that these persons knew that tlie jud^'meut had been j^iven, nor was there any proof tliat the sums specified were due to them. (Ju an application by a subseijuent judg- ment creditor of S.. to set aside the judgment as fraudulent. //('/(/, 1. That there was no considera- tion to sup[iort the judgment in the case of any creditor who liad signed the trust deed. 'i. That until the persons for whose benelit the judgment professed to have been given assented to it, the relation of trustee and cfntni ([iic truat did not exist between them and the holder of the i judgment. ^^. When it is not clearly shewn that a person in whose favour a judgment as confessed is a Iniiia fuU' creditor for a (■ertain sum, the judgment will not be sustain ud against a subsecjuent judg- ment creditor. Sheraton v. Slwratun, vol. 2"), 5;J4. 4 -Trust deed— Trust for benefit of husband and wife— Release by liusband— Fraudu- lent conveyance. A. S. con\eyed property in trust for the benefit of his crediti)rs preferring "ittiT iili(i) 11. H. for the sum of ■*•'), '281, and his wife for ft i,8")IJ. By the terms of the deed, the creditors who signed it released A. S. from all claims and demands up to that date. K. K. signi'il the deed. The trustees having of'fei-ed the ))roperty for sale, it was Ixiught in for K. S. for the sum of «-2f, ().')(), but dif- ferences arising between him ami the trustees, he commenced a suit in ecjuity I to compel them to complete the sale, whereupon an order was made by con- sent in Keptend^er, 1HH;{, ai)i)ointing a receiver of the proceeds (jf the sale. 1{. S. guaranteeing the trustees that the property would produce ft'Jt, ()')(), in certain stated sums, in three, six and nine months : and on that sum being realised from ihe sales, it was agreed that the receixer should transfer to U. S. any balance of the property that might remain. The pro]ierty was solil ' and the proceeds jjaid to the receiver from time to time ; but it did not appear, after the lapse of nine months, how much had been realised from the sales. Innnediately after making the order appointing the receiver. It. S commenced an action against A. S. And recovered a judgment by default for the amounts claimed by R. H. and his wife, being the sums directed to be paid to them by the trust deed. On an [application by a subsequent judgment creditor of .V. S.to set aside this judgment as fraudulent ; Held, 1. That H. K. having releasi'd A. S. by the trust deed from all debts, there was no consideration to support the judgment as to his claim. 2. That it not being shewn what amount had been realized b\ the sale of the property under the order in equity, or tlie value of the property un- sold, there wa>! no proof that the delit ilue to K. S.'swife bad not been paid l)y such sales or property ; and that the o;u(.s of (iroving that fact was on J{. S. (^Ill/re — Whether the debt due to R. S.s wife was not released by his executing the trust deed —it not being 80 DEED. DEMURUER. shewn to be her separate property under the Consol. Stat. cap. 72. Sheraloii V. SfierntDii, vol. 2'), 511. 5--Effect of words "to A. B. forever "— Necessity of words "heirs"' to convey fee. //(■/(/, that a deed of land to " A. B. forever " will not convey the fee, but only a life estate. Jack v. Lijous, vol. 19, — Given under Insolvent Confined Debtor's Act or by sheriff under execu- tion does not defeat a previous voluntary deed executed by the debtor. See Vol- untary Conveyance. — Delivery of for inspection— Agents' right of action. See Contract 1. — Maliciously inducing one to record. See Damages 1. — -Effect of covenant that grantee has a right to grant bai'gain and sell. See Ambiguity 1. — By Infant — Evidence [of confirma- tion after coming of age. See Infant 2. — Effect of words " warrant and de- fend." See Estoppel 4. — Acknowledgement taken out of province. See Dower. — Of partition— jMutual—Beservation of common right to quarry in one moiety. See Partition. — Registered — Purchaser under — Whether actual entry necessary in order to maintain trespasH. See Trespass 10. — -Composiiion and discharge under Insolvent .Vet — Title to land. See Inso- vent Act of 18t:i'. 2. — Voluntary — Husband to wife through medium of third party — Ante nuptial agreement. See Husband and Wife 5. — Where agent in giving exceeds his authority — Whether void. See Power of Attorney. — Relation to date of deed, when not recorded till after death of grantee. See Dot' dim KlUott v. FliiiKiiHtn, vol. 25, 154. Defect. In affidavits usetl on obtain- ing a nili' nisi — When may be objected to. See Practice 21. DELAY. Unavoidable — When charterers re- lieved. See Charter Party 1. — In moving to set aside a judgment for irregularity. See Judgment 1. — In signing judgment — When de- fendant had entered special bail and had been rendered. See Discharge 1. — In applying for rcrtiorari. Sec Certiorari 10. — Certiorari to set aside proceedings under Absconding Debtors Act. See Absconding Debtor 1. DEMAND OF PARTICULARS. Plaintiff cannot have order for in- spection of books until application to remove stay of proceedings created by. See Books. — In ejectment — Effect of. See Eject- ment 0. DEMURRER. In action for trespass, insufficient des- cription of locn.i in quo— Kot a ground of — Withdrawal of. See Trespass 5. — If plea professes to answer the whole cause of action and answers only a part, plaintiff may demur. Suo Plea 1. — Costs must not be taxed on, while other issues are pending. See Cost^ 11. — When defendant's proper i nedy was by, a ne^v trial will not be Cidereii. See Husband and Wife 2. — On ground that the declaration does not disclose any consideration for the making of the promise therein alleged. Sec Agreement 3. nKSCRIPTION OF liANH. DISC'LOSURK. 81 - ]iill — Want f)f Mtinity -Miiltif'iiri- ousness. See lOcjuity. — Declaration — Action 1>n' incorpo- rated company — Not allci^in^' incoi'iw- ration. Mee tJoint Stock C'oniitanieH Act. — Issues in law and fact --/■.'. r pmti- order directing; trial of. Sec Practise •J.t. DEPOSIT. On land hoiij^lit at auction under ajjreenient that vendor should have a clear title is rccoverabli if such title is not f^iven. See Sale of Land H. DEPOSITIONS 1.— Endorsing on envelope enclosing — What sufficient entitling of cause— Con. Stat, cap. 37, sec. 194.. The partic^s to tiu- action were -/-a liiniijiic I'illf Mi{vii\ i)laintilt's, and Alhcrt ,1 . Lonllji and '^tarlinii II. LunUij, defendants. The depositions taken under a commission were retui'ued addressed to the ("ourt and endorsed /■•( Ihiinitir I'illi' Morii' V. .1. ./. f.onllii '•' "'• Held, tiiat the endorsement was not suthcient. I. a lltnuiiic ]'illr Mtiric v. I.onlln vol. -21. -27;!. DEPUTY COLLECTOR OF INLAND REVENUE. Whether nccesFaril>- ;i, [irosecutin;; nthcer under the (!ana(hi Tem))erance Act 1878. sec. 101. See Cannda Tem- perance Act 1878. 11 DESCRIPTION OF LAND It no amhit-'uity, relt-rence cannot he | made to a |)lan annexed, or to iiny ntlier jiraiit. See Trespass 4. I Insufficiency of, not ;i t;ronnd of ! demurrer. See Trespas.s ■■>. IMvidin^i line - Htirvc>or mutually | '■lio^en. See Acipiiescencv 1. | S.I). DEVISE. Of income and profits to widow — Rij^ht of widow to lease. See Will '.•. DISCHARGE. 1— From custody— Where unnecessary delay in signing judgment — Where defendant had entered special bail and been ren- dered. The fact that a defendant liad entered special hail, and had l)een rendered hy his hail does not depi-ive him of his right to he discharged for unnecessary delay under sec. 4, cap 158, of Consol. Stat. McM(iiut>i\. [Vulxh, ..A.'2-2,nH-2. — Order (jf — Tinder Consol. Stat. cap. 11 -Whether court has power to set aside. See Ilahcus Corpiin i5. — Under Insolvent Act — Plea of. See Attorney 2. — Consent to — Necessity of calling meeting of creditors to consider. See Insolvent .Vet of 187"), — Confirmation of — Under deed of composition — When creditor may oppose application for. See Insolvent Act of 187-'). -By statutory majority of credit(us when insolvent is without assets. See Insolvent Act of 187''). — Of .lury — Whether a judge has power without defendant's consent. See Prac- tice 15. — Order of commissioner for debtor's discharge- What it should set tuit. See Limit Bond 1. — Fi'um arrest -Disclosure by debtor —Second ajjiiiii^ation fiir examination — Consol. Stat. caj). ;18, sec. 7. See Debtor 1. DISCLOSURE. Examination under Consol. Stat. cap. ;J8, sec. 7 -Arrest for a tort. See Arrest :{. 'Ci^" 1 82 DOM. CON. KLECTIONK ACT. DOM. CON. KliK.CTIONS ACT. — Refusal to iiUKWcr (nicHtioiiK on t-x- ' iiiiiiniitii)ii for. Si'c Ci rlioniri 1. I Sec Debtor— l)isc'liiii-!,'('. j DISCONTINUANCE | f)f ))ossessioii (if lairl, Hev Posses- i DISCRETION. ]'3xerciso of l)y jud^o — f'ertifyiu^'- lieview Ijv coiii-t. Kee Uevictw 1. DISQUALIFICATION. ' Police maj^istriite bi'liij,' riitei)aycr of town — Whether (lis(jualiHc(l from trying' j offences under Canada Toniperance Act. I See riaiiada Teniperuncc Act 11. See ■lustice of Peace :}. i DISTRESS. ' I'rivile^o from — IjOi!s delivered to mill-owner to bo sawn into deals — ; Whether privile<»c destroyed by mill- | owner beinfi jointly interested. See ! Landlord anil 'I'enant ;S. Sufficiency of a^'reement to wari'ant distress. See Landlord and Tenant 4. i Distress after sunset — I5reakin<,' doors. See Fii'.ndlord and Tenant ('>. Divorce Court Appeals. oral Hnks ."). See Court (len- Docket. .\p))lication to strike cause oft'. See .\])i)eal Pai)ers. DOMINION CONTROVERTED ELECTIONS ACT. 1— Petition withdrawn and deposit returned pending preliminary objections — Refiling petition. A petition alle^iut; corrupt practices by the respondent was liled a^^ainst the return of a member of the House of Commons under " The Dopiinion Con- troverted Elections Act, 1874." Pre- liminary objections wei'e taken to the petition, and while they were pendinj,' the judf^e of the Election Couit made an order, with the consent of tlieattor iieys of iiotli ])ai'ties, that the |)etitioii mi^^lit be taken off the liles and tin ileposit returned to the petitioniT. 'i'lie ))etiti<)ner afterwards obtained an ord( i from tlie jnd'4e that the petition mi^ht be re.ded, and tlie petitioner's attorne\ chani,'ed, on condition of his ivpayin'.^ the de))ositto tlie clerk. //./(/, by .Vllen, ('..1., and Weldoii. Pahner and Kiui.', -M.. tlial when tlie deposit was withdrawn the jud^;e had no authority to make an order to pro- ceed in the mattei'. and that tlie oi'der shoulil be rescinded. I'lT Wetmore, J., that the petitionei havin;,' withdrawn the petition (thouj;li in a different manner fi'om that described by the statute), wasestoi>ped fi-(un taking any fui'ther proceediuf^s. Cdiniin'nu v. IlKni". vol. '2'2, '>1'.\. Appeal to Supreme Court of Canada (juashed. See Addenda 12. 2.— Election pelition — Variance in copy served— Amendment— Preliminary objec lions. IJy "The Dominion Controverted J'jlections Act, 1874," sec !). A copy of an election petition is required to he served on the resi)ondent within fivi' days after its presentation ; and by sec. 10 the respondent may present ]ne- limiuary objections to the petition within five days after the service there()f. A [)etition was tiled charj,'- iwH the respondent with havin<4 cor- ruptly tiiven to electors, meat, drink, etc., on the day of nomination, and on the polliuf^ day ; also, with hirinj;, pro raising to pay, and paying for horses, carriages, etc., to convey voters to the p(jlls. The paper served on the respon- dent as a copy of the petition omitted from the first allegation the words " and on the following days," and from the second the words, " .nd payiuj^ for," DONATIO MORTIS CAISA. ii()i ni,i; STAMPS. 8;{ //(•/(/, //('/■ Alk'ii, ('..J., W'l'tiiioie iuid I'iiliiK'i', -i.I., I I''riis('r, .1. clissciitiiij,'!. I. 'J'liiit no ('(ppy of llif ])rliti1. 21, 4")'.t. — Fees ill election court. Hee Court General Uules S. DOMINION OFFICIAL. 1— Income— Whether subject to taxation for municipal purposes. I[r!,l, by Weldoii, Wetmore and Duff, J.J. (Alien, (!.J , (UibHnntf), that an in- come of an oflicer in tlie customs, wim resided in the city of St. Joliii, was not subject to taxation for municipal pur- | poses. K.r parte Owen, \o\. 20, AHl. Ki'e ! also Assessment 7. | Dominion Penitentiary — Warrant to ! commit. See Warrant 1. i DONATIO MORTIS CAUSA. What constitutes. A., a few days before his deatli, and while in good health, handed to one V. a box with a letter addressed to the defendant, and requested F, to forward the box to the defendant " in case any- thing should happen " to him ,\. The box contained a iiiiml»r of deben- tures and other Naiiiables hiiiclied \ir different persons, and also a uill insnf licii'iitly execiiled, disposing' of ihe same articles in sul)s1antiaj accordance with the labclliii'^ of thcin. A. a few da\s afterwards committed suicide. .Vflcr his death 1''. delivered the box to tlu' defendant. Held, that this did not constitute a \alid (li)ii(ili(i iitiiiti.-< i-iiiisii. l-'.iiilf V. J!it-ffiinl. vol. 'i.'i, 1(17. DOWER. 1— Whether widow has estate of freehold before assignment Conveyanc<; — Ac- knowledgment—Taken out of Province-- Officer taking must certify that person acknowledging is the grantor. .\ deed acknowled^'ed out of tin: ()ro- vince hud on it the followiiiL; cert ificati^ of the notary public taking' the acknow- ledf^nunt : "City of ]'>oston, etc.. A])ril 1(1, ls7(;. '•'I'liere personally ai>peared I. '1'., iuid acknowled<,'cd the afore.ycjiiif,' instru- ment to be his free act and deed. I. A., notary public." The name I. '1'. was the same as that of the jirantor. //<■/(/, tiiat tl'.e ackiiowlediiii(l for ^eiicrul (Iciumrcr. See .Record iiiid Stitisfiutioii. EASEMENT. 1— Flowage — Mill privilege struction of —Estoppel. Deed -Con- On trial of lUi autioii on tlio case for overJlowinj^ plaiiitiff'H land, it ai)i)eart'd that many years aj^o 1>. \'. was sei/ud of a considorabk' tract of land, through which I'aii a small stream of water. On part of this land, about fifty years ago, D. V. erected a small mill, which was driven by water obtained from a pond formed by damming the stream. This mill was several times destroyed, and as often rebuilt on the original site by ' 1). V. or his sons, until it was finally i destroyed in 1H.')4. 'J'liis tract of land [ embraced as well the land overflowed, as that now owned by the defendants. 1). V. died intestate in 1S4'2, leaving a son 1). V. the younger, and sevei-al other children. In .July of that year all the other children joined in a conveyance of the whole tract to D. V. the younger, who subsequently made a di\ision of it amongst his father's heirs, and con- veyed to each his share. In that division he conveyed to S. \ . the homestead and piece of land in which it stood. In the conveyance from 1). V. the yonngei' to S. V. what is therein described as the " mill seat "" was e.\pvessly excepted. Tlie land adjoining H. V. on the west was retained by I). \'. llie sounger till his death, whin his exicutors conveyed it to the female plaintiff, it was u|ioii this land that the tlowage c()Mi])laiiu'il of took place. I'roni lH,")t to iHtilt there was no mill or dniii on the premises. In the latter year defendants agree. V. the younger for the pui'elmse of the mill privilege, and erected a new mill and dam on the site of the old one. On 2'.lth .January, 1 si; J, defendants obtained a conveyance of the mill site and privi- lege (describing it Ijy metes and bonndsi, together with all the jirivileges and appurtenances to the same belonging. .\fter running the mill for alioiit threi' years, defendants found the sup))ly of water in the dam tlii'V had erected on the old site iiisuf'ticii'iit to kee)) the mill during the whole season. 'I'liey accord ingly erected another dam furtlicr up the stream on the land which had bei'ii conve>ed to H. V., so as to secure ii resei've sup))ly of water. 'I'liis was the dam which caused the tlowage com- plained of on plaintiffs land. It was proved that the water from the old dam had never overflowed any jiortion of the land now owned by plaintiffs. IIclil. that the grant of the mill privi- lege by J). V. the younger to defendants must be confined to such a privilege as was previously used and enjoyed lis their grantor, and that they had no right to overflow plaintiffs' land. Cal- ](ouu et ri'.v. v. lioiirln' i-t oL, vol. 10, ")!)1. 2— Obstructions interfering with — Executed parol license— Revocation of— Harbour of St. John— Power of corporation to erect wharves. Tlie corporation of St. John being the conservators of the harbour of St. John and owners of the soil thereof, with power to amend and improve the liar- bour, leased to tlie ICnropean and North American Railway Company the right I'.ASKMI'NT, IJ.IKC'I.MKNr. H") to tin' ferry iicfoss the luu'linur, witli tilt' ft'iTV sli])s mill luiidiii^js, lunl ii w liiii'f (III till' sdiltll side of the slip, hllilt l)> ilic cDrpcirat inn, with iiowcr to cxti^nd >ii('li wharf ti) IIk' liarljoiir liiu'. The liiilway CDiiipaiiy. in the exercise of this |iower, extended tlii' wharf further into till' liarl)om'. and in doin'^ so dotlectud that |)ortion of the wharf to the south (if the line of the old wharf, so as, to soiuo extent, to narrow and encroaidi iilion tlie entrance to the slip on the south side of the wharf. At the time the wharf was so extended !>. was the owner of the land in lear, or to the east uf the wharf, and also lessee of the slip to the south of it ; he was also the nianaj^er of the railway company, and knew that they were buildini; the exten- sion of the wharf, beint; jiresunt from time to time wliile the work was heiii;,; done. The ))laintiff afterwards ))urc!iased U.'s rij^ht to tlie land and slip, and hrou^ht an action against tlie defend- ants (who had conio into possession of the wliarf and fei'ry on the expiration of tlie lease) for the ohstrnction of, and eiicroachnieiit upon, his sliji hy the extension built ui)on tliu wharf. A verdict havint,' been taken for tlie plain- tiff for nominal damaj^cs, with leave to defendants to move to enter a nonsuit, the court took tlie lil)erty to draw infer- I'licoH of fact : lli'ld, 1. That the court was justified in inferrin):; that 15. liad consented to the railway comjiany placing the wliarf where it was phicjd. '2. That li. havinj^ given a parol license to ei'ect the wharf, and the coni- ))any having built it there, neither li. nor the plaintiff claiming under him could complain of the encroachment on his slip. iJ. That as the soil of the harbour on which tlie wharf was built belonged to the defendants, and they were by the city chart:'r conservators of the hiir'iour, with the sole power of ainending and iinproNiii'.,' the same, the pliiintitT had no right to rnjuire t!ieiii to renuive the , wharf. (,lih, !■•■. Whether the defelidillits Would 111' lialile to an action if tlie wharf, in ciinsi'ijuenct' of a defecti\i' foundation, or by nieitns of the ferry iiott striking I against it, had saggi'd over to the south and olist ructed the plaintiff's slip. Mikjci' V. 77/c Mnijitr, ctr , o/' St. -loliii, vol. 23, •.'7".. — Light and air— Twenty yeai's unin- , teri'iipted ])ossessioii Prescription. Kee .Addenda 41!. j EJECTMENT— (See Possession.) ! 1— Judgment against casual ejector— Setting aside for irregularity. In ejectment wliere judgment was signed against the casual ejector, but ; i)laintil'f 's ))roce;Mlings were irregular, I the judgment was set aside, hm' dfw. I Itiinirlt V. I!i>,\ vol. 1<», lO'i. 2— Mortgage— Wliere tie obtains judgment and afterwards assigns mortgage— Wlietlier right in judgment passes to assignee of mortgage. Whei'e a mortgagee brought ejectment ' to recover possL'ssion of the land mort- ; gaged, ami obtained judgment, and, be- fore the writ of linhm- t'nciits issued, assigned his nu)rtgage ; I //(•/(/, that the assignment did not ; give to the assignee of the mortgage ; any right in the judgment, and a liuhi'ii- f(ici(i-< issued by his authority was set aside. Ihic di'iii. Flthiimiii v. /I'lic, vol. 3— Wliere lessor of the plaintiff and defen- dant both die pending suit — Application to amend declaration— To compel parties in possession to come in and defend— Second application on amended affidavits. IMAGE EVALUATION TEST TARGET (MT-3) :/. 1.0 I.I U2 172 s«l I 40 2£ 1.8 11-25 i 1.4 '^U Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 873-4S03 ^ 97 V qv \\ lV '^ '% r O [/i ^A v^Q (JV ■ ,!i' plain- tiff would be barred by tlie t'.jatute of Limitations, if the amendment' , f»'e not made. Hclil, that even if ♦he ame. -V leii's could be made in such a i.-ase, the afii- davits did not disclose facts wiiich would justify the court in makinj^ the amendments. <^ii(/Ti' — Whether under the circum- stances an amendment can be made. Where all the material facts set forth in tiie ailidavits on a second application to the court were within the reach of the l)arties when the first ap))licati()n was i made the court refused to entertain the ' second application. Doc th'in. Jarvin v. Trites, vol, 1!», 471. 4— Meaning of words "centre line of rail- way "—Instrument affecting lands— Certi- fied copy of— Description of railway lands- Signed by two out of three commissioners- Evidence— Rebutting— Where plaintiff has been cross-examined as to facts sought to be rebutted. In an action of ejectment, the ques- tion in dispute was one of boundary be- tween adjoining lots, and turned on the meaninf» of the words " the ctMitre line of the railway " in the description of the lands taken and dedicated for the Euro- pean and North American (now part of the Intercolonial) railway. K.IKCTMICNT. 'i'he land, the boundary line of which was in (piestion was described in the instrument of dedication as follows :— " A further portion of the said tract befiinnin;^ on tlie division line between the said I. V. aii41. 5— Declaration— Service of— House locked. Service of a declaration in ejectment is sufftcient where the door of the house was locked, and the tenant's wife refused to open it, and the officer at a closed window in the hearinj; of the wife read and explained to her the declaration and notice, and tlien affi.\ed a copy thereof to the door of the house. Doe dem. Dorion v. lioe, vol. 'iiJ, :J07. I E.IKCTMENT. 6— Demand of particulars of premises— Stay J proceedings. Wlmre tliere wore Hevenvl tunants in |)i)sscssi()ii, iiiid one of tlii'in filed a meinoi'aii(liiiii of appearniicc! mid j,'ave notice thereof to tlie plaintiff's attorney, and demanded the particnlars of the preniises, \s'liich the plaintiff's attorney promised to ^^ive, hut afterwards, with- out t^ivinj^ the particulars, sij^ned judf?- ment ajiainst tlie casual ejector and turned the tenants out of possession, the court set aside the jud^^juent and hahi'rc /(tcidn. A demand of particulars in ejectment operates as a stay of proceedings. l)oi> dem. UuUant v. Roc, vol. '22, 423. 7— Estoppel. In an action of ejectment the lessor of the plaintiff relied upon a title derived tlirougli T. from one J., and defendant c'u.imed to hold by possession. It was proved by T. that before he purchased t'le pi'operty, defendant with a view to iuducinj^ him to buy it, told him it l)elon<^ed to J., that he (J.) was heir to it and entitled to sell it, and that if he (T.) got a deed of it from J. he would have a f^ood title. Soon after this con- versation T. went to examine the land, and while there defendant told him he had ))een put on the place to watch it, and in case he (T.) bought from J. he would not give up the possession of it unless he got a portion of it — he said about 200 acres. In conseiiuence of what defendant had said to T., and after examining the land, the latter went to see J., but no agreement to purchase was arrived at on that occa- sion, J. wanting ^(iOO, and T. offering 3100. A week or a fortnight afterwards J. concluded to accept the #400, and sent word to that effect. Thereupon T. said he would see what could be done with defendant. He swore — " I sent word by my brother to see if defendant would take ir)0 acres. My brother brouglit a E.TECTMKNT. i message to me, in consecpu'n e of which 1 bought the i>roperty." T. tiien ob- tained from .1. a deed of the property, and, as he said, went up to the land with a surveyor "to run off defendant's I.")() acres" whicli he "had arranged to give him." When they got on the land defendant wanted 220 acres, which T., having [jurehased nd i)aid for the title, finally assented to, and 220 acres wers run off. It was thereupon arranged that defendant shoidd give '1'. a (juit claim deed of the land, except the 220 acres which had been surveyed off to him, and that T. should g've defendant a deed of the 220 acres. The deeds never were executed; and finally, after the lessor of plaintiff purchased from T., defen- dant reptuliated the transaction alto- gether, and claimed to retain the whole land. livid, by Fisher and Duff, JJ. (in which judgment Weldon, J., being op- posed to a new trial also concurred, waiving his own opinion), that defen- dant was estopped from disputing J.'s, and (consequently the lessorof the plain- tiff's) title to the whole land. But by Wetmore, .!., that in the absence of evidence of what the message was that T.'s bi-other brought back from defendant, the estoppel was not made ouL. Doe dem. Doherly v. lirown, vol. ly, tiO".. 8— Service ot declaration— Non-payment of rent — Widow of lessee in possession — Judgment. Where a lessee, under a lease contain- ing a clause of re-entry for non-payment of rent, died intestate, leaving his widow in possession, though letters of adminis- tration had not been granted ; service of declaration upon her is sufficient to entitle the landlord to a rule for judg- ment in ejectment for non-payment of rent. l>oc dem. Mayor of St. John v. Roe, vol. 24, 357. .i I 'I f 88 EJKCTMKNT. K(inTY. hi 9— Non-payment of rent -Judgment against casual ejector— Wliether^necessat7 to shew how the tenant holds. In ejectment for non-payment of rent, under tlie Con. Stat. cap. h;J, sec. Ill, after jn(lf,'ment aj^ainst the casual ejec- tor, where tlie tenant in posscHsion is not the lesHee, it is not necessary to shew that he claims under the lessee, or how he holds possession. Doe tlcm. Mayor, etc., St. John v. lioe, vol. "25, 14!). — Itecovei-y hy mortj^Uf^ee hy default and o))tainin<{ possession after rijjht e.Ktinj^uished — Effect of. See Limita- tions ;j. — Recovery of vacant posasession— Practise. See Practise 1. Landlord and tenant — Summary eject- ment. See Summary Ejectment. See Further Possession. Election under Canada Temperance Act, 187H - Scrutiny — Parties to. See Canada Tt "perance Act H. — Extent ui in(iuiry hy Judj^e County Court. See Canada Temperance Act "20. Election Court — Petition withdrawn while preliminary ohjections pending. See Dominion Controverted Elections Act 1. Petition under Con. Stat., cap. i) — Resignation of respondent. See Con- troverted Elections Act 2. " J'jmployment" — Meaning of word within St. John Assessment Act, 1882. See Assessment 5. Employee of Crown— Not liable except for misfeasance. See Railway Conduc- tor 1. — Federal Government — Income — Assessment of — Principles governing. See Assessment 7. Entry Docket—Filing of —Where wrongly entitled. See Practice 9. Time of filing. See Court General Rule of, 3. Entry ot Cause— What constitutes. See Practice !l. Entry on Land -When right of, accrues to heir— His father in possession as tenant by curtesy. See Limitations 2. — Wliether a purchaser under a ri'- gistered deed is obliged to make an actual entry in order to maintain tres- pass. See Trespass 10. Under colour of right — Extent of possession. See Possession 2. Endorsement — On envelope enclosing depositions. See Depositions 1. EQUITY. Bill— Description of defendant in title- Amendment— Insolvent Act of 1875 — Creditors remedy under section 125 — Court of Equity— Objection to jurisdic- tion—How taken— Bill of sale— Registry — After acquired property. See Vassie V. Vas!^ ex- ceeded their authority. //(/(/, tliat tlie ])laintiffs were not en- titled to this relief as it was iiiconsistent with the relief specifically prayed for. //('/(/, also, that an amendment should not be allowed to convert a bill filed for one purpose into a bill for a wholly "iiposite purpose. ]'{ether and chiinied to retain the wliole land. Held, by Fisher and DnlT, (in which judj^nient, Weldon. J., beinjj opposed to 11 new trial also v)ncurred, waiving his own opinion) that defendant was es- toi»ped from disputin;j; J.'s (and conse- ipiently the lessor of the plaintiff's) title to the whole land, But by Wetmore, J., that in tiie absence of evidence of what the nies- sat;9 was which T.'s brother brou';ht hack fi'oni defendant, the estoppel was not made out. I)oe dum. [ioliiTtif v. Uniini, vol. lit, ()0S. 2 -In pais— Evidence. (). being agent of the plaintiff com- pany, and having a quantity of stone consigned to him, sold it to defendant o;itensibly as his own. SubBecpiently the price of the stone remaining un- l)aid, was garnisheed by a creditor of ()., who, although he had notice of the j^arnisliee proceedings took no steps to have the money released from the attaching order, or to shew befoi-e the judge that the money was due to the company and not to him, and judgment was given against defendant as garni- shee. Held, that plaintiffs were estopped from saying that O. sold the stone as their agent. Held, also, that evidence of the garni- shee proceedings was admissible under the general issue. The Wallace Hiiexlin 'iieyKtoite Co. v. Foxwell, vol. 20, fi8. 3— Admissions by an infant— Appeal— On questions of fact. In a ('i)urt of I'^ipiity an infant stands in no different position from a pei-son of full age in relations to matters of fniud. and tnerefore if he nnikes a represen- tation upon which another ()erson acts. ! he will not he allowed to impeach the I validity of it on the ground of his minority, li'ilhiir v. .iDues, vol. 21, 1. 4— Words "Warrant and defend '—Effect of in deed. 1)., while residing on Crown land, and after he had applied for a grant under the Labour Act, conveyed it by ii warranty deed to K., who afterwards conveyed it to the defendant. D. after obtaining the grant conveyed the laud in (}uestion to Ii., who conveyed to the plaintiff. It appeared on the trial that both B. and the plaiiitiff had notice of the deed to S. before the deeds were given to them respectively. held, that D. was estopped from denying that he had title to the land when he made the conveyance to S., and that the plaintiff claiming under him as Ms assignee was bound by the same estoppel which runs with the land. //('/(/, also, that the words " warrant and defend" are words creating a cove- nant of warranty, (iuiimin v. Laiujes, vol. 21, oid. 5— Agreement to deliver lumber to be mea* sured by a named surveyor— Survey bills —How far conclusive— Estoppel by con- duct. A. agreed to cut and deliver to B. a quantity of logs to be measured on the booms by a surveyor named by B. 'J he surveyor delivered a survey bill of the logs to each party. The logs were de- livered in a mill pond, where they became mixed with other logs belonging to B., and logs belonging to C. In dividing these logs between B. and C, a portion of which were unmarked, B. claimed and was allowed a proportion 92 EHTOI'I'Kl.. KVIDKNCK. of tlie uimrirkt'il Inj^s, HC(!()r(liii<^ to lus survi-y liill. //('/(/, ill lui action by A. ii^'iiiiisl \\. for the price of tlie lo;,'s, tliat H , liy iiaiiiiiifi the surveyor to iiieiisiire the \nHH, Wiis not estopped from disputiiifi the correctness of his measurement ; and thiit IJ.'s claiming,' by the survey hill in his transaction with (!. could not he taken advaiitat,'e of by A. as an estojipel. In order to create an estoppel by conduct the representation iiuist l)e made with the intention that another party should act upon it, and lie must have been induced to do so. McMiniiix V. IHiiki'iu'ij, vol. '2'i, 21(». — Plea of — liad lor departure — lieinj; inconsistent with averments in declar- utiuii. See IMeadinj^ :? ; I'^jectnient 7. — In order to make a person's declar- ation operate as, it must be made for the purpose of inducing! a party to act •ipon it, and he must act upon it. See liasemeut 1. — Of sheriff from returning,' inilla hon/i un execution while lie at the same time iiolds ^jods of dcfeiiihint under attach- ment, and has made return of writ of attachment. See Sheriff's Return. — Sheriff haviii},' seized },'oods niider execution aj^aiiist H. cannot set up as defence that H. had no property in the floods. See Uill of Sale 1 . — IMuiiicipality cannot deny liability for debts for whicli county sessions would have been liable. See Munici- pality 1. —Representations. See Evidence 12. — Where plaintiff af.'rees to fjive de- fendant credit for amount of I'eceipt found, and afterwards refuses^Defen- dant's remedy— delay. See Judj^ment 2. — Return of sheriff to writ of replevin. See Sheriff. i — .Vtteiidinn slieriifR sale of laml ' without protest i' I ti. See Assessmont n. — (!oiiditional sale of ^^oods- IJeprt sentation. See 'J"ro\fr (i. EVIDENCE. 1— Improper admission of— Action for false imprisonment— New trial. On the trial of an action for malicious prosecution and false impriHonmeiit. plaintiff was allowed to prove (subject to objection) that at tin- time of his : arrest the constable, who was not a ! party to the suit, told him " his ordei;s were to look for fees " //(•/(/, improiierly admitted, and as it was im)iossible to say the jury were I not intlueiiccd by this evidence in esti- I mating the daimif^es, a new trial was ' ordered unless plaintiff consented to reduce the verdict to nominal damages. Diiirliiin V. McSrillii. vol. IK. I'i. 2— Admitted improperly— May be withdrawn — Right of judge in charging jury to express his opinion— Fraud-Finding of jury— Refusal of court to disturb. The judjjc may withdraw from tiie consideration of the jury evidence thai has been improperly admitted. The judf^e may express liis opinion on the case if he thinks jiroper to do so. Where the (juestion as to whether a bill of sale was fraudulent or not was fairly left to the jury, the court refused to disturb the verdict, Fi-i-nuxon v. ■Johnston, vol. lO, '27!l. 3— Promissory note— Stamp not cancelled —Amount stated. Wliere tlie judge on the trial refused to receive in evidence the note on which the action was brought, as the stamp was not cancelled, the plaintiff not offering it as evidence of an account stated, but attempting by other evi- dence to prove the stating of the ■'^ KVIDKNCK. KVIIiKN( K. \m iiccoiiiit, iiml tlie jury foiiiid for {), .")H3. 5- Heresay— Res gestoe. On the trial of an indictment for obstructiu',' a street, C, a surveyor, stated, subject to objection, that he measured certain distances from a post which he said was pointed out t.) him by H. as the (resner line, and that he ran a course from that, and tested his line from four points ^iven him by B. iind found them correct, and also stated what the result of that measurement would be in retjard to defendant's house. B. was not called. Held, that the evidence was impro- [lerly received. The Queen v. Hudije, vol. 20, ->n. 6— Former suit— Trial— Way to prove. The only way which a suit can pro- perly be proved is by the proceedings themselves, or the admission of a party against whom the evidencs is offered ; and if it is material to shew what was in dispute and what was decided, the record must be produced. It cannot be shewn by the evidence of a jierson who was present at tlie trial. .t/iiihliii v. Serord. \ol. 20. 40:{. 7— Slander— Husband and wife— Action for words of wife— What witness understood tlie words to mean— Damages. In ttct:oii of slander a witness cannot be usked what be understood to liavi- been meant by the words used unless it is first shewn that there was somi-- I thinsi t<» prevent the words from cin\- \eyiufi the meanini,' they would ordi- I narily convey. I In an artioji of slander aj,'ainst a ] husband an(| wife for the slander of the I wife, evidence of a statement of the wife made subse(|uent to the slander that her husband compelled her to utter i it, and his object in compelliii},' her. is improj>er — per Weldon..!. fl'dinl v. .l/uc- hiii) and iri/e. vol. 21. lOit. 8-Expert dence. Opinion involving truth of evi- I A witness, skillefl in diseases of the I eye, who had heard the testimony of the defendant and the other witnesses, ' in an action a(,'ainst a sur<{eon for nuil- ! practice in operatinj^ upon plaintiff's eyes. w>is asked liiiter iilia) the followinf{ ; (juestion : '• Is the statement of the medical case, as yiven by the defeiulant in evidence, reconcilable with the facts (assumjnfi them to be true) as ).;iven l)y I the other witnesses ?" I Held, that tlie question was ini|)roper, I as the answer to it would involve an : opinion by the witness, not only as to ■ the truth of what the other witnesses j had sworn to, but also the meaninf{ of the words they had used. I)if1iii v. Don, vol. 22, 107. 9— Letter written by |:arty seeking to put in. A tenant cannot, by writing; a letter accompany iii|> the key of the premises stating his reasons for ^ivinj; up the I !si < i ! i' |:;ii^ w ointed by the corporation, under tlie liowers f^iven tlie latter by Act of Assembly, lie did iu.l dispute its cor- rectness. Wiu'ii asked if lie could ex- plain the balance a^jainst iiiiii, he said lie could not. The auditors then told hiin they wouhl have to reixirt it to the |)laintiffs, to which he replied, "Well, you will just have to report it " //('/(/, surticient evidence to recover such balance either on a count for money had and received or an account stated. M(in, sec. 21, offered evidence of the probable expenses | nf this and other suits, Hi'ld, that the evidence was properly refused. Momliall v. AniixtroiKj, vol. '21, r32. 16— Certificate under 37 Vic, cap. 94— Acts of parliament— Necessity of shewing defendant to be a shareholder before cer* tificate is evidence against him. By the 5th section of the Act incor- porating the Stadacona Fire and Life Insurance Company, it is provided that in an action aj^ainst a sharilinider t'or fiills, II certiticate under the seal of the conipany, and purporting to In: signed by one of their olticcrs, to the etfect that the defendiiiit is a shnieholder, that such calls have been iiiinle and that so niiieh is due by him, shall be iiceived in all courts of law as iirliint I'lirir cvidi'iice to that elTeet. The eeltilieate |)lit in evidence on the trial eertilied that ilefeiKlant was t he lioldi r of lifty shares, that certain calls hud been made, and that he was iiidebteil to the compiiiiy in a sum named, beiii',' the iimtMint of the calls. Hi'ltl, that the certiticate was not evi- dence at,'ainst the dt^fendant, in the absence of other uvidi'iice that the defendant was a shareholder in the conipany. StKdiiciiiin Jus. Cn \. Raiun- Itinl, vol. :{(»",l. 16— Criminal law —Reading to witness from paper not in evidence, and cross-exami- nation as to— Intent— Log book— Admis- sion of— Accomplice, corroborative evi- dence — Comparison of handwriting — Admission of previous signature by subse- quent indorser — Rebutting evidence — Effect of words "weight and contents unknown" in criminal charge. Held, that on the trial of the master of a vessel, indicted f(n' scuttling her. (by Allen, C.J., and Fisher and Duff, J.T.). adherin}» to the old rule of the common law, the contents of a written instrument, if it be in existence, can be proved only by the instrnmeiit itself, and conncil will not be allowed to read from a paper not in evidence, and found a qnestion upon the paper to read, that this cannot be done even on cross-ex- amination for the purpose of testiiif^ the credibility of the witness ; also that sec. ()-t of the Statutes of Canada, li2 it H3 Vic, cap. 2\), allowing a witness to be crosB-examired as to previous state- ments made by him in writing, or reduced into writing would not apply to \H\ EVIDKNCK. KVIDKNCK. ^i prott'Hts iiiiido liy tliu priHoncr, or to polic'ii'H of iiisiiraiioo isHiU'd to the witiit'SH, or to recciptM, which it did not ai)i)oar tlio witnesH iiiid nitlu'r writtoii, si^Mit' juoperly received, and hein ; unc\ plained l)y the prisoner they wen- pro[)erly left to the jury as evidence against him. //«'/,/. also, hy Allen. ('..!., and Dull, J. (Weldon, J., dissenting), that the sig nature of one H. to an invoice was properly proved hy a witness coinpariui,' it to a signature purporting to be by 1{. as endorser of a hill of exchange, his endorsement being prior to that of the prisoner. Hut by Weldon, J., that llie evidence being imnuiterial, the reception was not sufficient to warant the quash- ing f)f the conviction of the prisoner. The principal witness for the Crown who had himself done the act of scut- tling the vessel at the instigation of the prisoner on his examination in chief, stated that he bored auger holes in the air streak. On cross-examination he was asked how far below the ivater lie bored, etc. On the part of the defence it was sworn by several witnesses that the air streak of the vessel alleged to have been scuttled, was abo\e the load line, and that if the holes were bored in the air streak they must have come out above the water. The (!hief Justice allowed the Crown to call rebutting evidence for the purpose of shewing that the air streak was below the load line. Held, that the evidence was properly allowed. There is no positive rule of law that the testimony of an accomplice must receive direct corroboration, and the nature and extent of the corroboration required depend a great deal upon the character of the crime charged. There- fore where the judge directed the jury " that it was not necessary that J. (the accomplice) should be corroborated as to the very act of boring the holes in the vessel; if the other evidence and cir- KVIDKNC'K. i;vii>kn';k. 07 (•imistiiiU'CK iht to draw whatever inference of >,Miilt they jjleaHc a'iaiuHt the prisoner, from his knowled^t! that the carf^o was not what the hill of lading represented it to be. In an action a^'ainst a shorifT for sei/in)^ under an cxcution against M. property which the plaintiff claimed mider a prior purchase from H., hut which the jud^jment creditor alle^^ed WI18 made without consideration, and to defraud H s. creditors ; an account between the plaintiff and IJ., in the handwriting of IV, and dated at the time of the alleged transfer in which tile plaintiff was debited with the pro- perty and credited with payments on account, is evidence for the plaintiff that the account was nuide at the time it hears date without any other proof of \ new trial will not be granted to the I ^,,^ f^^^ (Wetmore .1., dissentin ^) ("rown in a crimiiuil case; neither has! the Crown an ajjpcal to the Supreme Court of Canada from a judf^ment (puvshinn a conviction. (Wetmore, J., doubting as to the rijjht of ii]iiieal.) Uniiiui V. Toiri'r, vol. '20, 1<)8. Aniislroiiij V. I'lotK/onl, vol. 'it, 'JHt. 19— Action for loss oi a scow— E\,: Janet of negligence— Expert testimony. Ill an action for loss of a sc(jw used \ in conveying deals to a ship lyinji in a 17— Destroyed letter— Secondary evidence j harbour, it appeared that the scow in of the contents of part— Inability of Wit- j (luestion, with two (.thers, was fastened ness to remember the rest— Handwriting ' to the ship and broke adrift durin{^ a —Expert testimony. i ^vAc of wind and was lost. , • I 1 .^i ' Held, that u witness could not be ■V person who has received a letter, ■,-,.., , ,. , , . • , , , ^ 1 1^ 1 >^ asked for the purpose of proving negli- gence, "whether it was good or bad maiuigement for the defendant to have jiart only of which, he stated, related to i the subject matter of the Buit, may after the destruction of the letter, testify us to the contents of that part, though lie cannot state the words of the remainder of it, except generally, that it had no reference to the (juestion involved in the suit. (,)ii<('rv, whether a witness who has no knowledge of the himdwriting of a party can. after conn>ariiig a signature with a writing admitted to be genuine, speak as an expert as to his belief whether such signature and the genuine writing were made by the same person. Mcdibbon V. lUirpcc vt id, vol. '25, HI. three scows fastened to the ship at the same time ?" the (piestion not being a matter of science, art or trade. McSiiiv v. Stt'innl. vol. '21, i71. 20— Goods sold and delivered— To whom credit given — Evidence — Statement by witness to plaintiff. In an action for goods sold and de- livered, in whicli the (juestion was, whether tlie credit was given to tlie defendant or to ]). !•'., to whom tlie goods were actually delivered, and who carried on a retail trade near the defeii- 18— Judgment creditor— Transfer of pro- danfs shipyard, and supplied the men perty— Consideration — Account between debtor and claimant— Evidence of date of transfer. S 1). in defendants employ, in part payment of their wages — the evidence for the plaintiff being that by agreement tlie 7 98 EVIDENCE. EVIUENCK. M 1 I !■ i credit was f?iven to the defendant, ai;'; that the goods were to be paid for by D. F.'s notes at three months, to be talten up at maturity by the defendant's notes at four montlis. Held, that D. F.'s statement to the plaintiff when he gave him a note of tlie defendant's to take up J). F.'s note given for the price of goods, was admissible without producing the defendant's note. Held, also, per Wetmore and Fraser, JJ., (Palmer, J., diKsenting) that the plaintiff could bo asked for the purpose of shewing part performance of the alleged agreement by the defendant, how long the defendant continued to curry .3ut his part of the arrangement. Per Palmer, J., that the question assumed that something had been done by the defendant under the agreement ; and that the answer to it stated no facts from which the court could determine whether there had been a part perform- ance of the agreement or not. Stephen- son V. Vi-aaer, vol. 24, 482. See Addenda 60. 21— Fraud— Purchase of property in name of another to defraud creditors— Subse- quent agreement between same parties relative to other matters— Admissibility of evidence. In an action against a sheriff for seizing a horse under an execution against the plaintiff's father, the defen- dant sought to shew that the horse, which was purchased from W., was really bought for plaintiff's father, and that the purchase was nominally made in plaintiff's name to defraud the fiither's creditors. In order to establish fraud, defendant offered evidence of an agreement subsequently made between plaintiff and W., hiving reference to fishing business in which tlie father and son were engaged, and which the horse was in some way employed. Held, admissible. ShinelJ', App., and Campbell, Kesp., vol. 24, i>'A. I 22— Exemplification of judgment. In an action brought by the judgment 1 debtor against the sheriff for seizing ! goods, the exemplification of a judgment ' is evide^ice against the judgment creditor in a promise to indemnify. Slieii(f' \. Muirheitd, vol. 2">, IKt'i. 23— Confessions of the prisoner. M. was convicted of stealing goods the property of S. The evidence to connect M. with the crime was his statement to a policeman who had him in charge, that if he went to a particular place he would find the goods. This statement was made in consequence of his being told by the ptdicenian that S. was a good-hearted man, and lie (the police- man) thought that if he got his goods back he would not prosecute. Q'he goods were afterwards found in the place described by the prisoner. Held, (Allen, C.J., and King, J., dis- senting), that the prisoner's statement was improperly leceived. and that the conviction should be (]uashed. liegina V. McCaffieij, vol. 25, 3()G. — .\dmissibility of papers spoken of between parties to an agreement — When conversation admissible. See Sale 3. — Declaration of third parties — Admis- missible as part of the re* (jestu. See Tresjjass 4. — Admissibility of instructions from assignee of bill of lading to agent to deliver the bill upon payment of the draft given for the goods mentioned in the bill of lading in an action by assignee against a third party. See Bill of Lading 1. — When improperly received and after- wards withdrawn by judge, not ground for new trial. See New 'J'rial 7. have Act ;1 EVIDENCE. EVIDENCE. 99 — (,>n ground of verdict against — Rule as granting new trial. See New Trial 8. — In prosecution for as sault the defen- dant has a right to shew that assault was committed on his land in defence uf his title. See Assault 2. — Parol evidence not admissible to shew a subsequent variation in con- tracts recjuired to be in writing by Statute of Frauds. See Sale 2. — Claim of wife to separate property must be clear and satisfactory. See Married Women 1. — Rebutting — When plaintiff has been examined as to facts sought to be re- butted. See Ejectment 4. — Subscription paper shewing how the money was obtained to purchase proi)erty claimed by wife — Admission of. See Husband and Wife 1. — A certified copy of description of railway laid off by commissioners and registered may be received. See Eject- ment t. — A conviction, though defective, is admissible in action against the justice of the peace. See False Imprison- ment 1. — Acts of a person under a deed may be evidence to explain it, but declara- tions made by former owners, with a view to affect the title, are not admis- sible. See Ambiguity 1. — In a plea of not guilty in trover, where property is in i)laintiff, he need not shew a right to present possession. See Jiill of Sale 2. — Taken before commission and not objected to, may be objf'cted to on trial. See Commission 1. —That previously existing Ucenses have expired. See Canada Temperance Act ."). — Proclamation of second part of Canada Temperance Act being in force must be produced and expiry of license proved. See Canada Temperance Act 4. —Garnishee proceedings admissible in evidence under general issue. See Estoppel 2. — Declarations of company's agents made while adjusting a loss under a policy issued by the company, are ad- missible in action against the company. See Insurance (i. — Statements by administrator before assuming that character, tending to contradict his evidence, were properly received. See Insurance 7. — Contrariety of — Where there is contrariety of evidence the court will not grant a new trial, although of the opinion that the strength of the evidence was against the verdict. See New Trial 10. — \ declaration by one partner is inadmissible to prove partnership. See Partnerehip 1. — To i)rove reasonableness of claim on special agreement is admissible. See Settled Accounts 1. — Reading to jury on second trial, the former judgment improper, but not ground for new trial. See Settled Ac- counts 1. — In action for slander, to shew that plaintiff suffered loss of custom from having been charged with keeping false weights and measures, customers must be called to prove. See Slander 2. — Where there was no positive evi- dence that line of telegra))h was con- structetl by defendants, but that they were authorized to build, and did operate line when completed, jury were right in finding that they did construct it. See Trespass (1. — Asking a witness if he wrote a letter containing certain statements which were read tj him, is improper. See Settled Accounts 1. — Mere omission to disaflirming a conveyance 'ide by infant after coming of age is not rjfficient evidence to war- 100 EVIDENCE. EVIDENCE. 1, I'!. .V r rant a jury in finding a confirmation. See Infant 2. — Leave and license. See Sheriff's Sale 1. — Certificate under 37 Vic. cap. !)4 — Acts of Parliament— Necessity of shew- in"; defendant to be a sliareholder before certificate is evidence af^ainst him. See Stadacima Imnmm-e Co. v. I'aiiisford, vol. 21, 80!K — Action for false imprisonment — Arrest under warrant issued by justice of the peace — Where plaintiff puts war- rant in evidence — Whether it should be left to the jury to find whether recitals in warrant are true. See False Im- prisonment 2. — Adultery — Marriage in foreign state — Necessity of proving marriage law of such state. See Adultery. — Marriage — Presumption of. See Marriage. — Certified copy of will under sec. ir>, cap. 74, Con. Stat. — Prima facie proof of validity. See Will 10. — Cumulative— Right to rebut. See Will 10. — Right of counsel to re-examine wit- ness on matters 'irought out on cross- examination. See Ship's Husband 1. — Slander — Where words complained of applied to the plaintiff— Necessity of judge pointing same out to jury. See Slander "). — Where improperly admitted but unimportant— New trial refused. See Sale of Goods 4. — Where not objected to on trial. See .\greement 7. Written agresment — When parol evi- dence admissible. See •\greement 2-7. — Absolute bill of sale, grantor con- tinuing in possession — Fraud — (Ques- tion for jury. See Bill of Sale iJ. — Account stated. See .\ccount Stated 1. — Admissibility of declarations of members of company to shew who were the persons composing the company. See Landlord and Temvnt !{. — Canada Temperance Act — Convic- tion for sale of li(iuor — Proof of place of sale — Sufiiciency of. See Canada Temperance Act 1S7H, 1!{. — C'ircular stairway — Whether want of light at, is proof of negligence. See Municipality of St. John. — (Commission for examination of witnesses abroad — Interrogatories not returned with depositions — Whether admissible. See Practice 15. — Declarations of president of com- pany — Whether admissible to shew aji- pointment of agent. See Lisurance 51. — Accord and satisfaction — What evidence of. See .\greenient 7. — Cross-examination — Right to ex- plain on rebuttal. See Insurance 14. — Liquor brought for purpose of sale in violation of Canada Temperance .\ct — Onus of proof. See Conti'act H. — Sufficiency of — .\ction against rail- way company for killing a horse. See Railway Company 4. — Voluntary deed from husband to wife through medium of third party— Whether can support by proof of ante- nuptial agreement. See Husband and Wife 5. — Where mortgagor and mortgagee I both dead— .\llege(i payment on mort- gage— Onus of proof. See Mortgage 1. — Where fire set by sparks from rail- way company's locomotivo — Frequeiu y of fires along company's line — Fuel used on other railways. See Railway (!ompany 5. — What will constitute a case of ne- cessity in order to justify — Sale of ves- sel by master —(^)uestion for the jury. See Insurance 1(1. TTl EVIDKNC'K. KVIDENCK. 101 -Whetlier pliospliiite rock kr own to coinniercial world as "stone" — Ques- tion for the jury. See Insurance 2-14. — Whether plaintiff shftuld he allowed to state what he told the underwriters at the time of effecting the policy sued on, as to nature of Interest he was in- snrin<,'. See Insurance 14. — Where jury nii^ht tind for either party — Refusal of court to interfere with verdict. See New Trial IH. — Written agreement — Work done under — Action for— Qiimitum meruit— Where plaintiff allowed to prove case without producinj^ aj{reement — Defen- dant puttiii<{ in afireement as part of his case, denying performance —Onus of [)roof. See Assumpsit 4. — Licensed tavern-keeper — Defen- ^ such, admis- sible a<;aiust him — Purchasers of li(iuor competent witnesses to prove sellin{», vol. IS, ;Ui4. Kx parte liirmiiigliiim. —Corporation of St. John — Fillinf? in street and erecting fence — Evidence of neglif^ence should be left to jury. I'littmon V. Miijior, etr., St. John, vol. 18. — Trespass — Joint and several — (riving evidence of deparate trespasses, no abandonment of joint trespass pi'oved. (liiijnen v. Clmitmnti, vol. iH, 440. — British subject — Evidence of min- ister of congregation being. See Slan- der ('). — Entries in family Bible or record not evidence of place of birth. See Slander (i. — Declaration of master of boat at time of accident, regarding. See Car- rier 2. — Evidence received without objec- tion, judge not bound to withdraw it from jury. See Carrier 2. — Plaintiff's right to rebut case set up by defendant. See Carrier 2. — Declaration against interest. See Possession 2. — Effect of assessment on land charged by commissioners of sewers against ))arty. See Possession 2. — When sale and conveyance may be presumed. See Possession 2. — Statement of plaintiff. See Con- tract lo. — i'^xpert— Testimony of. See Con- tract 14, Evidence l'.(. — Conversations between husband and wife — Trover — Joint conversion. See Married Woman 2. — Loss of goods — Action for — Negli- gence—Onus of pi'oof— Hearsay — State- ment of master of boat regarding cause of accident — Whether admissible — Evidence admitted without objection. See Carrier 2. — Action for defect in mill machinery — Statement of plaintiff as to quality of mill when effecting insurance — Ad- missibility of — Declaration against in- terest. See Contract 14. — Ancient documents — Statement on Crown grant of sale of the land to party in possession. See Possession 2. — Parol evidence of agreement— Ac- cord and satisfaction. See Agreement 7. — Conversations between husband and wife. See Married Woman 2. — liandlord and tenant — Evidence of value of goods seised. See Landlord and Tenant it. — Eviction — What is evidence of. See Landlord and Tenan*^ 7. — Telegram — Construction of — Right of court to look at subsequent acts of party sending. See Ship 2. — Transf !r of proi)erty — Date of. Sec Judgment Creditor IH. — Verdict against weight of evidence. See New Trial. — Bank charter — When not necessary to produce. See Banking Act. 'ill 102 KXECaTOR, EXTRADITION. — Throuj^h ticket issued by ruilway company — Injury to pa8sen<{er on land- ing from intermediate ferry owned by another company. See Railway Com- pany 6. — Onus of proof — Selling and keeping liquor for sale — Identity of offence. See Summary Conviction Act 12. —Eviction — What evidence of. Seo Landlord and Tenant 7. — Order in Council — ^Statement in annual Statutes of Canada. See Can- ada Temiierance Act 2H. — Reasonable and probable cause — Order of judge annulling demand not prima facie evidence of — -Insolvent Act of 1809. See Addenda 44. Evction — Evidence of. See Landlord and Tenant 7. EXECUTOR. 1— Claim against estate— Need not be sworn to before action. By Consolidated Statutes caj). 't'i, sec. 15), it is provided that no debt shall be paid by an executor until the same be certified by afirtdavit. IJelti, that the obtaining of the affi- davit was not a condition precedent to the right to sue for the debt, and if it was, to be available as a defence it would have to be specially pleaded, ^[lll■sllllll V. Annstrouy, vol. 21, 102. See also White, App., and liiley, Resp., vol. 24, 47(;. — Debt due as such — Liable to be attached under Garnishee Act. See Garnishee Act 1. — Penalty for not proving will — Action for — Excuse. See Will 7. — Promissory note — Action of trover for, by executor — Measure of danuiges where executor maker of note. See Trover 4. — Widow without administering pass- ing note. See Promissory Note 5. EXECUTION. Priority lost by instructions to sheriff — Confession signed by one partner for himself and his co-partner with co- partner's consent — One partner acknow- ledging service of summons for himself and co-partner with latter's consent — Suninioiis filed without affidavit of service — Irregularities — Third parties cannot take advantage of, in absence of fraud -Confession signed May 2nd authorizing judgment to be signed on "the fifth day of May next"— When due. See Record v. Record, vol. 21, 277. — W'here taxation of costs takes place on different day from that appointed— Whether Kufiftcient to entitle party to. See Costs 4. — For taxes - Under St. John Assess- ment Act of 18")!) — Necessity of notice and demand. See Inhabitant 1. — Assessment partly legal and partly illegal— Whether execution issued for whole is void. See Inhabitant 1. — Issued out of .Justice's Court — En- largement of return. See False Impri- sonment a. — Taxes — Costs ^ Arrest for, under second execution. See False Imprison- ment 8. — Against husband — Levy on wife's property- No I'emoval or touching of goods— Nominal sale — Effect of. See Smitli and wife v. While, vol. 18, 448. — Duty of constable when executing warrant to search for goods before taking body. See False Imprisonment it. EXTRADITION. Treaty of Washington, 1842— Canadian Ex tradition Act, 1877— Trial of offence other than that for which prisoner was surren- dered. The 10th Article of the Treaty of Washington between Great Britain and the United States, provides for the m\ EXTRADITION. EXTRADITION. 103 delivery up to justice of persons charged with the commission of certain crimes in one of these countries, who shall be found in territories of the other ; and directs what shall be sufficient evidence of criminality to justify the issue of a warrant for the surrender of the fuf^i- tive. The Canadian Extradition Act, 40 Vic, cap. 2;'), sec. 28, enacts that when any person accused of an extradition crime is surrendered by a foreij^n state in pursuance of any arrani^ement, he shall not, until after he has been re- stored to, or had an opportunity of returning to the foreign state, be sub- ject, in contravention of any terms of the arrangement, to any prosecution in Canada for any other offence committed prior to his surrender for which lie should not, under the arrangement, be prosecuted. A person imprisoned in this province on a charge of having committed the crime of arson (an extra- ditable crime), escaped and lied to the States, and on reijuisition made to the government of that country, under the Treaty of Washington, was surrendered to tliis province, the warrant of suri'en- der stating that he was to be tried for the crime of which he was so accused. He was convicted here of the crime charged, and while he was a prisoner under that conviction was tried for the breach of prison (not an extraditable crime) committed before he escaped to the United States. Held, per Allen, C.J., Frasor and Tuck, JJ. (Wetmore, Palmer and King. JJ., dissenting), 1. That there being no provision in the Treaty of Washington on the subject, such trial was not " in contravention of any terms of the arrangement" for the surrender of fugitives between Great Britain and the United States. 2. That the warrant stating that the fugitive was surrendered to be tried for the crime of which he was accused. was the act of the United States authori- ties only, and not an " arrangement " within the Canadian Extradition Act of 1877, and therefore that the trial for prison breach was sustainable. Per Wetmore, Palmer and King, JJ.' that the trial of the prisoner for breach of prison was in contravention of the fair construction of the Treaty of Washington, as it had always been claimed by Great Britain ; and was also contrary to the express terms of the warrant on which the fugitive had been surrendered, liegina v. H'adde//, vol. 25, 93. Extraditable offence under. Murder being an extraditable offence under Treaty of Washington, 1842, the courts of this country will take notice that it is a crime punishable in United States. See Slander 7. Executory Contract— Goods not specified. See Property, passing of. Experts — Opinion involving truth of what other witnesses had sworn to. See Evidence 8 — Evidence of. Contract 14. See Evidence 19, i — Comparison of handwriting by I See Handwriting. ' — As to reason of ships course. See Insurance 17. Exporting — What constitutes under Statute Canada, 87 Vic. cap. 45. See Statute of Canada 1. Extra work— Where written contract provided that if extra work were desired the value should be agreed upon and indorsed in the contract, and this is not done, plaintiff cannot recover it. See Contract 3. — Unauthorised extras — Kefusal to deliver goods without payment for. See Contract 16. It'. A 104 ill' :8!- i{ si'' ii FALSR IMPRtSONMENT. FALSE IMPRISONMENT. 1— Action for— Justice ol the Peace — Con- viction—Where defective— Notice of action —Constable. A jtistice liiiviiif^ issuod a warrant to a coiiHtable directiiif; him to a levy on plaintiffs floods, and for want of goods to take the body, and the latter liaving illegally arrested plaintiff without searching for goods, plaintiff applied to a judge for his discharge, and the justice appeared before the judge and opposed tne application. Ilild, that he thereby adopted the act of the constable in arresting plain- tiff, and that the arrest and imprison- ment was in law their joint act, and a notice so alleging it was sufficient. In order to entitle a constable to have a demand made on him for a copy of a warrant under cap. 130, Revised Statutes, he must shew that he acted in obedience to the warrant. It is the duty of a constable having a warrant directing him to seise goods and for want of them to take the body, to make a reasonable effort to find goods before making arrest. A conviction thougli defective is ad- missible in evidence in an action against the justice in order to repel any in- ference of malice and want of probable cause, and also to entitle him to the benefit of the section of the statute in reference to the twopence damages. Qttcere — Where the provisions of the statute restricting damage to twopence in actions against justices will apply to a case where the justice has gone beyond his judicial duty. McGHvery v. Gault, vol. 19, 217. 2— Justice of the Peace— Recitals in warrant —Proof of conviction. In an action for false imprisonment against a justice of the peace, the de- F.\LSE IMl'UISONMENT. claration charged that he acted witliDtn jurisdiction, and also maliciously and without reasonable and probable cause — plea justifying the imprisonment under a conviction under the Act, 3'2 A ;J3 Vic. cap. 22, for maliciously destroy- ing trees— the plaintiff put in evidence the warrant under which he was ar- rested, reciting tiuit he had been con- victed before the defendant of malici- ously destroying trees as stated in the plea, and was adjudged to be impri- soned for twenty days, and he proved his imprisoinnent under the warrant, and that he had been discharged on haben^ corpus ; but the reason for the discharge was not shewn. The defendant called no evidence. Held, pet Weldon, J., that the ulaintiff by putting in the warrant in evidence did not relieve the defendant from the necessity of proving the conviction. Per Palmer and King, JJ., that though the recital in the warrant was prima facie evidence of a conviction, it should have been left to the jury to find under all the circumstances whether the recital was true. Per Allen, C.J., and Wetmore, J., 1. That the recital being evidence for the defendant of a conviction, the plaintiff was bound to prove either that there was no such conviction, or that it was in a matter beyond the justice's jurisdiction; and 2. There being no evidence throw- ing doubt upon the recital in the war- rant, it should have been left to the jury to find whether it was true or false. JVard v. Outhouse, vol. 22, 220. 3— Execution— Omission of name of parish —Imprisonment for lesser number of days than justice might award— Enlargement of return— Search for goods and chattels In an action for false imprisonment brought against a constable for arrest- ing upon an execution in form K, issued out of a justice's court ; i'Jt FALSE IMPRISONMKNT. FALSK nil'ItlSONMKNT. 105 //<•/(/, 1. That us the iiainin^ of the I 1 1 fid, also tliat tlic phiiiitiff could county appeared in the execution, the i recover, on a count for money had and nuiiHsion of the name of the parish was received, the money taken by tliis dc- iiot a substantial deviation from t]\e | fendant from the plaintiff's wife, there liroscribed form. 2. That a debtor cannot complain that the execution directed him to be impri- soned for a lesser number of days than the justice mi^ht have awarded. ;j. That the date of the enlarf^ement of the return of an execution need not appear on the execution, but may be .shown bv oral evidence. bein^ no evidence thiit it was the iden- tical money which the plaintiff had taken from the bank ; and that it was no answer to the action thiit the defen- dant had paid the money over to the bank before he was sued. The plaintiff on cross-examination refused to state whether he was teller of tlie bank at the time he left New York ; and also refused to state on what 1. That if a debtor states that he has ground he refused to answer the (jues- 110 property wherewith to satisfy an tjon. e.xecution, the constable is justified in arrestinf; him without searchiuf^ for floods and chattels. Marks v. Xewcomhe, vol. 22, 41!). 4— Witness refusing to answer questions tending to criminate— Husband and wife —Privileged communication— Statute of Canada, 32 & 33 Vic, cap. 21— Arrest under— Damages. Plaintiff, a teller in a bank in New York, absconded with funds of the baiiK and came to this province. He was airested here without warrant by a police officer of Halifax, N. S., upon ! information obtained by a telegram ' from New York ; and while he was in prison the officer demanded and ob- tained from his wife money in her nnssession, telling her that it belonged v ohe bank, end that her husband was ^ . f'uatody. Held, in an action for false impri- sonment, tliat the defendant had no leasonabla ground for believing that the plaintiff had committed a felony, and was thei'efore not justified in arresting him ; and per Weldon and Fisher, JJ. (Wetmore, J., dissenting), that evidence of the forcible manner in which the defendant entered the wife's room to demand the money was admissible. //('/(/, per Weldon and Fisher, .1.1. (Wetmore, .7., dissenting), that he was not bound in order to claim the privi- lege to state his belief that his answer- ing the question wnidd tend to criminate him. A statement made to a wife by her husband, who was travelling under an assumed name, as to his reasons for doing so, is a privileged communication ; and she is not bound to answer it in an action brought by her husband wherein the tact of the commission of a crime is involved. Kllis v. Power, vol. 20, 40. Appeal allowed to Supreme Court of Canada. See Addenda No. 7. 5— Justification under attacliment for non- payment of costs on review from justice's court— What tlie plea should allege. In an action for false imprisonment defendant justiiied under an attachment granted by a county court judge for non- payment of costs in a case on review from a justice's court, but the plea did not set forth tiie suit in the justice's court, nor the making of the afltidavit necessary to give the judge jurisdiction to hear the cause. Held, bad on demurrer. Outhouse, vol. 20, 113. Tower v. ion I'ALSK IMl'KISONMENT. FALSE IMPRISONMENT. . i j: ■■ b 1 6— Suit against justice of the peace— Notice of action— Whetlier plaintiff can state he suffered in mind — Provision as to two cents damages— Evidence— Hearsay. A notice of action against a magis- trate for false imprisonment alleged both tliat tlie defendant did the acts comphiined of maliciously and without any reasonable and probable cause, and also that he acted without jurisdiction. Uild, that although the action in- cluded two grounds of action, proof of either one or the other would be suf- ficient, provided there was a count in the declaration to which such proof would be applicable. In an action for false imprisonment the plaintiff may be asked if he suffered in mind from the imprisonment. Held, that where the arrest and im- prisonment complained of tcok place before the trial and conviction of the plaintiff, the provisions nf sec. 11 of Con. Stat, cap 90, as to a plaintiff beinj; only entitled to recover two cents damages in an action against a justice of the peace, do not apply. //('/(/, that the following question put to the defendant on cross-examination, "Did you hear any one of these parties say Clark (the plaintiff) was a villain and rascal," was properly rejected. Qiiwrc, whether case will lie against a justice for extortion in exacting illegal fees. Ruhimon v. Topley, vol. '20, 8('>1. 7— Amendment at triai — Where proposed Amendment would mal(e count demurrable — Slander— Publication — Attachment of property— Con. Stat. cap. 38, and Act 43 Vic. cap 9. On the trial of an action in which the declaration contained a count for assault and false imprisonment, the plaintiff put in evidence the capias under which he had been arrested at the suit of the defendant, and the affi- davit of debt upon which the capiax issued, and proposed to prove that lie was not indebted to the defendant in the amount sworn to in the affidavit ; but the evidence was rejected. Plaintiffs' counsel then applied for leave to ameinl his declaration by adding a count f(ir malicious arrest, stating that the pre- sent defendant had commenced an action against the plaintiff, and made an affidavit that the plaintiff was in- debted to him in the sum of ftHHOH for goods sold and delivered, etc. ; and that the arrest was not made for the purpose of vexing or harrassing the plaintiff; that the capUm was endorsed for tlie said sum of ^HHOH, and was delivered to the sheriff to be executed ; and that the defendant caused the plaintiff ti> be arrested by virtue thereof, averring' that the said simi of money was not due from the plaintiff to the defendant at the time of making the affidavit of debt uml of the arrest; and that such affidavit was falsely and maliciously made liy the defendant for the purpose of vexini; and harrassing the plaintiff, and by reason thereof the defendant wron^;- fully and fraudulently caused the copiax to be issued, and the plaintiff to be illegally arrested and imprisoned. This application was resisted by the defendant on the ground that the pro- posed count was demurrable because it did not state that the action in which the capidx had issued was terminated ; and also that the defendant would be prejudiced by the amendment, as it would introduce a new cause of action, which he was not prepared to answer ; and that he required time to determine what he should plead, An affidavit of the defendant's attorney was prodiieeil supporting these objections. The amend- ment was refused. Held, that it was properly refused. An action of slander will not lie for words spoken to the plaintiff, unless in the hearing of the third party. ^m FALSE PLEAS. A commissioner has power under the Com. Stat. cap. HH, and the Act, 43 Vic. cap. i<, to order property discUjsed on examination to he sold. (lallant v, Cnldei; vol. 2:5, 7H. 8— Taxes— Costs of execution— Arresl for, under second execution. An execution having issued against the plaintiff for non-payment of taxes, he paid the amount of the tax to the receiver under the Act, 21 V'ic. cap 29, but refused to pay the costs of the execution. A second execution was iifterwards issued for the costs, under which the plaintiff was arrested. Ih'ld (Weldon, J., dissenting), that the first execution was not satisfied till the costs were paid, and the second execution was legal. Alininl v. Maijor, fU-., of St. John, vol. 23, 317. — Action for — Admission of improper evidence. See JCvideuce 1. — Action against corporation and receiver of taxes of St. John for. See .\rrest .5. — C/hamherlain of St. John and cor- poration not liahle for, while acting as the law directs. See Assessment 3. — Execution from Justice's Court — Judgment reversed on iwiew — Measure of damages. See Damages 2. KKME SOLE. FALSE PRETENCE. 107 FALSE PLEAS. 1— Setting aside— Judge wife to wife of party. Relationsliip of lu order to justify the setting aside of the plea under sec. 88 of the Con. Stat, cap. 37, as a general rule it should be a plea which is false to the knowledge of the defendant. It is no legal disijualification to a judge taking part in a cause that his wife is the niece of the wife of one of the parties to the cause. Uarvis v. Foicle, vol. 22, 388. Obtaining property l)y— What neces- sary to complete the offence. See Criminal Law. FALSE RETURN. By snentl— Nul'a bona. When lie held goods of party under writ of attachment. See Attachment ">. FALSE SWEARING. Must tje wilful to constitute breach of condition in insurance policy that it should become voifl upon false swear- ing. See Insurance ii. FALSE WEIGHTS AND MEASURES. Action for charging plaintiff with use of. See Slander 2. FAVOR. Challenge for— Whal allegations it must contain, and when used. See Challenge 2. FEE. Necessity of word "heirs," to convey, h-'ee Deed a. FEES. See Witness Fees. — Extortion of illegal fees by justice. See False Imprisonment 0. — In election court. See Court 8. — Under Con. Stat., cap. 38. See Court I». FEME COVERT. Replevin lK)nd executed by, with hus- band and another as sureties. See Keplevin 5. FEME SOLE. Action by—Marriage pending suit. See Conntv Court .'5. ipp lOH I'lSIIKUIKS ACT. riSIIKUIKS ACT. > nil ppn HlLiiii FENCES. Act iJH \ir. fitp. t;» -WIrtc feiiceK luicl been erectuil l)y railwuy coinjiaiiy — Action af^ainst company for killing a liorse. See Hiiihvay Conipaiiy I. FERRY BUAT. Effect of re,!,'istnition — Wlieii' bill of sale previously jjiven. See Hoj^istration of Vessel 1. -ActH sbewinji invitation to land— Not^lif^ence. Sei' Xef^liKencx' 1. FIRE. Set by sparks from locomotive— Coal or wood — Whether railway company bound to burn coal, beinfj less dangerous. See Railway Company 5. FISHERIES ACT. 1— Regulation and protection of Fisheries- Provincial right -Granted land-Grantee's right in bed of rivers. The general power of )egulating and l)rotecting the iisheries in this province is in the Parliament of Canada, but a license by the Minister of Marine and Fisheries to fish in fresh water rivers, which are not the property of the Dominion, or in which the soil is not in the Dominion, is illegal. Where the lands on fresh water rivers have been granted, the exclusive right of fishing is in the riparian owner, and where they have not been granted (with the exception of land owned by the Dominion), the right is in the Crown for the people of New Brunswick. The right of fishing does not depend upon the ownership of the bed of the river, but of the bank ; it depends upon the lateral and not the vertical contract of the water of the river. The title to the bed and waters of the North-west Miramichi, where it runs through lands granted to the Nova Scotia and New IJrunswick Lai.d Cnmpany, is in tlmt company, with thu exception of tlii'sc places where the lands on the river liml been previously granted. Sti'iuliiKiii v, llohfit.iiiii. vol. 18, ".SO. 2— Regulation— Riparian owner— Right of fishing— Fishery officer— Not protected by cap. 89, Con. Stat.— Notice of action -Not entitled to. The'rogulation, '• Fishing for salmon in the Dominion of ('aiuvda, exciiit under the authority of leases or licensee from tiie Department of Marine luiil I Fisheries, is hereby prohibited ;" I Ihlil, not authori/od by section 111 (if "The Fisheries Act," so far as it Tni};ht extend to riparian proprietors on uon tidal rivers. A person in possession of land bor- dering on a non-tidal river, as a tenant at will of the owner, is entitled to be treated as a riparian owner, so far as regards the rii>ht of fishing. A fishery olTficer who wrongfully pre- vented a riparian owner from exercising; his right of fishing, was not protected by cap. 8U, Con. Ktat., n(n' entitled to notice of action under cap, ',(0. I'liair V. Venning, vol. 22, 302- 3 — The provisions of sec. it, sub-sec. 7, of the Fisheries Act, 31 Vic. cap. (JO, iln not apply to riparian owners in this province whose titles were accjuired prior to July 1st, 18(57. Delany v. Mc- Donald, vol. 23, 13',». 4— Dominion Fisheries Act, 31 Vic. cap. 60 Interference with private rights —Harbour of St. John— British North America Act, 1867, sees. 91 and 92. Though the charter of the City of St. John grants the right of fishery in the harbour of the corporation for the I benefit of the inhabitants, the Dominion I Parliament has the right under the I British North America Act, 1867, sec. yi, to regulate the times and manners »•"!" jvn rOllMKIl RKCOVEllY. of seltiiifj; nets. H.v juti-t<' Wihitii, vol. •.>-|, 'im. — When officei'H may si-ize on view— MiiteriiilH unlawfully in uhc. Ki'c On View. FLOWAGE. Mill i)rivile<,'f — Ki^lit of. See Kase- ment 1. FORECLOSURE. See ^loit^age. FOREIGN COMPANY. See Company. FOREIGN JUDGMENT. Action at^ainst company. Heo Plead - mH 8. FOREIGN SAILORS. (!onviction for liarbourin;^ -Consent j eonimon cfumts for goods sold and dc- • livered, and work and labor, etc. The amotmt of tlie jjromissory note was not recoverable under the declaration in the former action, nor bad the then plaintiff's (the ))resent defendants) at- tempted to prove the jjromissory note as jjart of their dennmd in that action. ///■/(/. that by the j'eeovery in the former action the defenih nts were not )irechided from setting r.p ,he ))romis- sory note in this action. Uillrr v. Uokk, vol. '2a, -IHil. I 2— Advances made to testator— Part of claim barred by Statute of Limitations— Second action for sums disallowed— Alleging agreement to devise form in payment for advances— Res Judicata— Agreement verbal— Whether action would I lie on— Statute of Frauds. riaintiff sued in iuilftiitntiis usintiiiiisit for nuiney and goods supplied to the defendant's testator at different times between the years IHtiO and 1H77 ; but under the judge's direction to the jury 1 recovered only the items proved to have been delivered since 1H71 — being six years before the testator's death. He i afterwards bi'ought an action to recover for the moneys, etc., disallowed on the former trial, declaring on a special ! agreement of the testator to pay at his I death. j j lleh}, that the nnxtter was res jiidicatit. ! And even though the plaintiff's right of action on the agreement might not have accrued till the testator's death, the ; former judgment was a bar to his now recovering for the sums then disallowed. The declaration stated that the defen- dant's testator agreed that if the plaintiff would supply him from time to time during his life with money and goods, and would labour for him on his (testator's) farm, the ))laintiff should be paid there- for at the testator's death, and that the testator would devise to the ))laintiff I . i i ■ ;'-'^i r 110 KRAUI). I'UKKUir, Mi tliu toutiitor'H furin in iiayinoiit for Huch , money, etc. Averinunt that tlio plaintiff, in con- 1 Ki(l«ration of hucIi aurceniunt, du\ ad- i vanco to tilt! testator money a* • ;{oo(Ih, and did iiurform labour for him at IiIh rei|uc>Hl, hilt that ho had not paid the plaintiff therefor, nor devised the farm to him, hut had deviHed it to A. The plaintiff wan the teatator's hoii, and the aj^reeinoiit stated in the declaration was verbal, and, as pro veil, was to pay the plaintiff with the farm. Ill Id, per Allen, (!.J., that uo action would lie on the allo;ied afireement ; 1st, beuause it showed that the testator never intended to incur any jjcrsonal liability to the plaintiff; and 'Jnd, he- cause it related to an interest in land, which, under the Statute of l''raudH, could not be enforced. Friary . U'ilmot, vol. 2u, '>n;. FORMER SUIT. Way to prove. See Kvidence (1. FOREIGN ADMINISTRATION. Home administration — Ki^hts of each to assets artministereil uj)on. See Husband and Wife iJ. FOREIGN CORPORATION. Marine insurance a<^ent — Proof of af^ency. See Insurance 14. — Policy — Countersi^jnin^; by as,'ent — Waiver. See Insurance 1"). FOREIGN MARRIAGE. Adultery. See Adultery. — Foreign parties to suit, subject I matter in this province. See Ecpiity FRAUD. Where question was fairly left to the j jury, the court refused to disturb the ! verdict. See Evidence 2. I — The issue of, bein>{ fairly and pro. I)erly left to the jury— New trial re- fused. See New Trial 8. — Hill of sale .Absolute — (Jrantnr contimiin^ in possession -- Evidenc/c. See IJill of Sale :J. — Voluntary conveyance — Ilonestv of transaction. See Deed 1. FRAUDULENT MISREPRESENTATIONS. Written contract. See Contract (i. When roiirt hound to deterniiiic fact of. See •lu(l}{meiit -1. — Hi^ht of judgment creditor to dis- pute confession of judfjment. See .Lid^- ment 4. FRAUDULENT PREFERENCES. See liills of Sale Act 2. — Trust deed for benefit of creditors. See Deed 2-3-4. FRAUDS. Statute of. See Statute of Frauds. — Af^reemcnt to devise form. See Former Recovery 2. — C!on tract for sale of goods— Offer by letter to sell — Acceptance. See Con- tract 17. — Voidable contract — Recovery under common counts. See Contract 12. FREDERICTON. Power of city council to impose toUii m market. See Market. FREIGHT. Implied contract to pay when party takes possession of floods. See Assump- sit 2. -As subject matter of insurance - What contract of insurance means. See Insurance 1(). —Insurance on — Whether within prior insurance clause in policy. See Insurance 14. ^^ (lAllNIHllKK ACT. OOODS H()IJ> AND i)KLIVi:ilKn. Ill f - IntereHt— liOHH luid adjiiHlmc'iit I'liinf i)f — NeceHsity fi)r. See limiinmcL- HI. I'olicy 1)11 Wlu'H' ciii'f^o fnrwiinlt'd ti' ilcHtiiiiitinii by iiiiol licr M'shcI iit sumo iiitc uf fri'iylil — Wln'tlii-r totiil \iihh. StI' lllHIIl'llllCC U't. Wliftlier owimr of vchhcI in priiiKi jiifif (>iititli)(l t". See Inwiiniiiee HI. Ittiilway eoiiiiiiiiiy oiiIn' entitled to iciisoniilih' conipenHiition in the iiliseiu'e (if II nite of ffeij^lit estiihliHJietl iieconl- iiii^ to Htiitute. See Ihiilwiiy (!onii)aiiy H. IjOcs of, by vcHHel heinj^ frozen in — Wlu tlier jK^ril inniireil uj^ainKt. Sec In- suiunee is. FUTURE ADVANCES. Kill of Hale f^iven to rover— Not iic- fi'pted, rests in aHnif^nee of virantor. See HillHof Sale Act 1. GARNISHEE ACT. 1— Con. Slat. cap. 43— Debt due executor as such— Liable to be attached. //('/(/ by Allen, C'.J., W'etinore and Palmer, JJ., (Woldon and Duff, JJ., (Iisseiitinf») that a debt due to the pri- mary debtor, as executor, is liable to be attached under the Garnishee Act, Con. Stat. cap. 4H, at the suit of a creditor who has obtained jud>jinent a<{ainst the executor in his representative character. Scmble, that the Act would apply whether the claim of the primary credi- tor were a jud^^ment or not. Jinicx v. McMillan, vol. li», ;}7H. 2 -Attaching order- -Setting aside— Where proceedings vexatious. Where the first having been set aside the plaintiff obtained a second attach- iiifj order under the Garnishee Act, Con. Stat. cap. 43, under circumstances which led the judge hearing the matter to believe the proceedings were vexatious and unwarranti'd. the court refuHtd to disturb his oiilcr setting aHide such last nu'ntioned attaching order. Sfntl v. .MrK.fr.ir. \i>\. lit, I7(t. 3 --Insolvent Act of 1878. WluTi' writ of atlarlinicnt in insol- vency is issui'd u^jainht priinui'y dohtor— I 'I'o whom garniHhi'f shall pay I'rinniry j creditor entitled to the debt to amount of his claim as iigainst assignee of insol- vent. Sei' lldirimiii \. .litdii, Mil. '20, '.ill. I 4- -Garnishee process- Act •!•") Vic. cH|i. 17, applicable to existing judgments, applies to judg- ments recovered as well before as after the passing of the .\ct, i:v jiarlr Fairirtl, vol. '24. 2'2H. GAZETTE. Containing proclamation of second part of (,'anada Temperance Act being in force, must be put in evidence. See (Canada Temperance Act 4. GENERAL ISSUE. Garnishee proceedings may be given in evidence under. See Estopjiel 2. GENERAL OBJECTIONS. To admission of evidence- Does not entitle party on motion for new trial to claim that evidence was improperly received. See I .vidence 4. GOODS NOT SPECIFIED. What constitutes passing of property in. See Property, Passing of 2. GOODS SOLO AND DELIVERED. Action for — Waiver of tjrt. See Conversion 1. — Subject to reduction in price — Agreement. See Agreement H. w llii HABKAS CORPUS. — To wlioin credit >^iven— See Kvi- (leiice 20. GRANT. See Crown Grant. GRANTEE. Xluder registered deed haviufi notice i)f prior uure<;istered deed— Legal title lint affected. See Trespass iJ. GROUNDS OF ACTION. Wliere notice of action ajzainst a jns- tice of the peace contains more than one gionnd of action, it will hesuflicient if one of them be ))roved, if declaration contains a count to which such proof is applicable. See False Imprisonment (1. GUARANTEE. On whose credit floods are sold- Question for jury. See Sale i. GUARDIAN. In socage — Infant ui.der fourteen years of age — Who entitled to maintain action of trespass to property of infant. See Infant 1. HABEAS CORPUS. 1— Returnable forthwith— Prisoners brought in once— Whether orders to bring in again can be made without issuing new writs. Writs of liabeax ctn'inis were nnide returnable forthwith. The i)risoners were brought into court on Tuesday, and the matter .lirected to be argued on the foUowiii',' Saturday. The same day the sheriff took the prisoners back to the gaol from which he had brought tii'jm. The writs and returns hatl been tiled the day the prisoners were brought in, and by order of a judge taken off file again and returned to the sheriff. n,;I— By-law requiring hackmen to take out license valid— That hackmen have license from city council of St. John makes no dif- ference — Conviction fur offence against bv-law held valid. Kx imrte I.i'inctn, vol, 20, r)()3. HANDWRITING. — I'roof of comparison. See Insu- i'ani<> (5. — Comparison by expert. Hee Evi- dence 17. HARBOUR. St. .John — Power of corpoi-ation to erect wharves. See Easement '2. HEARSAY. .Vttidavit consisting of, not good. Kee Aftidavits ■!. When surveyor stated that he mea- sured certain distances from a post pointed out to him by B., and ran his course from that, and tested his line from .our points given him by B., and found it correct, the evidence was im- properly received. See Evidence H, HEIRS. A deed without the] word " heirs" will only conyey a life estate. See Deed 2. 8.D. Kindred 1. HIDES. Insjiection of. compulsory. See In- spection of, I, HIGHWAY. i— Obstruction of— Right of action— Particu- lar damage. 'I'liere is a distinction between the mere I'ight to use a liigliway and the attempt to use it, as giving a riglit of action i)i the one case, and not in the other ; and where a liighway was ob- ' structod by defendant, and plaintiff liearing of tlie obstruction went to at- i tend to his business by another rf nite ! and was tliereby put to expense, but did ! not actually attempt to go upon the i road ; i //('/(/, that therti was no obstruction I to the fxerrise of the plaintiffs right of I way, and that he had no right of action, I the only remedy being by indictment. I liitrtiiii V. Doiiiiliirtij, vol. I'.t, fA. \ HIGHWAY ACT. 1— Alteration of road extending into two parislies — Damages awarded in both parishes— Power of county council to vary. On an application under the Highway Act, Con. Stat. cap. »)8, for tiu; altera- tion of a road running through the parishes of S. and W. the jury found the alteration to be necessary, and assessed the damages caused thereby to 8 ff- 114 HUSBAND AND WIFE. HUSBAND AND WIFE. V > r an owner of land in \V. at |1'20, and to an owner of land in S. at $80. The county council on the application of one of the commissioners of high- ways for the parish of S. ordered an assessment upon each of the parishes for an equal amount. Held, 1. That the application to the council should have heen made by a majority of the commissioners in each parish. 2. That the council had no authority to vary the amounts awarded by the jury in each parish, and to direct assess- ments upon such parishes for equal amounts. Per Wetmore, J. That the order for assessment should be made by the coun- cil at the meeting when the award of damages was laid before them. K.v parte Parlee, vol. 25, 51. — Certiorari to remove proceedings in — Delay in applying for. See Certiorari, 11. HIRING. Verbal promise — Whether primary or collateral. See Statute of Frauds 2. HUSBAND AND WIFE. 1— Property bought by or for wife— Where part of purchase money belonged to hus- band—Liability for his debts— Evidence- Damages. In an action brought in a county court for the alleged wrongful seizure of a cow claimed to belong to the female plaintiff, seized under an execution against her husband, a subscription list on which money was raised to buy the cow for the wife was held to have been properly received in evidence. The value of the cow was put by the l)lalntiff at $30, and the jury gave a verdict for $80. JIfId, on appeal, that while the damages were so excessive under the circumstances as to have justified the county court judge in granting a new trial, it was not usual for a court of ap- peal to interfei'e with a verdict on the ground of excessive damages, and the court was not prepared to say the judg- ment in tliis case should be interfered with. Held, also, that where part of tlie purchase money belonged to the hus- band, if the pi'operty was bought by, or for the wife, it vested in her. Jiell v. Wetmore et al, vol. 1!), 534. 2— Acllon by— Where wife's interest not sel out— Proper remedy — Pleading — County court— Cause tried without jury— Effect oi adjudication. In an action in the county court by a husband and wife the first count set out a promissory note in favour of tlie female plaintiff. There were also the common counts, including an amount stated, but it did not allege that it was stated with the female plaintiff. Tlie note not being stamped plaintiffs failed in the first count, but offered the note as evidence of the amount stated and obtained a verdict. The cause was tried without a jury. The judge afterwards ordered a new trial, upon the ground that the declaration did not sufficiently disclose the wife's interest in the amount stated ; Held, on appeal, that the defect being apparent on the face of the declaration, the defendant's proper remedy was by demurrer, or motion on arrest of jud^;- ment, and that there was no ground fur a new trial. //('/(?, also by Palmer, -T., that whi'n a cause is tried by a county court jtid^je without a jury, his adjudication is thud so far as the court below is concerned, and he has no power in such case to order a new trial. Kxtobrook.^ v. /-.((('• vol. 20, 510. HUSBAND AND WIFE. ILLEGAL CONTRACT. 115 3— Chose in action— Assignment by husband and wife — Administration in different countries. A maiTied woman being entitled to a share of money in England, joined with lier husband in a power of attorney to the defendant, an attorney-at-law, au- thorizing him to collect it. They after- wards assigned their interest in the money to A., but before it was collected the wife died and administration on her estate was granted in England to N. as attorney for the husband, and for his use and benefit. N. collected the money and sent it to B. in this province, who paid it to A. by direction of the hus- band. There was some evidence to connect the defendant with the receipt of the money by B. The husband after- wards died, and administration of the estate of his deceased wife was granted in this province to the plaintiff, who brought this action for the money re- ceived from England. Held, (!) that the right to the money in England, being a chose in action, the assignment to A, did not vest the pro- perty in him, but merely transferred to liim any right the husband had. (2) That N., having collected the money as administrator of the wife, it belonged to him as such administrator, and the defendant receiving it was only liable to account to N., and was not liable for it to the personal repre- sentative of the wife in this province. When administrators are granted in iliffei'ent countries, each portion of the estate must be administered in the country in which possession of it is taken and held under lawful authority ; luid the administrator under a foreign Unint has a right to hold the assets re- ceived under it against tlie lionio admin- istrator even after they have been re- mitted to the country of the domicil of tlio deceased. Ihirxdy v. Council, vol. '12. rm. 4— Action by for injuries to wife— Loss of wife's services— Prospective damages. In an action by husband and wife for injuries to the wife, the husband may recover damages not only for the loss of Ilia wife's services previous to the com- mencement of the action, but also pros- pective damages resulting from her injury. Fox and wife v. The Mayor, cf-r. of St. John, vol. '2ii, 244. 5 — Voluntary deed from husband to wife through medium of third party — Whether can support by proof of pa- rol ante-nuptial agreement — Subse- quent conveyance avoiding — Hus- band's interest in real estate of wife — Sale of. See Doe deni Chambers v. Ikmtjlax, vol. 2.3, 484. 6— Assault by husband on wife. An assault is none the less a breach of the peace because it is committed by the husband upon the person of his own wife, and the wife is a competent per- aon to make the complaint. Ex part* Abel et al, vol. 18, 600. — Privileged communications. See False Imprisonment 4. — Replevin bond executed by wife, with husband and another as sureties. See Replevin 5. — Slander— Action for words of wife. See Evidence 7. — Liability of husband for taxes on wife's property. Assessment Act of the City of St. John. See Inhabitant 1. — Conversations between husband and wife — I'^vidence. See Married Woman 2. — Separate pro))eity of married women. Se.' JIarried Woman. — Non-abatement of suit by marriage. See County Court it. ILLEGAL CONTRACT. liiijuor bought for the purpose of sale I 116 INCORPORATION. ii vm 1 1 I'il 1' ,1 1)' ' 1 i \\ 1 1 1 11 i in violation of Canada Temperance Act — Onus of proof. See Contract 8. — liuilding Contract by-law of St. John. See Addenda 32. ILLEGITIMATE CHILD. Action for Upper Mills. support of, Town See Overseer of Poor. of IMPERIAL ACTS. Bankruptcy Act, 12 & liJ Vic. cap. lOti, does not extend to this Province so far as relates to the rules of pleading and evidence. See Bankruptcy 1. IMPOUNDING. A person is not liable under the Con. Ktat. cap. 110, sec. 14, for setting at large a cow from pound, unless the the impounding was by an authorized olttcer. The Queen v. Close, vol. 19, 502. IMPRISONMENT. For lesser number of days than jus- tice might award— Justice's Court. See False Imprisonment 3. —Fines imposed for offences against the Canada Temperance Act, 1878 — Default of goods— What term allowed. See Canada Temperance Act 10. — Taxes — Cost of execution — Arrest for, under second execution. See False Imprisonment 8. INCOME. Dominion oflicials — Whether subject to taxation for municipal purposes. See Dominion Oflicials 1. INCORPORATION. Under the Canada Joint Stock Com- panies Act, 1877 — Necessity of alleging incorporation in declaration. See Joint Stock Companies Act 1. Foreign judgment against company — Stating incoriwration. See Pleading 8. INDICTMENT. Indemnity -- Promise to indemnify sheriff — Recovery by sheriff on. See Sheriff 2. Indian Act of 1880— Selling liquor to Indian — Conviction for. See Summary Convictions Act 11. INDICTMENT (See Criminal Law). 1 — For murder — In short form— Whether prisoner can be convicted of assault under. Held, by Weldon, Wetmore and King, JJ. (Allan, C.J., and Duff, J., dissent- ing), that on an indictment for murder in the short form given in Schedule A, to cap. 1!) of 32 & 33 Vic. a prisoner cannot be convicted of an assault under sec 51 of that chapter, Held, also, by all the Judges, that the fact of the prisoner's counsel having at the trial contended that he could be so convicted, and requested the Judge so to direct the jury, did not preclude him from afterwards objecting to the validity of the conviction on this ground. The Queen v. Mulholland vol. 20, 512. — Charging an assault and with hav- ing beaten, wounded and ill-ti-eated a person — Where no wovmding — Whether properly convicted of a common assault. See Criminal Law 7. 2— Joinder of offences— Riot and assault. Revised Statutes cap. 147. Counts for riot and unlawful assem- bly under the Rev. Stat., Title xxxi.x. cap. 147, Consol. Stat. p. 1084, bein^; misdemeanours, may be joined in an indictment with a count for assault. lieijinav. Lon;/ et til, vol 24, 208. — Stating value in, in an action for taking with intent to defraud not neces- sary. See Intent to Defraud 1. — Joint — Where jury disagree as to guilt of one prisoner, and find the other INFANT. INFOnMATION, 117 ^'iiilty — Conviction. Hee Criminal Law 8. — Misjoinder of counts. See Criminal Law "). INDORSEE OF BILL OF EXCHANGE. Action by, whei (.■ payee became insol- vent before indorsement — Whether notice to, is necessary. Hee Bill of Ex- change 1. INDORSEMENT. On lire insurance policy that loss should be paid to A. B. is not a contract by the company to pay A. B. See Insurance 7. — Of promissory note before delivery renders indorsee I'able as maker. See Promissory Note 2. INFANT. 1— Under fourteen years of a()e— Guardian in socage— Wlio entitled to maintain action of trespass to property of infant. Whether an infant under foui'teen years of age, and her mother living, can maintain an action for trespass to land, or whether the mother as guardian in socage is not alone entitled to sue. Such a question cannot be raised under the pleas of not guilty, and that the land was not the plaintiff's, but the defendant's should traverse the plaintiffs possession of the land. linwcr v. Ilreiirr, vol. 22, 4.'")0. 2— Convcyan'je of land by— Confirmation after coming of age— Evidence. A conveyance of land by an infant is voidable only, and may be avoided by him after coming of age. Mere omission to disaffirm such a deed is not sutficient evidence to warrant a jury in finding a confirmation. Doe dem Seeby v. Charlton, vol. 21, 115). — Fraud — In a court of equity an infant stands in no different position from a person of full age in relation to matters of fraud. See Estoppel 15. 3— Infant— Right of father to custody of. A father being in poor circumstances left his infant daughter then aged seven years with her uncle and aunt, upmi the understanding that she should be consi- dered as their child, and that they should support and educate her as such. She remained with her uncle and aunt until she was nearly fifteen years of age, and was educated by them, became much attached to them and was unwil- ling to leave them — her father contribu- ting nothing toward her support, nor intcrfe.l. „ with her in any way during that time. Held, per Allen, C.J., Wetmore, King and Tuck, J.T. (Palmer and P'raser, JJ., dissenting), on an application by the father for a habeas corpus to obtain tlic possession of the child. That he had the legal right to resume the custody of her, there being no imputation against her father's character, or that she would not be properly cared for in his house. In re Eva Coram, vol. 25, 404. INFORMATION. If an Act re. — Wife competent to make complaint against husband for breach of the peace. — Duty of justice to examine as to substantiation of. iiee Summary Con- viction Act 9. 118 INHABITANT. INJUNCTION. il.: i INHABITANT. 1— Of City of St. John— What constitutes for purposes of taxation —Wife's Separate property— How far husband liable for taxes on— Notice and demand— Necessity before execution issues — Assessment partly legal and partly illegal— Whether execution issued for whole, void. A. was a resident of the city of St. John up to June, 1877, when he went with his family to Nova Hcotia. In 1878 lie returned to the province with his wife and family, and after leavinj; 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. While A. 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 property until the spring of 1880 when A. returned from Boston and lived with his wife. He was afterwards arrested for the taxes for 1879, assessed aj-'ainst him in respect of his wife's property, and for an income tax against himself, both being included in one assessment. Held by Allen, C.J., and Wetmore, Palmer and King, JJ. (Weldon, J., dis- senting), that A. was constructively an inhabitant of the city of St. John m 1879, and was liable to be assessed as such. Held also, by Allen, C.J., and Wet- more, Palmer, and King, JJ. (Weldon, J. dissenting) , that a husband when in the I c,e constrn.ctive occupation of la. ... All- (which, by the St. John A"- .'fc."^ . i.L Act of 18.59, includes lease- l.'ji I r."^* jvt ) of his wife is liable by i.e.. n . ' i •/ to be assessed in his name in respect of such property, and his liability to be so assessed is not affected by the 17th section of the Act, which enacts that "the estate of deceased persona under contract of their execu- tors, administrators or trustees, the separate property of married women and the property of minors, or other property under the control of agents or trustees, may be rated in the name of the principal party or parties ostensibly exercising control over them, but under such description as will keep the rating separate and distinct from any assess- ment on such parties in res))ect of property held in their own right." Qittrre, whether, when an assessment is legal in respect to real estate, but illegal in respect to income, the includ- ing both assessments in one individual sum would render an execution for taxes void. Edwards v. the Mayor, etc., of St., Mm. vol. '2-2, 297. Appeal allowed S. C. C. See Addenda 35. INHERITANCE. Where a lot of land was divided by mutual deeds of partition and one reserved a right to quarry on the moiety of the other, such right at his death vested in his heirs though there were no words of inheritance in the reserva- tion. See Partition 1. Initials. See Affidavit 0. INJUNCTION. I— Mandatory — Common Schools Act — Summary Remedy. Held, by Palmer and King, JJ., on appeal from the decision of the former, made in equity, granting a mandatory injunction in this cause, that where a person who has been secretary to a beard of school trustees, on being dis- missed, refuses to give up the records and other property of the corporation, the court of equity has jurisdiction to grant a mandatory injunction to re- strain him from retaining such pro- perty ; but held by Weldon and Wet- more, JJ., that section 92 of the School mmmn INJUNCTION. INJUNCTION. 119 Act, Consol. Stat, cap 65, has pro- vided a summary remedy by applica- tion to the inspector, and that tliat remedy should be pursued. Held, by Allen, C.J., that there mi^'ht be cases where the remedy f»iven by section !)'2, would be inadecpiate as where a secretary of a district liad a considerable sum of school money in liis possession which he refused to ac- count for or f^ive up ; but as it was by the bill and not by arf^'uments or objec- tions on the motion for the injunction tliat the rifjht of plaintiffs to institute tlie suit, must depend and as there was no allej^ation in the bill that the books iuid papers which defendant refused to deliver up were of such character and value as to require the interpo- sition of a court of equity, or that there were special circumstances in the case requiring the interference of the court, he thought the plaintiffs should have resorted to the remedy provided by sec- tion !)2, and the injunction ought not to have been granted. fVt'st v. Trustees of School District of Jolniston, vol. 22, 5(5. 2— Restraining action of law— Discretion of judge. A bill in equity was filed to obtain a decree of partnership between the plain- tiff and defendant and for an account, and an e.v parte injunction obtained restraining the defendant from inter- fering with the plaintiff {inter i-'j(t) in making the assets available for payment of the debts. The defendant denied the partnership. liefore the hearing the plaintiff collected money belonging to tlie alleged partnership, which he ap- propriated to his own use, whereupon the defendant brought an action against him to recover the maney. On applica- tion by the plaintiff for an injunction to restrain that action ; Held, that the judge in granting it was justified in requiring the present plaintiff to pay the money into court. Sayre v. Harris, vol. 22, 142. 3— Dissolution of, on giving security— How security affected by dismissal of bill- Discretion of judge as to costs on dismis- sal—Right of Court of Appeal to vary. A. and B. residing in New York, entered into partnership in March 1880, for the purpose of cutting and storing ice in this province, and shi))ping it to New York or elsewhere for sale, provi- sion being made for the advance of money by 13., and the division of the proceeds on the sale of the ice ; B. to have the option of purchasing out A.'s right at a fixed sum per ton of the ice. After part of the ice had been cut they entered into a new agreement in April whereby the partnership was dissolved, and A. was to superintend the cutting, storing and shipping of the ice, which was to be B.'s property, who was to sell it to such parties, and on such terms aa he should think advisable, and out of the first sales pay all expenses, including the expense of sending the ice to market, after which he was to pay half the profits to A. Soon after making the second agreement, and while the ice was in stoi'e in this province, B. sold it to C, who had notice of the agreements between A. and B., and that A. claimed an interest in the ice, and disputed B.'s right to sell it. A. then filed a bill against B. and C, alleging the sale to have been made for the purpose of defrauding him ; and he obtaained an ex parte injunction to restrain the removal of the ice. The injunction was dissolved on C.'s giving security to pay any amount which might be found to be due to A. At the hearing of the case the bill was dis- missed as against C, the charge of fraud not having been proved, but it was dismissed without costs, the judge being of opinion that by the agreements t 120 INQUISITION. n' M III if i !'\ 11 i\'A i ' . ■ between A. and Ji., tlio ice was to bo shipped abroad, and that C havint? purchased with notice of the a>^ree- I '.ants, was bound to know that 13. in selUnj; the ice liere was violating his agreement. The jury also refused to deliver up the security to C, Held, on appeal by Wetniore, King, Fraser and Tuck, JJ. 1. That B.'s right to sell the ice was unlimited, and he was not bound to ship it abroad ; and that there was no eijuity making C. responsi- ble for H. paying to A. his share of the purchase money. A.'s only remedy being a money demand against B. on the agreement. 2. That A. was not entitled to the in- junction to restrain C. from i-emosing the ice ; and therefore the security given by C. to obtain the dissolution of the injunction, ought to be given up to him. 3. That the bill should have been dismissed as against C. with costs, he having been a hona fide purchaser of the ice, and the charge of fi'aud against him not having been proved. 4. That, though ordinarily, costs in equity are in the discretion of the court, such discretion must be governed by certain fixed principles ; and that the court of appeal could vary the order of the court below in respect to the costs. Frank v. McGrath. vol. '25, 499. — Ex parte — Dissolution of— What will entitle a defendant to. See Appeal 8. —Judge exercising discretion in grant- ing — No sufficient grounds shewn for dissolution of — Damages. See Addenda 41. INJURIES. Arising from non repair of streets in the town of Portland. See Streets 2. INQUISITION. Of sheriff's jury may be set aside by court. See Replevin 3. INSOIiVKNT ACT OF 1H(;9. INSOLVENCY. Admission by one partner — l^ffect of. See Insolvent Act of 1875. Where defendant's property has been attached, and he afterwards becomes insolvent, the court is bound to dissolve the attachment, although the property was released on bond. Mrlntosli v. Hamilton, vol. 19, 1. INSOLVENT ACT OF 1869. 1— Demand to assign— When made by a firm upon a firm— Admissible in evi- dence in action for and against one partner— Wliere demand annulled — Ac- tion for making same— Malice— Reason- able and probable cause— Want of— Treble costs— Whether takes away com- mon law remedy— Evidence— Damages. See Gleeson v. Domville, vol. 19, 17. 2— Issue of writ of attachment— Writ good upon face while in force a justification to the sheriff — Title of assignee— in an action of trespass the court will not go behind proceedings in insolvency which have not been set aside in the usual way —Leave and license— Evidence to sup- port plea of. See Jhmrgeois v. Gilbert, vol. 19, 353. 3— Title of assignee to real estate— Proof of deed of composition and discharge. The title of an assignee to real estate under the Insolvent Act of 1809 is only statutory, and a purchaser from him under the authority of a deed of com- position and discharge executed by the insolvent and his creditors, in order tn establish his title, must prove the execu- tion of the deed of composition and discharge, and that the conveyance was conformable to its terms. Doe dem Ran- kin V. Andrew, vol. 22, 425. — Demand of assignment, when an- nulled, action for making — Reasonable and pi'obable cause — Order of judge INSOIiVKNT ACT OF 1875. INSriUNC'K. 121 annulling clciiuiiid not prima uicic evi- (k'lico of. Sco Addenda 11. 35;i. estate only liim coni- y the ler to xecu- luid e wu>^ Ran- m an- jnable judge CrclitorH' rnrnedy under section V2'>. See \'aii*if v IVm^kV, vol. 'I'l, 70. Power of ass i (4 nee to Hell debts — Pm- misHory note >{ivcn to assij,'nee — Ktatute when directory. See /loxc, appellant. 1. Fraud— Chai-Ke of, under section *"<* .SV/io^e/-/. respondent, vol. 2.'>. 127. YAW. Avernv'it no/u neccssaiv timt INSOLVENT ACT OF 1875. defendants have ^^ono into insolvency. liarrij v. Ifciiuii, vol IH, 415"). 2. Power of parliament to deprive i persons of common law remedies. See j lliihiii.iiill V. Kllix, vol. 1!(, (1. .\dmission rjf insolveiicv — Pv one partnei'— Effect of — See Ihtnli of Sew llninsirick v. t'ltiliciti/, vol 10, it'M. \ When assignee may terminata lease. | INSPECTION. 1. Of rawhides. H7 Vic. cap. 4;"). ss. 7H, Ul. INSPECTION COMPULSORY. An Act of ]>arli!unent should he so constriicJ as to <;ive effect to all parts of the Act. and assure the attainnunt nf ,r r ■>• .f r . 1,,. -..,. , its obje<;ts. evcu aitlionj'h it exi)oses in- i^ee Mc[mii'iIiIiii\. McLei>(l.\ol 1[), n-yj. I ,. . , , , . , . „ j aividuaU to penalties and forfeitures. Consent to discharge, necessity of i c7a/-;^»- v. r«/A/«, vol. 20, t»S. calling meetings of creditors to consider. ! ^,, , ,,,,., ,, ,, . ,. , ,,,.,„ —Of books of defendant wliere JH' has bee In re Seelyc, vol V,), ;)4!». | o t> , , I aemanded particulars. See Pooks 1. Confirmation of discharge under deed I of composition, creditors opposing — Necessity of filing objections with as- signee. See /i(i;(A' of Xovu Scotia v. Stern's, vol. 20, 333. Whether a consent to discharge INSURANCE. 1— Life— Condilions— Waiver of— Power of agent to bind company — Payment of premium. A iwlicy of life insurance contained a condition tliat it should not be binding until the advance premium was paid and the p^jlicy delivered to the ajipli- cant for insurance ; and that no agent of the coMipanv, except the president or Costs - County Court Judge has \ secretary. Hhrnild have anv authoritv to power to award costs against assignee ! ,^,..^^^.^. „^ ^i^^.^ ^nv of the conditions, ill contestation of claim under section | -p,,^. premium never was in fact paid, !t5 of Act. Tait, ossicinec, etc., v. Dote I J^^^ ^^^ t,,g p^,jj.y delivered ; and al- lin;i, vol. 20, 2(1-). ' though the assured did tender the When one partner purchases from , premium to the agent, who declined to assignee estate of insolvent firm en i receive it and agreed to give time for Woe— I'.ight to sue for debts due firm : the payment of it till it was demanded, in his own name —Payment— What con- ; anld the policy in tlui meantime stitutes — Where money received by per- j for the assured. where there are no assets, binds the I minority of creditors— Contesting dis- eliai'ge — Ground that insolvent did not ; keep proper books — Necessity of filing I objections with assignee. See ex parte \ Ulementnon, vol. 20, 413. i son being partner in two firms. See Leonard v. Griffin, vol. 21, 188. Bill of sale — What necessary to make it void under section 130 — See Ikirnj V. Loyiin, vol. 22, 185. Held, that as the agent was neither the president nor secretary of the com- pany, he liad no authority to waive the condition refjuiring payment of the premium. ■ '■ i n 122 IN8URANCK. INSrRANCE. There beiii^ no binding contract, an theri^lit of the parties when not other- acknowled>{ement in tlie policy that the j wise therein provided for, was, that if advance premium had been paid | the buihlin({ insured stood upon leased amounted to nothin^i, because the in- (ground, and it was not so I'epresented tention of the parties was tliat the policy j to the company and expressed in the should not be delivered till the premium \ policy, the policy should be void : was paid, and it was no admission of ^ //,,/,/_ that a breach of this condition payment so long as the policy remained | rendered the policy void, even thonpii in the hands of the agent awaiting pay- | j,, ti,o company's printed forms of app.;- ment by the assured to give validity to cation si-ue.l by the assured, no .pu's- the contract. CaUnmu v. Vmon Mutual | tiou was asked as to tiiis. In*. Ciimiiiiiiii, vol. 1!), IH. ,,,, , , . , , , ' • . iliere cannot be a judgment oi non- 1 suit, and also a judgment for plaintiff 2_ Marine -Warranty against carrying ,^,, ^^,„^^. „f ^,,^. j^^,,^,^_ 7>w v. ov/c.r. ///s. Co., vol. 11), 1'2(). 4— Against loss by fire— Where 1 y^ policy, loss, if any, oayabte to the person other than the assured— Who may bring action for loss— The assured the proper parly — Burnham v. Watts, 3 Kerr, 377, com- mented upon. H. and A. insui'ed against loss by fire, certain merchandise their own property, sione or ore— Phosphate rock -Whether a stone or ore— Question ot fact— Plead- ing. In a policy of marine assurance the vessel was warranted "not to load more than registered tons with stone, marble, lead, ores or bricks." In an action brought on the policy, defendant pleaded that there was on the voyage on which the vessel was lost, laden on the vessel so insured, more than her registered tons „^. jj^jj i,y tij^..^ ;„ ^^.^^^^^ ^y. „„ commiK- of stone or ore, that is to say, phosphate ■ ^■^Q^^^ ^^.^i\^ the defendant company, for rock, contrary to the terms of the policy. „„e month. The insurance was" con- To this plea, plaintiff replied that the ; ti,u,ed by renewal pi'emiinns paid by II. phosphate rock in the plea named was ^^ j^ ^^ ^^.,,„„j ,^i„„ tlic receipts weif not stone or ore within the true intent i delivered. Hy the policy, the loss, if and meaning of the condition or war- i ,i„y_ .^^.,^3 payable to the Maritimt' ranty in the said policy. Defendant j^j^,,)^ (the plaintiff company) who had demurred to the replication on the ,^„ i„terest in the merchandise. Tliu ground that it attempted to put in issue ,„.()perty insured being destroyed by a ool(s can Ira demanded— Office of company— What meant by arbitration — Condition for— Effect of— Where want of. A letter sillied " Honry Lyo," uh INSURANCE. IN8URANCK. 128 form part of tiie policy, ivud one of the coiulitions, providinj,' what application for insurance should state, declared that if any person insurinf{ should make niiy material misrepresentation or con- cealment, the insurance should he void luid of no effect. In an action on the liolicv, defendants pleaded that in tlie application for insurance, plaintiff re- I secretary of the defendant company, presented that the property to he insured ''^coived hy the plaintiffs in due course was mortK'aned, and that the amount ^i'"'" ^''t' ''i"^,'inf5 that in an affidavit made by plaintiff in relation to the alleged loss " he falsely swore that the actual cash value of the pro- perty insured was f 500 " was bad, be- cause it did not state that knowin^^ly and wilfully he swore falsely. Steeren V. The Soi'creiss, but opoiales where the company places blank ^)olicies in the hands of an aj,'ent to restrict his authority and as notice to the assured that the a<4ent cannot make verbal changes in the policy or strike out any of the conditions. If more is meant the clause is void, for a man cannot agree that he will not make a contract which the law allows him to make. By the terms of the policy it was agreed that, " until such proofs, declara- tions, and certificates were produced and e.xaminations and appraisals per- mitted by the claimant, the loss should not be payable ; nor shall any act of the company, except their written declara- tion, operate to waive the requirements of such proofs." Defective proofs of loss were put in after the fifteen day> named in tlie condition of the policy I had expired. No better proofs weiv j dennintled. I The company's agent subsc(pu'ntl\ advertised for parties suffering loss b\ I the (ire, which destroyed the assured^ ! goods, to come to his of't'ice to have the same adjusted, and the assured attendcii I and produced his books and gave tln' rc(piired nif(nMnation, after which onr of the company's agi'uts adjusted tlir loss at a sum which the assured wouiil not accept ; subsequentlv i-he secretary of the company wrot(! the assured sane ; tioning the adjustment so nnide. ami making no objection to the delay in delivering the proofs, or to the proofs themselves. llclil, a sufficient written declaration I to constitute a waiver. By Palmer, .1. Where there is in a contract foi- insurance a stipulation timt ; the assured will make ))roof in lifteeii days, and there is no distinct stipula- ti(ni that doing so in such time is a ! condition precedent to the assnred's right to recover and the contract is not declared void for the non-ai)pearance of it within such time, such stipulation is in that respect an independent one and not such a one as would if not complied with defeat the assnred's claim. By Palmer, J. The clause that noth- ing but the written declaration of the company shall operate as a waiver of the requirements of such proof, refers to the requirements of the pi'oofs only, that is, what they shall contain and to the time when they shall be presented, and if proofs are presented after the limited time therefor, and no better proofs are demanded, and the company's agents examine and inspect the assnred's books and adjust the loss, then the time limited for payment begins to run. By Palmer, J. Where a plea stated that the proofs were not made accord- iNsrriAN(Mc INStllANCK. 126 \\\<< (o the eoiiditioiiH of the policy of iiiMiiriiiico, and not that thuy wero not made in Hfte»M» (hiyw tift(^r tlie Iohh, and tlio iniikiii(^ of till! proofs in lifteen dayw is not doflarod to be a condition prece- limit to the assurod'H rit^ht to recover, I lie )ilea doeu not raise the ((uestion liiat tho failure to make i)roof in fifteen iliiyn after loss will avoid the policy. If the doint,' ho had been allej^ed as a dis- tinct condition of the ixilicy, tho coni- |mny hy themselves or agents conid Imve waived it, of which in this case tliere was ample evidence. iJy I'almer, J., when the company's ii'^ents once demand and have hucIi an lA.imi nation of the assnred's books and [lupi'rs, etc., as they think proper and iidjust the loss, the company are not entitled to have a further examination of tho assurcd's books, much less to icMpiire them to bo sent from St. John ti) Montreal for the pui'pose of re-exam- in:ition. JSy Palmer, .T., where proofs arc re- (luired to be delivered at the office of the ciiinpany, a delivery at the ofhce from uliich the policy finally issued is suffi- cient. Hy Uuff, J., where the condition of the imlicy of insurance provided for a sub- iiiission to arbitration " in the event of dispute arisinfi after proof of loss and iliiinaf,'e is <;iven in due form," and no proofs are given in due form the condi- tion does not a^jply. Hy Palmer, .J. (1) The defence that the assured's loss had not been ascer- tained by an award and arbitration could not be set up under a plea that the assured did not furnish proofs of loss, etc., and the loss had not been ascertained and proved according to the condition of the policy. (2) Before an arbitration could be had, the defendant company, after receiving proofs, etc., would have to admit their liability, but disputing the amount make a request for an arbitration. (U) .\s the assured had asked for an arbitration, and tho company had refused, the latttr could notsetu)) this defence. (I) A condition that no action will be brought for a breach of the contract until the defend- ant did "I'liiething depending on his own will, would he void as against the policy of the law; and (")) A plaintiff is dia- charged where porformance is prevented by defendant himself, itawi'ii v. The A' executed by them. Plaintiff insu 'ed §>;"). 000 on a vessel valued in the policy at ?40,000. Tiie policy stipulated that if the assured had made any prior insurance, the under- writers should be answerable only for so much as such prior insurance was defi- cienttowards fully covering the premises S.D. thereby insured. The plaintiff's inter- est in the vessel amounted to $15,000. And he had prior insurance to the extent of ijo,3o0 ; there was also insurance by other persons on the freight and dis- bui'sements of the vessel, and on ad- vances made to the plaintiff. Held, 1. That the words "premises hereby insured" meant the plaintiff's interest in the vessel ; and that as the value of his interest exceeded the amounts of the prior insurance, and of the sum insiu-ed by the policy sued on, he was entitled to recover the whole of the latter sum. 2. That the insurance on freight did not come within the prior insurance clause in the policy. By the tei*ms of a policy of insurance,, a vessel was warranted not to load more than her registered tonnage " with stone, marble, lead, ores or bricks, " without the consent of the agent of the under- writers. Held, per Allen, C.J., Wetmore and King, JJ., (Weldon, J., dissenting), that a verbal consent of the agent to load beyond the registered tonnage of the vessel was siifficient. A vessel was loaded with a substance known in commerce as phosphate rock, or phosphate which was used for fertili- sing purposes ; and scientific witnesses were not agreed as to a definition of it. Held, per Allen, C.J., Wetmore and King, JJ., (Weldon, J., dissenting), that it was a proper (juestion for the jury whether it was known to the commer- cial world as "stone" at the time the policy issued — there being a warranty against loading with stone beyond the vessel's registered tonnage. Plaintiff being the registered owner of one-fourth of a vessel, and also the equitable owner of one-eighth insured ^5,000 upon her — the policy not specify- ing his interest. He admitted on cross- 9 .in 130 INSURANCE. examination that he had prior insurance on the vessel, but stated that it was upon his one-eighth interest. Held, that he was entitled, on being afterwards called to rebut the defendant's evidence, to explain the circumstances connected with the prior insurance. Qui/Tt', whether he should have been allowed to state that he told the under- writers at the time of effecting the policy sued on, that he was insuring the share of which he was the registered owner. Chapiiuin v. The Proridciice U'anliinnton Insumiice Co. (Appeal to Supreme Court of Canada, dismissed.) See Addenda 1(3, | vol. 23, 105. i INSURANCE. company, went to what purported to be the head office of the company in Phila- delphia, to enquire about payment for a loss under the policy, and conversed witli H. a person tiiere, who was represented to him as the president of the company, and who pi'oduced a paper which he said was a copy of the policy, and spoku about the loss and payment of it by 11,, the company's agent. Held, that this was evidence that II. was the president of the company, and that his declaration was evidenje of the agency of R. ClKtpman v. The Dehuvun' MiitiMl Inn. Co., vol. 23, 121. Appeal allowed. See Addenda 40. 15— Marine— Policy issued by foreign cor- poration — Agent — Countersigning by- Pleading— Whether objection that policy not countersigned by agent, available under plea of non est factum— Waiver- Evidence — Conversation with person re- presented to be the president of the com- pany at a place purporting to be the com- pany's head office— Whether admissible in action against company. A policy of insurance of a foreign cftmpany, sealed with what purported to be the corporate seal and signed by the president, declared that it should not be valid unless countersigned by R., the company's authorized agent at St. John, N.B. The plaintiff agreed with R. to effect insurance on a vessel, and paid him the premium, and R. at the plain- tiff's request sent the policy to C, but omitted to countersign it. Held, by Allen, C.J., Wetmore and King, JJ., (Weldon J., dissenting) ; 1st. That the countersigning might be waived, and that R. had waived it by receiving the premium and issuing the policy, 2nd. That this objection to the policy was available under the plea of non est factum. The holder of a policy of insurance issued by R. as the agent of a foreign 16— Freight— Policy on— Where cargo for- warded to destination by another vessel at same rate of freight — Whether total loss — Owner of vessel — Whether prima facie entitled \o freight — Preliminary proofs— Necessity for — Sale of vessel by master— When allowable— Abandonment to underwriters— Whethsr owner entitled to reasonable time to make enquiries after hearing o! loss— Waiver of notice of aban- donment—What constitutes— Examination of witnesses abroad— Commission for— Return of one commissioner— Omission of defendant's commissioner to put cross- inlerrogatories—Effectof— Endorsement of return on commission— Whether neces- sary. Freight as a subject matter of insur- ance, means the benefit derived by the ship pwner from the employment of the ship ; and the contract of insurance against loss of freight is that the ship shall not be prevented fi'om earning it by the perils insured against. Where a vessel (the freight of which was insured) was lost, and the master forwai-ded the cargo to its destination by another ship, paying therefor the same freight which he was to receive. Held, that the ship owner was entitled I to recover for a total loss of freight. INSURANCE. INSURANCE. lai The owner of a vessel is prima facie entitled to her freight. When the conditions of a policy on freight required that proof of interest, and of the loss and adjustment should be given to the underwriters befoi'e bringing an action, the plaintiff cannot recover unless such preliminary proof is given. In order to justify the sale of the ves- sel by the master, there must be urgent necessity for it, and what circumstances will constitute a case of necessity in a mercantile sense is a question for the J"iT- The owner of a vessel which has been damaged by the perils insured against, is entitled to a roasonaole time to make enquiries after hearing of the damage, before giving notice of abandonment. Where the owners of a vessel so dam- aged gave notice of abandonment, which the iniderwriters refused to accept, and the owner then telegraphed to the master to " follow best advice," where- upon the master having had a survey of the vessel, by which it was found it would cost more to repair her than she would be worth, sold her by auction. Held, per Allen, C.J., Wetmore and King, JJ., (Weldon, J., dissenting) that these instructions did not constitute a waiver of the notice of abandon- ment, and that there was evidence of a constructive total loss to leave to the jury- Per Weldon, J., that the plaintiff was only entitled to nominal damages. A commission for the examination upon interrogatories of witnesses abroad, was taken out by the plaintiff directed to two commissioners, (one named by each party) and authorizing plaintiff's couimissioner to return the depositions certified by him, also to proceed cr parte with the examination of the witnesses and the execution of the commission in case the defendant's commissioner re- fused or neglected to attend. The de- fendant's commissioner attended the examination, cross-examin':d the wit- nesses, and asked some of the cross- interrogatories, but, without giving any reason, refused to sign the certificate of their examination. llehl, per KWen, C.J., and King, J., 1. That the certificate of the plaintiff s commissioner was sufficient. 2. That if tlie signing of t!ie certificate was a part of the execution of the com- mission, the refusal of the defendant's conmiissioner to sign, authorized the plaintiff's commissioner alone to sign. 3. That the omission of the defen- dant's commissioner to put some of the cross-interrogatories was no ground for rejecting the depositions. Per Wetmore, J., that the plaintiff's commissioner should have put the cross- interrogatories to the witnesses : but the omission to do so was only an irreg- ularity which should have been taken advantage of by an application to a judge to quash the depositions. It is not necessary that the commis- sioner should endorse a return on the commission. DrinroU v. The MiUiville Marine Inn. Co., vol. 23, 160. Appeal to Supi'eme Court of Canada allowed. See Addenda, No. 18. 17— Marine insurance — Whether damage to ship must be re-paired at port of dis- charge — Particular average — Plan of adjustment — Policy — Warranty not to enter or attempt to enter Gulf of St. Lawrence before day named— Meaning of— Amendment. A ship was insured for a voyage from Liverpool to Quebec. The policy con- tained a clause that a ship should not enter, nor attempt to enter, or use the Gulf of St. Lawrence before the 10th May, nor after the 30th October, and the seaward line of the Gulf was 132 INSURANCE. INSURANCE. III. i'S' ■-Ji n^ .i: defined. The ship sailed from Ijivcr- | pool in April, and on the 7th May ran j into field ice near Newfoundland, about j ()0 milf)s to the east of the defined line of the Gulf, and. the weather being stormy, she was injured by the ice. After getting clear of the ice, she pro- ceeded to Quebec (not entering the Gulf till after the 10th), where her injuries were examined, and she was partially repaired and sailed for Liverpool with a cargo of timber. It did not appear that she had received any injury on the voyage to Liverpool. On her arrival there she was put into dock ''e- fuUy :amined, and her ii.ju ' foi d to be such as would probabl;, o , .i. :a u by her being in th j ice. Held, 1. Per Allen, C.J., "Wct-vore, Palmer and Fraser, JJ., (Weldou, J., dissenting), that, though the ship was proceeding towards the Gulf of St. Lawrence at the time she got into the ice, she was not attempting to enter the Gulf, within the meaning of the clause in the policy, a)id that the underwriter was liable for the damages sustained. Per King, J., that the clause against entering the Gulf was not applicable to a voyage policy. 2. That it was not necessary that the amount of damage to the ship should be adjusted at Quebec ; but it might be done at Liverpool. H. That there was evidence that the injury to the ship was caused by the ice during the voyage to Quebec, and not on the return voyage to Liverpool. 4. That a skilled witness could not be asked whether, in his opinion, con- sidering the course and position of the ship and the state of the wind at the time she got into the ice. She was not attempting to enter the Gulf ? or where was she bound, etc ? Moyan v. Taylor, vol. 24, 30. \u In above case, appeal to Supreme Court of Canada, allowed. See Ad- denda, No. 22. 18— Marine insurance — Charter party- Loss of freigh'.— Perils of the seas- Voyage frustrated by ice— Whether a peril insured against. Plaintiff, the owner of a vessel, effect- ed insurance on her fi'eight Ist Decem- ber, on a voyage from London to tlio Bay Chaleur, thence to Maramichi, and thence to Norfolk, Virginia, to load cotton for Liverpool. The policy wtis in the usual form against perils of tlie seas, etc. On the 2oth November— the vessel being then on her voyage from London — the plaintiff chartered her to persons in New York, and undertook 1 ">n her arrival at Miramichi she v.(,ul I sc' direct to Norfolk, and there load for tho charterers a cargo of cotton, and proceed therewith to Liverpool. The ship arrived at Miramichi on 2.5th November, and sailed therefrom for Norfolk on the 28th, and while proceed- ing on her voyage ran into floating ice near the entrance to the river Miramichi, and being unable to get to sea, was taken to a place of safety, where she remained, frozen in, till the 7th May following. She could not, after that, have reached Norfolk before the 1st June. The chartei'ers, on being informed in December that the vessel was frozen in, notified the plaintiff's agent at Norfolk, that in consequence of this they con- sidered the charter at an end, and would ship the cotton by another vessel, and an endorsement to that effect was made on the charter party, and signed by the agents of the plaintiff and the charterers respectively, and the plaintiff afterwards acquiesced in this. By the course of trade at Norfolk, no cotton sufficient for a cargo of the plain- tiff's vessel, was shipped there between the Ist May and 1st October. wpn INTENT TO DEFRAUD. INTERROGATORIES- 133 Held, per Palmer, Kin},' ami Fi'aser, JJ., (Wetniore, J., disseutiii}^). 1. That the plaintiff having; commenced the s'oyage, and incurred expense towards earning tlie frei^^ht, it was lost if his interest was destroyed by one of the perils insured against. 2. That it must have been the inten- tion of both parties to the charter that the vessel should reach Norfolk during the shipping season for cotton ; and if it became impossible to do so, the object of the voyage was frustrated, and the con- tract was at an end, and the freight was lost — the vessel not being bound, under the circumstances, to sail for Norfolk after being released from the ice. 3. That the freezing in of the vessel was one of the perils insured against by the policy, and not one of the ordinary occurrences of navigation. Jordan v. The Great Western Ins. Co., vol. 24, 421. — As to right of trustees of estate under will to insure new buildings or increase the insurance when directed to insure in about the amount in which testator insured. See Will 5. — Policy of —Beneficiary not entitled to bring action in his own name. See Contract 5. — Whether the fact that property burnt by railway company's locomotive was insured is an answer to company's liability. See Railway Company 5. — Action by person to whom life policy payable. See Stay of Action 2. See Contract 5. — Statement as to quality of mill when effecting insurance. See Contract — Assignment — condition in policy not to assign,— Mortgage of chattle property not an assignment. See Addenda 45. INTENT TO DEFRAUD. 1— Taking with intent to defraud— Stating value in indictment— Sona fide claim o! 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 prisoner 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 indictment, 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. The Queen v. Ilorsman, vol. 20, 529. Intercolonial Railway— Liability of con- ductor for accident to passengers. See Railway Conductor 2. INTEREST. In an action of trespass on case, not allowed as part of damages. See Col- lision 1. Not allowed after amount due has been tendered. See Assumpsit 2. Not recoverable on coupons. See Debentures 1. INTERFERENCE. By parties to suit — with jury during a view. See Jury 1. INTERLOCUTORY JUDGMENT. Date of the entry of cause on memo- randum — Omission of — Not ground for setting aside the judgment. See Prac- tice <». INTERROGATORIES. Attachment for contempt of court- When to be filed — Costs of. See Attach- ment 7. -Answers to matters not enquired -Suppression of. See Commission 3. of- 1 iSa/i ■^\ i 184 JOINT OWNERS. INTESTATE. Next of kindred— Who entitled to real estate. See Next of Kindred 1. Intoxicating — Spirituous — Whether synonymous expressions. See Canada Temperance Act. IRREGULARITY. In entering up judgment on confes- sion. See Execution 1. — Issuing wrong form of caputs. See Practice 12, Arrest 2. — Warrant for commitment— Justifi- cation to oiiicer. See Criminal Law 7. — Judgment — Delay in moving to set aside. See Judgment 1. — Notice of special bail by firm of attorneys, where one has not paid his library fees. See Attorneys ■i. JOINDER. When judge who tried cause has certified that there was reasonable cause for joining a defendant. Court refuses to review. See Review 1. Joint Conversion— Evidence of — Trover. See Married Woman 2. JOINT MAKERS. Payment of interest by one will not prevent Statute of Limitations from operating in favor of others. See Lim- itations 5. JOINT OWNERSHIP. Distress — Logs delivered to owner to be sawn into deals. Landlord and Tenant 3. mill- See JOINT OWNERS. Misuse of property by one joint owner — When action maintainable. See Action on the Case 2. JUDGE 8 ORDER. JOINT STOCK. Capital stock — Bank — Assessment of under "St. John Assessment Act of 1882." See Assessment 2. JOINT STOCK COMPANIES ACT. 1877. Action by — Pleading -- Declaration, not enough merely to state corporate name. In an action brought by a company, incorporated by letters patent under the Canada Joint Stock Companies Act, 1877, it was held (on demurrer to the declaration) by Allen, C.J., and Weldon, Wetmore and King, JJ., that the declaration was bad, for not alleg- ing the incorporation of the plaintiffn by letters patent under the Act ; but by Palmer, J., that it was sufficient merely to describe plaintiffs by their corporate name. The Waterous Engine Worku Co. V. Campbell, vol. 22, 503. JUDGE. His right in charging jury to express Jiis opinion on the case. See Evidence 2. 1. Jurisdiction to try a cause at a circuit court to which he has not been assigned, not necessary that he should have been assigned to that circuit. Earle v. lioUfurd, vol. 23, 407. Relationship of wife of party in suit. See False Pleas 1. Discretion of. See Injunction 2. JUDGE'S ORDER. 1— Discharging a person in custody under a warrant of a magistrate— Made ex parte in a summary way— No lawful authority for making such order. Held, by Wetmore, Duff, Palmer and King, JJ., (Weldon, J., dissenting), that a judge of the court has no power on the application of one in custody, under a warrant of commitment made by a magistrate in due form of law, to make A cf and ai dant. IHirte all fur stayed plainti term, I'U tht iu-guni copy fendan notice and fc statint the ju cause paper. Held stood ings, p of mot cation Tuck, JUDGE 8 ORDER. JUDOMKNT. 185 an ex parte order, in a summary way for the prisoner's discharge. The pris- oner must proceed by writ of haheai rorpuK, or by proceedings under cap. U, of the Consolidated Statutes. Kjc parte Woudward, vol. 21, 221. 2— Copy of— Made rule of court. A judge's order may be made a rule of court, on production of a copy of it served on the party moving, verified by affidavit. Powell v. Jiannington, vol. 22, ; 5"). JUDGMENT. 1— Irregularity — Delay in moving to set aside— Waiver— Affidavit of merits. In July, 18H1, an order for security for costs was obtained by defendant I with a stay of proceedings till security ] given. On the ."ith September the plain- tiff's attorney sent the defendant's attorney a Yyoml for security for costs with a demand of plea, hut tlie time for plea^, vol. 22, 146. 2— Defendant claiming to have judgment entered on the roll on payment of less sum than amount of— Receipt— Where mislaid— Agreement before action brought to give credit for, if found— Refusal of plaintiff to credit— Defendant's remedy- Estoppel. Defendant being indebted to the estate of J. M., but the amount being disputed, gave his promissory note to W. M., the administrator of J. M., for fiJOO, in 1H77 -it being agreed that if the defendant could find J. M.'s receipt for money which he claimed to luivi' paid him, the amount Hhould be crediti'd on the note. W. M. died in 1H7'.) and the note came into the hands of the plaintiff as his adminiHtratri.x, who brouglit an action on it in August 187!t, and signed interlocutory judgment by default. After this and before final judgment the defendant found a receipt of J. M.'s for fHO, and applied to the plaintiff to credit the amount on the note, but she refused to do so, or to recognize it as a payment on account of the transaction for which the note was given. The defendant being then asked what he intended to do said that his son would settle the matter. Final judg- ment was signed in November, 1870, and a/i.fa, execution issued in January following, but no actual levy was made, the defendant's son promising to pay the amount in a short time, and in May 1880 he paid $200, and promised to pay the balance soon. In August, 1882, the defendant ob- tained a judge's order to set aside the execution and enter satisfaction on the judgment on payment of the balance due after crediting the $80 claimed as a payment. On application to rescind this order. Held, per Allen, C.J., that the defend- ant having accquiesced in the plaintiff's refusal to credit the $80, and liavin;^ allowed final judgment to be signed in the suit, and having paid part of the amount, and promised to pay the balance, was precluded from asking to have the execution stayed. Per Allen, C.J., Wetmore and Fraser, JJ., that the defendant knowing of the refusal by plaintiff to credit the $8j, should have applied to set aside tlie interlocutory judgment, and to be let in to defend the action, and havin<; allowed final judgment to be signed wmmma^F^ JUDGMENT. JUDGMENT. 137 at^ainst liiiii for the whole amount of the note f ould not afterwartls apply on artidavits to reduce it by the amouut of Per Palmer and Kinj,', JJ., that under the agreement of the defendant and W. ^I., the defendant was entitled to iiave the $80 credited on the execution, and was not bound to enter a defence to the action. Keiller v. Cluirteni, vo!. 23, •193. 3— Action on— Release — Where obtained before judgment— Whether piea available. In an action brought on a judf^ment obtained in a county court, defendant pleaded a release from plaintiff after the commencement of the suit, in which the judgment was recovered. Held, on demurrer, that the plea was bad. Estobrooks v. Sears, vol. 23, .543. 4— Judgment by confession— Motion to set aside on ground of fraud Application by judgment creditor— Contradictory affi- davits. Defendant, being indebted to plaintiff, and also to M., gave plaintiff a confes- sion of judgment for a sum equal to both debts, on which judgment was signed. An application by B., a judg- ment creditor of defendant, to set aside the judgment on the ground that M.'s debt had been fraudulently included in the confession, was refused, because the applieant had not established the fraud. Held, by Palmer, King and Fraser, JJ., (Wetmore, J., dissenting), that the court was bound to determine tlie ques- tion of fraud. Quicrc, whether a judgment creditor could object that M.'s debt was impro- perly included in the confession — the amount being due to M. Ilickson v. Lobaii, vol. 24, 358. 5— Judgment by confession— Future Ad- vances—Intention—Right of Creditor. A., being indebted to H, in tlie sum of ^3!)ij, gave liim a confession of judg- ment for ftl,()l)0. U. afterwards made further advances, amounting in the whole to ft!1!(l», and signed judgment for $1,000, and issued execution for tluit sum. A. then applied to set aside tlie judgment and execution, alleging in his affidavit that the confession was only intended as a security for his then existing indebtedness to 13. This was denied by B. Held, per Palm t, King and Fraser, JJ., that the judfMuent should stand for the amount advanced. Per Wetmore, J., that an issue should be directed to by fact. Muirhead v. Loban, vol. 24, 360. See Deed 2. Refusal of court to reconsider its judgment Ex parte Abel, vol. 19, 2. — Signed against casual ejector — Set aside for irregularity. See Ejectment 2. — Of non-suit — There cannot be, and also judgment for plaintiff in some of the issues. See Insurance 3. — Where judge sets aside, and allows defendant to come in on terms, is not a decision upon a point of law. See Appeal 3. — A motion in arrest of — Cannot be argued until after the verdict is entered. See Assessment 3. — When entered up for more than is due from the defendant to the plaintiff, the court will, on the application of a subsequent judgment creditor, reduce. See Execution 1. — Final — When more than a year has elapsed since the signing of interlo- cutory judgment — Terms — Notice of plaintiff's intention to pi'oceed. See Practice '.). — Motion to set aside — Power of court to reduce. See Practice 10. — Signed, while a summons for a new trial not disposed of. See New Trial 12. —Set-off of judgments. See Set-off 1. 188 JUDGMENT DOCKET. JURISDICTION. — UnnecGRflary delay in 8it,'niiif,' where defendant liad entered Hpecial bail and been rendered — Discliar^e from cuHtody. See DiHcliart,'e 1. — Exeniplitication of — When evidence in suit. See Sheriff 2. — In former action — "When a bar to suhHequent suit. See Former Ilecov- ery 1. — Setting aside— For want of notice of motion of cost. See Costs '21. — Pendency of suit — When will not affect application to set aside judf^ment. Sec Deed 2. — Fraudulent judgment —Failure of consideration. See Deed 2-3-4, JUDGMENT BY DEFAULT. Offer to suffer — By one of several defendants — In an action of ti'espasB — Effect of. See Costs 18. — In an action for trespass to land in Supreme Court — Where defendant filed offer and consent to suffer judgment for »8— Costs. See Costs 2(i. JUDGMENT CREDITORS. Transfer of property — Consideration — Account between debtor and claimant — Evidence of date of transfer. See Evidence 18. — Liei of a judgment creditor of a mortgagor. See Mortgage 2. JUDGMENT DOCKET. Date of filing — Whether necessaiy to contain. See Practice !). J^:dginent, offer to suffer. See County Court 2. Judicial — And ministerial acts. — When certiorari will lie. See Cer- tiorari o. — Warrant to sell land — Whether judicial or not. See Assessment 8. — Jurat — When affidavit made by a, marksman. See Affidavit 5. JURISDICTION. — Court of Equity— Objection to — How taken. See I'axiiie v. I'aiisii; vol. 22, 7(i. — Court not legally constituted — Review of judgment. See Review fi. — Of Court of Equity — Where partic-i are residents of foreign country, but subject matter of suit is in this pro vince. See Fraitke v. McGrath, vol. 22. 436. — Ousting the court of — Arbitration clause in marine insurance policy. See Insurance 11. — Of (HHinty court judge to try cau-^c under " The Seamen's Act, 1873." Scii Ship 1. — Where plaintiff's claim in an action in a parish court exceeds the amount over which the court has jurisdiction — Abandoning the excess upon the par- ticulars filed. Hee Certiorari 8. — Of court — Rule hix/ — Service on party residing outside of province. See Practice 17. — Of judge to try a cause at a circuit court to which he has not been assigned. See Judge 1. — Police magistrate of town of Wood- stock — Offences against Canada Tem- perance Act, 1878, committed outside tie town. See Canada Temperance Act, 1878, 11. — Where none to try cause, may, nevertheless, give judgment for costs. See County Court 4. — Justice of peace — Title to land — Easement — Jurisdiction. See Title to Land. — Writ and particulars showing juris- diction — Plaintiff's statement showing damage exceeding jurisdiction of county court. See County Court 6. wm JURY. — Justice of peace— RelationBhip. See Justice of Peace S. JURORS.— (Hee Challenge.) In debt to dofondant, wlio obtained verdict— Whether ground for new trial. See Will 10, Ju, . alien-Objection, wlion to be tal(en. It is not a ground for new trial that one of the jurors was dinqualified, being an alien. Tlie objection should be taken by challenge. Stephenson v. l-'mner, vol. 24, 482. Subject to challenge, having served not ground for new trial. See Challenge. JURY. View— Wlien should be aliowed— Interfer- ence by parties to suit— Misconduct of jury— Affidavit of juror. ^ defendant in an action of tres- pi "/v chiHsum fiifjit, while the jury wei^ .awing the locnn in quo, conversed and otherwise interfered with them, and provided refreshments for them at his house. Held, a good ground for setting tiside a verdict, though no protest was made till after verdict, and plaintiff himself had been guilty of improperly interfer- ing with the jury during the view. Held, per Weldon, J., that it was improper to allow a view after the judge had charged the jury. Per Fisher and Wetmore, JJ., that the view was properly allowed. Ander- xon V. Mowatt, vol. 20, 255. — Cause tried without, in county court cannot have a new trial in that court. See Husband and Wife 2. — Separation of during trial — Suffi- cient to avoid verdict. See Criminal Law 4. — Acting under influence of undue motives — Excessive damages. See Tres- pass 11. JUSTICE OF THK lEACE. 139 — Discharge of. Bee Practice 15. — When not unanimous in aiiHwering special questions left — Whether verdict can be entered within two hours. See Verdict 1. JURY FEES. Payment of— Time. Held, per AIUmi, C.J., and Duff, J., (Wetmore, J., dissenting), that the 40th section of the C(ui"ol. S'.at., cap. 45, requiring payment of n jury fee, is only directory as to the time of payment, and does not prohibit the payment at a later period of the trial than the opening of the court on each day. Held, also per Allen, C.J., and Wet- more and Duff, JJ., that where a trial began on the 20th and plaintiff's case continued during that day and [lart of the 21st, when the defence was gone into and occupied remainder of that day and principal part of 22nd, plaintiff then beginning his I'ebutting case, the latter was not bound to pay for that day. Held, per Weldon, J., that the pay- ment of the fee is a question peculiarly for the judge to deal with at the trial. liriipjs v. Mclirldv, vol. 19, 202. JUSTICE OF THE PEACE. 1— Return of conviction— Should be to County Court — Action to recover penalty for not returning— In what court to be brought— Notice of action— Act, 32 and 33 Vic. cap. 31, sec. 78— Not ultra vires. The 78th section of the Statutes of Canada, 82 & 'A'A Vic. cap. 31, which declares that in case the justice of the peace before whom any conviction takes place neglects or refuses to make a return of such conviction, as required by the 76th section of the Act, he shall forfeit and pay the sum of $80, with costs of suit, to be recovered by any I ,■ I p ' 140 JUSTICE OF THE PEACE. person suing for the same by action of debt in any court of record in the pro- vince in which such return ought to have been made, is not ultra vires, and such penalty may be recovered in the County Court, this section over-riding the provision in tlie Con. Stat., cai). 51, sec. 7, that the County Courts shall not have jurisdiction over actions against justices of the peace. Held, also, that in this province con- victions should be returned to the County Court of the county in which they are made. No notice of action is necessary before seeing a justice for recovery of the penalty provided by the 78th section for not making such return. Ward v. Bced, vol. 22, 279. 2— Selling spirituous liquors on Sunday- Licensed tavern-keeper — Necessity of proof of being— Admissions of defendant— Pur- cliaser of liquor, competent witness to prove selling. In proceedings for the recovery of a penalty for selling liquors on Sunday contrary to the provisions of 38 Vic. cap. 71, it must be made to appear that the defendant is a licensed tavern- keeper ; and where the defendant pleaded not guilty, but admitted that he was a licensed tavern-keeper, and the only other evidence was that of a witness who stated that he knew where defendant's licensed tavern was, it was Held, tliat this was sufficient evidence of the fact — persons purchasing liquor art! competent witnesses to prove the selling. E.v jtarte iiirmiwiham. vol. 18, 3— Disqualification from interest- ship. -Relation- To disqualify a justice from acting in a prosecution before him he should have either a pecuniary or such other sub- stantial interest in the result as to make JUSTICE OF THE PEACE. it likely that he would be biased in favor of one of the parties. It is not a ground of disqualification that the justice and the counsel who conducted the prosecution are partners in business as attorneys, provided they have no joint interest in the fees earned by the counsel on the prosecution, or in any fees payable to the justice on the trial of the information. Neither is it any disqualification that the justice was appointed and paid by the town council at whose instance the complaint was made and the prosecution carried on— his salary being a fixed sum, not depen- dent on the amount of fines collected. Regina v. Grimmer, vol. 25, 424. — Opposing discharge from prison of person illegally arrested under warrant. See False Imprisonment 1. — When notice of action against, for false imprisonment contains two grounds of action, proof of either will be suffi- cient, if there be a count in the declara- tion to which such proof will apply. See False Imprisonment 6. — Action against for false imprison- ment — Where warrant put in evidence by plaintiff — Necessity of defendant proving conviction — Whether recitals in warrant sufficient — Whether question for jury. See False Imprisonment 2. — Nini priuK record sufficient proof of the commencement of the action against. See Practi ^e 8. — Information under The Canadit Temperance Act — Whether must be be- fore two justices. See Canada Tem- perance Act 7. — Tile local government of this ])ro- vince has power to appoint justices of the peace. A'.r pa7-te Williamson, vol. 24, ()4. — Incapacity to hear cause — Other justices called in jurisdiction — Eight to issue summons- -Absence. See Canada Temperance Act, I'J. LAND DAMAGES. LANDLORD AND TENANT. 141 — Title to land — Jurisdiction. See Title to Land. JUSTICES' COURT. Whether filing of particulars is the com- mencement of action. In a suit broufjht in a justice's court, the tiling of the particulars of the plain- t'ff" 8 claim with the justice is not the commencement of the action. Mcl'lier- Kon V. McKinnon, vol. I'J, 3. Costs of review — When not in dis- cretion of judge — Judgment "wholly reversed." See Damages 2. JUSTIFICATION. Plea of — In an action for false impri- sonment, under an attachment for non- payment of costs on review from jus- tice's court, did not set forth suit in i justice's court, nor the making of the proper affidavit to give the judge juris- diction — Bad on demurrer. See False Imprisonment 5. — Plea of — In trespass. See Tres- pass 1. Writ of — Attachment gives on its face sufficient justification to officer. See Affidavit 2. — Conviction good on its face, justices having jurisdiction over subject matter. See Canada Temperance Act 19. LAND DAMAGES. 1— Assessment for. when land taken for railway purposes. An assessment of damages against a railway company under the Act, 40 Vic. cap. 17, for land taken by the company for railway purposes, was sought to be quashed on the grounds, 1st, that no demand wad made on the company before warrant issued ; 2nd, that the assessment was not laid before the com- pany before the annual meeting, but Held, by Allen, C. J. , and Dufif and Palmer, JJ., that it was sufficient that the persons, whose land was taken, aiul the company liad not agveed in order to authorise issue of warrant ; also, that the failure to lay the assess- ment before the company before the annual meeting could not affect the assessment. J'l.c parte, The Albert Rail- 7vaij Co., vol. 1!», 4H. LANDLORD AND TENANT. 1— Evidence of continuing tenancy- to quit. -Notice In an action of ejectment no title to the land was proved in the lessor of the plaintiff, but it appeared on the trial that in April, 18K5, L. H., the defen- dant's father went into possession of the land under a lease for three years at a rent of £.5 per annum, the lease pur- porting to be made by the lessor of the plaintiff and T. by one S., their attor- ney. L. H. occupied the land from the time of his jutry under above lease until his death, about fifteen years afterwards ; and after his death his family, of whom the defendant was one, continued to occupy it. There was no evidence of any p^iyment of rent by any person, nor of any com- munication or dealings between L. H. and the lessor of plaintiff and T. or S., arter the expiration of the lease until April, 1804, when the defendant and his brother J. H. signed a letter written by him and addressed to S. " for Messrs. T. and H. (the lessors or plaintiff) offering to buy the land in question, which was described as then occupied by L. H., for the sum of £237 payable in instal- ments in four years, and the letter con- cluded as follows : " In the meantime we agree to become answerable for the payment of the rent at the rate of £.'» per year from the 1st May next, in the event of the offer not being accepted by the owners of the estate." It did not .1 u r ii 142 LANDLORD AND TENANT. LANDLORD AND TENANT. appear whether this letter had been communicated by S. to Messrs. T. and H. except so far as might be inferred from its production on the trial by plain- tiff 's counsel ; neither did it appear whether the year's rent mentioned in the letter had been paid. S. died in May, 1866, and the extent of his autho- rity to act for T. and H. was not shewn. Defendant and several others of the children of L. H. continued in posses- sion of the land without any recognition of right in T. and H. except the letter of 1H64. No notice to quit or demand of possession was proved before bring- ing this action. Held, that there was evidence to be left to the jury of a continuing tenancy in L. H. after tlie expiration of the lease which could not be put an end to without a notice to quit. Ileathcotc v. Hughes, vol. 19, 368. 2— Lease of an unfurnished house— No im- plied contract that it is tenantable— Rent payable in advance— Action for use and occupation— Evidence, letter written by party seeking to put in. On the demise of an unfurnished house there is no implied contract that the premises are in a tenantable condi- tion, Where, on the demise of premises, the rent is macie payable in advance, an action for use and occupation will lie as in other cases after the term is up. Gilles V. Morrison, vol. 22, 207. 3— Privilege from distress— Logs delivered to mill owner to be sawn Into deals- Mill owner jointly interested in the logs- Pleadings— Evidence of persons compris- ing company. Logs delivered to a mill owner in the way of his trade to be sawn into deals, for remuneration, are privileged from distress for rent. Held, by Allen C. J., Weldon and King, JJ., that such privilege is destroyed if the tenant is a joint owner with other persons of the logs ; by Palmer, J., that the tenant's undivided interest can be distrained upon in such case. When in replevin the defendant waived the taking as a distress tor rent due from R. for a saw mill, to which the defendant pleaded that R. was a manufacturer of deals and car- ried on that business in the mill ; that before the distress the P. Lumber Com- pany delivered logs to R. to be manu- factured into deals at the mill, and to be delivered to them or to any person to whom they might sell ; that the lum- ber coiiipitny sold the dealh . the plain- tiff, and that a I'easonable time to remove them had not elapsed before the distress. Replication — that by agreement between the P. Lumber Company and 11. they were to purchase logs which were to be sawn by R. at the mill on joint account, 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 R. 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 R. Quare, whether an allegation that R. was jointly interested with other per- sons in the deals or that he was 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 shew who LANDLORD AND TENANT. LANDLORD AND TENANT. 143 were the persons composing the com- pany. Guy V. Itankin, vol. 23. 49. 4— Agreement for a lease- to dis!rain. -Demise— Right of mem- the time m for the ihew wlio Plaintiff being in possession of land l^elonging to the defendant, ar.d negotia- ting for a lease, signed a memorandum, which, after describing the property, stated as follows— " twenty-five years 5-30 a year, commencing from 1st September, 18S0." 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. //('/(/, that the agreement amounted to an actual demise at a lixed rent ; and t'.uit the defendant could distrain. Ituckh'!/, ct . Mandatory Injunction — To compel sec- retary of Board of School Trustees to ilWe up property of the corporation. See Injunction 1. > MARRIAGE. Evidence of— Presumption — Where a niarriaj^e ceremony was performed by a I'rotestant clerfjynuin in Ireland in isso, between two persons who intended to be married, but who for the purpose of concealment used false names, and tiiey afterwards lived tof^ether in Ire- land as man and wife for two years, when they came to this province and continued so to live to^,'ether. Held. (Palmer J, dissentiuf,'), that in the absence of any evidence as to the law of marria.ye in Ireland, it would he liresumed that tlio marriage there was lawful, although the parties themselves had doubts about its legality, in conse- luence of their having used false names, and went through another nnirriage ceremony here in 1SH5. Perlhihnev, J., that the evidence did not show any intention by the parties to contract a legal mari-iage in Ireland, nor any belief that they had done so. /)) (■(' ■I(tme.i Tieni/ni, vol. '2'), 'iHCi. — In foreign country — Adultery — ne- cessity of proving marriage— Law of .such country. See Adultery. — May be proved by a person present at the ceremony — Not necessary to pro- ihice certificate of registry. See Slander MARRIED WOMAN. 1— Separate property— Evidence of. Where property, apparently in the husband's possession, is claimed to belong to the wife as her separate pro- perty, so as to exempt it from seizure under execution against the husbar.d, the evidence of the separate property of the wife ought to be clear and satis- factory, and in order to justify such claims being sustained, there ought to be no reasonable doubt of their correct- ness. Per Allen, C.J., and Wetmore, J., who decidetl that a new trial should be granted, although the jury had found the property to be the separate property of the wife — Weldon and Fisher, JJ., dissenting. Seeri/ v. 'I'viiiple, vol. 19, 362. 2— Separate property— Disposal by husband — Substitttion of other property— Evi- dence — Conversation between husband and wife— Trover— Joint conversion. A cnw, the separate property of a married woman, was exclianged by her husband, with her consent, for a heifer. The heifer was afterwards sold, and the husband used the money with the understanding that he was to purchase a cow for his wife at a future time to replace the first cow. The husband afterwards bought a horse, which was exchanged for another, and that was exchanged for a cow, with the consent of the wife. Hi'Id, that this cow was not liable to seizure under an execution against the husband. The directions of the wife to the husband respecting the several sales and exchanges are evidence. Ford vt «/., appellants, and Bowser and wife, respondents, vol. '21, alO. Husband executing trust deed — Keleasing debt. See Deed 4. — Non-abatement of suit by marriage. See County Court 5. MARKET. Public— Grant of public market place— Whether authorizes establishment of IF i 1^.3 MASTER AND SERVANT. MASTER AND SERVANT. 't(: market, 11 Vic. 61 ; 14 Vic. cap. 15 ; 22 Vic. cap. 8; 30 Vic. cap. 37, consid- ered— Wbether Yorl( County Council or City Council ot Fredericton have control of the Queen's ward market— Imposing tolls or closing market without express authority— Repeal of Acts. The f^rant of a piece of land for a public market place authorizes the grantee to establish a market there. — Control and management of the market under construction of Act, held to lie in city council of the city of Fred- ericton. In the absence of express authority i to do so, the city council of the city of Fredericton has no power to close the market, or to impose tolls on the sale of articles in the market house ; the : market, by the grant, being a free market. •228. Kdwanh v. Hurgoiine, vol. 21, Marksman — Affidavit made by — Jurat, See Affidavit 5. Marsh-land — When unreclaimed — Acts of possession. See Possession 2. Master — Of government steam dredge, liable for negligence of his fellow ser- vants. See Negligence 2. — Of ship — Wages of — How recover- ed. See Ship 1. MASTER AND SERVANT. 1— Injury to servant— Death of master— Sur- vival of action— Declaration alleging con- tract. A declaration against executors of S. alleged that plaintiff entered into the service of testator as a workman in his mill upon the terms and conditions, amongst others that he (S.) should take proper means and precautions to pre- vent damage happening to him and noli to expose him to unreasonable and un- necessary risk or danger; that while plaintiff was in such employ upon said terms, he was employed by S. to work in said mill, in a place where it was dangerous, etc., after dark, which was unknown to plaintiff, and in conse(iuenco thereof was struck by a piece of timber and his leg broken, etc. It being object- ed on demurrer that this being an action of tort, did not survive against the representatives of deceased. Held, by Wetmore and Duff, .JJ.. (Weldon .J., dissenting), that as the de- claration alleged in terms a contract and and breach cf it, it shewed a cause of action which survived against the defen- dants. Cuniiolh/ v. >)liivi's, ft til.J'!.ri'riiiiii:< etc., vol. IH, ()0(j. 2— Master and servant — Employment of surgeon by an agent to attend a servant of his principal— Admission of counsel- How far client bound by. Defendant residing in England, aiul having a general agent in this province, carried on a milling business here, which was managed by A., thei'e boin^' also a bookkeeper, B., at the mill. .\ workman in the defendant's employ at the mill having been injured, A. and B. employed the plaintiff", a surgeon, to attend him. Held, jur 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 . Misappropriation- Of money by one partner of tirm of attorneys — Liability of co-partner. See Attorneys 6. Misconduct — Neglect to attend a trial when subpcenaed. See Attorney 3. Misdirection — Slander — New trial. See Slander 5. j — A» to passing of property. See i Sale ■',. — Infringement of patent. See Pat- tent. Misfeasance — Liability of railway conductor for. See Railway Conductor IL Misjoinder— Of counts in indictment. See Criminal Law .">. Misnomer — Trial postponed in order to allow name of defendant to be changed. See Practice 2. Misrapresenlation — Policy of insurance — yiuit \)*: material. See Insurance "». Moncton — Town of — Civil court — Re- view from — Attidavit fur — Before whom to be -iworn. See Review 1. 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 II 150 MORTOAOK. MOUT(tA. 2— Consolidation of — Registry Act— Judg- ment creditor— Tender of Interest and costs after commencement of foreclosure suit— Amendment of Bill on Appeal. Plaintiff agreed with 1)., as agent of the defendants, to lend them .S2r),0()0. to be secured by mortgage on two adjoining lots of land. The defendants required the money for the purpose of erecting a warehf)use, which was to cover the principal part of both lots. At the time of the agreement the title 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 115,000 and interest. Tlit title to the other lot was in D., wlm held it as trustee of the defendants, ami he, in pursuance of the arrangement, also executed a mortgage of it to tlu' plaintiff for *10,()()()— the balance of the sum agreed to be loaned — and gave the jdaintiff his bond for i^lO.COO and interest. Immediately after giving this mortgage, 1). conveyed to the defen- dants his equity of redemption in tlie lot. The interest on both mortgage.- being in arrear, the plaintiff brought u suit for their foreclosure, after whieli the defen(hints tendered the interest due on '|l"i,0(H) mortgage, and the custs of the suit, and claimed that the niort gage should not be foreclosed. Held, that as the whole sum secure i was the debt of the defendants, tln' mortgage given by D. was in effect tiieir 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 of MOIITGAOK. MOTION PAl'KIl. l.-)! tlio principal, interest and costK, under (!on. Stat., cap. H!(, hoc. Ill; and in such a cane, a tcndc'r of the intei'cst due and costs of tiie suit is of uo avail. The lien of a judj^inent creditor of a inort^afior, subsequent to tlio mortga^jo, is subject to the pre-existing security of tiio mortgagee, and can only attach upon any surplus that nniy 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 D., 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. //('/(/, on appeal, that such evidence should not have been received, without amending the bill, and alleging facts to warrant its admission ; but tliat such amendment might be made on hearing the appeal. Mdritime U'drelwiiniun tiiid Dock Co. and Thi' Muritinic lUnil: 0/ tin' Dominion 0/ ('nninhi, apjieihints, and S'irliol.ion, respondent, vol. '2i. 170. 3— Foreclosure of mortgage— Staying ' pro- ceedings—Whether defendant entitled to statement of the amount due before ap- pearance-Con. Stat. cap. 49, sees. 40 Where a suit has been connneiiced for foreclosure of a mortgage, the defen- dant offering to pay the amount due, is entitled under the Con. Stat. cap. 41), 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 sucii statement, or to produce the bond and mortgage to thi' judge in (M(uity, he bus the right to refer the matter to a barris- ter to ascertain the amount due. Smith ft III., I\.rrs.,i'tc., V. Corniii'r, vol. "J."), I.s7. — Statute of Jjimitations, cup. H4, sec. 4, and cap. s."), sees. 1 \- Con. Stat. N.IJ. — Covenant in mortgage deed — Payment by co-obligor. See Addemla 27. — • I'l.xtinguishment of mortgagee's right — Recovery by mortgagee in eject- ment by default— Kffect of. See Limi- tations ii. — Whether right in judgment jmsses to assignee of mortgage. See llject- ment 2. — Not a due execution of a trust for sale and conversion. Sec Will ii, — Chattels — Mortgage of, not an assignment under condition in ilrc policy. See Addenda 4'). Mortmain— See liritish Statutes. MOTION PAPER. 1 — Notice of Motion. A notice under Rule ■-', Hilai y 'rerm.l! Wm. IV., that a rul(^ nisi would be moved for, is iri'cgular, an were in the second story of the building, and were reached by a spiral staircasr uf twenty-four steps. The plaintiff ha ■ gone into the court room late in tl afternoon, wlnlc the court was sitting i see a person there, and remained tiii after dark, antl 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 tlie stairs, though there were brackets for gas jets in both places, and also a gasn- lier near the foot of the stairs. neolkjencp:. NEdLIOKNCE. If)}} //('/(/, by WeUlon, Wutmore and Kin>», JJ., ill III' action a^'ainnt tlio (iefendimtB for ne^li^'ence in not li^htiii),' the Ktairs, tliat there was no duty imposed on the defendants by law to lif^lit the stairs, and t)iat the plaintiif could not recover a^aiiiBt them. //('/(/, also, per Weldoii and Wetmoie, JJ., that tlie plaintiff could not recover because the title to the court house was in the corporation of St. John. Per King, J., tliat 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 ,the injury sus- tained by the defendants, omitting to light the stairs. Jieacli v. The Municipa- litij of St. John, vol. 2H, 24!). — Mandamus issued 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- licttl; 'if. Sec Aliens 1. NEGLIGENCE. 1 -Of contractor— Liability of emrjioyer. S. contracted to erect a building for \V. on his (W.'sl land. W. engaged B. to superintend the e . iction ; his duty being to enforce the conditions of the contract, furnish drawings, etc., make estimates of the amount due, and when tlie building was ci 'npleted 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, I charging the same to S. The building to be at the risk of S. until accepted j 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 impioper and careless e.xecution 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 vvas a question for the jury. McMillan v. Walker, vol. 21, :U. Appeal to Supreme Court of Canada dismissed. See Addenda No. V. 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 o1 fellow servants of the Crown. By the first count of the declaration, I it was alleged that the master of a go\- ernnient dredge placed the anchor of the dredge in tlie main channel of ii 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 '>W 154 NF.GLIGENCK. , I the harbor, and that the pluintiff's I mariners liavinj^ occasion to pass out of the said harbor witli the ))hiintiff's vessel, without any default on their part, ran upon the anchor and injured the vessel. //('/(/, that the count described a j^ood cause of action, that the master of the dredge should have placed a buoy to the anchor to warn vessels navi^atin^ the harbor. By the third count it was alleged that the nnister of a dredge placed the anchor of the dredge in a part of the channel of | a public luirbor usually navigated by vessels in a dangei'ous and improper l)osition, and permitted the same to remain in such dangerous and improper position and that the plaintiff's vessel '[ iu passing out of the said harbor in i charge of their mariners, without any knowledge on the part of the latter of the improper and tlangerous position of the anchor, and without any default on their part, ran on the anchor and was injured, etc. Ih'ltl, that the count disclosed a good cause nf action. By the plea tlu; de- fendant, the nuister of tlie dredge, alleged that the dredge was the propei'ty of Her Majesty, and was being used in di-edging out and improving a public harboi', that for this purpose, dredging, it was necessary to anclior it, and that lie dirocted A. 'SI. and others to put tlie anchor out and that tliev placed it in the niimner alleged in declaration, with- out any knowledge on liis [)art that it was carelessly and imiir )perly [)ut out, and that A. 'M. and the others were not employed l)y him hut were his fellow sei'vants in the employ of Her Majesty. //('/(/, 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 iu a place where it might he dangerous to navi- gation, could not excuse himself by NEGLIGENCE. saying the men were his fellow servants in Her Majesty's employ, and that Ik- did not know it was negligently or iniproperly placed there. I.init v. IAkijiI. vol. -21, 202. 3— Where plaintiff offers no evidence to con- nect defendant with act of negligence Effect of such evidAnce on cross-exami- nation — How far plaintiff en'iitiisi 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 defendant himself in cross-examination. Held, that there should be a new trial unless the plaintiff consented that a verdict should be entered for sucii defendant. Kccnitii v. T'li' Tnixti'i'--< ai I.riiislir Utiptist Cliiircli, Vol. 21, 211. 4— Ferry boat— Injury io passenger— Con- tributory negligence--Acts shewing invi- tation to land. I'laiutii'f was a p isseiiger in ilefi'ii dam's steam ferry boat plying acros- the harbor of St. .lohu. A movalilr olniin was pli'i. .i across the end of tin boat to prevent passengers and teams from going beyond it while the boat whs in motion. Wlien the boat arriveil :it the wiiarf or landini; place it stoi>ped. and the pa.ssengers began to go onslinre. though the boat had not been mocri,! to the wiiarf, but a g:',ngway, or plat form, on wiiicii teams were acciistunu 1 to pass to and from the boat, was in tin course of being placed in its positinn for that purpose. The plaintiff was m stranger, and while following the other passengers, and while in the act ol stepi)ing from the boat to the whaif i:' tlie dark— the guard chain having bet u let down — fell into an open space be- NEGLIGENCE. NEW TIIIAL. 155 movable d of the (1 toam- bciat \vii> •rived at stopped, oil shol'e. II inoi'i'f'l ov plat ■eustiinuii as in tlie position :itf was a the other he act of wharf i'.' ,vill!4 been space be- tween the end of the boat and the wharf, j and was injured. lli'hl. Per Palmer, Kiii>i, and Fraser, : J.T., (Weldon, J., dissenting;), that the i takinj^ down the f^uai'd chain, and put- ' tinj; out the },'anf;\vay, were tacts from I which it nuf^ht i)e inferred that the de- j tVndants !iad led the plaintiff to believe ' tliat the trip of the boat had ended, ! and that he mij»ht safely go ashore ; and, ' therefore, that there was evidence of , neglif^ence to leave to the jury. Mc- Donald V. Mayor, etc., of St. John, vol. "24, H70. See same case. Railway Company Xo. C, vol. 25, 318. 5— Master and servant— Injury to servant i of sub-contractor— Negligence by servant i of principal contractor— Fellow servants | -Contributory negligence. Defendants havint; aj^reed with the i town of W. to construct; waterworks for ! the town, sub-let to P. the dijjgin}^ of the trenches for the water pipes and re-Hllin}^ them after the jjipes were laid. 1'. employed the plaintiff in that work, i part of his duty beinj,' 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 atteiid- inj,' to his duty, an iron pipe, which was beinj,' put into the trench by the ilet'endants' servants, fell upon him and injured him. The usual lundt! of lower- ing' the pipes into (lie treneh was i)y | means of ro])es at each end. wtuTeby the pipes were let down {gradually ; but on this occasion only one rope was used, the other end of the pipe beint; pried in with a handspike, in conseipience of which it fell into the trench suddenly and struck the plaintiff. The men in cliarj^e of the pipe knew, or ruyht to have known, that the workmen were in the trench at the time. j Held, 1. That the plaintiff, haviiig l)eeu employed and paid by P., was his servant, and not the fellow-servant of the men wlio caused the injury; 1. That there was nef^lif,'ence on the part of the defendants" servants in the man- ner of puttinf,' the pipe into the trench ; :5. That there was no evidence of con- tributory nef^lif^ence on the part of tiie plaintiff, and that he was entitled to recover. J>cloii(f v. liiirrcll-JoInixoii Countij Iron Co., vol. '2'>, 141). Railway Company— Liability to fence. See liailway Company '2. — Contributory neglif^ence. See Rail- way Company o. — Nef;li},'ence — Injury to passengers while landing from ferry owiu^d by an- other conijjany. See Railway Com- pany (i. Railway conductor— Accident to pas- senger — Right 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 atlirmative evidence of negligence in action against carriers. See Car- rier '2. — Loss of scow — Evidence of ex))ert. See lOvidence l!l. — Question for jury. See lOvideuco 1{. Newcastle civil court — Commissioner of — .Jurisdiction to try offences against the Canada Temperance Act. Sie Canada Tenipeianee Act \'i. NEW TRIAL. 1— Agreement to leave all matters to jury — Binding effect oi— No cause of action shewn. Where both parties on the trial of a cause, by their counsel agreed that the claims which they were ])utting forward on both sides should all bo left to the jury without any objection being made ( . I L56 NEW TRIAL. NEW TRIAL. as to the le^al liability upon such 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. Fo.vwell v. Smith, vol. 18, 439. 2— Trespass — Joint and several— Election and abandonment— Damages not plainly appearing to be confined to one act of trespass— Evidence of separate trespass —Effect of time of election— Judges dis- cretion. In an action of trespass, qit. cl. Ji., 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 survej", and that plaintiff's land had been damaged to the extent of jtaoo. The jury found a verdict for plaintiff for $2")(). On motion for a new trial, tlie court granted the tvi.pliciition, not bring satislied that the jury had coii- tiiied the {hunages to the one act of entering on the land and running the lines, or that they had not taken into consideration the subsetjuent acts of tlie 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 tresioasff 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 at, 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, Hui^oi v. Hector, etc., St. Jamex Church, vol. 18, 475). 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 iiiat 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. Mflittash v. Hamilton, vol. is, 054. 5— Action on account stated— Wliere jury only allowed half the amount— Quantum meruit— Evidence. Where plaintiff claimed §1,000 as tht' amount of an account stated between himself and a deceased person as due plaintiff 's wife for board and lodginu for a number of years, and the jury allowed |oOO; 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 nurphig the in- NEW TRIAL. NEW TRIAL. 157 testate in his last illness, put in evi- dence, subject to objection, the inven- tory of the estate. Held, improperly received, the only (]ue8tion for the jury beinf^, what were the services worth ? not, what was the intestate worth? Fowell v. Wark, vol. 10, 57. 8— Where party applying for, kr . .. at tiie timetliat lie was related to the ^...^6 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 judf^e the defendant knowing that he was re- lated to the judge, did not disclose the fact of this relationship, but took tlie chances of tlie 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 whicli he deposed to the I'olationship, and asked for a new trial on that ground. The judge refused to allow tlie 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. V'li'v, whether the court would in any case grant a cci-tioniri to bring up proceedings had before a county court judge. Ex parte Ferguson, vol. 1!), 117. 7— Evidence where improperly received and afterwards withdrawn by judge from jury. //<'/(/, under authority of Wilmot v. Vi'uivart, 1 P. & B. 4o0, that where evi- dence which has been improperly re- cei\ed 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. Steirart v. Snoic- bnl, vol. 19. 5i)7. 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 (piestion 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 foun,lready before four juries, thought that there ought not to be an- other trial, and the rule Was discharged. (iibaoii V. Till' Xorth Ilritixli d'- ^fcrrai ilr //(s. Co., vol. 1!>, 0.52. 9— Appeal On question of fact— Bills of Sale Act— Verbal defeasance. Appeal from an order of a county court judge i-efusing 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. Qii(tri\ 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 A- 2. Sh. — Feigned issue sent down for trial — Motion for a new trial on a feigned issue sent down by Supreme Court in I>(iuity must be made before a Judge in Kcjuity. I'oiiKirrx v. Miiias Murine lux. Cii., vol. IS, C).")!. — Negligence — Not luuin;; evidence I if corporation exercising jiowers cai'o- lessly. See Action on the Case. - J'^vidence — Voluntary ccniveyance — Question for jury as to liiiit(( liilcs. S.e Deed. — Ordered unless plaintiff would allow verdict to be reduced. See Col- lision 1. -What entitles to. See Practice 4. — Should not be granted when plain- tiff could only have received nominal diuiuiges. See Il?plevin 1. — Evidence received on trial and not objected to. See Carrier 2, Agreement 7. -Where plaintiff would have been entitled to nominal damages for non- delivery of null machinery at the time agreed upon. — Actual dannige not having been proved ; verdict foi- dofentiant. New trial refused. See Contract 14. — Case trie I Court (i. NEXT OF KINDRED. Person dying since 61h April, 1858, intes- tate, and without children, leaving a mother and uncles and aunts— Who en- titled to real estate. If a person dies intestate and without I ehildi'en, between the fUb .\pril. 1H.")S, and the passing of the ( 'oiisolidiited Statutes, leaving a niotlur and uncles and aunts, his nujther us his next of kindred, is entitled under cap. 7^ of those statutes, ;•> the real estate of which lie died seised, lioe di/ni, Wmiii v. l)rl\n-e=. —Justice's court — Where impro))erly granted — No evidence having been given by the defendant — Power of judge on review to order judgment to be entered for the plaintiff for the amount proved on the trial. See Certiorari S. — Whether should be granted — Where title to land brought in question in county court — Remitting cause to supreme court. See Trespass 10. — Agreement of counsel at trial that verdict should be entered for defendant if the court should be of opinion that plaintiff had failed to make out a case — Whether court has power to enter a non-suit. See Practice. — Notice— Where notice given under 42 Vic, cap. H, sec. 10, stated that defendant would move to enter non- suit and leave to enter non-suit had not been reserved at trial, the court refused to allow the defendant to annul I'otici.-. See Amendment 2. — Plaintiff not giving evidence of negligence in carrier, defendant dis proving, not competent to move for i non-suit. See Carrier 2. — Where plaintiff entitled to nominal i damage — no actual damage proved - ' New trial refused. See Contract 1">. I Notice of action — Act done in purnu- ] ance of statute — School Act, Con. Stut 1 cap. (■)"). In an action for seizing plaintiff's 1 property under an execution issued for school rates, the defendant is entitled ] to notice of action under the Con. Stut. j cap. ()"), sec. SI, if he, acting "s secretary of the trustees of schools, honestly be- lieved that the plaintiff was liable to pay the tax, and that in issuing tlie execution he (defendant) was dischari,'- ! ing his duty nniler the law ; and thert- i are facts existing which might gi\f I rise to sucli belief. The words in section 81— " anythiiii; done by virtue of the office of secretary " — mean anything done by the defen- dant in the reasonable belief that \'.o was pursuing the directions of the Act : even though the validity of his a[i- pointment as secretary was doubtful. Miclieaii, appellant, and Finniijdit, re- spondent, vol. 24, 327. — A fishery officer wlio wrongfully prevented a riparian owner from exci- cising his right of fishing, not entitkil to. See Fisheries Act 2. I NOTICE OF MOTION. ON VIEW. 161 — Not necessary before suiiif^ a justice of the peace for recovery of penalty for not making return of a >.onvictiou before him. See Justice of Peace 1. NOTICE. — Two grounds of action — Proof of either one or the otlier would be suffi- cient. See False Imprisonment 6. —Notice of appeal— Eiiuity —Serving, See Equity Appeal, — Equity — Statement of grounds. See Equity Appeal 1. —Notice of hearing- If plaintiff gives— In suit in equity, but does not attend, cost of day allowed. See Practice 5. — Notice of intended examination, sufficient time. See Debtor 1. NOTICE OF IMOTION. Under Act, 42 Vic. cap. 8, sec. 10— Time for giving— Power of court to extend— Prac- tise. The court has no power to extend the time forgiving the notice of motion, the statements of the grounds of motion luul the authorities relied upon by Act, 42 Vic. cap. H. sec. 10, beyond the term next after the term following the circuit at which the cause was tried. ]\\to(l- iiuiii V. Toicii of Moncton, vol. '20, 12. —Under Rule 2, Hilary Term, (1 Wm. IV, irregular. See Motion Paper. Notice to quit— Necessity of — Where evidence of continuing tenancy exists. Hee Landlord and Tenant 1. Nominal damages— Where plaintiff could only have recovered— A new trial should not be granted. See Replevin 1. Novation — See Agreement 4 ; Con- tract 1. Nuisance — Erection of fence on street. See Addenda 40. S.D. Objection — General, to admission of evidence not ground for new trial. See Evidence 1. — To niror — Should be such as judge or clerk can properly hear at time. See Challenge 4, Offer to suffer judgment— See County Court 2. Official — Of corporation cash book kept by entries showing balances against — Admission of correctness. See Evi- dence 14. —Public — Appointment by Govern- ment — Continuance in office until suc- cessor legally appointed. See Milltown, Town of. —Opinion of experts— Involving truth of evidence of other witnesses. See Evidence H. — Of witnesses — Collision — Questions for jury. See Evidence hi. Order of commissioners — For debtors' discharge — What it should set out. See Limit Bond. Original order — For review — Served instead of copy — Judge granting second order. See Review (J. ON VIEW. Fishery officer— What constitutes on view materials unlawfully in use for the purpose of drifting for salmon. The defendant was a fishery officer under the Fishery Act, 'M Vic, caj). 00. Seeing plaintiff's boat coming ashore at river Charlo, in the county of Resti- gouche, with wet nets in it, and plain- tiff's servants admitting that they had been drifting for salmon in the Bay of Chaleurs, the defendant seized the boat and nets, and during the same day served plaintiff with a paper, wheixby defendant purported to confiscate plain- tiff's boat and nets on view. The Bay 11 mi PARISH OFFICER. of ('lialeiuH wan outside the limits for wliii'h defendant was appointed Fishery (Jflicer, //('/(/, that under the Fisheries Act, defendant was not justified in seizing and conlibcating the hoat and nets unless the offence was committed on his own view, which, in this case, it was not. MrFec v. Motcat, vol. 19, 252. Appeal to Supreme Court of Canada dismissed. See Addenda 4. OVERSEER OF POOR. Town of Upper Mills— Proper parties to action for support of illegitimate child. Held, that the overseer of poor for the town was a corporation solo ".nd for the breach of any contract made with him for the support of the poor of tlie town, the action should have been aj^ainst tliu corporation and not aj^ainst tlie town. Ilt)si< ((■ U'iJ'i' V. Town of fpprr .1//7/.S-, vol. 22, 1(W. PARISH COURT COMMISSIONERS. Jurisdiction to try offences under the Ciuiada Temperance Act, 187H. The parish court commissioners have jurisdiction to try offences under the Canada Temperance Act, 1H7H. The local government has the right to appoint parish court commissioners and justices of the peace. F.x paite, Pcrkiiix, vol. 21, 0(1. Kx parte, Williaiiisoii vol. 24, (il. PARISH OFFICER. Appointment by parish councillors. The mere absence from the parish of ii parish officer appointed by the county council under section llO, cap. '.)'J, of the Con. Stat, does not create such a va- cancy as will authorise the appointment of a person to fill the office by the coun- cillors of the parish.' The Queen v. Close, vol. 1!», 502. PARTITION. Parish court — Kight of plaintiff by abandoning the excess upon the pai'ticu- lars filed to bring the action within the jurisdiction of. See Certiorari 8. Parol agreement — Whether circum- stances shew that there had been a sub- stitution of, for written contract is question for jury. See Contract 3. Sale of logs— Ownership. See Sta- tute of Frauds 1. — Parol evidence — When admissible. See Agreement 2. — Not admissible to shew variation in contract required to be in writing by Statute of Frauds, See Sale 2. PARTICULARS. 1— Of demand— Sufficient if particulars refer to accounts rendered without giving items for same. Particulars of demand which refer to an account rendered without re-stating the items of the account, are sufticient to entitle the plaintiff to prove the items on the trial. Palmer v. Hdrdhnj, vol. I'J, 2H1. — Filing of — Whether commence- ment of action in justice's courts. See Justice's Court 1. — Demand of— Effect on application for order for inspection of books. See Books. — Of claim — Sufficiency of. See Cou- version 1. — Demand of. in ejectment — Stay of proceedings. See Ejectment (5. PARTITION. 1— Mutual deeds of— Reservation of com- mon right to quarry in one moiety— Words of inheritance— Opening new quarries- A. and B. being tenants in common in fee of a lot of land under the surface of which was plaster rock, made parti- tion thereof by deed ; A. releasing to B. I'AUTITION. PARTNERSHIP, 163 nil iiin rif^ht in the western lialf of the , lot. and {,'ranting to him the rifjht of' 'li^f^inf? and carrying ofi plaster from I the (]narrieH, on the eastern half ; and B. releasing to A. all his right in the eastern half, except the plaster therein, which was to continue in common as liefore, B. retaining and reserving his original right of digging and carrying ' away the same. In trespass by the j.laintiff, claiming through A. against the defendant, claiming through B., i Held, 1. That B. never parted with | I lis right as ownt.' in fee of the plaster in the eastern half of the lot; and that such right on his death vested in liis lieirs, though there were no words of in- heritance in the exception. i '2. That B.'s right to dig and carry ' awuv i)laster was not a mere license I expiring at his death, but an absolute restrviitiou of ownership with the same legal incidents as if the partition had II )t been made. ?>. That the right of B.'s grantee to affixing personal property to the land of another, where he has no riglit to aftix it, alter its character as a chattel. See Replevin 8. Perverse verdict— New trial See New- Trial 11. Petroleum — Conviction for storage of. See Police Magistrate of St. .lohn. PLEA. 1— Professing to answer the whole cause of action— Answering only part— Bad on general demurrer. If a plea professes in its commence- ment to answer the wiiole cause of action, and afterwards answers only u part, the wliole plea is bad, and the plaintiff may demur generally. It must answer the whole, or be limited in its commencement to that part to which it is an answer. Wilhtt v. I.oc.hhart. vol. 19, . 4 — Assumpsit — plea of "never indebt- ed " — Whether applicable to county courts — Appeal after merits tried on improper plea — Accord and satisfac- tion. In an action of assumpsit in a county court, defendant pleaded " never in- debted." The case was tried without objection to the plea and a verdict given for the plaintiff. Held, on appeal that whether such a plea is applicable to suits in the county courts or not, the judgment ought not to be reversed after the case had been tried on its merits. Where the plaintiff's donuind is for a liquidated amount, the payment of a smaller sum will not amount to a satis- faction of ^iie lai'ger sum, even though the plaintiff' agreed to accept it in full. Pitjiehl, appellant, and Kimball, re- spondent, vol. 2"), l'.(3. — In an action on promissory note — Accommodation. See Accommodation 1. — Should set out some fact and not only a matter of law. See Bankru[)tcy. —Puis darreign continuance- Discharge under Insolvent Act. See Attorney 2. 16(5 PLEA. PliEADINO. ■ Ih^ ' i |l , — Of non-ci'pit, L'lititlfd to Huceeed iindci'. Heo Iloplovin 3. -.luHtifyiriK an impriHoiiment under waiTiint iHHUed by receiver of taxew, St John. Hi'hl, had for that tlie i)roccedinf,'9 taken were not set out in detail. See Arrest '>. — Of accord and satisfaction by pro- misHory note, when note has been returned. See Accord and Satisfaction 1. — What evidence of. See Agreement 7. — That allef^ed indorsement of bill of exchanf^e was made without knowledge or consent of the assignee — Held good. See Bill of ilxchange 1. — Not guilty in trover, plaintiff having property need not prove right of present possession. See Bill of Sale 2. — Of justification under an attach- ment for costs in case of review from justice's court — What plea must set out. See False Imprisonment '>. — In Abatement. See Replevin "> ; County Court '). — Of misrepresentation, must allege that it is material. See Insurance ">. — Of false swearing, must allege that it was done wilfully. See Insurance 5. — Stating only conclusions of law is bad. See Municipality. — Power of judge to refuse new plea by way of amendment. See Partner- Bhip 1. — Of property in lumber, by sheriff, supported by possession under writ of replevin. See Replevin 4. —Leave and license. See Sheriff 's Sale. — That action was not brought within time limited by condition of insurance policy — Good defence. See Insurance 10. — Where false— Setting aside. Sc i False Pleas 1 . — Non-assumpsit — Right to (liH|)iit. : consideration of. See Agreement .'. — Time allowed for filing and ki'i\ im of i)lea. See Court 7. I — .\batement — County Court. Sci^ I County (Jourt "i. — No affidavit of debt against estate. if necessary must be pleaded. See l.xi- cutors 1. — Action for infringement of patent See Patent. — Time of filing and serving after demand of. See Court General Rules 7. — Autre Join convict — Onus of procf See Summary Convictions Act 12. — Additional plea — Supreme Court of Canada no power to allow. See Adden- da Hl-9. — County court — (Jeneral issue — Sufficiency of. See (bounty (!ourt 7. PLEADING. 1— Trover— Claim of lien for commission charges, etc., plea not traversing right of property— Evidence of lien, when may be given and to what plea applicable. To a declaration " for that defen- dants converted to their own use, or wrongfully deprived plaintiff of the upl- and possession of plaintiff's corn," de- fendants pleaded that they were brokei- and commission merchants, and timt said corn was placed in their hand-; as such brokers and commission mev- chants by plaintiff for sale or return. and defendants had necessarily incurred costs, charges and expenses in the stor- ing and safe custody thereof whilst so in their hands, wherefore they claimed a lien upon the corn therefor until such lien should be satisfied, and that defen- dants refused to return said corn until such costs, etc., were paid, which w.i» the grievance complained of. I'I.KA1>IN(V. PliEADINO. 1(57 //(•/(/, tliiit tilt' (lieu wiis I'lt'ivrly bad : lliat it WHS ii|i|)li('al>l*> to an action of (letiiiiio only, and was no answer to an action for wron^'fiil convoi'sioM. .Vcc/z/.s V. Sclitiliflil, vol. IH, V.i't. 2— Insolvent Act of 1879— Charging fraud under section 136. Not necessary to allej^u that defen- dants liave ^one into insolvency. lUirnj V. Ili'iidii, vol. IS, H)'), 3— Departure. To an action on a policy of insurance defendants did not traverse the allet,'a- tion in the declaration, and tiioreby ad- mitted the si^nin^ of the policy by de- fendants, and the sending,' it to their afjent for delivery, and also that it con- tained an acknowledgement of payment of the premium; but they avoided the effect of the admissions by setting out the conditions that the policy was not to operate as a contract until the premium was paid, and tlie policy delivered, and allegin}^ that neither of these conditions were performed. Held, that this was a proper mode of denying,' the performance of conditions precedent. A declaration in an action on a policy of insurance havinj? alleged a general performance of all conditions necessary to entitle plaintiff to recover, defendants pleaded that certain conditions of the policy were )iot performed by the as- sured, viz., that the advance premium was not paid, nor the policy delivered ; and plaintiff replied to this, that defen- cant's agent waived performance of these conditions. Held, a departure from tlie declara- tion, and therefore bad. Another count alleged a waiver by defendant's agent of the pre-payment of premiums, and his agreement to give asKur»'d time for r)ayment thereof till demand, nefeinlunts answered this l>s stating the conditions of the poliev tliiU no agent of the company except the president or secretary had power to waive performance of any of the con- ditions, and that the alleged waiver was not n\ade by the president or secretary. The replication alleged that the assured tendered the premium to the agent, and that it thereupon became his duty to receive it, and to deliver the policy. //('/(/, bad for departure. Plaintiff also replied generally to de- fendants' pleas that they were estopped from denying payment of the advanced premium in consequence of the admis- sion of the receipt of it in the policy. Ifclil, bad for departure, being incon- sistent with the averment in declaration that assni'ed tendered the premium to the agent, who did not receive it, but waived performance of that condition, and agreed to give time. Ciilhimu v. (nion Mutual Ins. Co., vol. lO, IH, 4 — Covenant — Necessity of setting out agreement sued on. A declaration alleging that R.. of whom defendants were executors, in his life time represented to plaintifYs that he had an arrangement with a railway company by which the company was bound to carry all lumber cut, or to be cut by R. or his pssigns from a certain described tract of land, at a certain rate, which R. agreed to assign to plaintiff's if they purchased the property. It then averred that plaintiffs were induced by this representation to purchase said lands, etc., but R. had not transferred his interest in said arrangement to plaintiff's, who now sued for breach of covenant. Plaintiffs were ordered by a judge at chambers to amend their declaration by stating what the arrange- ment was between R. and the railway company. 168 PLEADING. PLEADING. I . - M //('/(/, on motion to rescind the order that it was in<{litly made. //('/(/, also, that allegations of U.'s object in makin},' the agreement with lilaintiffs, and of their enterinj^ into the agreement confiding in his representa- tion, were quite inimaterialin an action for breach of covenant, and as they mighi tend to embarrass defendants in their i)leacliiif,' were i)roperly ordered to be struck om;. Voac v. Dii[)', vol. 1!», 5<). 5— neparture— Replication. By the second count of the d-clarution the plaintiff alleged that C. A. F., on the l!(th January, iHTo, by Ids pi'omis- sory note then over due, promised to pay J. B., or order $i(iOO with eight per cent, interest twelve months after date, and the said J. B. indorsed the same to the defendant who endorsed the same to the plaintiff, etc. To a plea by the defendant that ha did not indorse the said promissory note to the plaintiff, the plaintiff replied that the said J. B. to whose order the said promissory note was payable, was the plaintiff, and that the plaintiff after making the said promissory note en- dorsed the same in blank without re- course upon him, tlie said plaintiff to one R. B. H., who endorsed *he same to the defendant, who endorsed the same to the plaintiff as alleged. //(.'/(/, that the replication was bad ftir departure. Jlrl! v. Muilnt. vol. I'i, 'itil . 6— Assignment of debt— Suit by assignee in equity. The assignee uf a debt brou;. ht a suit i i ecjuity for the recovery of it .igaiiist the debtor and the assignor, alleging as the reason for not proceeding at law that he had ret) nested tlie assignors to have an ir aon at law brought in his (the assignor's) name, for the recovery of the debt for tlu benefit of the ],)laintiff. and that the assignor had refused to have such action brought. A demurrer to the bill for want of equity having been overruled ; Held, on appeal by Palmer and Kiig, J.T., (Allen, C.J., doubting), that the allegation in the bill was sufticient, as it was capable of the meaning, that the plaintiff had requested the assignor of the debt to allow an action to bn brought in his name for the recovery of it. and the assignor had refused to allow it. K. 9 -Surety— Bond for faithful discharge o( agent's duties Discharge of surety by alteration of agent's duties— Continuing agency— Pleading. PLEADING. PLEADING. 169 Declarati(3ii on a bond, after recitinj^ tliat 1). had been appointed plaintiff's anient, and tliat defendant had become surety for the faithful performance of D.'s duties, stated the condition of the bond to be that D. should from time to time, and at all times thereafter faitlifully execute the office of aj^ent, aiK?- nty over all monies — Hreach that he had not accountetl, etc. I'leas 1. That by af^reement between plaintiff and D. before makinf^ the bond, l)."s appoii'tnient was to be for a year, and tliat he had faithfully discharf^ed all liis duties as aj^ent wliile he was so employed. 2. That after the execution of the bond, and before brcabh, the uj,'reement mentioned in the first plea was cancelled, and a new at;reement made with D. imposintj different, and more onerous duties on h.im, without tlie defendant's consent. Hehl, 1st. That the second plea was iiood. as it showed a material alteration in tlie orif^inal contract whereby D.'s duties were different from those for the performance of which the defendant became liable, and that he was thereby dischart,'ed. "ind. (Allen, C.J., dissent- ing), that the first plea was f^ood, tliat the words of tiie bond that I). should from time to time, etc., faith- fully execute the of^ice of aj^'ent. luul no fixed ineaiiiiit,' as ti the continuance of the afiency. and were not inconsistent with his api)ointmfcut for a limited time — Which defendant liad a ri^'lit to prove. /'<■(• Allen, C..!., tliat the bond showed ;i continuini,' a^'ency till terminated by ilie parties, and that the v(-il)al agree- ment that it was to be for a year, was at variance with the construction of the li'Mul. Tlic Canada T.ifc .i.fKiiniiice Cti. V. Cdlkiiis. vol. 21. 27(i. — If one f)f several i)leas was irre- '^iilarly pleaded, the [)laintiff's attorney might apply to have it struck out : but he could not accept part of the pleas, and treat the other as a nullity. See Attorney 2. -Duiilicity in, not ground for gen- eral demurrer. See Accord and Satis- faction 1. — Sheriff having seised goods under execution against H. cannot set up that II. had no projierty in the goods. See Bill of Sale 1. — If the obtaining of an affidavit were a condition precedent to the right to sue for a debt against an estate to be available as a defence, it would ha\e to be specially pleaded. See Iv\eciitions 1. —Slander — Necessity of se ing out all the material words constituting. See Slander 1. —The master of a dreuge having directed the men to put j,u ancboi- in a place where it might be dangerous to navigiition could not excuse himself by saying the men were his fellow servants in Ker Majesty's employ. See Negli- gence 2. — Action by a company incorpoi'ated by letters patent under the Canada Joint Stock Companies Act, 1877 — Declaration — Necessity of alleging in- corporii 11. Sei .loii;. ': ''ock Coiii- [lanies Act 1. — Action f)f trespass to proiierty of infant under fourteen years of age — Who entitled tn maiulain -I'lea. See In- fant 1. — l'^(juity — Setting out documents at full length. See Will •». — ■ Ecpiity — IJill - Multifariousness. See Ivi'.ity. — lOxecutors — Ivxciise for not pio'.ing will. See Will 7. — Deiiiiirref to replication. See In- surance 11. — ^Bil! of excliiUige — Whether defence of insuflicient stamping should be pleaded. See Bill of lOxchaiige. f^ 170 PLEADING. PORTLAND. — Jiidf^nient — Action on — Release — Where obtained before judtjment — Whether ])lea of release available. See .ludf^nient 3. — Professing to answer the whole plea and only answerinj? a part. See Tres- ])ass '.). — Replevin— Shew.Mi}^ joint ownership in deals seized nnder distress. See Land- lord and Tenant H. — Whether objection that policy of insurance was not countersii^ned by agent available nnder the plea of noii r^t factum. See Iiisurance l-'>. — /'/'' -f admiiiistracit — Under plea of — '"vuience of probable expense of prese;;t and other suits not admissible. See Evidence lH. — Insolvent Act of 187o — Charging fraud nnder sec. 130, not necessary to allege that defendants have gone into insolvency. See Insolvent Act of 1870 ; 1. — Injunction order— Allegation that defendant falsely procured same — Whether sufficient. See Action on the Case. — Tort — Proper mode of denying | existence of duty. See Action on the ; Case 2. i — Joint owners— Joint ownership no | answer to action for misfeasance and ' misuse of property. See Action on the Case. — Abatement — Marriage of plaintift — County Court. See County Court "». — County Court — Pleading general issue only. See County Court 7. — Set-'^ff, of judgment, pleading. See Set-off 1. POLICEMAN. 1— St. John— Power of common council to reduce pay— Month's notice required. Act 19 Vic. cap. .52 — imposes on the ' corporation of St. John a statutory duly to pay the policemen their wages. aU' I an action will lie for the recoverv thereof — month's notice requisite to in- duce i)revious rate of wages. Mniinr. etc., of St. John v. Patchell, vol. 22, 17:!. Police Magistrate — Town of Wooil- stock — Whether being deputy collectur of Inland Revenue disqualifies from trying officers against the Canada Tem- perance Act. See Canada Temperance Act 11. POLICE MAGISTRATE OF ST. JOHN. 1— Conviction by— Review — Petroleum — Storage of. There is a right of review to a judge from a conviction by the police magis- trate of St. John. The Act, :-t4 Vic. cap. 88, by sec. 1, declares that " no person shall have, keep or sell in any place, or building, within the limits of the city of St. John . . . any crude or reHned petroleum, etc., in any larger (juantity than 200 gallons in the aggregate, to be contained in not more than five barrels. " Held, that the Act does not prevent a person having more than the stated quantity of peti'cljum in different part^; of the city, provided he has not more than 200 gallons or five barrels i i an\ one ])lace. The Mai/or of St. .Tohn v .M,ist,-r.-<. vol. 1!), ")8.). Policy of Insurance — Where loss, if any. payable to a person other than the assured -The assured the proper ])er- son to bi'ing action for loss. See In- surance 4. Poor, overseer of— Town of Upper Mill'; — Action for support of illegitimaii child. See Overseer of Poor. PORTLAND. Tow.i of. liability to keep sidewalks in reiyair. Town bound to keep sidewalks in repair and reasonably safe condicion POSSESSION. POSSESSION. 171 for persons using same, this applicable to sidewalks built before town incor- porated and which had been continued to be kept in repair by town — Action for nef»]igcnce. See (lri[litli>i v. Town of Vortlitnd, vol. "JH, 'y')\K See same case appealed to Supreme Court of Canathi, and appeal allowed. See Addenda, No. '21. Police Magistrate — Jurisdiction of. Fee CoHi •. ^'"wer of town council to exact license fee from coachmen. See Hack- ney Coaches. — Street, inur' -■ arisinj^ from non- repair of. See Streets. PORTLAND CIVIL COURT. Whetl'. •■ ma;'! ilrate has jurisdiction under |^J vv v:i!erord, vol. 22, ,377. 2— Discontinuance of possession— Acts of ln\ vol. 24, ;{87. — License to grantee of bill of sale, to take. See Bill of Hale 1. Postea — Where stayed — Judge's order necessary to obtain from clerk. See I'ractice 18. Pound —Public— Erected on private property by pe'-mission — Necessity of continuous use to establish title. See | Statutory Title. POWER OF ATTORNEY. Authority to convey land for money consider- 1 ation— Conveyance by agent for other con- i sideration— Whether void— Ratification. ; Where a power of attorney autho- ! rizes an agent to do a particular act, iuid this is followed by general words, these general words are not to be extend- ed beyond what is necessary for doing the particular act. A. and B., tenants of land residing abroad, executed powers of attorney, iuitliorizing the sale of their interests I for such sums of money as their respec- tive agents should think reasonable. . The defendants, vvishing toopou a street tlu-ough the land, applied to the agents, who conveyed to them by deed of gift, , tlie piece of land required, believing that i the opening of the street would increase I the value of the adjoining land of their principals. After this, partition was made be- tween A. and B. by mutual deeds of release, and the land through which the proposed street was to be laid out, be- came the sole property of A., and in the deed thereof executed V)y B. to A., and on a plan annexed thereto, the land re- leased to A. was described as bounded by the proposed street. A similar i>lan was annexed to the deed given by A. to B. The defendants afterwards entered on the land and opened the street, for which A. brought trespass. Held, 1. That A.'s agent had exceeded his authority in conveying the land to the defendants, without any pecuniary consideration, and that no title passed by the deed. 2. That A. had not ratified the deed by accepting the conveyance from li.. describing the land as bounded by the street, becar^e it did not appear that when A. accepted tlie deed fi'om B., she knew that her agent had exceeded his authority in conveying the land to the defendants ; and because the reference to the line of the street in the deed from B., was not the act of A., and the accept- ance of the deed conveying I'.'s interest in a part only of the land, did not pre- clude A., from relying on her original title to the whole lot. llazen v. Toini ai Portland vol. 21, 832. See Addenda lit Fawcett w Anderson. PRACTICE. 1— In ejectment— Vacant possession— Ser- vice — Affidavit. Held, in an action of ejectment for I'e- covery of a vacant possession, where tlie sheriff's affidavit stated lu' i.ad affixed a copy of the declaration and notice upon the outer door of tlie dwelling house, the lessor was entitled to jiulgment nisi against the casual ejector, Vrother,- v. 7iV, vol. Ill, 188. 2— Amendment— Misnomtr -Costs. When a judge at nisi j>rius being sat- isfied there had Ih^ou a mistake in the name of defendants, allowed tiio iiaiiie of " The Town of M.," to be substituted for the " the Town Council of >!.," and postponed the trial. ^'<| ".[ 174 I'UACTICE. PRACTICE. ]h'ld, that the amendnieut was rij^htly nmdo, but that tlie jiidt^e, in f^rantiiij,' tliu order, should have iillowed costs to the defendants. Wondnuiiiv. ToionCoun- i:il of Mimctou, vol. I'J, 338. 3 —Argument of summons— Where point not taken in obtaining summons— Promissory note— Where payable at par icular place —In affidavit for attachment on— What necessary to allege as to presentment. On tlie art^unient for a summons to set aside an attachment, the party ap- plying to set it aside cannot avail himself of any j^rounds, except those on which he obtai?ied the summons. //('/(/, that an atVidavit for an attach- ment a}.;aiiisl the maker of a note pay- able at a particular place, which allej^ed that the note was duly })i'esented for jiayment at, etc., but was refused pay- ment, and was dishonored, and has not Ix'cn [)aid, and there is now due to me (plaintiff) for principal money thereon the sum of, etc., was suflieieut. McLel- hm V. lutnies, vol. 11), H71. 4 —Motion for new trial. Where u counsel moving,' for a new trial under .Vet, 42 \'ic. cap. 8, fails to niakc out such a case as would have en- titled him to a rue nisi under the for- mer practise, the motion will be refused without hearing; the counsel for the opposite party. Pcdhoilji v. North -'l]''cst Boom Co., vol. li), 4!(o. 5— Costs of day— Where plaintiff gJves notice of hearing but does not attend. In a buit in eijuity where plaintiff's solicitor gave notice of hearing, but did not attend, or proceed to the hearing, and tlie defendant's solicitor attended, and applied for costs of the (hiy, which the judge ordered. [{(■Id, that the order was rigltly made. Milbur V. Jones, vol. ]'J, odii. 6— Reading to witness statements pre- viously sworn to by other— Separate coun- sel for defendant— Right to cross-examine On the trial of the cause the judge re- fused to allow defendant's counsel t(i read to witness B. what S. had sworn was said by him, B., about making a mistake, in order to ask B. whether such statement was true or not. llidd, ;>(')• Weldon, J., that the judge was right, and B. could only be asked to give his version of the conversation. /'('/• Weldon, J., that the statement which the counsel wished to '-ead ncit being in themselves evidence, the judge should have allowed them to be read to the witness for the purpose of contra- diction. The defendants appeared by the same attorney, but were represented at the trial by separate counsel. Held, per Weldon, .J., that only one counsel had a right to cross-examine and addi'ess the jury. Per Wetmore, .7., that at all events the judge should have satisfied himself that defendants' interests were identical before refusing to allow the counsel for both to cro;iS('\aniiue and address the jury. MrMilhni v. )Va!l;,r, vol. 21, ;U. See .\ddenda !>. 7— Rule nisi— Where not entered on crown paper— When applicant entitled to have made absolute. A rule niiti having been taken out ami served, recjuiring defendants to show cause at this time why a certain coiivic tioii made by them as justices should not be (juashed, they dii' not enter the I case on the crown paper. ! Held, that the second motior day nf j the term was the proper time for niov- ' ing to make the rule absolute. Reiiimi \ V. Diu/ton. vol. 21, lit;"). 8 -Commencement of action -Contents nisi 1 prius record. PRACTICE. PRACTICE. 175 111 an action iij^ainst a justice of the j)eace, Held, that the statement of the time of issuinj^ the summons contained in the iiiKt priit.i record was suiilicient jiroof of the commencement of tlie action. Iiijon V. liarnes, vol. 22, 5,>. 9— Entry of cause— Entry docket— Where wrongly entitled— Interlocutory judment— Memorandum of judgment docket— Date of fihng— Whether necessary io contain- Where more than a year has elapsed since last proceeding— Terms notice— Not ne- j cessary when plaintiff delayed at defen- 1 dant's request. i Ilrhl, hy Weldon, I'ahner, Kinj,' and ' Fraser, -IJ., (Alien, (J.J., and Wetmnre, J., dissenting), that the entry by the clei-k is what constitutes the entrj' of a cause and not the tiling of the entry docket hy the attorney, therefore where the writ and aMidavit of service were filed with the clerk, with an entry docket describ- ing one of the i^)laintiffs by a wrong name, but the clerk received the fees and entei'ed the cause properly in hi.^ books, defendant was not entitled to licive judgment set aside for the defect in the entry docket. The statement of the date of entry of the cause required by the 4th Kule of Hilary Term 187'), to be written on the memorandum of interlocutory judgment is for the convenience of the clerk, and its omiHsion is not a ground for setting aside the judgment. It is not necessary to state on the jtidgnient docket the day of filing. j .Vlt'iough where more than a year has • la|)sed since the signing of the interlo- I utory judgment, a term's notice of the intention to proceed must ordinarily be i,'i\en before signing final judgment, Mill; notice is not necessary where the i [tlaintitf has delayed proceeding at the : ilt'f.,'ii(hiiit's -(luest. Hosii V. Miller, vol. ■I'l. I'.ll. I 10— Judgment — Setting aside — Assessmen: of damages — Affidavit for — Credits — Power of single judge to assess in term- Affidavit— Swearing before the attorney who prepares the affidavit, but is not the attorney on the record. Affidavits used on a motion to set aside a judgment may be sworn before the attorney who prepares the aftida- vits, he not being the attorney on the record. A single ju Ige has power to assess damages during term as well as in vacation. On motion to set aside a judgment, the court has powe' to order a reduc- tion. Miiriliiiic Blink v. McKtini. vol. 22. r,'2i\. 11— Notice of motion for new trial appearing to support motion. Not If a party gives notice of nidtiou for a new trial, and does not appear to sup- port it when reached on the paper, it will be dismissed with costs on applica- tion of the opposite party. IJanit: v. Foirle, vol. 22, 572. 12— Writ signed and sealed by Clerk of the court, but issued after appointment of his successor— Wrong form of capias— Irre- gularity-Filing affidavits to hold to bail. Blank writs duly signed and sealed, and delivered by the clerk of the court to attorneys, are not affected by the subHe()uent resignation of the clerk, but may be issued by tiie attorney without being re-signed. A capidK issued as a first process, but in form a cdpiaii issued after the com- mencement of an action is irregular only, and may be amended. Affidavits to hold to hail need not be tiled before the entry of the cause. Mei'kcr v. I'rtrrs, vol 2;(, ',1;"). 13~Postea— Where stayed— Judge's order necessary to obtain from cierk. f '■ ' 17« PRACTICE. Where a pontca had been stayed, and tlu' cause entered on tlie paper by the defendant to move for a new trial, but, on beinj? reached, was allowed by the court to stand over — no counsel ap- pearing for the ))laintiff — the plaintiff's attorney has no rif^ht afterward without ajudj^e's order to obtain the ^josffrt from the clerk, and sij^n judf^nient on the verdict. b\wd v. licid, vol. "28. -120. 14— Agreement of counsel at trial- of court to depart from. -Power A vei'dict was entered for the plain- tiff at nisi priux pursuant to an agree- ment that the verdict should be entered for the defendant if the courts should be of opinion that the plaintiff had failed to make out a case. IlcJil, (Weldon and Wetmoix-, JJ., dis- senting), that the court had no power to enter a nonsuit. Purlec v. Snider, vol. 2;^, 221. 15— Commission to examine witnesses- Interrogatories not returned with deposi- tions—Nonsuit—Discharging jury. A commission issued to examine wit- nesses abroad upon interrogatories and viva rort', but was returned without the interrogatories, in consequence of which the judge on the trial refused to allow either the deposition or the viva voce examinations of the witness to be read and the plaintiff was nonsuited. Held, ^>cr Allen, C.J., Weldon, Palmer, King, and Fraser, JJ., that the evidence was properly rejected, but as the omis- sion to return the interrogatories was not the fault of the plaintiff, a new trial should be granted on payment of costs. J'cr Wetmorc, J., that it was not clear that tlie vird voce examination could not have been read ; therefore, Qu(ere, whether the plaintiff ought to pay costs. PRACTICE. QiKPre, whether a judge has power to discharge the jury from giving a verdict in such a case, without the defendant > consent. J\Ioran v. Taylor, vol. '28, ^Ji'. 16— Counsel— Argument of— Whether parlies bound hy— Judgment— Setting aside or altering. Parties are bound by the views pre sented by their counsel in arguing ease-, and the court will not entertain n motion to set aside or alter their jud^;- ment on the ground that counsel luul misrepresented the point to be arRued, or was not sufficiently instruL'tcd. Tower V. Outhouitc and Kmipp, vol. "i:!, 354. 17— Rule— Service of, on party outside the jurisdiction of the court. Where one of the parties in a causf was out of the jurisdiction of the court, it was ordered that the service of a rule ni»i on him should be deemed sufficient service. Ex parte Ilijnemaii, vol. '2'^, 480. 18— Judge's order— Making same a rule oi court. A judge's order can be made a rule of court, on production of the order with counsel's signature, but only durini; term. McLeod v. Jamen, vol. 18, 13'.l. 19— Motion for a new trial. On a feigned issue sent down by Supreme Court hi Equity, must be made befoi'e a judge in equity. Poiinnu V. Mi mm Ins. Co., vol. 18, 054. 20 — Affidavits — Argument upon, or up- plication for time to answer. Held, (Wetmore, J., dissenting), on :i I motion heard on affidavits, the party i moving must elect at the time the utti- i davits in opposition are read whether he will then argue the case, or apply lor I time to answer these affidavits. There nr PRACTICR. PRACTICE. 177 ^lowev to a verilic't (fcmlaul > 1. 2i, til. ithcr parlies I aside or views pre ruinti discs, iitertaiu a tlieiv jnil^;- ounsel hii.l be avRULcl. iuHtvuctcil. ;;]), vol. -l''- y outside tlie s in a caiisf of the court, vice of a rule iiecl sufficient nan, vol. '2:^. same a rule of lacle a rule of lie order witli only cluriii'-; ol. 18, 13".'- nt down by nuist be Puiiiiiiii 54. ty, iiity t upon, or an- swer. itinji), '>!> -' its, the party time the at'ti- read whether ^e, or appl>- '"'" davits. There should he but one arj^umenl, and that when all the facta ai'e bef(jro tliu court. McCnUij V. Soitnun, vol. 24, 14'i. Time to answer will be granted, lb. 21— Affidavits used on obtaining rule nisi— Defect in— When may be objected to. If an affidavit on which a rule niy'i was iirarited is defective in not statlntJ tlie de- ponent's addition, it may be objected to Ijy the opposite party on shewing cause. K.v parte Uoi.f, vol. '24, lol). 22— Rule nisi granted by judge at chambers Filing of papers. It is the duty of a party obtaininf^ a rule ni.ii for a certiomri from a jud »^ vii ^-^ IMAGE EVALUATION TEST TARGET (MT-S) 7 ^ ^ /. ^/ /- «"*>.*%■ ^. v^. ^o ^ i c^ 4'c! ^ 1.0 •^ 1^ 12.2 •'m ■ 1.1 fru^ m \m i 1.4 1.6 Va <^ (? ^;. / ■s Photographic Sciences Corporation iV iV PC 4»^ <^ 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 o^ ) fW t r m i i i J ,ii' 1 i 180 PRACTICE. — Equity — Amending bill — Prayer — General relief — Where inconsistent with Bpecific prayer. See Equity 1. — Judgment — Setting aside — Taxa- tion of costs without notice. See Costs 21. — Special questions left to jury — Where not unanimous in answering — Whether verdict can be entered within two hours. See Verdict. — Stay of proceedings — Cause ordered to be entered on motion paper — Whether notice of motion for new trial can be given pending stay. S' e Judge's Order 4. — Where defendant iVaads to one count only of declarati. . f^ a Costs 21. — Where aoreemen' b fore action to give credit of receipt to _nd — Refusal of plaintiff to credit — Defendant's remedy. See Judgment 2. — Procedendo. See Procedendo. — Summons — Service of — Where de- fendant a lunatic. See Writ. Presentment — In affidavit for attach- ment on promissory note, what must be alleged as to. See Practice 3. Prescription. See Easement. Primary creditor— Where estate is put in liquidation — Property vests in assignee subject to charges. See Gar- nishee Act. Prisoners — Habeas corpus — Whether order to bring in again can be made without issuing new writ. See Habeas Corpus 1. — In custody under a warrant of commitment made by a magistrate in due form of law, judge cannot make an ex parte order for his discharge. See Judge's Order 1. Privileged communication — What con- stitutes—Publication of. See Slander 1. — Reasons given by husband to wife for travelling under assumed name. See False Imprisonment 4, PRINCIPAL AND AGENT. — County court appeal— Judge cert! fying proceedings — Bond— Pprf ectin;; of. See County Court Appeal 7. — Defective return. See County Court Appeal 8. — Arbitration— Refusal to make sul)- mission to arbitration a rule of court where action pending on the award. See Award 3. — Replevin — Claim of property — Set- ting aside defective claim. See Reple- vin (). — Setting aside pleas— Summary ap- plication. See Pleas 3. — Staying proceedings until costs of former suit paid. See Stay of Action "2. PRINCIPAL AND AGENT. 1— Attorney— Retainer— Wliat constitutes. The question of agency is for the jury. When W., a student at law, was in the habit of receiving, whilst a student in the office of defendant, letters for defen- dant from the post office, his agency after he is admitted an attorney is not necessarily continued, although he occu- pies by permission of defendant a por- tion of his office, and had access to tlie defendants post office box whenever lie wished, it being no longer his duty to bring to defendant his letters, and W. never having had any authority to open defendant's letters, and never having' opened them to defendant's knowledge, and defendant cannot be made liable for money received by W. on collection of a note, there being no evidence of a re- tainer by defendant. Neither could the defendant be liable for a conversion until after the money came into his hands. Eastern Township Hank V. Hannington, vol. 18, 631. 2— Principal and agent— Municipal corpora- tion—Committee appointed witli specific dutiet— Extent of authority. PROBATE COURT. PROCEDENDO 181 The B. Co. contracted with the town of Woodstock to construct in the town a system of waterworks, and furnish all materials, and to do everything neces- sary for their complete construction, and for placing them in readiness to be used. The town council appointed a committee to superintend the perform- ance of the work under the contract. Held, that the power of the committee was limited to superintending the work, and that they had no authority to bind the town by ordering extra work. Boyer appellant, and Town of IVoodntock, re- spondent, vol. 24, 521. — The agent of plaintiff having means of knowledge of conditions endorsed on a way bill, plaintiff bound by them. See Carrier 1. — Right of agent to sue. See Agree- ment 5. — Agent exceeding authority. See Power of Attorney. See Fawcett v. Anderson, Addenda 34. Principal and surety— Bond given by surety — Alteration in duties. See Pleading 9. PROBATE COURT. 1— Wliether lieir-at-law who is not entitled to any of tiie personal estate can cite execu* tor to prove will in solemn form. Held, that the heir-at-law, though he may not be entitled to any of the per- sonal estate of a deceased jjerson, may, under Con. Stat., cap. Tn), sec. 44, file a petition to have an alleged will of the deceased proved in solemn form. In re Annie II. Fox, vol. 20, 3'.)1. 2— Proof of will in solemn form— Statement In petition for— Preliminary objections to petition— Appeal from decision tliereon. A petition to prove a will in solemn form under the Con. Stat , cap, 52, sec. 53, must state the names, ages, occupa- tions, and pla..^i of resiucace of the heirs, etc., whethv r such petition is by a person interested in supporting the will, or in defeating it. The citation must contain similar statements. The words, " and allothert interested" in the form of citation (C) are not a part of the form; but a direction to the judge of probates to name in the citation all the persons who are interested. The decision of a judge of probates on the sufficiency of a 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. Itegina v. (irimmer, 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 sufficient that leave has been granted to remove the return from the files. 182 PROMISSORY NOTE. PROMISSORY NOTE. . 31. See Dunn v. Allen, vol. 2-1, 1. 5— Indorsement in blank— Transfer by widow of indorsee— Title of transferee— Executor c!e son tort. Tlie mdorsceof a promissory note in- dorsed in blank, died intestate, and hiv; widow witliont admmistering, sold and delivered the note, tlie plaintiff apply- ing tJie proceeds in payment of tlie funeral expenses and debts of the dv- ceased. Hell!, that no property in the note passed to the plaintiff and that he could not sue the nuiker. Gerow, appellant, and Unit, respondent, vol. 25, 412. 6— Accommodation paper— Liability of in- dorsee to pay under agreement witli I payee— Extinguishment of debt. A., being indebted to plaintiff snd 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 ! 4 PK0MIS80RY NOTE. PROPERTY, PASSING OF, ETC. 183 was an accommodation note. The note was discounted by a bank, and tlie pro- ceeds received by A., and the plaintiff was obhged to pay it at maturity. In an action by tlie phvintiff to recover tlie amount of tlie note, Held, 1 'hut as it was one of the conditions on which A. f^ave 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 extin-^uisliment of the debt, thouj^h he did not know that it was an accommodation note. 2. That thouj^h the plaintiff's at^rec- ment to pay the accommodation notes was made witli A., the defendant could avail himself of it as a defence to an action on the notes. Pfti'i:i v. Wtiti'rbiir;/, H III., vol. 24, 154. — Accommodation — Liability of maker where payee has been dis- charged. See Accommodation Note 1. — Refusal of court to receive in evi- dence, note on which action was brounur()iiii.<, vol. 20, M'.l. 2 — Contract of sale — Goods not specified— Pretention to pass property in— Approprla- tian. T. a brick maker sold r)0,0. ) l)rick<- out of a kiln containing 100,000 to the plaintiff', who paid tlie contract jTice, and hauled away about Ki.OOO. 'J'lie balance remained in the kiln in T.'s yard, and were never in any way sej)ar- ated from the rest of the kiln, or appro, priated to the plaintiff. Tlie defendant (the sheriffi subsequently sold them iiuder an execution at the suit of W. against J. Plaintiff brought trovir against defendant, claiming property in H4,000 of the bricks. Held, pi'r Weldon and Fisher, JJ., that the contract was executed, and the property in the bricks passed to the plaintiff at tlie 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, \o\. 20, 234. m m i ^ r m 184 RAILWAY COMPANY. Appeal to Supreme Court of Canada allowed. See Addenda 58. —Vesting,' of. See Replevin 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 Virei. Quashing conviction — Judgment — Crown hc3 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 — Kighc to open nev 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 lauds — Evidence. See Eject- ment 4. RAILWAY COMPANY. Right to grant rirnning 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 part RAILWAY COMPANY. 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 tlie city of St. John to St. Stephen, the cap- ital stock to consist of at least 92,OOO,U0(3, 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 tlie 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 waF leted within the time limited. In January, 187!), the government gave the company a notice under the terms of the agreement. By Act, 33 Vic. cap. 8<), the Carleton Branch Railway Company was incor- porated for the purpose of constructing "WV RAILWAY COMPANY. RAILWAY COMPANY. 18C a railway from the wcHt side of the har- bour of St. John to the European and North American Railway, near Fair- ville, with power to take and hold land etc., and provided that landa taken by the company should be held as landa taken and appropriated for highways On the 30th April, 18HQ, the Grand Southern Railway Company (resiron- dents), entered into an agreement with the Carleton Branch Railroad Company (appellants), whereby the appellants granted to the respondents for a term of .ifteen 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 landa demised, and the rights and priv- ileges granted, an annual rent. It was also agreed that if during tl e fifteen years the respondent could not use the track on tlie Carleton Branch Railroad for certain specified causes, they (respon- dents) might built a tr ick for fheir 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 pur amuim for so long thereafter as they should use the land for that purpose, and that they should ha-e the right to use and main- tain the second track at the special rents for yjy years. The respondents filed a bill, alleging tiiat on the '2iid .Tune, IHHO, 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 Rail- way Company was bound to perform and 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, 1W80. 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 Railway Company for the completion of the road, was ultra vire» 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 vi^w of the tinislature gave power to the defendant company to construct and maintain a railway from St. John to the main boundary for the purpose of trans- jKjrtation of persons, goods and property of all descriptions, giving them all powers and privileges necessary ' i carry into effect such purposes and objects, and empowering them to purchase and hold engines, cars, and other necessary things for the transportation of persons, goods and property of all descriptions, and granting to them a toll up(m 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 railwnv in operation, plaintiffs builder at St. John delivered to them for transpoiv 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 establislittl by the directors for such description of propeity. Defendants refused to delivir the cars unless plaintiff paid at the rate of ^23 a car, 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 tlicni received and transported in the same manner, nothing being said about tlie rate of freight. The like sum of S2ii a car was demanded before delivery ami paid under protest, and plaintiff there- upon brought action to recover the amount paid in e.xcess of a reasonable charge. Held, 1. That prima j'ocie, and in the absence of proof of a more limited provision, the defendants must be taken to hold themselves out as carriers of nil 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 trafftc ; 2. That as to the six cars first sent, the defendants were entitled only to a reasonable compensation, as there was no established tpll and no special agree- ment ; 'I' RAILWAY COMPANY. RAILWAY COMPANY. 187 H. As to the reraainirif; 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 freitjht as on the six cars previously sent, the proper 'nferenoe to be drawn from the transaction beinf,', that the plaintiff re- lied on his rij^ht to have the fronds carried at such rate as the law should ileclare to be the proper rate. Green v. The St. John and Maine Railway Co., vol. 22, 2.'52. 4— Action against for itilling horse— Act 33 Vic. cap. 49 — Evidence — Sufficiency of— Fencing railway— Necessity of com- pany sliewing tliat lands were unim- proved— Wliere fences had been erected by company. In an action against a railway com- piuiy for negligently killing the plain- tiff's mare, he proved that on the night of the IHth October, the train was stopped while passing through or near iiis land, and that a passenger on the train saw the conduotor. 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 tlie same place, with several of her ribs broken, and that she had been grazing about there the previous evening, and was then uninjured. Ilihl, that there was sufficient 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 bnt allowed it to get out of repair, in consequence of which a horse strayed on the railway and was killed by the ergine; 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 lirnngwick Railu'di/ Co. V. Arviitron;}, vol. 23, lil3, 5— Fire set by sparks from defendant's loco- motive—Coal or wood— Whether bound to burn coal, being less dangerous— Where property insured — Contributory negligence— Evidence. Railway companies are bound to use care, as well in the kind of fuel which they burn as in the construction and appliances of their engines ; and it is a proper direction to leave to the jury to find whether under the cii'cumstances, it is or is not, negligence to use wood as fuel for their engines, the evidence shewing that there is more danger from the use of wood than from coal. Where plaintiff's property has been burned through defendant's negligence, it is no answer to defendant's liability for damages that the property was in- sured. Where plaintiff's barn was burned by the negligence of the defendants, al- though plaintiff was guilty of negligence in constructing his barn in such a way that hay in it would be exposed to sparks blown against, or falling upon, the barn, that will not disentitle him to recover if defendants might, by the exercise of ordinary care and caution on their part, have avoided the conse- quences of plaintiff's carelessness or neglect. Evidence that fires frequently occur- red along defendants' line of railway after the passing of their trains, is wm ■it. 188 UAILWAY COMPANY. IJAILWAY CONDICTOH. I ;T,' If;: admiHHJhle in un action a^^ainst the (lefendunta for injury resultinj^ from sparks from their locomotive. Evidence offered by defendants to show wliat kind of fuel was used on other railways in the provinc ., is irrele- vant, liohimon v. Sew lirumwick llail- leay Co., vol. 23, 323. Api)eal to Supreme Court of Canada allowed. Bee Addenda No. 24. 6— Through ticket— Injury to passenger on ferry boat owned by another company- Negligence of latter company— Contribu- tory negligence. Plaintiff purchased a through railway ticket from Boston, U. S., to Cape Bre- ton, in the course of which journey he was obliged to cross the harbour of St. John by a ferry owned by the defen- dants. On reaching the ferry he produced his ticket to the collector of fares, who tore off and retained a portion of it, returning the remainder of the ticket to plaintiff, and then allowing him to go on board the ferry boat and cross the harbour. Held, 1. That this was evidence that the ticket was issued in Boston by the defendant's authority, and amounted to a contract by them with the plaintiff to convey him safely across the harbour. 2. That even if there was no contract between plaintiff and defendants, they having received him as a passenger were liable to an action if he sustained in- jury through their negligence while crossing the ferry. Plaintiff was a passenger in defen- dants' steam ferry boat plying across the harbour of St. John. A movable chain was placed across the end of the boat to prevent passengers and teams from going beyond it v'laie the boat was in motion. \Vhen the boat arrived at the wharf or landing place it st(>|)ped and tlio pasHeii^i'is began to go on shore, though the ))ijat had not been moored to the wharf, l)nt a gangway or platform on which teuins were accustomed to pass to and from the boat, was in the course of bein;; placed in its position for that purpose. The plaintiff was a stranger, and wliik- following the other passengers, and while in the act if stepping from tlif l)oat to the wharf, in tiie dark— tli*- guard chain having been let down — fell mto I'.n open space between the end of the boat and the wharf, and was in jured. The jury found that the guani chain was let down for the purpose of more conveniently mooring the boat to the wharf, but that it was not necessary to let it down for that purpose ; and that it might reasonably be taken by the passengers to be an intimation that they might land. Held, that the taking down of the guard chain was an intimation to the passengers that they might siifely land, and that the plaintiff — not having heani any caution to the contrary — was justi find in supposing that he had a right to do so, and that his attempting to land was not, under the circumstances, evi- dence of contributory negligence, tlioiit,'h the boat had not baen moored to the wharf at the time. Mardomild v. Tlir Mayor, etc., of St. John, vol. 25, 318. RAILWAY CONDUCTOR. 1— Employed by the government— Whether liable for nonfeasance— For misfeasance Evidence of misfeasance— Duty of conduc- tor as to starting of trains— Call " all on board"— Conductor's duty as to waiting for passengers to get on board after call— Passenger's duty as to gettinp on the train— Affording opportunity to passengers to gel on from the platform. The defendant was conductor of n railway owned by the crown. While at HAlIiWAY CONDUCTOR. HAILWAY CONinCTOH. 18!> ii Htation lie was by the reynlatinns of tlie rRilway iiiidfr the orders of tlie station master as roj^ards the time of startiiifj the train. Hut it was his duty to t?ive tlie si>,'iiixl to the eiij,'ino driver to no ahead. It was also his duty not to jjive the sij^nal while passeiiRerH were Utttinjj on board, and in order that he iiii^'ht be in a position to see whether there was any netting on board he should stand when making the signal " near the front end of the first passen- j^er car." The defendant in this case left the platform, passed across the train to a platform on the opposite side of the track, and there gave the signal to start, the time for starting having already expired. After the signal and while the cars were in motion, the plain- tiff, who was waiting on the platform, in attempting to get on board, waa thrown down and injured. On motion to enter a non-snit it was contended that the action would not lie as the defen- dant was an employee of tlie crown, and would not be liable except fcr misfeas- iince, and that while at the station he was under the control of the station master. Held, that, even if it were necessary to show misfeasance in order to sustain tlie action against the defendant, the giving of the signal to start under such circumstances was evidence of a wrong- ful act done by him. The judge directed the jury that it was the duty of the conductor to wait a reasonable time after the call was given tor the passengers to get on board, and to see if there was any in the waiting room or elsewhere. Held, by Allen, C.J., Weldon and Uuff, JJ., (Wetmore, J., dissenting), that this direction went too far and was wrong. Per Weldon and Duff, JJ., it is the duty of persons who propose to travel by any railway train to ascertain and know the time of its di'purturo, and to get on board beforo tlie time has elapHt'd. /'(•/• Allen, (■'..]., pHsmciigors (iro not bound to get on hoard iiniil the call "all on board " is given, and it is the conduc- tor s duty after the call to givt; the \niH- sengers a reusoimbk' opportunity of getting into the curs and not to Ktart the train until a ruasoiuvble time has elapsed. Per Wetmore, J., it is the duty of the conductor after the call " all on I board " to give the passongers in tho waiting rooms of the station, as well as those on the platform a reasonable op- i portunity of getting on board the train. I i^mtre, per Allen, C.J., whether tho words " while passengers are getting on board " in No. 124 of the Intercolonial Regulations, which forbids conductors starting the train while passengers are getting on board, applies or not to pas- sengers who are on the platform ready I to go into the cars as soon as those im- mediately in front of them, and who I may be in the act of stepping in, have entered ? Passengers by railway should be afforded an opportunity of getting into the cars from the platform of the station, and where, under the evidence, it was doubtful whether the plaintiff had had such an opportunity afforded her, and further evidence on that point i was thought desirable for an intelligent direction to the jury on the question of ^ contributory negligence a majority of j the court, (Wetmore, J., dissenting), I granted a new trial. Hall v. McFadden, I vol. 19, 340. Appeal to Supreme Court of Canada, dismissed. See Addenda .51. 2— Intercolonial railway — Negligence of conductor— Accident to passenger— Right of action— Contributory negligence. ,.1 1!)0 UAILWAY COKDUCTOIl. UAILWAY PAHHKN(iKI(H. ' 1 m' " III 'I't I'laiiitiff liaviiijj a first-cliisH ticket aboard " tliey went towards tlio fiirn iis from Sussex to PL'nob8(iuiH by the Inter- 1 quickly an tliey could. !•'. >,'ot on nil colonial Itailsvuy, intended j^oing to Pen- ri^^ht, but plainiiff (who had a paper i)ox obH(|uiH (iier home) by the mixed froi^jht in her handH), in attempting to „et on and pasHon^jer train, which was due to Ijoai'd canj.lit the hand rail of the CiU', leave Sussex at 1:17 l>.m. The train on when she Hlipi)ed owing to tiie motion of that (hiy was an unusually hnm one, ' the train, and was seriously injured. and when the passenger cars were brought to tlu! platform the engine was ucross tlie highway. When the train ciune in, it was brought up so that the The jury found that tlie call "all aO(5ard " was a notice to passengers to get on board. Held, by Allen, {'•)., and Wetniore forward part of the tirat-class car waa and King, JJ., that although the plain- opposite the platform. It was then tiffs contract was with the crown, the about ten minutes after the advertised , defendant owed t,. her as a passenger time of departure. Plaintiff was stand- ' n duty to exercise re:isonable care, a^id on the i)latform when the train that there was ample evidence of negli- came in, but did not get on board. The conductor of the train (the defendant) gonce to leave to the jury. But, pi-r Weldon, J., that the defcn- got off the train and went to an hotel, ,., . , \ .. .\ a ^ \ , _ ,,„ ., , , ' dant having; brought the nrst-class pns for dinner. \\ hde he was absent without his knowledge, ihe train was backed down so that only the second- clasa car renniined opposite the plat- form. The jury found that the first- class car did not remain at the platform long enough to enable plaintiff to get on board. The de'endant, after finishing his dmner, came over hastily (being be- hind time and therefore somewhat in a hurry) called "all aboard," glanced; down the platform, saw no person at- tempting to get on board, crossed the i train between two box cars to signal the driver to start (it being necessary j to cross the train in order to be seen by the driver, owing to a curve in the track), \ and almost immediately the train ; started. The I'ilth regulation for gov- | ernient of the Intercolonial Railway, prescribes that conductors must not | senger car to the platform, it then be came (by the regulations) under tlu; con- I trol of the station master, and defen- dant was not liable for starting the I train fnjm the position it had after- I wards been placed in, also that it was plaintiff's duty to have gone on boanl as soon as the train came to the station. Hall V. Mcl'\id(kn, vol. 21. 58(5. RAILWAY PASSENGERS. -Refusing to pay fare— Conductor's Right to eject from car— After liaving waited a reasonable time, and having then rang the bell, the conductor need not accept any tender of fare — Consolidated Railway Act— Orders in Council of August, 1885, for regulation of government railways. The defendant, a railway conductor, start the train while passengers are asked the plaintiff for his ticket, to getting on board, and that they should : which the latter replied that he was stand at the front end of the first pas senger car when giving the signal to travelling on public business, that he had no ticket or pass, and no money to the driver to start, which he did not do i pay his fare. The conductor thereupon in this instance. Plaintiff and a lady friend who was going by the same train were standing on the platform, and when they heard the call " all told the plaintiff that he would have to put hira off, and rang the bell and stopped the train for that purpose. Before plaintiff was actually put off the IIATKH AND TAXES. UATK8 AND TAXES. v.n tniiii, but baforj tlu hM win \ni\n, tlio |iliiintift' toiiderod IiIh fiire, which tlu; conductor refuHcil to iiccept. Hi'lil, ill an iictioii for iisHiuilt, that there was no nccfSHity for tim coiKliictor to wait a rcaHonahle tiiiic aftiT (luiiinml- ill!,' tliu fare for tlie plaiiitit'f to pay it, us tlio hiUer liad Haid tiiat he had no iiioiu'v : tiuit tlie offer or tender of tliu f:ir(', Hot a(!t.'i'ptcd hy thi' cou(hi<;lor, uiade after tiie bell hud bveii riiiij,', waw too late ; and that the conductor had a ri^^lit to put the jilaintiff off the train at a proper plac, umiii^^ no lUiiiecuHsary forcu. Jliiiiiuix V. (li'ldurt, vol. 20, ',)'>. RATES AND TAXES. 1-St. John— Act 31 Vic. cap. 85, sees. 6 & 7— Creating lien on land for two years — Wliether can be recovered from tenant after thui iimo. S«;c. () of the Act, .'U Vic. cap, M, re- 1 itiiiti t'5 the assesament and lovyint; of t.ixes in the city of Kt. John, declares that the taxes to accrue on any pro- p.'rty termed "real estate " under the AsHessnient Act of ISVJ, shall be a special lien on such property for two years after such ta.xes accrue. The Till section declares that the taxes on such real estate may be levied and re- covered from the owner of the property so assessed, or from any other person occupying the same as a tenant — a de- mand of payment beinj^ first made upon him —and if paid by the tenant, lie may deduct the amount from the rent payable by him, or recover it from liis landlord by action. Held, that sec. 7, only provided a inxle of enforcing the lien given by the tith section, and that such taxes could 11. )t be recovered from the tenant after two yearfi. QiKcre, where even during the two vuars the tax can be enforced under S9c. 7, against any person in possjssion of til-; land where the person aHwesBtd luiH parted witli the title. Animtiuiin v. M'liliir, .'ti\, iij SI. .liihii, vol. 20. «HH. Ratification - Writ issued without aiithoiity Sii!iMtM|ueiit adoptimi and ratiti''iition. See Writs —Of agents acts, what not. Sw Tower of Attorney 1. Raw IlidOS— Kxpolting of. See Sta- tute of Caiiadu 1. Reading to witness -Taper not in evi- dence not porniissihle. See llvideiiee Hi, — l{ef using I. ■ allow defendant's coini- sel to read to wa ,• - IV, whut S, had sworn was said b_, Imu. ]»., about mak- ing a mistake, in oi' ler to ask H. wlictlier I such statomei ■ was true or imi. See Tr.ictise 7. Rebutting— Evidence - Where plaintilf has been cross-exaniined as to facts soii,,'ht to be rebuttetl. Heo Kjectmeiit 4. Receipt, wliere mislaid After credit for. See Ju Ignieiit 2. Recognisance— Ambiguous— Defective. See Controverted Elections Act 1. Registered deed, effect of, where grantee had notice of a prior unregistered deed. See Trespass .'J. — Helation to date when not regis- tered till after death of grantee. See lh)e dem v. l-'humijaii, vol. 24, 151. Registered owner of ship— Liability for wages, may be explained. See Shii). Registry — Bill of sale — Absolute — Grantor continuing in possession. See Bill of Sale ;5. — Debtor and creditor account — Whether statement reijuircs to be regis- tered. See bill of Sale -4. Registrar — See 10 cap, l'M\, Revised Statutes — Whether of probates or deeds. See Will 7. w\ ■'I'l 11! : \i 1 i 3 1 ' |i|j^ jj ::.l ,,; 192 REMANDING PRISONER. REGISTRATION OF VFSSEL. f— Ferry boat, effect of registration wliere bill of sale previously given— When boat subsequently rebuilt since bill ot sale- Replevin — inquisition — Whether can be set aside when contrary to law and evi- dence. Ucfendiint beinj^ owner of an unregis- tered ferry boat, f^ave plaintiff a bill of sale of it, by way of mortt^aj^e. Subse- (juently defendant from time to time made repairs to the boat, and tinally substantially rebuilt her, when he regis- tered her at the port of St. John under a new name, declaring himself to be the sole owner. Held, that plaintiff's title under tlie bill of sale was good. (HbKon v. Gill, vol. l'.>, oG5. RELATION. Deed recorded after death of grantee — No rights intervening— Relation back to date of deed. See Doe dem Flanagan, vol. 25, lol. Relationship to judge, when ground for new trial. See New Trial (5. — Wife of judge related to wife of party in the cause. See False Pleas 1. Relief of Bail — County court judge har no power to relieve bail who render their principal after expiration of thirty days after service upon them of writ in action on bond. See Bail 1. Release, when obtained before judg- ment — Action on judgment — Whether plea of release available. See Judg- ment 3. — By husband— Separate property of wife. See Deed 4. REMANDING PRISONER. 1— Circuit court— No written order or war- rant necessary— Return of habeas cor- pus. REPLEVIN. Where a prisoner is committed to be held until discharged by due course (jf law, the warrant continues in force until the prisoner is discharged or sent to the penitentiary. It is suflicient, if at the circuit the judge remands a prisoner into the custody of the proper officer in court, no written order or commitment is necessary. The sheriff, although he cannot re- turn a warrant in luce verba, must re- turn the trutn of the whole matter. lieyina v. Mulholland, vol. 20, 47(). Remanet — Costs of making cause a remanet part of general costs in tlie cause. See Costs 18. Rent — Where payable in advance — Action for use and occupation. See Landlord and Tenant 2. REPLEVIN. 1— New trial- -Nominal damages. In replevin for wood the defendant pleaded non cepit. The jury found for the defendant contrary to the evidence. On motion for a new trial. Held, per Weldon and Fisher, JJ., (Wetmore, J., dissenting), that as the plaintiff could only have recovered noiii - inal damages, a new trial should not be granted. Hamilton v. Simpson, vol. lit, 407. 2— Inquisition. Held, in an action of replevin, by Allen, C.J., and Palmer, J., (Duff, J., dissenting), that where the inquisition of a sheriff's jury on a writ of de pro. prob. is contrary to law and e\idencc, the court has power over it, end will set the inquisition aside. Giuion v. Gill, vol. 19, 565. 3— Pleadings— Defence that property re- plevied has become part of freehold — Where defendant merely has mortgage on property — Entitled to succeed on non- cepiL REPLEVIN. REPLEVIN. 193 In an action of replevin for a quantity of mill machinery, defendant pleaded lion cepit, and property in himself. Held, that a defence that the machin- ery was part of the freehold and c„uld not be replevied, was not available I under the pleadings ; and per Allen, > C.J., and Duff, J., that defendant should j either have pleaded that the machinery j was affixed to the freehold, or have ! applied to the court to set aside the writ. Per Palmer, J., that the sheriff's \ return to the writ was a record which | the parties to the suit were estopped ' from disputing;, and that defendant's j only remedy would be to apply to set ; aside the writ, and compel the sheriff to ■ restore the property and amend the ! return. ' Held, also, that on the plea of non cepit a defendant who never had posses- sion of the machinery, but had merely taken a mortf^age on the mill in which it was placed and also on the machin- ery, was entitled to succeed. Alexander v. Cowie, vol. 19, 5'J<>. 4— Contract to cut lumber— Vesting of pro- perty—Writ of replevin— SherifTs posses- sion under— Trespass— Pleading. In November, 1874, A. agreed in writing with B. to get logs off land under B.'s control, and that they should be B.'s property as cut down. In December following, C. agreed with A. to cut and haul logs for him from the land specified in the agreement between A. and B., which logs were tc be A.'s property at the landing. A. ftgreed to furnish C. with supplies to f^et the logs. C. cut logs under this agreement and hauled them to the land- ing. In November, 1873, the logs not having beer, driven and A. not having furnished sufficient supplies, he and C. rescinded their agreement, C. giving his note to A. for the supplies delivered. The logs remained on the landing, and S.D. in February, 1870. they were seized as the property of A., who liad become insolvent, under a writ of attachment issued under the Insolvent Act of 187"). In May, 1870, C. Hold the logs to the plaintiff, who drove them to the boom of the South-west Miramichi, where they were replevied by the assignee of A.'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 pro. prob. having been issued, the slieriff kept possession of tlie logs, and the plaintiff in this action brought trespass agamst him for taking them, to which he pleaded property iu himself. Held, per Weldon and P'isher, JJ., (Palmer, J , dissenting), that the sheriff's possession of the logs under the writ of replevin gave him snch a special pro- perty in them as would support the plea of proixjrty. Per Palmer, .J., that by the seizure the sheriff acquired a mere possession of the logs and pro[jerty, either general or special ; and that to avail himself of this justification of taking them under the writ, tlie facts should have been pleaded. Per Weldon, .J., that the logs having been cut on B.'s land by C, as the servant of A., the property vested in B., under his agreement with A. Per Palmer, J., that th< cutting of the logs by C. under his agreement with A. was not a jHrrformance of A.'s agreement with B. to cut the logs for him, and did not vest the property in them in B. At most it was a question for the jury. That when the logs were hauled to the landing by C. they be came the property of A. and were re vested i.i C. on the cancellation of the agreement, no act having been done by ! A. in the meantime to transfer the pro- perty to B. Swim v. Sheriff— Hutchison v. Shentf vol. 20, 2.5. 13 fpf i 194 REPLEVIN. li^lt'i F' Appeal to Supreme Court of Canada dismissed. See Addenda 39. 6— Bond— Execution by sole plaintiff (a feme covert) and two sureties sufficient- Plea in abatement— Non-suiL A feme covert sued out a writ of re- t)levin, and the bond required by the Con. Stat. cap. 37, sec. 202, was exe- cuted by her, and by her husband and another as sureties. Held, 1st, that the bond was sufficient and might be assigned under the Act. 2nd, that it was no ground of non-suit on the plea of noii ent factum, that the declaration in an action on the bond alleged it to be the bond of the sureties only. VeriioH et al. v. Thompson et al., vol. 20, 116. 6— Claim of property— Setting aside defec- tive claims. Where a writ of replevin issued against five persons, and the property was found in the possession of one of them, who only was served with the writ ; a claim of property put in by him and others is irregular, and will be set aside as to all but the defendant served with the writ. Dotithritev. Steeves, vol. 24, 545. --Action in county court — Necessai-y to state value of goods in declaration. See County Court 1. Return of sheriff to writ of — Es- toppel. See Sheriff 1. — Promise to indemnify sheriff — Action on. See Sheriff 2. — Seizure of liquors — Dismissal of complaint— Right of defendant to have liquors restored to him. See Liquor License Act. Representation- Sale of lumber— Es- timated quantity — Survey bills. See Agreement 0. Res Judicata— Con. Stats, cap. 38, sec. 7 — Disclosure by debtor — Second appli- cation for disclosure. See Debtor 1. REVIEW. Replication — In an action on prom- issory note — Bad by departure. See Pleading 7. — Action for assault and battery- Plan of noil anxault (/t'/Hcs/ie— Justifying,' assault only. See Pleading 5. Representation as to quantity of lum- ber sold. See Agreement (5. Request to leave — Necessity of, to jus- tify assault, where one enters the house of another quietly. Sec Assault 1. Reasonable and prohable cause— Order of judge annulling demand not evidence of. See Addenda 44. Reservation— Of life estate in portion of land conveyed by deed— Whether good. See Conveyance 1. — Of common right to quarry in one moiety, where property divided by mutual deeds of partition. See Par- cition 1. Residuary estate— When annuity to wife changeable on — Division of, by agreement of legatees. See Will 5. — Whether certain property specified, belonged to. See Will 1 . Restitution— Writ of. See Summary Ejectment 2. Return to habeas corpus— Must contain the whole truth of the matter. See Remanding Prisoner. REVIEW. 1— Certificate that there was reasonable cause for joining a defendant— Con. Stat cap. 37, sec. 209— Reviewing judge's ex- ercise of discretion. When the judge who tried the cause had certified that there was reasomiblo cause for joining a defendant, who had a verdict of non cepit, the court refused to review the exercise of the judge'w dis- cretion. Alexander v. Corvie and Torric, vol, 20, 47G. REVIEW. REVIEW. 195 2— Civil court— Woodsfocl( town of. The proceedings by review under Con. Stat., cap. 00, do not a[)ply to a judyment in the civil court of the town of Wood- stock, under Act, 43 Vic. cap 4H, sec. 10. Lifjhton V. Deering, vol. 2l. 440. 3— From justice's court— Remitting cause to justice to en*er up judgment. On review from a justice's court, the county court judge is not required to enter up judgment, but may remit the cause to the justice before whom it was tried to do so. Ex parte Cook, vol. 22, 557. 4— Civil court of the town of IMoncton— —Affidavit for— Before wliom sworn. An affidavit for review from a judg- ment in the civil court of the town of Moncton should be sworn before one of the parties mentioned in sec. 7, cap. 58, Con. Stat. Ex parte Steves, vol. 22,558. 5— Jurisdiction— Court not legally consti- tuted. A judge has no power under sec. 43, cap. GO, of the Con. Stat, to review a judgment, when the person before whom the proceedings were had, had no authority to hold any court. Worrall v.Ilrideau, vol. 22, 562. 6— Time for granting— Second order where first not properly served. Under cap. 60, sec. 43, of the Con. Stat., a judge may grant an order for review within thirty days after the party seeking the review obtained from the justice a copy of the proceedings ; the time is not limited to thirty days lifter the judgment. Where by mistake, the original order for review had been served, instead of a copy, the judge may grant a second order within the time limited by section 4a. Tower v. Oiitlw use, vol. 22, 570. I — In action for false imprisonment defendant pleaded attachment granted I by county court judge for non-payment j of costs in case of review from justice's court, but plea did not set forth suit in justice's court, nor the making of the affidavit to give judge jurisdiction. Held, bad on demurrer. See False Imprisonment 5. — Refusal of magistrate to certify proceedings for. See Assault 3. — Right of, to a judge from a convic- tion by the police magistrate of St. John. See Police Magistrate 1. — Under Con. Stat., cap. 60 — Judge has no right to grant a new trial. See Certiorari 6, 7. — County court judge — When judge does not e.\ceed his jurisdiction — Whether certiorari will lie. See Cer- tiorari 8. — Right of judge to order judgment to be entered for plaintiff, when improper- ly non-suited. See Certiorari 1. — Whether order of a judge of county court in a cese of review ia final. See Certiorari 1. — From justice's court — Costs of — When not in discretion of judge. See Damages 2. — Whether right of, exists — Whether certiorari will be granted. See Certiorari 10. — Of taxation when clerk I'efuses to tax costs claimed by plaintiff — n"> motion to review necessary. See Costs 6. — Taxation of costs of arbitration. See Arbitration 1. — Affidavit to obtain order for review — i^ntitling of. See Affidavit 5. Revocation — Of will — Defendant rela- tive revocation. See Will 8. —Executed parol See Easement 2. license — Easement. WW I !?*l 196 REVIEW. Riparian owner — Action against a fishery officer for seizing rods and lines. See Trespass 11. — Tenant at will — Right of fishing. See Fishei'ies' Act 2. Riparian proprietors— Whether Act, 31 Vic. cap. f)0, sec. 7, sub-sec. 7, applies to riparian proprietors in New Brunswick, who acquired titles prior to July Ist, 1867. See Fisheries' Act 3. Rivers — Tidal — Right to obstruct. See Addenda 29. Rules. See Court general rules. Rule nisi. A motion under Rule 2 Hilary Term 6, Wm. 4, that a rule nisi would be moved for, is irregular. See Motion Paper 1. — For new trial — Costs of — Where plaintiff reduced his verdict to nominal damages rather than submit to new trial. See Costs 6. — Whore not entered on crown paper — Second motion day proper time for moving to make the rule absolute. See Practice 7. — In supporting a rule nisi, counsel confined to the grounds stated on ob- taining the rule. See Practice 23. — Statement of grounds on which moved for. See Practice 23. — Granted by judge at chambers — Filing of papers. See Practice 22. SL John— Party complaining of assess- ments made in St. John is entitled to rule nisi for certiorari, without giving bond. See Assessment 2. — Receiver of taxes of — Necessity of setting out in detail proceedings taken. See Arrest 5. —Police magistrate of — Right of re- view to a judge from conviction by. See Police Magistrate of St. John. — Rates and taxes — Creating lien on land for two years— Whether can be SALE. recovered from tenant after tlaat time. See Rates and Taxes 1. — City of — By-law — Retrospective operation of. See Contract 4. — By-law respecting buildings. See Addenda 32. — City of — Non-residents — Wliether trustees of estate residing out of the city, but employing agents there to collect and pay moneys, on. See Assess- ment 4. — Power of common council to reduce pay of policemen — Month's notice. See Policeman 1. — What constitutes an inhabitant for purposes of taxation. See Inluibitant 1. SI. John CHy Court— Bailable action- Execution delivered to sheriff to ti.\ bail— Effect of. See Bail 2. — Costs — Taxation of — Want of affi- davit. See Costs 25. — Right of Dominion Parliament to make fishery regulations — Harbor of St. John. See Fisheries Act 4. — Streets— Power of mayor, etc., to raise level of, and erect fence. See Addenda 40. SALE. 1— Contract— Novation— Sale of land— De- livery of deed for inspection— Receipt for —Action on. A new contract by novation cannot be created without the consent of the original creditor. Land was sold at auction by plaintiff under power of sale in a mortgage to W., and defendant became the pur- chaser, the terms of sale being ten per cent, cash and balance in one and two years, with interest, secured by joint notes of defendant and some other responsible person. Defendant paid the ten per cent., and a conveyance was prepared and executed by W. in favor of defendant, and was given to plaintiff SALE. SALE. 197 for the purpose of having sale com- pleted. Plaintiff took die deed to de- fendant and said that he wisnecl to show it to his attorney ; but plaintiff object- ing to part with the deed without some- thing to show that the purchase money had not been paid, defendant signed and gave to plaintiff a receipt as follows : '' Received from E. A. (plaintiff) a deed given by W. for a piece of land bought, etc. The above-mentioned deed I re- ceive only to be examined, and if law- fully and properly executed, to be kept ; if not lawfully and properly executed, to be returned to E. A. When the deed is lawfully and properly executed to the satisfaction of my attorney I will pay the amount of balance due on the said deed, provided I am given a good war- rantee deed, and the mortgage, which is on record, is properly cancelled, if required." In an action brought by plaintiff on tliis agreement. Held, that there was no new contract created between defendant and plaintiff, and the action was not maintainable. Held, also, that the defendant was not bound by the receipt to |)ay the remainder of the purchase money in (.ash, but only in the manner agreed to at the time of sale. Aiidcr.son v. Fuu-ci'tt, vol. 1(1, 34. 2— Specific article— Contract reduced to writing — Evidence adding to or varying not admissible— Warranty that article sold is fit for the purpose for which it is bought —Not implied on sale of specific article which purchase.' may examine— Statute of Frauds. Where a contract, which required to be in writing by the Statute f^f Frauds, for the sale of a quantity of hemlock bark, was reduced to writing, and con- tained in a bill of parcels which clearly showed that the bark was then at Bhediac, and the parties were contract- ing in reference to that particular bark ; and evidence was received of alleged statements by one of the defendants in regard to the delivery, which statements were altogether immaterial, or the effect of which was to add or to vary the terms of the written contract ; the court Held, that the evidence was impro- perly admitted, and granted anew trial" There is this distinction between written contracts at common law and written contracts under the Statute of Frauds, that parol evidence will not be admitted to show a subsequent variation of the latter. Where the buyer had an opportunity before the purchaser of examining a si)ecific (juantity of hemlock bark pur- chased by him, the court //('/(/, that there was no implied war- ranty on the part of the seller that it was merchantable hemlock bark. Petfr-i V. Hamilton, vol. 11», '281. Ai)])eal to Supreme Court of Canada allowed. See Addenda 'y2. 3— Molasses— Agreement as to determination of quantity— Dispute as to whether by guage inscribed on casks, or by that guage. if correct according to the system of the place where guaged— Where guage erron- eous— Evidence — Admissibility of paper spoken of between parties where conver- sation admissible— Discovery of cumulative evidence— No ground for a new trial. The plaintiffs alleged that they pur- chased a (]iuvutity of molasses from defendants under the agreement that the quantity was to be determined by the St. John guage, which had already been made, provided that the guaging had been done correctly according to the St. John system. The defendants, on the other hand, alleged that the agreement was that the quantity was to be ascertained by the guage inscribed upon the casks by the St. Joha guager, whether the same was more or less than 198 SALE. SALE. i-*'*:!; I' the correct quantity. The evidence on this point was contradictory. The rod with which the St. John guager had guaged the molasses was too short, and had, without his knowledge, been tam- pered with, and the actual quantity of molasses was considerably less than what the plaintiffs paid for, and the plaintiffs brought this action to recover back the amount so overpaid. The judge left the questions to the jury in the following manner : Did the plain- tiffs purchase on the St. John guage as inscribed on the casks, and was the bargain that such inscribed guage should be taken as the correct quantity, whe- ther the same showed moi'e or less than the correct quantities ? If so, inasmuch as both parties apparently acted on the boiui tide belief that the guaging had been done correctly in the ordinary way, the plaintiffs would be precluded from opening up the matter and claim- ing for any deficiency. Secondly, If such was not the bargain, was it that plaintiffs should accept the molasses by the St. John guage made in the; ordi- nary way ? If so, tlieii if the guage had been regularly done by the St. John guager witli a lawful instrument, iuid the (juantities should not be satisfac- tory to the purchasers, they would, notwithstanding, be barred by tlic mea- surement, and could not recover for any deficiency ; but if the guaging was not done with a lawful instrument, but with a rod of imperfect dimensions, it would not be a guaging by the St. .lolm system. In fact, it amounted to no guaging at all, and the guaging upon which the defendants sold had not taken place, and plaintiffs would be entitled to recover back any money overpaid on account of such short delivery. Held, on motion for a new trial, that this direction was correct. S., a ganger at St. John, sent defen- dant a certificate of a quantity of molasses contained in a number of casks by them sold to the plaintiffs, as ascertained by a regauging. The certificate he afterwards saw in defendant's possession, and conversed with one of them about it. The con- versation between S. and the defendant, having been received in evidence, the certificate was offered in evidence, and received subject to objection. Held, that as the conversation wa^* admissible, the certificate, concernint; which they were conversing, was also admissible. The discovery of new evidence, but such as is only cumulative, is no ground for a new trial. Cox v. McMaiiii, vol. I'J, 121, 4— Sale of goods— Statute c' Frauds- Guarantee— New trial— Unir lortant evi- dence admitted. A. agreed to get out logs for plaintiff. who was to furnish tlie supplies, A. employed defendant to haul the sup- plies to his camp, and so informed tlic j ])laintiff ; but when tlie defendant went I for tliem tlie plaintiff refused to give I them without a written ordei' from .\., j but, (as he stated) told the defendant li' I would give them to him, and iiold him I responsible if A, did nut pay for tlicni. i The defendant's account of what took place was that when the plaintiff wa-^ getting the goods ready he told tlie defendant he sliould churg.' th-;^-; ,: him. to wliioli the ilefendtut .- i-...>''-.i. tliat he need not do so ; t!ui'. •> ■. ere not for him, but foi' A., liu.l * ):c, defendant, did not want tiifc..: , cikI that plaintiff afterwards delivered him the goods, and he to^k them away. Tl'.e plaintiff had chargeu tiie goods to A., but altered the entry and charged tlietn to the defendant as got for A. The question left to the jury was, whether the goods were sold and the credit given SALE. SALE OF LAND. 199 to the defendant, or to A., and they found the former. Held, on appeal, by Allen, C.J., and Weldon, Wetmore and Palmer, JJ., (King, J., dubitante), that the direction was proper ; that if the wale was made to the defendant it was immaterial whether he accepted the goods as his own, or as the agent of A., that his liability was original, and not a col- lateral engagement to answer for the debt or default of A. Per King, J. That the inference to be drawn from the evidence was that the plaintiff delivered the goods on account of A. Where evidence improperly admitted was unimportant, and could not have influenced the jury, a new trial was re- fused, niack V. Doherty, vol. '22, 2ir>. 5— Passing of property — Defendant on agreement between parties— Security to be given. G., residing in this province, ordered goods from the plaintiff at Quebec, pro- mising to give a note for the price in- dorsed by the defendant. The pliiintiffs sent the goods to Cr. with the invoice, itiid wrote requesting him to send a note for the amount with the defendant's in- dorsement. G. received the goods, but (lid not obtain the defendant's indorse- ment, and shortly afterwards tlie defen- dant got possession of the goods imder a bi'.l of sale fi'oni G. In trover for the tjoods, the jury were directed that if the plaintiff forwarded the goods to Cr. fairly expecting he was to receive a note in- dorsed by the defendant, the ])roperty in the goods would remain in the plain- tiff and he would be entitled to recover. Held, a misdirection ; that, if in the opinion of the judge, there was evidence of it, it should have been left to the jury to find whether the agreement was that the property should not vest in G. unless the note indorsed by the defendant was received. McCall et al. v. (iiHexpie, vol. 24, 98. — Payment— Appropriation. See Con- tract 7. — Passing of property. See Property, passing of, 2. — Of goods — Offer by letter — Accept- ance — Statute of Frauds. See Contract 17. — Of lumber — Estimated quantity — Representation. See Agreement G. — Of two descriptions of goods — En- tire contract — Acceptance. See Con- tract 13. — Conditional sale— Representation — Estoppel. See Trover G. SALE OF LAND. 1— Leasehold property— Execution— Notice c sale. Qua re — Whether the sheriff should ad- vertise leasehold property for three months previous to sale under execu- tion. Mnaxoii v. Griffith, vol. 20, 113. 2— Contract— Conditions of sal?- Perfor- mance of. Where the terms of sale require tweii- ty-tive per cent, of the purchase money to bo paid at the time of sale, the pui'- chaser must perform the condition strictly, a tender of tlie instalment on the afternoon of the day of sale is not a compliance with the condition. Muc- dtmahl V. Mdi/or. etc., St. John, vol. 20, 114. 3— Tender of conveyance — Recovery of deposit— Waiver. It is the duty of the vendor of lands to prepare and tender the conveyance. B. purchased land at an auction sale and paid a deposit, under an figreement that he was to receive a clear title. The land was incumbered, and the incum- 200 SALE OF LAND. brance was not removed at the time limited for the givinfj of the deed. Held, that B. could treat the contract as rescinded and sue for the purchase money even tliougli he knew of the in- cumbrance at the time of tlie sale. Tay- lor V. K.recutor.1 of ]Vetmo)-e, etc., vol. 20, ir.-j. — Property may vest in purchasers, although somethinj; rcmanis to be done. See I'roiierty — Passage of. — By sheriff — Bidding by one who had forbidden the sale not evidence of leave and license. See Sheriff's ! Sale 1. I — Saleof land— Description — Mistake. See Agreement (i. — Deed handed to purchaser for exami- nation. See Agreement i>. Sale under warrant for taxes— Judicial Act in granting order for reversal of, l>efore disputing validity of sale. See AssiSH'ii'Ut 8. Schools— Common — Remedy against secretary of school trustees for refusing to hand over pr^per'y of corporation. See Injunction 1. Schools Act — Sec. 81,meauingof wox'ds in. See Notice of Action. Scrutiny— Parties to — Election under Can. Temp. Act — Inquiry by judge. Sec Canada Temperance Act, 8, 20. Scuttling— Captain of vessel charged with. See Evidence Ki. Seal — Cutting Will 8. off from will. See Seaman's Act, 1873— Conviction for har- bouring foreign sailors — Written con- sent of consul to prosecute — Certiorari— When return may be amended. A conviction under the Dom. Stat., 30 Vic, cap. 129, for nnlawfully har- bouring foreign sailors — deserters from a foreign ship — should shew on the face SALE OF LAND. of the proceedings, either the consent of both parties, or the written consent of the foreign consul, that the justice should proceed, as required by section 127 of this Act : and where such consent did not so appear, an affidavit statini; that the justice had the consent, was not allowed to bo read on shewing cause against a rule nisi to quash the convic- tion. Where in such a prosecution both parties had treated the vessel as a foreign vessel, and the master and sailors as foreigners, although there was no direct proof that they were so ; it is ton late, on shewing cause against a rule ;»'.■>■/ to quash a conviction based on the vessel and crew being foreign, to object that there was not evidence of these facts, liei]i)ia\. lilair, etc., vol. 21, '2i'). Jurisdiction of county court judge See Ship 1. Search warrant— When copy may bf demanded — Reasonable search for goods. See False Imprisonment 1. — Where goods stolen — Information. See Trespass 0. Second trial — Reading of and com menling on judgment in former trial tn jui"y is improper, but not ground for a new trial. See Settled Accounts 1. Secretary of school trustees— Remedy against, for retaining property of wr- poration. See Injunction 1. — Whether entitled to notice of action. See Notice of Action. Secular calling— See Slander 0. Security for costs — Bond considered defective — Duty of defendant's attorney. See Judgment 1. — Where plaintiff insolvent, action brought for benefit of third person. See Costs 23. Separate properly— See Married Wo- man. See Husband and Wife. SET-OFF. SET-OFF. 201 Session, county— Liability of munici- pality for debts contracted by. See Municipality 1. SETTLED ACCOUNTS. 1— With deceased person— Conclusiveness of —Account stated— Improper admission of irrelevant evidence— New trial. In an action on a special aj^reenient for board and lodj^ing, and to pay an L'xtra sum for additional accommoda- tion, evidence of circumsliuices sliewiiifi the loasonablenesH of the plaintiff's claim is proper. Where accounts includint^ the plain- tiff's cluvr^e for the board of a jierson since deceased, had beei. settled between them, annually, foi' ei^^hteen years, but after such person's death, an action was l)rout,'ht a- reff'v. Mnirhfad, vol. 25, lilt). — Action against for seizing property. See Judgment Creditor. —Seizing of tenants goods under (execution — Landlord's claim for rent —Evidence of value of goods seized. See Landlord antl Tenant i). —Sale of chattels not seen by sheriff lit time of levy, and not mentioned in notice of sale. See U'ondx, appellant, and McCanii, respondent, vol. 25, 25;}. Sheriff's relurn— He is estopped from returning nulla bona to execution issued on plaintiff's judgment, where he holds l)roperty under writ of attachment issued by plaintiff. See Attachment. — Possession of— Under writ of re- plevin. See Iteplevin 4. Sheriff's fees — On executions — Lia- bility of attorney for. See Particulars L Shilling — Meaningof — Li rule of court, See Slander 3. SHERIFF'S SALE. 1— Bidding by plaintiff who had forbidden sale, not evidence of leave and license- Measure of damages— Evidence. In an action of trespass by the hus- biuid and wife against the defendant, siieriff of Queens, for taking the property of the wife under an execution against the husbanil, the defendant, on the trial was allowed to add a plea, of leave and license. The evidence offered to support the plea was the fact of the female plain- tiff having attended the sherift's sale and bid ni some of the goods. She had pre- viously forbidden the sale, and the de- fendant in his evidence stated that he took the goods and sold them under the execution. It also appeared that she purchased the goods at a low price, no one bidding against her. The judge directed the jury that there was no evidence to support the plea, and that the fact of the wife buying the goods at a low price did not affect the question of damages ; the defendant would be liable for the value of the goods. Hehl, that the direction was good. Application to add a plea of leave and license was made after evidence that ihe female plaintiff had bid at the 8(110 was given, and on the ground that th J supported the plea. The defendant in his evidence claimed to sell adversely to the plaintiffs under an execution against the husband. Subsequently the defendants" counsel, without stating by whom he would prove it, offered evi- dence to shew the plaintiff's assent to the sale, which was refused. Held, rightly so. Svott v. Pulmer, vol. 21, 304. SHIP. 1— Master— Wages of— How recovered- Registered owner— Liability for wages— j May be explained— Appeal— Practise— County court jurisdiction. 1?. 15., plaintiffs brother, having a vessel partly built, entered into an agreement with defendant, by which tlie latter was to sn])ply a certain. amount to complete her. The agi'ee- ; ment provided that the vessel when ; completed should be registered indefen- ' danfs nanc as security ; that It. I?. should take her to Liverpool on his own i account and pay all disbursements, for which defendant was to advance It. !>. a further sum. She was to bo sold at Liverpool, the defendant paid, and the balance given to R. B. Under this agreement R. B. finished the vessel and she was registered in the name of the defendant. R. B. employed plaintiff as captain, without any other authority from defendant to do so, and i 204 SHIP. sniiv ■s:;' ho did not interfuro. Tho vohh(>1 pro- ceeded to Liverpool under tlie diroetionrt of U. H., l\e noin^ in tlu> Hliip liiniHelf, but inHteiid of HelliM){ lier iin,'ainHt tho defendaiii^'H prolewt, and on her voyat^e back to Europe hIio was wrecked and put into NaHHau, abandoned the voya>^e, and went from thence to I'ictou for Picton, where U. IJ. diHchar^ed plain- tiff and settled with him, a balance of ' .CM '2x. Hr/. Hterlin^', bein;,' foinid due plaintiff for wa^es for which thin action wuH l)r()U>,'ht. On the trial, which took place in the county court of Kent, it was proved that defendant resided at j Ht. .John (beiuf,' more than twenty niilcH | from I'ictou) at time of plaintiff's dis- i char','c and ever since. i The county court judt,'o loft the case to I tho jury, who found a verdict for the ' plaintiff, but the jud{,'e afterwards non- i suited him on the {ground that by the r)(ith section of the " The Seaman's Act, 187;i," the court had no jurisdiction to try the case. Held, 1st, that the county court had jurisdiction, and tho jud^o was wronji in orderinf,' a non-suit on that t^round ; but Held by Allen, C.J., and Palmer and Kiuf,', ,J,J., that under tho facts proved, II. li. and not the defendant was liable for plaintiff's wattes, and the non-suit was upheld on that t,'round. And also that it is open to the respondents in order to support the judf^nient of the court appealed from, to avail himself of other {^rounds than those on which it was decided below. Held, by Weldon, J., that there was evidence of defendant's liability to i^o to the jury, and that there should be a new trial. By VVetmore, J., that there was evi- dence of defendant's liability to go to the jury, and that the verdict should be restored. '2-.W. Urincn v. Vannlmn, vol. Jj, 2— Mortgagee of ship— Agreement not lo charter without consent of mortgagor- Notice of charter by telegram —Con- struction of port of loading — Acqui- escence by mortgagor. Plaintiff, the nninaKinj,' owner of n vessel, residing; in this Province, mort j,'at5ed her to defendant, a broker in l')n<;land, who coveiumtod that if tin vessel should bo consij,'ned to him, lie would not charter her without the plaintiff's consent. Afterwards, wliilr tho vessel was on a voyaj^e to Kind's Lynn, in I'hij^hind, tho plaintitf wrote t(j defendant tollinj^ him if be had udt already chartered the vessel, not to dd so, but to send her in ballast to Syducs, C. B., for coal. On tho 'i'.tth of Miiv, IHSO, a few days after tho receipt of thi> letter, tho defendant at:;reod to clnirtcr her to carry a load of coal from Xortli Shields in liU^^laud, to Salom, Mas- sachusetts ; but in conse7;fl, dry deals, Sa^uenay to Ht. Malo," — to which [ilaintiff answered by by telof^raph, ' Take coals, don't take deals." Inunediately on rocei[)t of tiii^ tho charter-])arty was sij^ned, and tiif vessel proceeded to Shields, about ITo miles from Kinj^'s Lynn, took in car^;ii and sailed for Salem about the eml June, and early in July ran ashore and was injured. She was got off and re- paired, sailed again, and arrived at Salem. The plaintiff received a copy of the charter-party from the defendant on the 20th June, which was the first knowledge he had that the vessel had gone to Shields to load, but he made no objection on that account, and when he was afterwards in July informed of the SHIP. snip 8 HUSnAND. 205 tlama|{o to the vesHol, ho ro(|iieHtcci tlio ilffemlant to do tho buHt for Iuh (plain- tiff's) intorcBt in lookin>{ after tho re- pairs, insurance, etc. The defendant continued to act as tho phiintiff's a^ont in ijferonco to tlio vessel and other matters for about two years after this, nnikinn advances to the plaintiff with- out any complaint by hin> of the vesHol having been sent to Shields initil the (iefendunt pressed for payment of tho amount duo him, when the plaintiff brought this action for breach of a({ree- nient. Held, per Wetmore, Palmer and Frasor, JJ., 1. That the telegrams did not necessarily mean that the vessel should load at Kinj^s Lynn, but author- ized the defendant to charter hor to load at any port wliore a prudent merchant would send a vessel for such purpose. 2. That as by the telegrams it could not be known what port of loading was intended, that must be ascertained by extrinsic evidence, and the court had a light to look to what was written and done by tho parties after tho telegrams were sent, to assist in interpreting them, and to show what port of loading was intended. 3. That the plaintiff by his conduct and dealings with defendant after know- ing that the vesBol had been chartered to load at Shields, and not making any objection, was estopped from saying that the defendant had not put the proper interpretation on the telegrams- Per King, J. 1. That the meaning of the telegrams was that the vessel was to load at King's Lynn, where she then was ; or, if that was not a coal shipping port, from such a port reasonably near ; and according to the construction of the telegrams there was a breach of cove- nant by defendant in chartering the vessel without the plaintiff's consent. 2. Bat that the plaintiff's conduct after knowing of the charter, and not making any objection, had ratified the defendant's act, or treated it as an im- material variance frr his instruc- tions, 3. That tho wonl " fixed " in defen- dant's telegram implied a completed transaction ; hut the defendant's tele- gram and tiio plaintiff'H answer shewed tliat that was not the meaning intended, and that it was conditional on the plaintiff's assent. Ajiplehij v, lllack vt al., vol. 24, fVJH. — Notice of abandonment — Whether owner entitled to reasonable time to make encjuiries after hearing of loss. See Insurance l(i. — freight — Whether owner of vessel prima facii- entitled to. See Insurance H. — Registered owners — Equitable owner. See Insurance 14. — Sale by master — When allowable. See Insurance 1(5. — Notice of abandonment — Waiver of. See Insurance 1(5. —Repairs — Where should be made. See Insurance 17. SHIP'S HUSBAND. I— Part owner of vessel— Agent of other part owners— Settlement of accounts by him, sufficient account stated to entitle others to bring an action at law— Crediting agent not payment of money to principal —Right of counsel to re-examine witness on matters brought out on cross-examina- tion. The plaintiff and defendant with others were part owners of a vessel of which the defendant acted as ship's husband. The course of business was for the defendant to make up the ac- counts of each voyage at its close, and to apportion the earnings of the vessel aaaongst the part owners according to their respective shares, and the amounts Iflf n 206 SLANDER. SLANDER. •i. I "■'ll' so apportioned were tlien carried to the credit of euch part owner in account with the shijj's husband, and held sub- ject to his order. Tlie earnings of the I several voyages so credited were entered ' separately in the books of the ship's husband, and the balances were not car- i ried forwi.rd as a continuous account, i In an action by the plaintiff against the defendant for his share of the earn- ; ings, i Held, by Weldon, Wetniore, and j King, JJ., (Palmer, .!., dissenting), that | each voyage was a separate adventure, and that the balances so credited were suflftcient account stated to entitle the plaintiff to bring an action at law. Where A. employs an agent to receive money for him from B., and the agent instead of receiving money consents that the amount shall be credited by B in his own account with him, B. is not thereby discharged. In an action by A. against B. for the amount credited the agent, A.'s counsel on the cross-examination of B. question- ed him without objection with a view of shewing thau the amount of the agent's indebtedness was disputed, and when B.'s counsel objected and the judge sus- tained the objection and ruled out the evidence as irrelevant. Held, (Weldon, J., dissenting), that the evidence was improperly rejected- TutJier v. McMaini, vol. 22, 391. Ship owners— Action against charter- ers for refusal to load vessel — Unavoid- able delay. See Charter Party 1. Signature — To invoice properly proved by comparing with signature purporting to be of same person as iudorser of bill of exchange. See Evidence IC. SLANDER. 1—Privilegedcommunication— Malice— Pub- lication— Evidence— Damages— Whether excessive or not. The defendant having been appointed chief postoflice inspector for Canada with station at Ottawa, was engaged under directions from the Deputy Post- master General in making enquiries into certain irregularities which hud been discovered at the St. John post- office. Mr. John McMillan was the postoflice inspector for the district in which St. .John was situated. Believing that the plaintiff was guilty, the defen- dant had the latter before him, and in the course of a conversation charged him with abstracting the missing letters, which the plaintiff stoutly denied. Tliereupon the defendant, calling Mr. Woodrow the assistant postmaster into the room, told the latter to suspend the plaintiff that he, defendant, had charged him with abstracting the letters. The plaintiff having brought an action for slander was allowed to give evidence of the conversation between defendant and himself when no one was present, and in which, according to the plaintiff, the defendant had said among other things that if plaintiff was not guilty " the ex- perience of a lifetime was wrong, that his whole past e.xperience was thrown away," and also that " his, defendant's, reputation was at stake, these things must be ferreted out, the stigma must be taken off the office," There was no other evidence of any malice on the part of the defendant, who said that he had none, and that he had no acquaint- ance with plaintiff e.xcept from seeing him in the office, and had no know- ledge of him whatever. The jury found that the defendant was actuated by ill- feeling in his communication to Wood- row, but not in that to plaintiff him- self. I Leave being reserved to enter a non- ; suit or a verdict for the defendant, the verdict was for the plaintiff, the jury assessing the damages at |(i,000. I Held, by Fisher and Wetmore, JJ., SLANDER. SLAXDER, 207 (Weldon, J., dissenting), that the words i addressed by the defendant to Woodrow j were not privileged, as the defendant was not properly holding the investiga- j tion, there being no authority in the I Postoffice Act for his appointment; that the coni'^" nication was a publica- tion of the slander, and that there was ample evidence on which the jury could tind malice. Held, that the damages were not ex- cessive. Waterhurtj v. IJetn\ vol. 19, 225. Appeal to the Supreme Court allowed. See Addenda 8. 2— Charging the plaintiff with the use of false weights and measures— Evidence of the loss of customers— Customers must be called— Plaintiff cannot state their alle- gations—Charging plaintiff with an indic- table offence. In an ac'Jon of slander for charging tlie plaintiff with using false weights and measures, whereby he had been injured in his business of a trader, the evidence of special damage was that given by the plaintiff himself, who said that in consequence of the speaking of the words, several of his former custo- mers refused to deal with hi-.ii, giving as their reasons for such refusal, the charge which the defendant had made against him of using false weights a.. . measures. Held, that this evidence was impro- perly admitted. The proper way to prove that fact was to call the persons who made the declarations and let ther.i testify, under '■ath, that they had refused to deal with the plaintiff in consequence of the de- fendant's charge. But as the only effect of the evidence was to increase the damages, a new trial was refused on condition that the plaintiff would con- sent to reduce the verdict on that branch of the case to nominal damages. The test whether an action of slander will lie without proof of special damage is, whether the words imputed an indic- table offence. The defendant »i>oke of the plaintiff, the following words : •• He tore the robes off tlie priest at Wwxlstock, and as a judgment for such has a withered hand,' meaning thereby tiiat the plain- tiff had been guilty of an assault upon the Koman Catholic priest at Wood- stock, and had torn the clerical vest- ments off the priest, and for such assault had fxfen visited with a wither- ing of the hand. Held, that the words were actionable without proof of special damage. Mc- Caini V. Kearneif, vol. 2(», H4. 3— Action for— Costs— Where plaintiff re- covered $8. Held, in an action for slander, tliat a verdict for iH, or 40 shillings currency, will entitle a plaintifif to costs, the Stat- ute 21 Jac. 1 cap. 10. having been adopted in this province on its establishment as a part of the practice of the court, and the universal practice having been to read it as meaning 40 shillings currency and not sterling. U'uod v. Mackay, vol. 20, 262. 4— Pleadings— Evidence- -Setting out all the material words constituting the slander- Variance. In the first cmnt of the declaration it was allegerk. The words proved were, "Go and get your warrant and you will get your [jork." These words were spoken by tlie flefendant in the course of a conversation with one B., who stated that his pork had been stolen, and that he thought of taking out a search warrant to search the :i«j| r^ 208 SLANDER. #1 plaintiff's place. The judge directed the jury that the words as laid were not proved, and withdrew that count from their consideration. IIcliI, hy Allen, C.J., and Duff and King, JJ., (Weldon and Wetmore, JJ., dissenting), that the words as laid were capable of the defamatory meaning attributed to them when read in con- nection with the facts in evidence, and that the words were sufficiently proved, and the count should have been left to the jury. By the fifth count of the declaration, the plaintiff alleged that the defendant falsely spoke and published of him the words following : " Judson Harris in there," meaning thereby that the plain- tiff had feloniously stolen pork. Some pork had been stolen from B. Accord- ing to the evidence of one of the plain- tiff's witnesses, the defendant, during the forenoon of the day on which it was said these words had been used, said he knew where the pork was, stating where, and intimating that he knew who stole it. Being asked by the witness during the afternoon what he meant, he said, "Judson Harris in there." Held, that the count was bad in not setting out all the material words consti- tuting tlie slander. Harris v. Clayton, vol. 21, 237. 5— Misdirection— New trial. In an action of slander, where there is undisputed evidence that the words complained of applied to the plaintiff, it is misdirection to leave to the jury to find whether the defendant, when he spoke the words, intended the plaintiff, without pointing out such evidence to them. Good v. Good, vol. 22, 439. 6— Wliere meaning of words ambiguous- Evidence of wliat a witness understood by itie words— Wlietiter ground for new trial SLANDER. —Marriage— Proof of by witness— Author- ity to solemnize- Secular calling— 1st Rev. Stat., cap. 106— Pedigree — Entries in family Bible— Secondary evidence. In an action of slander for saying of the plaintiff— a married man — " He is as big a whore-dog as ever run," ami " To go and ask M. (a married woman) what he done to her," the witness to whom the words were spoken cannot be asked what he understood by the words, without first proving that the word "whore-dog " has some local or techni- cal meaning, or something different from its ordinary and natural meaning. Semble, that there was no ambiguity about the meaning of the word, and therefore, though the witness should not have been asked what he understood by it, it was not a ground for settinfi aside a verdict for the plaintiff, the witness' answer being in accordance with the meaning ascribed to the word in the declaration. A marriage may be proved by a per- son who was present at the ceremoi\v. It is not necessary to produce the cer- tificate of registry. The Revised Statutes, cap. lOfi, autho- rizes any christian minister, duly or- dained according to the rites and cere- monies of the denomination to which he belongs, being a British subject, not engaged in any secular calling, and having charge of a congregation, to solemnize marriage. Held, (the other requisites of the statute being proved), that evidence that a person belonging to the denomination of Free Christian Baptists claiming the right to solemnize marriage, was the son of a British subject residing in the province, and that he himself also resided here at the time of his ordina- tion, and was not shown ever to have resided elsewhere, was evidence that he was a British subject. SLANDER. SPIRITUOUS LIQUORS. 209 Proof that at the time of his ordina- tion, the minister lived upon his farm, and that he afterwards farmed part of his time and preached part of his time, is not evidence that he was engaf^ed in a secular calling within the meaning of the statute. Entries in a Bihle, or other family record, by deceased members of a family, are not evidence to prove whei'e a mem- ber of a family was born. Currie v. Stairs, vol. 25, 4. 7— Words actionable per se— Innuendo- Crime committed in a foreign country- Extraditable offence under Treaty of Washington. A declaration in slander charged de- fendant with having spoken of the plaintilf, an unmarried woman, the following words : — " J. had a bastard child at the factory, and done away with it ; and I cau prove it." The fac- tory was in the State of Maine : and the innuendo in the declaration stated the meaning of the words " done away with it" to be, that the plaintiff liad destroyed the child's life. Held, that the words " done away with it" imputed a criminal offence, iuid were actionable per .ic witliout any innuendo from custody — Delay in signing judg- ment. See Discharge 1. Specific Performance— Sale of land and remuneration for deficiency in logs. See Agreement (i. SPIRITUOUS LIQUORS. Mandamus— To compel the City of Frede- ricton to grant license to applicant to sell spirituous liquors by retail— Canada Tem- perance Act of 1878, ultra vires. Held, by Allen, C.J., Weldon, Fisher, and Wetmore, (Palmer, J., dissenting), that the Canada Temperance Act of 187H, which prohibits the sale of spiri- tuous liquors in those counties or cities where the Act is brought in foi-ce is ultra vires. Re(jina v. iluijor of Freder- icton, vol. 1!), 139. Appeal to Supreme Court of Canada allowed. See Addenda No. 1. —Intoxicating — Whether synonymous terms. See Summary Conviction Act 8. Stamp — Note not properly stamped having been given, pleaded in accord and satisfaction. See Accord and Sat- isfaction 1. — Promissory note being without, wliere re(]uired by law plaintiff may sue on the original considei'ation with- out shewing that the note cannot be made available against defendant. See Murder being an extraditable offence ! (ji-i^i^ii Corsideration. under the Treaty of Washington (184'2) thu courts of this country will take notice that it is punishable as a crnne I in the United States. Porter v. Mr Mn lion, vol. 25, 211. — Publication of See False Impri- sonment. — Special damage — Tost whether slander will lie for words without proof jf. See Slander 2. Stamp Act, 42 Vic. cap. 17 — Double stamping under sections 18 and 25 — ; Holder — Reasonable time — Insolvent i Act, sec. i;t() — Liability under. See I /<((»(/.• ()/' Soro Srotia v. Cusliiiiii, vol. 21, I 4!)s. — Cancelling stamps. Allen, vol. 24, 1. See l>nnn v. — Bill of exchange — Double stamping by payee — IMoading. See Bill of e.x- Socage — Guardian in — Trespass to (.im„,f,^._ I'luperty of infant. See Infant 1. i.- i . ^ l-.- i ii '■ •' I _ Kiglit to atnx double stamps — Special Bail--Where defendant had Knowledge of defect — What constitutes. tillered and been rendered — Discharge See Bill of Exclmnge. S.D. 11 m m m h 210 STATUTE OF FRAUDS. Statute — Repeal by implication. See Canada Temperance Act 17. STATUTE OF CANADA, 37 VIC. CAP. 45. Exporting raw hides. Lading raw hides on board a vessel in an inspectoral district, without being inspected and marked, and sending them to another part of the province, is not "exporting" them within the Act, 37 Vic. cap. 45, sec. 1)6. Ex parte Shannahan, vol. 19, 499. STATUTE OF FRAUDS. 1— Parol agreement lor sale of logs— That a contra account be allowed in payment- Part payment— Acceptance— Sale under execution before acceptance — Account stated— Evidence of— New trial. A. being indebted to B. for supplies tised by A. in getting out a quantity of logs and timber, a parol agreement was made between A. and B.'s agent for the sale of the logs and timber to B.. and the amount to be paid by B. was settled at 81,450. After allowing the amount of B.'s claim against A. neither party did anything further with the logs and timber, although B. claimed them, and they were seized and sold under an exe- cution issued by J., one of A.'s creditors. B. forbade the sale ; but subsequently made arrangements with J., and took the logs and timber and drove them to his mill where they were sawed up. A, contended that the sale to B. was com- pleted, and that as A. subsequently got possession, that would amount to an acceptance and take the case o'.it of the Statute of Frauds ; also that there was an actual settlement of accounts at the time of the sale, and that the allowance of B.'s contra account was such a part payment as would take the case out of the statute ; B. on the other hand con- tended that the agreement was parol ; that nothing was done under it ; that STATUTE OF FRAUDS. A. was to drive the logs and timber, which he did not do ; and that he, B., purchased the logs and timber from tlie purchaser under J.'s execution, and tluu he did nothing previous to the sule under the execution amounting to un i acceptance. The jury found for A. and against B. on all the matters in dispute. Held, by Weldon, Fisher and Wet- more, JJ., (Allen, C.J., dissenting), that as the jury liad found that B. took pos- session under the parol agreement to purchase, and they could not say thuie was no evidence to support such a find- ing, the property in the logs and timber passed to B,, and a new trial was re- fused, Allen, C.J., was of opinion that as B. had done nothing amounting to an acceptance prior to the sale under .l.'s execution, the property in the logs and timber passed by that sale to the pur- chaser, and that the questions as to whether B, took possession under the parol agreement with A., or under the purchase from the purchaser under J.'s execution, ought not to have been left to the jury. Held, by Weldon, Fisher and Wet- more, JJ., (Allen, C.J., dissenting), that the jury were justified in finding that the allowance of B,'s contra account amounted to a part payment, and that the case was thereby taken out of the statute ; but by Allen, C,J., that it was only a verbal agreement to allow A. s indebtedness to B. to go as part pay- ment, and that there was no evidence of part payment to be left to the jury. and that their finding amounted to nothing. By Allen, C,J,, in order to recover upon an account stated, it ought to appear that the account was stated with reference to former transaction? between the parties. In the present case the parol agreement between tlie STATUTE OF FRAUDS. STATUTE OF FRAUDS. 211 parties was executory; there was no debt then due from B. to A., and there could be no statinj^ of accounts upon which A. could recover; for, if so, he would recover indirectly in another form of action the price of goods ver- bally agreed to be sold, which he could not recover in an action brought for the price of the goods, because there had been no sale, the requirements of the statute not having been complied with. Weldon, J., thought the amount of the verdict should be reduced. Murray V. Moffat, vol. 19, 481. 2— Verbal promise— Whether primary or col* lateral— Hiring— Agency. This action was brought to recover four and a half months' wages on an alleged verbal hiring by one H. as agent for defendant. At the trial, which took place in the Victoria County Court, the judge ordered a non-suit on the ground that the contract disclosed by plaintiff was a contract of guarantee, and so within the Statute of Frauds, and also that the agency of H. was not made out. The evidence showed that one M. was carrying on lumbering operations on the Tobique imder a contract with defendant, who was to supply him, and he, M., was to receive so much per thousand. Defendant was also carry- ing on an operation on his own account in the neighborhood, and H. had char'^e of the latter operation for defendant. He also attended to getting in the sup- plies to M. which defendant had con- tracted to give. It appeared that both ".tl. and defendant's operations were to be promoted by the construction of a portage road from the Tobique through to the Nepisiquit Lake, and it was in connection with the laying out of this road that the first hiring of plaintiff took place. Plaintiff said his first inter- view was with H., who asked him if he would go with him, H., and look out a portage road to Nipisiquit Lake, that plaintiff said he would go, and shortly after tliis conversation, on the same day, he met M. and H., when the for- mer asked him if he would go with them to look out the road. Plaintiff said he did not know, whereupon H. said, "If you go up I will do what is right with you." He then agreed to go, and the next morning he went with M. and his crew and laid out the road, after which, at M.'s request, he built a camp and cut out some hauling roads for I M.'s lumbering operations, being em- i ployed altogether at this work, includ- ing the laying out of the road, about twenty days. After this plaintiff left and went home and remained ten days, but before going he told M. he had busi- I ness at home and would be back in I eight or ten days. On his way home plaintiff met H. with teams coming up, when he asked H. if he would pay him his wages if he went back to M. and worked for the concern, to which H. I replied that he would. Plaintiff re- mained home ten days, and went back ' and worked (m all) four months and j fifteen days. More than a year after j the work was done plaintiff applied to defendant for payment, which the latter refused, saying that if H. had agreed to pay the wages, he, defendant, would pay, but that H. had denied making any such promise. Held, on appeal, by Weldon, Wetmore and King, J.J., that the alleged contract between plaintiff and H. was collateral to the contract of hiring that existed between plaintiff and M., and therefore within the Statute of Frauds ; but by Allen, C.J., and Palmer, J., that it should have been left to the jury to say whether H.'s promise was primary or collateral. Held, by Allen, C.J., and Palmer and King, JJ., (Wetmore, J., dissenting), that there was evidence for the jury of H.'s authority to employ plaintiff on ! II i!!1 212 STAY OF ACTION. STREETS. ForbeK V. Ti'iiiplc, 'H' ,': ' n if! evidence a subs^- See defendant's behalf, vol. 22, 511. — Contracts under — Parol will not be admitted to show quent variation. See Sale 2. — Guarantee. See Sale 4. — Substitution of third party. Agreement 4. — Voidable contract — Repudiation- Recovery under common count. See Contract 12. — Contract for sale of goods— Offer by letter to sell — Acceptance. See Con- tract 17. STATUTE OF LIMITATIONS. (See Limi- tations.) STATUTORY TITLE. Adverse possession— Public pound. The sessions of Kent county having in 1852 appropriated money for the erection of a pound in the parish of Kent, it was by the verbal permission of the then owner erected on land, the documentary title to which was now in defendant, the understanding being that it was to be occupied as long as it was kept up, and was necessary, and used as a public pound. The pound was used continuously from 1852 down to 1862, when it was allowed to get out of repair, and was not used again until 1872, when the sessions repaired it, and continued to use it for several years, until defendant took possession, when plaintiffs (claiming tlp'ongh the sessions) brought trespass. Held, that plaintiffs had failed to make out a statutory title by twenty years possession. MunicipuUtij of Kent v. McArtInu; vol. 22, HI. STAY OF ACTION. 1— Executor— Separate actions for penalty for not proving will. Where separate actions for not prov- ng a will were brought against two executors under the Rev. Stat., cap. 1M>, sec. 10, Con. Stat., cap. 82, sec. 11, tlia proceedings in one action were stayed till after judgment in the other, (Wot- more, J., dissenting). U'niinev v. Iliiirlii- sun ; Slime v. Sullivan, vol. 21, 5H7. 2— Second suit for same matter— Staying proceedings. A. died, having effected a policy of insurance on his life for the benefit of his wife, and payable to her. The widow brought an action in her own name to recover the amount of the policy, and was non-suited on tlie ground that the action should have been brought by A.'s representative. She then brought an action as admin- istratrix. On an application to stay pro- ceedings until the costs of the former suit were paid ; Held, following Panhley v. I'ooli', ;i 1). & R. 52, that the second action was not vexatious, and the application was re- fused. Abbinctt, adnU., etc,, v. Tlie Nortl: Western Mutual Life Ina. Co., vol. 24, 1. Stay of proceedings— Caused by de- mand of particulars must be set aside before plaintiff can get order for inspec- tion of defendant's books. See Books. — Cause directed to be entered on motion papers — Whether notice of motion for new trial can be given pendnig stay. See Judge's Order 4. — Demand of particulars in eject- ment. See Ejectment (i. — Rule )i(.s/ for certiorari containinj,'. See Attachment 7. — Steamboat — Action for loss of goods — Evidence. See Carrier 2. Stoolt— Devised by will and afterwards sold— How paid to devisee. See Will 3. STREETS. 1— Liability of town to keep in repair- Where town raises level of street and neglects to fenca. STREETS. SUMMARY CONVICTIONS ACT. 213 Held, in an action against the town of Portland, tliat wliether their Act of In- corporation imposes on them an abso- lute duty to keep all the streets of the town in proper repair or not, at all events, if they assume the duty of con- structinj{ or repairint^ a street, they must take care and leave the work wliich they do upon it in such a con- dition as not to be danj^eroua to any one who may use it. Therefore defendants haviiif,' raised a street some four feet above the level of the adjoiniufi land and left it unfenced, so that it was danj^erous and unsafe for travellers in the night, and plaintiff while travelling over it in the night time having accidentally walked off and been injured, she was entitled to recover damages for the injuries sustained. Held, also, that the section of the Act of Incorporation giving power to the town to make by-laws compelling the owners of land lying along and below the level of streets to be fenced, was not intended to provide for cases where it was the street and not the land of the adjoining owner that required to be fenced; and where the necessity for fencing was created by the Act of the town in raising the street. Clarke v. Toini of PortJnnd, vol. li), 1H'.». 2— Non-repair— Action for injuries resulting from— Where no misfeasance. The intention of tlie Let^islatnro in passing the Act iiic■ J SUMMARY CONVICTIONS ACT. SUMMARY CONVICTIONS ACT. 215 Where, in such a case, the form (12) is adopted, it is not amendable under the 117th and llHth sections of the Canada Temperance Act. lleyina v. Sullivan ; in re Dwycr, vol. 24, 149. 8— Certificate of dismissal— Wliere infor- mant does not appear— Right to grant- Subsequent compiaint for same offence— Wliether bona fides of justice in granting certificate can be inquired into— Canada Temperance Act, 1878. Held, by Allen, C.J., Weldon, Wet- more, Kin^ and Fraser, JJ., that the certificate of dismissal provided for by the 43rd section of the Summary Con- victions Act may be granted as well where the informant neglects to appear and the complaint is dismissed on that ground, as where he does appear and the information is dismissed on the merits. By Palmer, J., that such certificate can only be granted where the infor- mation is dismissed after hearing. Held, also, (Weldon and Wetmore, JJ., dissenting), that the magistrate or other officers before whom an information for an offence against the Canada Temper- ance Act is being heard, if a cei'tificate of dismissal of a prosecution for the same alleged offence is relied on as a bar to his proceeding, has a right to inquire whether the previous prosecu- tion was real and hoiia fide, or was insti- tuted fraudulently and collusively. Ex parte Phillip.^, vol. 24, lli». 9— Minute of judgment— Variance from for- mal conviction. The minute of a conviction made under the Summary Convictions Act, 82 & 33 Vic. cap. 31, sec. 42, should state the adjudication of the justices both as to the amount of the fine and the mode of enforcing it, whether by distress or imprisonment, so as to be a complete judgment in substance. There- fore, where the minute of conviction under the Canada Temperance Act, 1878, stated only that the justices ad- judged the defendant to pay a fine of $50 and costs, a conviction which was subsequently drawn up, after the parties had separated, awarding distress in de- fault of payment of the fine, and for want of distress imprisonment for a certain time, was quashed, the justices having no power after their adjudica- tion to add to or vary their judgment Refjina v. Perley and Hartt ; in re White, voi. 25, 43. 10— Warrant to arrest- Information— Beiief of complainant— Substantiation of. A sworn information stating that the complainant has just cause to suspect and believe, and does suspect and be- lieve, that the party charged has com- mitted a specified offence triable under the Summary Convictions Act, 32 & 33 Vic. cap. 31., will not authorize a justice to arrest in the first instance. It is the duty of the justice before issuing a war- rant to examine upon oath the com- plainant, or his witnesses, as to the facts upon which such suspicion and belief are founded, and to exercise his own judgment thereon. Kx purte lioyce, vol. 24, 345. 11— Indian Act 1880— Conviction — Liquor sold to Indians— Whether imprisonment can be adjudged for non-payment of fine — Certiorari. Imprisonment in case of immediate non-payment of a fine imposed under sec. 90, of the Indian Act 1880, can only be adjudged when the offence is selling liquor to Indians on board a vessel. In other cases the conviction must follow the form, (Ii), in the Summary Convictions Act, 32 & 33 Vic. cap 31, and award a distress in default of pay- ment of the fine. 216 SUMMARY CONVICTIONS ACT. SUPERSEDEAS. 1' ;'<(.;; When a justice exceedH his jurisdic- tion in prosecutions under the Indian Act, a certiorari is not taken away by sec. 97, or by the Act, 47 Vic. cap. 27, sec. 15. Kx parte Uoodinc, vol, 2.'), 151. 12— Selling and keeping liquor for sale- Identity— Of offence— Onus of proof. J. was convicted on tlie Kith ]May for selling liquor between the 2lHt January and the 18th April preceding, contrary to tlie Canada Temperance Act. He was Hubseciuently couvictel for unlaw- fully keeping li(pior for sale between the 14th February and the 24t]i March, in the same year. Held, that the onus was on him to pi'ove that tlie two charges were identi- cal — that the keeping for sale with which lie was charged, was in fact the selling of which he liad been convicted — and that the mera fact that the days between which he was charged with keep- ing liquor for sale, was included within the times stated in tlie conviction for selling, did not sustain a defence of (ui- trefoil convict. lii'ijiiKi v. Marsh, vol. 25, 371. — Prosecution for assault under — De" fendant's right to shew that assault was committed in defence of his own land. See Assault 2. --Whether provisions of the 57th and ()2nd sections, are ap])licable to convic- tions under the Can. Teni. Act, soc. 100. See Canada Temperance Act ItJ. — Dismissal of complaint— Kight of defendant to have li(iuors returned. See Liquor License Act. — Summons for witness — Where con- viction made by justice without juris- diction. See Canada Temperance Act 10. — Partners — Joint conviction — Pen- alty must be several. See Canada Tem- perance Act 21. — Amendment of conviction uiicUr Can. Tern. Act. See Canada Teinpir- ance Act 22. SUMMARY EJECTMENT. 1— Con. StaL cap. 83 — Mortgagor and Mortgagee— Summary Ejectment. I There is not such a tenancy existiiiu between a mortgagor and mortgagee us will render ^ a former liable to proceuil- ingw by summary ejectment under the Con. Stat., cap. 83, and the Act. IH Vic. ca]) 12. F.x parte Mrllean, vol. 24, Hl')2. 2— Expiration of tenancy— Writ of restilu- tion. The Summary Ejectment Act, Con. Stat., I up. 8U, sec. 22, does not apply where the landlord relies upon a sur- render of the lease by the tenant, ami not on an expiration of the tenancy. Where the tenant has been turned out of possession, and the proceedings are afterwards (juashed on appeal, tlie c lurt has no discretion as to awardiiii; a writ of restitution. Philip, ai)pellaiit, and MclJuiKjhliii, respondent, vol. 21. 5:32, Summary proceedings — Setting asiile pleas as false. See Plea 8. — Where rigjit of action — Refusal of court to interfere. See Bankruptcy 2. Summons— One partner acknowledging service for self and co-partner. See Executi(jn 1. — Service of —Where defendant is in- sane. See Writ. — Not moved with costs. See Costs 28. — To witness, issue of, by justice called in by other justice. See Canada Temperance Act 10. SUPERSEDEAS. Section 52, cap. 37, Con. Stat.— Rules of Hilary Term 2nd Victoria— Declaring— SUPREME COURT OF CANADA. SUPREME COURT OF CANADA. 217 rol. '21. isiile ■iisal of ptfv •>. Rules of laring— Within what time-What included in word as used in the 52nd section— Computation of time. The defendant was arrested on the lltli July, 187it. Application web made for an order of Bnperaedeas on an atti- davit of defendant sworn on Septemher llth, 1H7!), and a certificate of the slieriff bearinf^ the same date, shewinj^ that no declaration had been served ; iin affidavit sworn on the IHth Septem- ber, had been tiled in the clerk's office > was also used. Held by Allen, C.J., and Duff, J.. iWetmore, J., dissentiii},'), that defen- dant had not shewn enough to entitle him to the order. //<'/(/, that the day of the arrest sliould be excluded in the computation of the two months within which time the plaintiff must declare by section 52 of Con. Stat., cap. 37. Held, by Allen, C..T., and Duff. J., (Wetmore, J., dissenting), that the word "declare" in the r)2nd section, read in connection with the Rules of Hilary Term 2nd Victoria, does not requii'e the declaration to be filed as well as served within the two months. Weldon v. O'- Siilliaiii. vol. Ill, 102. — Absconding, concealed or absent Debtor's Act. See Absconding Debtor. SUPREIME COURT OF CANADA. 1— Preparation of cases for — What con- trol this court has over the case—What case sliould not contain— Judge's notes of trial— Must betaken as reported by him. Whore an appeal is had from this court to the Supreme Court of Canada, tills court has power to see that copies of the recoi'ds of the court and of all documents and affidavits on file are correctly certified, and, if necessary, to recjuire the clerk to correct any errors that may be made to appear, and the judges have power to see that correct copies of their judgments are trans- mitted, but the court has no power over the judge's notes of the trial and cannot alter or interfere with tluin in any way. It must be assumed that they are correct as reported hy him. Semhli', The court has power to see that the case on apjieal is presented on the grounds taken in this court. The court has no power to order tiuit an affidavit used in an upiilication to set aside or vary an order allowing an appeal to the Supreme C'onit of Canada, and settling the case, be made part of the case on appeal. Per Allen, C..T., no more of the pro- ceedings than is necessary to raise the .juestion in dispute for the considera- tion of the court of appeal ought to bo made part of the case. It is unneces- sary to transmit a copy of tlie affidavit verifying the execution of the bond, or of the affidavit of justification, or of tlie judgment roll. The substance of the Pleadings instead of the rcrlmtim copy might properly be stated, and when it can be avoided no more of the evidence than bears upon the (]uestion at issue, should be transcribed and transmitted. Copp V. Read, vol. lit, 45;'). Time of appeal to, should not be ex- tended by an c.r imrtv order. See Ap- peal 11. — A judge has power to extend the time for perfecting an appeal to. See : Appeal 0. j — No power to allow additional plea. • See Addenda 31 iV ;<',l. Surely— Defective atfidavit of justili- cation — On petition under Controverted Elections Act. See Controverted Elec- tions Act 1. — Bond given as. See Pleading 1. Surplus — Will — Whether it refers to personal estate alone, or real estate also. See Will 2. 1 r\ p ■ \ i i ,' II 218 SUPREME COURT OF CANADA. Surplusage — Kiititlin>{ of affidavit. See Artid'ivit 5, — Wlieii words may be treated us. Hee Canada Temperance Act '22. Surveyor— mutually chosen— dividiuK line. Kee Acijuiescenco 1. Survey bills, liow far concluHive. Bee Estoppel /). Taxation of costs— When costs are taxed on different day from that ap- pointed — Whether sufficient to entitle plaintiff to an execution. See Costs 4. — Of costs on demurrer while other issues are pending, may be set aside- See Costs 11. — On day other than that appointed — lieview of. See Costs 17. — City of St. John— What constitutes an inhabitant for purposes of. See In- habitant 1. — Without notice. See Costs 21. Taxes— ^Statute requiring bond to be given before a party complaining of an assessment should be entitled to u rule nini for certiorari is not applicable to assessments made in city of St. John. See Assessment 2. — Receiver of, of the city of St. John — Necessity of setting out in detail pro- ceedings taken. See Arrest 5. — Income of Dominion official resi- dent in St. John not subject to taxation for municipal purposes. See Dominion Official 1. Municipal taxation of Dominion official. See Assessment 7. — Creating lien on land in city of St. John for two years cannot be recovered from tenant after that time. See Kates and Taxes 1. — Costs of execution — Arrest for, under execution. See False Imprison- ment, 8. Owner of land dead — Assessment against widow. See Assessment 8. 8 UPREME COURT OF CANADA. Telegraph company— Erection of liiu-— Right to cut trees- Company bound to shew necessity. See Trespass t>. --Doing damage to shade and oriuv mental trees. See Trespass 7. Telegram — Construction of. SeeKlii[> 2. Temperance — Act of Canada of Ihth. See Mandamus 1. — Act ttltra vireH, See Spirituout< Liquors. Temperance Act of 1878. See Canadu Temperance Act. Tenant— Mill owner — Logs delivered to be sawn into deals — Privilege from distress. See Landlord and Tenant. Tenants in common — One co-tenant cannot legally authorize another person to do what he himself could not do. See Trespass 1. — Partition by agreement of land owned by. See Adverse Possession 1. Tenant by curtesy— Right of entry in heir-at-law, when it accrues. See Lim- itations 2. Tender — It is the duty of the ven- dors of lands to prepare and tender the conveyance. See Sale of Land 3. — For charges — When necessity of, to prove conversion, where property lield for proper charges, and also for clmrjies which were not a lien upon the property. See Trover 3. — Of price before action. See Con- tract 0. — Of interest and costs on foreclosure of mortgage. See Mortgage 2. Testator— Will— Cutting oiT seal— Whether "tearing" within meaning of Wills Act. See Will 8. — Whether witness to previous will can prove capacity of. See Will 10. Third parties— Declaration of— Admis- sion of, as evidence. See Trespass 4. SrPREME COURT OF CANADA. TRESPASS. 219 — Contract— Policy of Insurance — i Beneficiary not entitled to brin>{ action j in his own name. Hae Contract !>. 1 — Previous settlement with— Accounts — I'^ffect of, as an admission of correct- ness. See Evidence 10. Timber Lien. driver— nif^ht to lien. See Title to land — In prosecution for assault, defendant may show that assault was committed in defence of. See Assault 2. — Action in county court — Jud^^e should not non-suit the plaintiff but re- mit the cause to the Supreme Court under Con. Stat., cap. 51, sec. 45. See Trespass 10. — When may or not be considered in question. See Costs 24. — Justice of the peace — Jurisdiction — Title to land— Easement. In order to oust the civil jurisdiction of a justice of the peace, on the fjround that the title to land came in question, it is not enough for the defendant to make such objection : the justice must enquire into the matter sufficiently to ascertain whether the title really is in question. Plaintiff and defendant ov^'ned ad- joining^ lots of land, defendant havinj* a riyht of way over plaintiff's land, from the street : Held, that the defendant had no right to deposit snow upon the way, hauled from his own land ; and that his claim to do so did not raise the (lueation of title to land. Doohan v. La Forest , vol. 24, 553. Tolls and rales— Power of city council of Fredericton to impose, on the sale of articles in the public market. See Market 1. Tort- Joint action— Costs of acquitted defendant — Time of taxing. See Costs 19. Total loc". —Covenant in insurance policy that amount of claim shall be fixed by arbitration does not apply where there is a total 1 jss. See Insur- ance 8. Townof Portland— Non-repair of streets. See Streets 2. — Power to e.\act license fee from coachman holding license in city of St. John. See Hackney Coaches 1. Town of Upper Mills— Overseers of the poor — Proper parties to bring action for support of illegitimate child. See Over- seer of Poor. Transfer— Chattels— Evidence of date when made. See Evidence 18. Trees - Ornamental trees — Right of Telegraph Company to cut. See Tres- pass 0. TRESPASS. 1— Building overhanging land of adjoining owner— Entry to prevent falling— Justifi- cation— Tenants in common— License by one— Pleading. A declaration contained three counts. ist. That plaintiffs were seised and possessed of a lot of land in the city of S. and that defendants erected a building on land adjoining which did then and for a long time before the commence- ment of tliis action, overhang plaintiffs' said land, whereby plaintiffs have been utterly hindered and preventefl from using and enjoying th'^ir land. 2nd. That defendants broke and entered said land and placed thereon divers build- ings, bricks and other materials, and dug up the soil of plaintiffs' land, and have ever since kept and continued said build- ing upon plaintiffs' said land, whereby they have been hindei'ed and prevented from using and enjoying their said land. 3rd. That plaintiffs were seised and pos- sessed of said land which was then and ever since had been vacant ; that defen- i^ 220 TRESPASS. TRESPASS. 'm dants being owners of the adjoining lot of land erected a building thereon, which ' building was so carelessly and negli- gently constructed that it sagged over and overhung plaintiffs" land, and had ever since continued to overhang the same, whereby plaintiifs had been alto- gether prevented from erecting a build- ing upon their land and using and occu- pying the same. Defendants pleaded (Srd and -Ith) that they did what v/as complained of by leave of two of the plaintiffs. (oth to the 1st coimt) that the wall and foundation of defendants' building was supported by the soil ot plaintiff's land; that before the said time when, etc., the plaintiffs had wron<;fully, carelessly and improperly kept and con- tinued the soil of said close to be dug out and excavated, and also wrongfully, illegally and carelessly kept and con- tinued large quantities of water collected and being in and upon plaintiffs' said land, so as to flow to, against and into the earth and soil of defendants under their said foundation wall, so as to soften and undermine the same, and carelessly and negligently cause the foundation of the said wall to give way and settle, and thereby cause the top of the defendants' building to move over and overhang plaintiffs' close, where the same re- mained in danger rf falling and being destroyed, whereupon defendants, in order to prevent tlie same from falling, entered plaintiffs' said land for thei)ur- pose of repairing and maintaining said bi. !• ing and doing all other things necessary to prevent said building from falling l)y reason of said wrongful act of plaintiffs, doing no umieoessary dam- age, and that sncli necessary work could not have been done without such entry, which are the supposed trespasses in the first count mentioned. (dth to the 1st count). That plain- tiffs wrongfully and illegally caused the earth and soil of defendants under said foundation wall to give wav and sink, so that the said building sagged over and overhung plaintiffs' land, and was in great danger of falling; and doing damage, and in order to pre- vent such injury and damage, it became necessary to enter uj>on plaintiffs' land to maintain and repair such foundation, whereupon defentlants did enter upon plaintiffs' land to maintain and repaii- the same, doing no unnecessary damage, which are the trespasses in the first count mentioned. To the 2nd count defendant pleaded pleas similar to the fifth and sixth pleas to 1st count. To the Hrd count they pleaded that their said, building was not so carelessly and negligently constructed that it sagged over and overhung plaintiffs' land; but, on the contrary, that such sagging and overhanging was caused by the improper, illegal and careless way in which plain- tiffs had allowed their lands to be exca- vated and dug out, and the water that they had improperly allowed to collect upon said land and premises, and flow against and under the foundation wall of defendants' building. To these pleas plaintiffs demurred. Held, that all the pleas were bad as constituting no defence to the action. IIiitcIiiitKoii v. 'rnisteea Y. M. C. Aii., vol. H), 65. 2— Declaration, where only one trespass laid, whether more can be proved. In an action of trespass qHirrr cIuks. 11)11 ffi'iiit, only one trespass was laid in the declaration, but on the ti'ial, plain- tiff proved, subject to objection, several trespasses, and obtained a verdict on them all, though the amounts were found separately. A rule nisi fur a new trial having been obtained, plaintiff, on shewing cause was allowed to abandon all but one trespass, and the rule was discharged. ItKjmliam v. Parku, vol. I'.l. 101. TRESPASS. TRESPASS. 221 3— To land— Grantee under registered deed liaving notice of prior unregistered deed —Registration— Way— Obstruction of. In a court of law the legal title to land must prevail, and the fact that a subse- quent purchaser under a registered deed had notice of the existence of a prior unregistered deed, does not affect the title. Plaintiff, in order to obtain access to his ship yard, obtained a deed from M. of a strip of land wide enough for road , way, describing it by metes and bounds. Between the strip so deeded, however, and the ship yard, there was another piece of land not ownei' by M., but be- longing to defendant. On the same day that plaintiff obtained his deed, but subsecjuent to it, defendant also obtain- ed from M. a deed of the same land, containing in the liahi-tulum the follow- ing words, " except the right of road way to Archibald Park's (plaintiff) ship yard deeded to him." Defendant got his deed on record first, defendant having made an obstruction on the land so deeded to plaintiff, the latter sued him for such obstruction, claiming in the declaration " a way for his horses, cattle and carriages to and from his ship yard." IL'hl, that plaintiff was not entitled to the right of way claimed. I'urku v. 'n he employed H., a surveyor (since dead), to run out the southern line of his grant; that H. started from tliis cedar stump and ran the line out to the rear, and that M.. defendant's brother, who owned the land which adjoinerl plaintiff's land on the south side and conterminous with de- fendant's land, jwinted out the stump as the boundary Ij^^tween the two tracts, and that it wa.-» marked as such by the surveyor. Tlie defendant objected to tliis evidence: but Held. admisHible as part of the ret ijcita'. ttnii'i* V. MclSride, vol. !'.», -iO'i. 5— Insufficient description of locus in quo— Demurrer— Leave to withdraw. It is not a ground of demurrer that the declaration in trespass does not suf- ficiently descrilje the Inrii.i in qiiu. Appli- cation to comp---i plaiiititf to amend the declaration should be made under Con. Stat., cap.. :}7. -jfcc. '.t'.i. Tlie defendint may be all(iWod to withdraw his demurrer and [)lead with- out notice t) the plaintiff. I'uran v. Il'inift, et nl.. vol. 10, VM. 6— Declaration Where premises not set out —Defendants Remedy -Telegraph com- pany—Erection of line- Right to cut trees — Company bound to shew necessity. .\ dedaratioh alleging that defendant cut down and destroyed trees standing u])on i»laintjfr» laml, sets out a clear cause of action. The objection that in tre.^[)ass to real estate the declaration does not sot out the particulars of the premises is not available, on a general demurrer, but 8?', n ■ • 5 ' 222 TRESPASS. Hi i. defendant's proper course is to apply to the court or a judge for an order to compel plaintiff to amend or give par- ticulars. The Act, 34 Vic. cap. 52, incorporating the Dominion Telegraph Company, de- clares in the 4th section that the com- pany may enter upon lands or places, and survey, set off and take such parts thereof, as may be necessary for such line, etc.; and in case of disagreement between the company and the owners of lands so taken, or in respect of any damage done to the same, it may be settled by arbitration in the mode therein described. By section 20 the company are auth- orized and empowered to enter upon the lands of any person or persons and survey and take levels, and to set out and ascertain such parts thereof as they shall think necessary and proper for making the said intended telegraph, and all such other works, matters and conveniences as they shall think proper and necessary for the making, preserv- ing, etc., the said telegraph, and to build and set up on such lands, such station-houses and observatories, watch- houses and other works, etc., as and where the naid company shall think requi- site and convenient, etc., '' provided always that the said company shall not cut down or mutilate any tree planted or left stand- ing for shade or ornament, or any fruit tree, unless it be necessary to do so for the erection, ttse or safely of any of its lines." In an action against the company to recover damages for cutting down orna- mental trees, the defendants pleaded that the trees were standing by the side of a public highway and the defendants were erecting their line of telegraph along the highway, and because the trees were in the way and obstructed the passage of the line of telegraph, and because they deemed it necessary and TRESPASS. advisable so to do, they committed tlio acts complained of by virtue of tliu statute and not otherwise. Held, Ist., that the arbitration clause in the 4th section, did not apply to a case like this, where the complaint was that the defendants had wrongfully destroyed plaintiff's trees. 2nd. That the proviso in the 20th section imposed on the defendants, if the ornamental trees would obstruct their line on the side of the highway where they located it, the burden of shewing that it was necessary for the m to take it on that side, and that the defendant's pleas were bad for want of an averment that it was necessary to cut the trees, not merely that they deemed it necessary. Gilchrist v. Dom- inion Telegraph Co., vol. 19, 553. Appeal to Supreme Court of Canada dismissed. See Addenda, 55. 7— Arbitration as to damages— Evidence- Telegraph company— New trial— Counsel moving for — Act 41 Vic. cap. 8. The court will only hear one counsel on moving for a new trial under 41 Vic, cap. 8. The plaintiff sued the defendants, u. company empowered by Act, 34 Vic. cap 52, to control lines of telegraph in the Dominion of Canada, for cutting and destroying shade and ornamental trees in his land while building their line. The Act, after giving the com- pany power to enter on and take lands, etc., for constructing the line, provides that in case of any disagreement be- tween the company and the occupier of any lands which they may take in respect to any damage done, the amount of such damage shall be determined by arbitrators, to be chosen in the manner therein pointed out. The 20th section con- tains a proviso that shade, ornamental or fruit trees, shall not be cut or destroyed TRESPASS. TRESPASS. 223 unless it be necessary to do so for the erection, use, or safety of the lines. Held, that the arbitration clause did not apply to damage done to shade tree?., etc., unless it was necessary for the erection, use, or safety of the line, and that the burden of showing the necessity for such damage was on the defendants. On the trial there was no positive evidence that the line was constructed by the defendants, but it appeared that they were the company authorized to build, and that they operated the line when completed. Held, that under this evidence the jury were justified in tinding that the defendants constructed the line. Gil- christ V. The Dominion 'Telegraph Co., vol. 20, 241. 8— To land— Wrongful entry by defendant- Abandonment of possession by plaintiff— Whether trespass can afterwards be main- tained. A person in possession of land upon which another enters and commits a trespass, does not, by allowing the tres- passer to continue in the exclusive pos- session of the land for a period of nine months, thereby lose his right to main- tain an action of trespass for the original wrongful entry. Qucere, per Allen, C.J., Weldon, King and Fraser, JJ., whether the plaintiff could recover for a distinct act of tres- pass committed by the defendant on a part of the land about three months after his first entry, and while he con- tinued in the exclusive possession of the land. Per Wetmore, J., that the acts of trespass were continuous, and the plain- tiff could recover for all the trespasses committed while the defendant remained in possession. Appleby v. Devine, vol. 22, 198. 9— When goods illegally placed on land of another— Right of owner to enter and re- take— Search warrant-Where goods stolen —Information— What should allege-Right to arrest person on whose land goods are found— Pleading. When A.'s goods have been wrong- fully taken by another and placed on the land of B.. and the latter, although requested by A. to allow him to remove them, does not permit him to do so ; Held, that A. may then lawfully enter and remove his goods. In order to obtain a search warrant under the Act, 32 & 33 Vic. cap. 30, it is not necessary that the information should allege that the goods have been stolen by the party whose premises are sought to be searched, and it is suffi- cient if it allege that they have been feloniously stolen. Under a search warrant, the goods alleged to have been stolen, having upon the search made under the warrant, been found in the store and warehouses of a party who, though not the party charged in the information with having stolen them, had refused to allow the owner to see them or tc give him any satisfaction regarding them, the con- stable is justified not only in taking the goods so found, but also the body of the party on whose premises they were found, before the justice who issued the warrant, to give an account of how he came by them. In an action for taking goods under a search warrant, the defendant pleaded that the goods were feloniously stolen by one G., or some person or persons unknown to defendant, to which plain- tiff replied " that the said goods were not feloniously stolen by the said G. as alleged." Held, bad, because while professing to answer the whole plea, it did not do so. Hamilton v. Calder, vol. 23, 373. m 224 TRESPASS. TRESPASS. [?• 10 — Purchaser under registered deed — Whether actual entry necessary to main- tain trespass— Title to land— County Court —Remitting cause to Supreme Court. In an action of trespaaa qiuere claiiaum I'regit by A. and wife, it was shown that the locus in quo consisted of a vacant lot of land in St. John formerly owned by one H. Sometime in March, 1878, H. gave defendant permission to pile stone on the lot, and he fenced it and used it for that purpose. H. stated on the trial that he told defendant he could have the use of the lot till he wanted it to build on, while defendant swore that he took it by the year. On cross examina- tion, he said he was to have it for not less than a year. H. having become insolvent, this pro- perty was purchased from his assignee by the female plaintiff by deed, dated 10th April, 1879, registered loth of the same month. A. being desirous of building, requested defendant to remove the stone, a large quantity of which was still there. Defendant at first promised to do so, but subsequently refused and continued in possession, whereupon the present action was brought. On the trial in the St. John County Court, A. stated that he went into possession after buy- ing the property, but lie did not state the natui'e or acts of possession, nor was he cross-examined on this point. At the close of the plaintiffs case, de- fondants counsel moved for a non-suit on the grounds : 1. That the action should not have been brought in tiie County Court, the title to land being in question. 2. That defendant was tenant from year to year, and there was no notice to quit. 3. Even if defendant's holding was for a year certain, wliichliad expired, plain- tiff could not maintain trespass against him without actual entry and demand of possession. Leave was thereupon reserved to enter a non-suit, and a verdict for plaintiff I taken by consent. Subsecjuently at i chambers the County Court judge i granted a non-suit on the third ground, and against this order the plaintiff appealed. Held, by Weldon and Wetmore, JJ., that under the Con. Stat., cap. 74, sec. 12, a purchaser under a registered deed is not to make an actual entry in order to maintain trespass, but even if so, there was evidence for the jury of an entry in this case. Held, by Weldon, Wetmore, Palmer and King, JJ., that the title to land was brought in question, and that the judge should not have non-suited plaintiff, but should have remitted the cause to the Supreme Court under Con. Stat., cap. ijl, sec. 45 ; but, Hehl, by Duff, J., that the title to land (lid not come in question, and that the non-suit was right. Armxtrong v. Mc- Gnurty, vol. 22, 2'J. 11— Damages— Excessive— Where jury must have acted under influence of undue motives— New trial. Three several actions for trespass and assault were brought by A., B. and C. respectively, rinarian proprietors of land fronting on rivers above the ebb and flow of the tide, for forcibly seizing and taking away their fishing rods and lines while they were engaged in Hy fishing for salmon in front of their re- spective lots. The defoidant was a ttshery officer, appointed under The Fisheries Act, 31 Vic. cap. 60, and justified the seizure on the ground tiiat the plaintiff's wore fishing witliout license, in violation of an order in council of June, 187'J. Some force was used towards the plaintiffs to compel them to give up their rods, etc., tliougli there was no actual injury, the defen- dant presenting a pistol, and threaten- TRESPASS. TROVER. 225 in^' tn use it, if resistance was made. Each of the phiintiffs obtained a ver- dict ; A., (who was a county court judj^e), recoverinf^ *3,0U0 daiBaj^es ; B., 51,200, and C, «1,000. Held, by Allen, C.J., Palmer and Kiufj, JJ., (Weldon and Wetmore, JJ.. dissenting), that the damages in each case were excessive, but in the cases of B. and C. not so excessive as to justify the interference of the court. In A.'s case a new trial was granted unless the plaintiff consented to reduce the damages to '?1,500. Steadman v. I'fiiniiig; Hamoii v. Same; Sjyitrrw Same, vol. 22, m\). Appeal to Supreme Court of Canada allowed. See Addenda No. lo. — Damages — Joint and several tres- passes — When doubtful as to what trespass damage is given. See Now Trial 2. — Execution against husband — Levy on wife's property — No removal or touching of goods — Nominal sale — Effect of. See Trover 1. — Abandonment — Election of tres- pass, time for, in discretion of judge. See New Trial 2. — Against sheriff for holding goods under writ of replevin, no writ de pro. pro, having issued. Pee Replevin 4. — One of several defendants offering to suffer judgment by default. See Costs 18. —To land — Action in Supreme Court — Offer to suffer judgment by default for 88— Whether plaintiff entitled to full costs. See Costs 20. —To property of infant under four- teen years of age — Guardian in socage — Who entitled to maintain action. See Infant 1. —Dividing line — Adjoining proper- ties—Surveyor mutually agreed upon — Acquiescence. See Acquiescence 1. S.D. — Notice of action — Schools Act. See Notice of Action. — Trespass lo land — Cutting trees — Telegraph coriipany. See Costs 21. — Illegal distress — Trespass lies for. See Landlord and Tenant 0. TRIAL. Right to begin— Right of reply— Ejectment by heir-at-law — Admission of heirship and ancestor being seised. On the trial of an action of ejectment brought by the heir-at-law, whei'e defen- dant's counsel admits the heirship of the lessor of the plaintiff, and that his ancestor died seised of the projjerty sought to be recovered, but sets up a will in his, defendant's favor, defendant is entitled to begin and to have the gen- eral reply. Doe dem. Ilasen v. Hector, etc., St. James' Church, vol. 18, 471». — Second, reading former judgment to jury and commenting thereon. See Settled Accounts 1. — Without jury in county court can- not have new trial in same court. See Husband and Wife 2. — In action — Whether jury should be allowed to view the locus in quo after the judge had charged them. See Jury View. — Evidence received without objec- tion, judge not bound to withdraw it from jury. See Carrier 2. TROVER. 1— Levy and sale of wife's property under execution against husband— No touching or removal of goods from plaintiff's pos- session. Where a sheriff having in his hands an execution against S. made a levy upon goods belonging to the wife of S., and went through the form of a sale, but took no possession of the property, 15 226 TROVER. TROVER. m which was neither removed or touched, thehusband and wife afterwards brouf^ht an action of trespass and trover against ; the sheriff. Held, that as the goods were the wife's, the levy and sale did not affect her pro- perty, and as they were neither removed or touched there was neither trespass or conversion. Smith and wife v. White, sheriff, etc., vol. 18, 443. 2— Conversion— Evidence of. Where B. delivered goods to S. under a verbal agreement that he should take them and pay certain bills against B., j >ay the bill, and some : wards B. demanded , but S., as he swore, satisfaction regarding but S. a^ eight iiii the gooua otiot gave him no them. I Held, suflicidiiu evidence of a conver- ' sion to support an action cf trover. Stockton v. Beatty, vol. 19, 104. 3— Lien— Persons entitled to hold goods for —Claiming to hold for other charges— Tender— Waiver— Conversion. The defendants, merchants in St. John, instructed plaintiffs, commission merchants in New York, to purchase for them a quantity of corn and ship to St. John. On arriving in St. John, the corn was found to be heated and musty, and defendants refused to receive it, ! and notified plaintiffs they held it sub- 1 ject to their order. Plaintiffs consented \ to assume the invoice and directed de- fendants to sell for them to best advant- i age. Defendants undertook to sell, but | were unable to find a purchaser, and it i remained in their hands for a long time. ' A dispute having arisen concerning it, | plaintiffs demanded it and defendants refused to give it up until various charges and expenses for which they claimed a lien, and of which they had given plaintiffs a memorandum, were paid. The goods were not subject to a lien for some of the charges for which defendants claimed to hold. //('/(/, by Weldon, J., that the defen- dants having furnished plaintiffs with a memorandum of the items of the dif- ferent charges for which they claimed a lien, there was no waiver of their lieu for proper charges, and in the absence of a tender of these charges their re- fusal was no evidence of a conversion. Held, by Wetmore, J., that defendants having claimed to hold for cluir^jes which were not a lien upon the pro- perty, their refusal to deliver until those charges were paid was a waiver of their lien for proper charges and dis- pensed with the necessity of a tender of them. Kevins v. Schoeneld, vol. 21, 124 ; also, vol. 18, 435. 4 — Promissory note— Executor— Action by — IWeasure of damages— When executor maker of note. A., who was the maker of a note in favor of F.. was appointed by the latter executor of his will. Defendant took possession of the note at F.'s death and refused to give it up to A. on request. In an action of trover brought by A., as executor for the conversion of the note, verdict was received for the amount of the note, leave being re- served to defendant to reduce it to nominal damages. Held, by Weldon, Wetmore, King and Fraser, JJ., that the amount of the note was not the proper measure of damages, and that the verdict should be reduced to nominal damages. Per Allen, C.J., that the verdict should stand subject to be reduced to nominal damages in case defendant delivered up the note. Robinson v. Fer- guson, vol. 23, 332. 5— Joint Conversion. The sale of property by one defen- dant, and the purchase by another, is TROVER. TRUSTEE, CESTUI QUE TRUST. 227 which clef en - with a le tlif- imed a jir lien absence lieir re- version. eniiants chiirt;ea the pro- er until waiver of anil ilis- teniler of . 21, 1'24; -Action by n executor a note in the latter idant took death anil on reiiuest. uht by Am ion of the for the beini;! re- kduce it to |e, King and ,of the note )f damages, be reduced fche verdict reduced to defendant Inson V. i'Vr- one defen- another, is evidence of a joint conversion. Ford et al., appellants ; and Jioivser and wife, respondents; vol. '24, 510. 6— Conditional sale of goods— Payment by instalments— Agreement that title shall not pass till payment— Estoppel— Shipment- Sill of lading— Possession of conversion- Bills of Sale Act. Plaintiff, a manufacturer of safes at Toronto, agreed to sell a safe to T., paint his name upon it, and send it to him at St. John by railway; that it was to be paid for by instalments in two years, but that no title to it was to pass to T. till the whole price was paid, until which time the safe was to be on hire ; and on default of any of the payments, plaintiff was to be at liberty to retake possession of the safe. T. gave his notes for the price of the safe according to agreement ; his name was painted on the door of it, and the plaintiff sent it to St. John by railway addressed to T., with a bill of lading or way bill. There was a covering over the safe, which pre- vented T.'s name upon it from being seen until the covering was taken off. While the safe remained in the railway warehouse, T. transferred it to the de- fendant, to whom he was indebted, delivering to him the bill of lading or way bill, and he thereupon paid the freight upon it from Toronto and took possession of it, not know'ing that T.'s name was painted on it. The first note given by T. not having been paid, the plaintiff demanded the safe from the defendant, who refused to give it up, claiming to own it. //eW, (Palmer, J., dissenting), 1. That even if the painting of T.'s name on the safe and sending it to him would amount to a, representation that it was his pro- perty, on which a purchaser from him might act, the defendant, when he took possession of the safe, did not know that T.'s name was on it, and therefore was not induced to purchase it by any re- presentation of the plaintiff (the bill of lading not being in evidence), and that the plaintiff was not estopped from showing that T. had no right to sell it. 2. That the agreement between the plaintiff and T. was not a bill of sale requiring registration. Tnteman, appel- lant, pnd Buin, respondent, vol. 25, 298. — Assignee of bill of lading is entitled to an action for — To recover the value of goods sold by consignee. See Bill of Lading 1. — To receive from sheriff goods taken in execution against a party in possession where property had been previously transferred by bill of sale. See Bill of Sale 2. — Conversion — Third party having property. See Agreement 1. — Married woman — Joint conversion. See Married Woman 2. TRUSTEE AND CESTUI QUE TRUST. Necessity of assent of creditors to constitute relation of. See Deed 3. Trust deed — Fraudulent. See Deed 2 B 4 Further assurance, consideration. See Deed 2. Trustees — Under will — Their powers. See Will 5. Two cents — Whether provisions of statute restricting damages to apply in case justice has gone beyond his judicial duty. See False Imprisonment 1. Ultra Vires.— Whether sec. 78, cap. 31 of Act 32 & 33 Vic. is. See Justice of the Peace 1. — Bills of Sales Act not. See Bills of Sale Act 1, 2. — Canada Temperance Act. See Spirituous Liquors. n 228 TRUSTEE, CESTUI (.fCK TUIST. VERDICT, mi] — Incor[)()nitin)^ com ixiiiy— (Obstruc- tions in tidal and navigable livers — 4;"» Vie. cap. 100, N. B. Understanding, between attorneys — Court will not aid in carrying; out. Hee Attorney 2. — Attorneys should carry on their business accordinj^ to the established rules of practice. See Attorney 2. Underwriters — Notice of abandonment of vessel — ^\'aiver. See Insurance 10. Use and occupation — Action for — Where I'ent payable in advance. See Landlord an ' Tenant 2. Usury — Usurious interest not allowed as part payment. See Promissory Note 1. Vacant posssssion— In ejectment— Ac- tion for recovery of — Practise. See Practise 1. Value — Need not be stated in indict- ment for taking and appropriating with intent to defraud. See Intent to de- fraud. Valuable securily— Whether insuffici- ently or defectively stamped promissory note is. See Criminal Law H. I Vendor — Acts to be performed by, do not prevent property from vesting in vendee. See Property, passing of, 1. Venire — To coroner may be issued on a suggestion ou the record that the I sheriff, for the reason stated, is not im- | partial. See Challenge 2. i Venue— Change of— Object of rule of Trinity j Term, 1873. The object of the rule of Trinity Term, which declares that " no venue shall be changed, unless by consent of parties without the special order of the court or a judge, founded upon a rule nisi or summons," was to prevent the venue from being changed by an order of course ; but it does not necessarily re- (juire any special circunistancts to be stated in defendant's afiidavit. beyond what would previously have been re- ([uired to be stated in the common atii- davit. Friar v. Mcdowuii, vol. I'.l, '2'i. VERDICT. I— Special questions left to jury— Where not unanimous in answering— Whether verdict can be entered within two hours. In an action to recover damages sus- tained by plaintiff in conse(]uence uf being knocked down upon a ))ublic liii,']i- way by a runaway horse belonging to defendant, the defence was, that tlie horse had been left tied to a post by a strap from the bridle and that he also was secured by a strap from the foot to a part of the waggon ; and thai a sudden noise caused him to take fright and break loose. On the trial the judge directed the jury that if they found that the horse was sufficiently fastened, either by the head or by the foot, the defendant was entitled to a verdict ; and he asked them if they gave a verdict for the plaintiff, to state how they found both as to the head fastening and foot fastening of the horse. Cap. 45, sec. H), of the Consoi. Stat., provides that if a jury cannot agree within two hours, any five of the seven may return a verdict. The jury returned into court within two hours and the foreman in answer to the usual question by the clerk, stated that tliey found a verdict for the plaintiff, and on being asked by the judge how they found on the two questions left to them, it appeared that they were unanimous as to the head fastening being insuffici- ent ; and that five of them thought the foot fastening also insufficient. The verdict was thereupon entered for the plaintiff. The counsel for both parties were pre- sent when the verdict was returned, but I > Ml. VERDICT. VOLUNTARY CONVEYANCE. 229 110 one drew attention to the circum- staiiBe of the fiiidiii'^ by tive only as to the foot fastening. Held, by Allen, C..T., Wetmorc and Kin^', JJ., that the verdict could not be treated as a {general verdict for the plaintiff, but that the verdict and an- swers to the special questions must be taken tofjether, and that the jury not beinj^ unanimous in their answer to one of the questions (the same bein<^ essen- tial to the findint*) the verdict should not have been I'eceived within the two hours. 2. That in order to constitute a waiver of the irrej^ularity there must be either an express assent by the counsel, or circumstances from which an assent might be fairly inferred. Held, by Weldon and Palmer, JJ., 1. That as the general verdict was found by all the jurors, that was suffi- cient, as they were not bound to answer questions specially. "2. That the counsel for defendant having allowed the verdict to be entered without objection, it was now too late to avail himself of it as a ground for a new trial. Vheeseman v. Hatheway, vol. 23, 415. — Reducing — Where jury allowed in- terest as part of damages. See Colli- sion 1. Power of court to change where some counts in indictment allege intent to prejudice, and others simply charge the crime. See Evidence IG. — Against evidence— Where evidence is conflicting, is not a ground for a new trial. See New Trial 10. Verbal promise— Whether primary or collateral — Hiring. See Statute of Frauds 2. Vexatious Proceedings— Attaching order set aside. See Garnishee Act 2. I — Refusal of court to stay proceedings until costs of a former suit paid. See Stay of .\ction 2. Vexing or liarrassing— Affidavit to ob- tain judge's order to hold to bail in an action of tort need not state that arrest not made for purpose of. See Arrest 2. View— See Jury. Void proceeding — Certiorari will be granted to remove. See Certiorari. VOLUIVTARY CONVEYANCE. Whether avoided by subsequent deed under Insolvent Confined Debtor s Act. A deed given by a debtor under the Insolvent Confined Debtor's Act can have no greater effect than a deed from the sheriff when he sells under an exe- cution ; neither the one nor the other will, in the absence of fraud, defeat a previous voluntary deed executed by the j debtor. Black v. Cogxicell, vol. 19, 44. ! — Husband to wife through medium [ of third party — Whether can support ! by proof of parol ante-nuptial agree- ment. See Husband and Wife 5. I \ Voidable contract— Repudiation by one ! party — Recovery under common counts. I See Contract 12. Wages— Where servant leaves before i time expires— When may sue for, at once. See Assumpsit 3. I — Of policeman of city of St. John — Power of common council to reduce — Month's notice. See Police 1. — Of master of ship — How recovered — Registered owner — Liability for — i See Ship 1. ' Waiver — If land is incumbered and ' the incumbrance was not removed at I the time limited for giving the deed. See Sale of Land 3. — Of conditions in insurance policy — To what confined. See Insurance 0. iyi"JM" 230 WARRANT. ii' — Of requirements of proof — "What constitutes. See Insurance 0. — Ilefusal to deliver property held for proper charges until other chartjes are paid, whether is waiver of lien for proper charges. See Trover 8. — Tort — Action for (?oods sold and delivered and for money had and re- ceived. See Conversion 1. — Preliminary proofs — Insurance policy — What constitutes. See Insur- ance 10. — Delay in moving to set aside a jud^'ment for irregularity. See Judg- ment 1. — Loss of vessel — Notice of abandon- ment. See Insurance 16. — Policy of Marine Insurance — Coun- tersigning by agent See Insurance 15. — Where jury not unanimous — Ver- dict enter«d within two hours — Counsel for both parties present whether consti- tutes waiver. See Verdict. WARRANT. Dominion penitentiary — Conviction by Su- preme Court of Nova Scotia— Warrant to commit prisoner— Statement of date of sentence— Hat)eas corpus. The judges of the Supreme Court of this province have the exclusive right to issue writs of habeas corpus to inquire into the legality of the imprisonment of a person confined in the Dominion peni- tentiary at Dorchester, though he was committed there by the court of another province (Tuck, J., dissenting). S. was tried by the Supreme Court of Nova Scotia in March, 1884, upon an indictment containing counts at com- mon law, charging him as a public officer with making false and fraudulent entries and returns, and with fraudu- lently destroying public papers, and also containing counts charging similar acts as an ofifence under 41 Vic. cap. 7, WARRANT. sec. fi7 He was found guilty, and upcn the 14tii April, 1mh4, sentenced to four years' imprisonment in the Dorchesttr penitentiary upon the counts, cliart'ing the offence as at common law, judgment being respited upon the other counts. The warrant under which he was committed to the penitentiary was in the following words : Province of Nova Scotia. Halifax, S. S. Supreme Court, 188 To the Warden and Governor of the Peni- tentiary at Dorchester, in the Province of Xeiv Jirunsivick : Whereiis, Robert Strather was, during the March sitting of the Supreme Court at Halifax, indicted for making frauau- lent entries and fraudulent returns, and was found guilty upon said indictment, and thereupon sentenced by the court to be imprisoned at hard labor in the penitentiary at Dorchester for the sp:ice of four years ; Now, therefore, these are to require and command you to receive the said Robert Strather into your custody, and him to detain in the said penitentiary for the said period of four years in con formity with the terms of his said sen tence, and for which this shall be your sufficient warrant. Dated at Halifax this 14th day of April, A. D. 1884. S. H. Holmes, [L.S.] Clerk Court. The Penitentiary Act, 46 Vic. cap. 37, directs that a copy of the sentence taken from the minutes of the court by which the prisoner was tried, certified by the judge or clerk of the court, shall be delivered to the warden of the peniten- tiary with any prisoner committed to his custody. Held, per Allen, C.J., Wetmore, Palmer and Fraser, JJ., that the warrant under WARRANT. WARRANTY. 231 wliich S. was committed to the peni- tentiary was not a compliance witli the statute, and did not autliorize the war- den of the penitentiary to detain 8. Per Allen, C.J., Wet'"._re and Fraser, JJ., that as the warrant did not state the day the prisoner was sentenced, the time when his term of imprisonment commenced and would expire was un- certain, and the warrant therefore defec- tive. Per Palmer, J., that the warrant did not show that 8. was convicted of any crime, the mere " making of fraudulent entries and fraudulent retv i," as alleged in the warrant, bein;,' no offence at common law or by statute, and that his imprisonment was therefore illegal. Per King, J., 1. That as the Peniten- tiary Act did not require the offence to be mentioned in the warrant to commit the prisoner, the omip«ion of such a statement did not render it void, it being the warrant of a superior court. 2. That it should be presumed, in the absence of anything to the contrary, that the facts existed which made the acts charged a criminal offence. 3. That the omission to state the date of the sentence in the warrant of com- mitment was only an irregularity, and did not render the warrant void. Ex parte Strather, vol. 2.5, 374. — Assessments — Wrong inclusion of — Vitiates whole. See Assessment 8. — Under Con. Stat. cap. 100, sec. 77, against real estate of non-resident minors imder assessment made against their guardian. See Certiorari .5. — Where prisoner is committed to be held till discharged in due course of law, the warrant continues in force till he is discharged or sent to penitentiary. See Remanding Prisoner 1. — Irregular — Whethe a justification to the officer arresting a party under it. See Criminal Law 7. — Reciting conviction — Prima facie evidence of. See False Imprisonment 2. — Warrant to arrest in first instance when improper. See Summary Con- viction Act 1). Warrant and defence— Construction cf words in deed. See Estoppel 4. WARRANTY. Fitness of article (or purpose intended. Where a person orders an ascertained article, there is no implied warranty that it is fit for the purpose for which he ordered it. The rule however is other- wise where the article ia not ascer- tained ; and where plaintiff ordered machinery from defendants. Held, that the latter was bound to supply such machinery as was reason- ably fit for the purpose for which they knew it was intended. Morrow v. The Waterous Engine Co., vol. 18, 509. — Whether phosphate rock is stone or ore — Question of fact. See Insurance 2. — Not implied on sale of specific article which purchasers may examine. See Sale 2. Insurance — Meaning of. See Insur- ance 17. Way — Obstruction of. See Trespass 2. Wtiarves — Harbour of St. John — Power of corporation to erect. See Easement 2. Widow — Devise of revenue and in- come of estate to — Right to lease. See Will 9. — Estate of, in lands of deceased hus- band before assignmen >' dower. See Dower 1. Wife— Separate property of — Evidence of, must be clear and satisfactory. See Married Woman 1. — Where part of the purchase money belonged to the husband, if the property was bought by or for the wife, it vests in her. See Husband and Wife 1. ■i\ T1.''I 232 WILL. 'i!' f,M iSSt 1 ! ! ll ■Bi <' 1 * HI w, U ^■4 fi' it i'' l£j..!. Wife's separate property— How far Iiuh- batid linl)lu for tuxen on, in city of St. John. Hue Inhabitant 1. WILL. 1— Construction ol— Direction tliat the pro- ceeds of certain specified property sliouid be conveyed to cettain of tlie devisees to whom testator had said in will he could not give more than their share of the residuary estate— Whether these specified properties formed part of residuary estate or not The testator in hia will stated that — " whereas the advances in money here- tofore made by me to my dear departed son, R. M. H., in his lifetime, and tu his widow since his death, amount to far more than I can give to either of my other dear children, I cannot in justice give my dear grandchildren, the daugh- ters of my said dear son, anything be- yond a share in the residue of my real estate, as hereinafter provided for," etc. The testator after providing that the residue of his estate should be divided into six parts, and directing that one of these six parts should be conveyed to his said grandchildren, the children of hia son, R. M. H., provided as follows : " I direct that the Lone Water farm in Westfleld, and the lot of land on the Black River Road, in the parish of Simonds, both of which were heretofore conveyed by me to my dear son R. M., and re-conveyed by him and his wife to m», form part of the share of my said grandchildren in this partition, and that the same be sold as soon as good and fair prices can be obtained for them, and the proceeds thereof be invested on good security or securities for my said grandchildren" — and then a provision for the payment of the income to their mother for them. Held, on appeal, reversing the judg- ment of the court below, that the testa- WILL. tor's vjrandnliildren did not tiiko ii sixtli of tile residue, and the Lone Water Farm, iind the lot on tlie Hiack Hiver Road besides, but tluit tlie latter formal part of the residuary estate. Ilit:,'n v, ]lii:eii, vol. 20, 70. 2 — Surplus — Whether of both real and personal estate, or either— Intestacy as to part. The testator after inakint! certain ' specific becjuests concluded his will as I follows : — " Should there be any aitrphis I or deficiency, a pro mta addition or de- I duction, as may be, to be made to the I following bequests, namely : " Worn out I preacher's and widow's fund — Wosjeyan I Missionary Society ; Bible Society." I By the will he gave his executors power to dispose of certain lands at Sussex, but there was nothing in the will concerning four lots of lands in St. John, of which he was possessed, at the time the will was made and at the time of his death. Held, by Allen, C.J., an' lore, J., (Palmer, J., dissenting), varying the judgment of the court below that the "surplus" had reference to the testa- tor's personal estate, and the land of Sussex only, and that there was an in- testacy in regard to the four lots in St. John. Lockhart v. Itay, vol. 20, 12i). 3 — Annuities — Sale of corpus to pay- Legacy, payment of— Where stock devised was sold by testator after making will- Substitution. R. died on 3rd August, 1870, leaving a will dated 6th August, 1875, and a codicil dated 21st July, 1870. By tlie will he devised to his wife S. in lieu of her dower, during her life the annuity or clear yearly sum of $10,000, " which should be a char|t,e on his general estate." His executors and trustees were also to permit her during her life to occupy the dwelling-house she then resided in, in WILL. WILL. •ijia tlie city of Loiulon. Ho di'viseil to liin executors and trUHteeH " nil the IhikIh, teiR'iuentH, iviid luTeditaiiU'iitM nu'ii- tioiied tmd described in the HciieduleH annexed to tlie will, nnvrked A. H. C. I). and E., upon trust dnrin^j tlie life of his wife, to collect and receive the i-ents^ issues and jnotits thereof, which should be and be taken to form a portion of his ^'ene>'al estate," and from and out of the said f,'eneral estate, durin;{ liic life of his said wife to pay to each of his dau^^hters M. A., E., M. 8., A. L., and L. C, the dear yearly sum >i .>l,t)00, and after his wife's death tu collect and receive the rents, issues, dividends, and profits of the several lands, etc., men- tioned in the said several schedules, and to pay to his daughter M. A. the rents, etc., of tlie lands apportioned to her and mentioned in Schedule A.; to his dau)^h- ter E. of those mentioned in Schedule B.; to his daughter M. S. of those men- tioned in Schedule C; to his daughter A. L. of those mentioned in Schedule D.; and to his daughter L. C. of those mentioned in Schedule E.; each of his said daughters being charged with the insurance, ground rents, (if any), rates and taxes, repairs and other expenses connected with or incidental to the management and upholding of the pro- perty apportioned to her, and the same being from time to time deducted from such quarterly payments." The will then directed the executors to keep the properties mentioned in the schedules insured against loss by fire, and in case of total loss that it should be optional 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. The rents and profits of the whole estate left by the testator proved insufK- cient, after paying the annuity of $10,000 to the widow and the rent of ami taxes upon his house in London, to pay the several sums of ^1,(100 a year to each of his ilaughters during the life of their mother, and the first iiuesti00, yet that the whole of the rest of the testator's estate was charged with the pay r lent of these legacies, and that the executors and trustees were bouti 1 to pay them at the times men- tioned in the will, so long as there was enough to pay the annuity to the widow, the other legacies and these annuities, without touching the corpun of the sche- duled property. In the residuary clause of the will there were the following words: " The rest, residue and remainder of my estate, both real and personal, and wheresoever situated, I give, etc., to my e-xecutors and trustees — upon the trust after pay- ing my brother I). li., to whom I be- queath the sum and legacy of $4,000, to sell and dispose of the same, etc., and apportion the proceeds etjually " among his, the testator's children, upon the same trusts as were declared with refer- ence to the scheduled property. Held, by Weldon, Fisher and Wet- more, JJ., that D. R. was entitled to be paid his legacy of $4,000 regardless of whether there was sufficient to pay the annuities to the daughters or not ; and by Palmer, .J., that he was entitled to be paid it out of the same fund as the 284 WILL. daughters, and that both were entitled to and should be paid in full. The testator, at the time he made the will, had 100 shares of the capital stock of the Maritime Bank, the par value of each share being $100. Fifty per cent, had been paid up, though the testator had purchased the stock for $3,342.74. After making the will, and before any further call was made, the testator sold the stock. By the will, however, he devised $3,000 of the paid up stock of the said bank to one daugh- ter, in schedule A, and $5,000 to another in schedule E. The executors were dircctta, in case any of the stocks, etc., devised should be disposed of during the testator's life, to substitute therefor money or other property of equal value, j Held, by Weldon and Fisher, JJ., that ! the legatees were entitled to be paid the | amount actually paid by the testator \ for the stock, and the 50 per cent, re- maining unpaid. Held, by "Wetmore and Palmer, JJ., that they were entitled to have this '■ stock replaced by a sum equal in value to the amount of the paid up stock 1 immediately after the death of the tes- ; tator. Almon v. Lewin, vol. 20, 284. WILL. at liberty to judge from all the circum- stances of the case whether his signa- ture was there at the time or not. To a will written in the testator's handwriting and concluding with the following testimonium clause: " In wit- ness whereof I have hereunto set my hand and seal," etc., was an attestation clause, also in the testator's handwriting as follows: " The . 'd Alexander Fer- guson " (the testator) " this, etc., sealed and delivered this instrument as and for his last will and testament, and wo, at his request and in his presence, and in the presence of each other, have hereunto written our names as subscrib- ing witnesses." Signed, " Charles Mc- Keen, William McKeen." When pro- duced, the will bore the testator's sijiiia- ture ill the usual place. It was not signed in the presence of the witnesses, and there was no evidence that eitlier of them saw his signature to the paper when they subscribed it as witnesses. The testator brought the will to tlie witnesses' shop and told C. McK.. one of them, it was his will, and asked him to sign it. The other, W. McK.. a brother of the first, coming in at the time, the testator said, "Let vour brother I sign also,'' which the latter did, without Appeal allowed to Supreme Court of \ knowing what the paper was. He did i:^! %i Canada. See Addenda, No. 6. 4~Execulion- -Signature by testator— Pre- sumptions where no positive evidence of signature being to will when attested by witnesses— What a sufficient acl(nowledg- ment in the presence of witnesses— Evi- dence— How far attestation clause may be— Witnesses signing in each other's presence. If a testator produces a paper and asks persons to sign it, giving them to "ot an acknowledgment by the testator understand that it is his will, it is not o^ the will in the presence of the wit- necessary to have direct evidence that i nesses, as required by the Act, Con. his signature was on the paper when he ■ Stat., cap. 77, sec. 5. asked them to sign it ; but the court is \ By Duff, J., that there was not a not remember seeing his brother sign it. He did not know what the paper was, and no one told him. Held, by Allen, C.J., and Palmer, J., (Duff, J., dubitante), that it might be presumed that the testator signed it before he went to the shop, and that it was then a complete instrument, so far as he himself could complete it. H,'ld, by Allen, C.J., and Duff. J.. (Palmer, J., dissenting), that there was WILL. WILL. 285 e circum- liis sifina- lOt. testator's with the ; " In wit- to set my ittestation mdwriting ftnder Fer- etc, sealed nt as and it, and wo. jsence, and ither, have IS subscrib- Iharles Mc- When pro- it or" s sit;na- It was not e witnesses, that either to the paper witnesses. ! will to the I. McK.. one d asked him V. McK.. a g in at the lyour brother did, without tas. He did irother sitin X the paper Palmer. J., I it mi«ht be kr signed it I, and tliat it Iment, so far le it- id Duff. .T- |at there was the testator of tlie wit- |e Act, Con. was not a proper attestation by the witnesses in i the presence of each other. By Palmer, J., that, looking at the \ attestation clause, there wan sufficient ! evidence of the witnesses having signed ' the will in the presence of the testator, j and in the presence of each other, to : justify the court in upholding the will, i In re the goods of Ale.vaiuler Ferguson, i vol. 21, 71. I 5— Construction of — Authority to rebuild ; buildings destroyed by fire— Where build- : ings destroyed in testator's lifetime— Des- cription of new buildings— Effect of change in the building laws— Power to sell— A mortgage not as a general rule a due : execution of a trust for sale and conversion —Insurance— Whether trustees can in- crease insurance when directed to insure in about the amount in which testator insured— Annuity— When chargeable on a particular fund— When on corpus of estate— Division of annual income of residuary estate— Parties consenting to a decree bound by it— Costs— Appeal. The testator devised his house and other buildings on Charlotte street, St. John, to trustees upon trust during the life of his wife, to permit her to have the use and occupation of them, and of any buildings which, in case of fire, might be substituted in lieu of, or to replace the same, and to receive the rents and profits thereof to her own use and benefit. After his death the property was to be conveyed to the rector of Trinity Church, St. John. He devised his real estate in Queen's Ward, and certain stock and bonds to them upon certain trusts, and charged the real estate stocks and bonds with the payment of an annuity of ft5,000 to his wife. The will then continued : — " Which annuity shall commence from my de- cease and be paid (juarterly without deduction. And I direct that my said trustees shall stand seised and possessed of this last mentioned real estate, stocks and bonds, and the annual rents, profits, dividends and interest thereof upon trust, by and ont of the said rents and profits, dividends and interests, to pay to my said wife the said annuity, or clear yearly sum of Ji">,000 during her life by even and equally (juarterly pay- ments in each year ; the first quarterly payment thereof to fall due and be payable at the expiration of three months from and after my decease, and as to the surplus of the said rents, pro- tits, dividends, and interests, which shall remain in each year daring the life of my said wife, after the payment of the said annuity to her, I direct my said trustees to pay and apply said surplus in like manner as is directed as to the annual income of my residuary estate.' The tt-stator also directed the trustees generally to manage the real estate, to keep the house and other buildings on Charlotte street, and the buildings on the Queens Ward properties in tenant- ; able repair, and insured against loss by fire in abfjut the amounts the testator had then insured upon them, and in case of loss to apply the insurance money towards repairing the damage, or in tr-^cting new buildings in lieu of those destroyed ; giving them power to j erect buildings of a like or of a different character on the same site. In case the insurance money should prove insuffi- I cient for the purpose, power was given to use and apply such a portion of the ! capital of the residuary, real and per- ! sonal estate, net charged with the widow's annuity, as the trustees should deem necessary. All matters and things done in reference to the Charlotte street buildings were to be done witb the widow s consent and subject to her approval. The trustees were authorized after the expiration of one year from the tes- tator's death, and at such times there- Ij' , ' : iw m f 'I 1 236 WILL. after as they should deem most advan- tageous, to sell the property not charfjed with the widow's annuity and to stand possessed of the proceeds upon the trust therein declared. The buildings were burned in the testator's life time, and he collected the insurance moneys with the exception of 8700, a balance due in respect of part of the Queen's Ward properties. This amount was paid to the trustees. The Queen's Ward properties were in the business centre of the city, and without the buildings would bring in little, if any, rental. The testator had com- menced to rebuild on one of these pro- perties, all of which continued to belong to him up to the time of his death, and vested in his trustees under the devise to them. Held, affirming the judgment of the court below, that as the clear intention of the testator was to provide a resi- dence for his wife during her life, the trustees were authorized to rebuild the house and other buildings on Charlotte street. Held, that the order of the court below that " the trustees were bound to rebuild the dwelling house and such other build- ings as were necessary for the comfort- able enjoyment of the premises by the widow, of the character, dimensions and capacity, with such offices and appli- ances as wei'e standing thereon before the tire, as near as might l.e, consulting the wishes and desires of the widow, and conforming thereto in regard to the dwelling house and appurtenances, and to such changes and alterations therein as she might desire for her personal comfort, so as there should be no mater- ial or substantial change therein in any respect, to the injury of the inheritance or otherwise, dul not go beyond the powers given to the trustees by the will. Also that the trustees must build such buildings as the law at the time of building allowed. WILL. Held, affirming the judgment of tlie court below, that the trustees were au- thorised to rebuild the buildings on the properties in Queen's ward, Held, varying the judgment of the court below, that the trustees were not authorized to raise the money necessary for rebuilding by mortgaging some part of the real estate not charged with the annuity to the wife. Held, affirming the judgment of the court below, that the trustees might in- sure any new buildings which they might erect, in such sums as they thought necessary to protect the interests of the estate. Held, affirming the judgment of the court below, that the testator intended to bequeath to his wife an annuity of $5,000, &ix^ "hat in case 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. After giving a number of general and specific legacies the will directed tlie trustees to convert the residuary per- sonal estate not consisting of moneys invested in stocks, funds, or securities yielding income, and at their discretion either to get in the moneys so invested, or to allow them so to continue, and after paying the testator's debts and testamentary expenses and the several legacies, to invest the surplus produce thereof, pursuant to general directions for investment thereinafter declared. After certain directions as to how sales of real estate should be made, the will I proceeds as follows :—" And I direct that my said trustees shall stand pos- sessed of the real estate charged with I the said annuity" (to the widow) " sub- I ject thereto, and of the proceeds thereof when sold, and ot all other residuary estate, and of the proceeds thereof when sold, the investments theieof, and the f residue of my personal estate remainiiii; ' after payment of my debts, funeral I pi 111 4jl WILL. expenses and lejjacies. And the invest- ment of said fesidue of my siiid iiersonal estate, and also after the decease fif my said wife, of the said 1(>0 shares of capital stock of the Bank of New Brunswick, and the said £2,(300 in bonds of the mayor, etc., of tlie city of St. John, subject, however, to any deduction therefrom directed or authorized to be nnide by this my will ui)on trust as to one-third part thereof for my nephews, John A. Wri«ht, Charles II. Wright, Alexander W. '\Vri),'ht and Octavius Wright, share and share alike. And as to one-third part of such residuary estate as aforesaid upon trust to pay unto my brother Nehemiah the net interest and dividends and annual income thereof durinjj; his life, for his own absolute use and benefit, and after the decease of my said brother Nehemiah to pay the said one-third part to and amon<^ the children of my said brother Nehemiah share and share alike. And as to one other equal third part thereof, to pay the same to Jane Elizabeth, the wife of my late brother George, for her own absolute use \ and benefit forever." The taxes on the property charged with the annuity to the wife were directed to be paid out of the residuary estate, and directions were given for the investment of the residuary , estate in certain specified securities. j Held, that the will gave no authority to the trustees to pay over the income of any portion of the residuary estate to the Misses Wright or to Mrs. Jane j Elizabeth Merritt during the widow's ' life time. But as all parties interested in the residuary estate had consented to the court below making a decree allow- ing this to be done, the appellant, who was one of the assenting parties, must be bound by it. Held, that the trustees were not au- thorized to divide the residuary estate during the widow's life time, and that the residuary legatees had no right to claim a division on giving security for ■WILL. 237 the payment of the widow's annuity. Merritt v. Wrifiht, vol. 21, 18."). 6— Construction of — Word ''Heirs" con- strued same as "Cliiidren " or "Issue'' —Where such was clear intention ot tes- tator. Wills ought to be so interpreted as not to defeat the intention of the testa- tor by technical rules of construction ; but by considering the language in a free, liberal and common-sense spirit, to give effect to the nnmifest intention. Therefore the word " heirs " was con- strued as a word of substitution, and held to liave the same effect as the words " children '' or " issue," such being the manifest intention of the tes- tator. Otti/ V. CroiikalKiitl;, vol. 21, 1(511. 7— Executors— Penalty for not proving — Excuse— Pleading. In an action under the Kev. Stat., cap. 13ti, sec. 10, to recover the penalty for not proving a will in the Probate Court, the declaration stated the mak- ing of the will by M., and ajipointing the defendant the executor, of which he had notice ; that he did not prove it in the Probate Court, or register it in any office of the Registrar of Probates for the county of N., where the deceased dwelt, or renounce the executorship within thirty days, though he had no just excuse foi the delay. Pleas.— 1. That the defendant did prove and record the will in the Regis- trar's office of the county of N., where the deceased had last dwelt. 2. That after the death of M. the plaintiff with the defendant's consent took possession of all the personal pro- perty of M., and still had the use and enjoyment thereof ; and that all the debts and funeral expenses being paid, the will was proveil and recorded in the office of the Registrar of deeds and wills for the county of N., wherein all M.'s !;.' ¥'^ lU K 1 1 B': m .1 ■ , m 238 WILL. real estate was situated, and that the i plaintiff entered into the possession of I and still possessed such real estate ; j wherefore the defendant did not prove • the will in the Probate Court, or re- renounce the executorship thereof. Held, on demurrer, jxt Allen, C.J., Wetmore, Palmer, and Kint;, JJ., (Wel- den, J., dissenting), that the pleas were bad ; that the registrar mentioned in ! cap. 130, sec. 10, was the Registrar of | Probates, and not the Registrar of Deeds. ! Per Weldon, J., that the registry of the will in the oifice of the Registrar of i Deeds was sufficient. Wagner v. Hutch- inson, vol. 22, 1. 8— Cutting off seal— Execution of new will —Invalid by reason of improper attestation —Dependent relative revocation. Deceased having duly executed a will in 1874, and the will having been found amongst his papers at his death in 1881, in a mutilated state, along with an- other insufficiently executed will, the two questions arising in this case were, first, Whether the mutilation amounted to a tearing or other destruction of the will within the meaning of the Wills Act, and if so, whether it was done by the testator, and with the intention of revoking the will. The facts proved before the Judge of Probates bearing on the act of mutilation were these : The testator at the time of executing the will affixed his seal to it in the presence of the attesting witnesses, but the in- strument was not expressed to be under seal, nor did the attestation clause refer to the sealing of it. After the testator's death the will was found with the seal cut out, leaving a hole in the paper where the seal had been ; several pencil marks were also drawn through the sig- nature. The facta bearing on the question of the testator's intention in mutilating the WILL. will were as follows : Deceased who was a deaf mute made his will when he was sick in IHTi. In this will he left the bulk of his property to his eldest bro- ther, C. and in case of C.'s death to an- other brother, appointing the last named to be the executor of the will. Upon the death of the elder brother in ISSO, the testator became very much dis- satisfied apparently because he thought he should exercise more control as the oldest surviving member of the family. The testator in conversation with one of the witnesses to the last will, referred to the first will, (the one in question), as having been obtained from him by false pretenses, and as having been ex- executed by him under circumstances which he dwelt upon as shewing that he never intended to make such a will. Held, by Palmer and King, JJ., (Wel- don, J. dissenting), that the testator meant the revocation of this will to de- pend upon the efficiency of the new dis- position, or that he meant to revoke this will, simply because he had, as he thought, made another in its place, and that there was a tearing of the will within the meaning of the Wills Act, with the intention of revoking the will, and not merely a dependent relative revocation. In re Drury'i Will, vol. 22, 318. 9— Estate during widowhood— Devise of income and profits— Right to lease- Equity uleadings— Setting out documents at full length. A testator made the following devise: " After paying all my just debts and funeral expenses, I devise and bequeath all my property, real and personal, to be equally divided among my children without any distinction whatsoever, as soon as the yo.'ngest shall attain the age of twenty-one years, reserving to my dear wife, so long as she shall re- main my widow, the revenues ?nd in- comes to be derived therefrom for her WILL. WILL. 239 devise : ibts and lequeatli onal, to ihildren )ever, as ain the ving to hall re- «nd in- fer her own support and the education and maintenance of my children. Hell}, that the widow took an estate in the land during her widowhood, and tluit her rij^ht to lease it while her estate continued, would not be affected by a mortgage given by the owners of the estate in remainder. Kin;i v. Murray, vol. -22, 38-2. 10— Certified copy under sec. 15, cap. 74, Consol. Stat.— Prima facie proof of va- lidity—Evidence — Cumulative— Right to rebut— Testator— Witness to previous will —Whether can prove capacity of testator — Juro> -Disqualification. On the trial of an action of ejectment where the lessors of the plaintiff claimed as heirs-at-law of one R. S. After the plaintiffs counsel had opened the case the defendant's counsel admitted that the lessors of the plaintiff were the heirs- at-law of R. S., who died, seised of the land in dispute, leaving a will under which the defendant claimed as devisee. Upon this statement defendant's counsel claimed the right to begin, which being allowed, he gave in evidence (subject to objection) a copy of the will of R. S., certified by the Registrar of the deeds and wills of St. John, as having been admitted to probate before the judge of probates of St. John, and registered in the records of deeds and wills for the county. This evidence was offered and received under sec. 15, of cap. l-i, Consol. Stat. Defendant's counsel then stopped relying on that as lirima facie evidence. The lessors of the plaintiff then went into evidence attacking the will on the ground of the testator's incapacity, and the defendant then (subject to objection) produced the original will and gave evi- dence to shew the capacity of the testa- tor. Held, 1. That the certified copy of the will was properly admitted and was prima facie evidence of its validity. 2. That the lessors of the plaintiff having called evidence to shew the incapacity of the testator to make a will, the defendant had a right to rebut the case so set up by the lessors of the plaintiff. The will in question was made in 18()(), but the testator had made a pre- vious will in 18t)3, and Mr. .Justice Duff , who was then an attorney and barrister, and had prepared and witnessed the will of 18(13, gave evidence in which he stated (subject to objection) that when R. S. made that will, he was, in his opinion, of sound disposing mind, memory and understanding. Held, by 'Allen, C.J., and Wetmore, and King, JJ., (Wetmore, J., dissenting), that the evidence was improperly ad- mitted. //fW,also, by Allen, C.J.,and Wetmore and King, JJ., that although the evi- dence was not material to the issue which the jury had to try, namely, as to the testator's capacity in 186G, when the will in question was made, it was impossible to say the jury were not in- influenced by it, and there should be a new trial. Held, that the fact of one of the jurors being in debt to the defendant (who ob- tained the verdict), was not of itself a ground for a new trial. Doe dem Sim- onds v. Gilbert, vol. 22, 576. 11 — A will made by the husband in 1884, not revoked by the marriage ceremony performed in 18b5, where marriage ceremony in 1884 valid. See in re James Tiernay, vol. 25, 280. — When heir-at-law is entitled to have alleged will proved in solemn form. See Probate Court 1. — Separate actions against executors for penalty for not proving — One stayed. See Stay of Action 1. Proof of, in solemn form — Petition for — Citation — Preliminary objections — Appeal. See Probate Court 2. •* m I mm' $1 'M' 1 m : ■,-' 1 v\ i I- •(h;-.M 240 WILL. — Sui'plus— 'Wlietlier residuary per- sonal estate of the testator passed — Construction of will. See Addenda 30. Witness— Not bound to state reasons for refusinj; to answer questions that lie believes will tend to criminate liiin. See False Imprisonment 4. —Medical witness — Statinj^ conclu- sions. See Doe dcm Ilascn v. .S7. James Church, vol. 18, 47i». — Expert. See Contract 15. Evi- dence I'J. — Recall of — ^General objection to ad- mission of his evidence does not enable the defendants on a motion for a new trial to claim that a part of the evidence was improperly received. See Evi- dence 4. — Recalling to rebut defendant's testi- mony on the point as to which iilaintiff had been cross-examined. See Eject- ment 4. — Abroad — Commission for examina- tion of — Return. See Insurance 16. — Interroi^atories — Return of. See Practise 15. See also Rules of Court, vol. 24, 515. — Reading to witness, paper not in evidence, not permissible. See Evi- dence 16. — Refusing to allow defendant's coun- sel to read to witness B. what S. had sworu was said by him, B., aDout mak- ing a mistake in order to ask B. whether such statement was true or not. See Practise 7. — Summons to, issue of, by justice called in by other justice. See Canada Temperance Act 19. Right of separate counsel to examine. See Practice 6. Witness's tees may be taxed for same person in each suit where several suits by same plaintiff. See Costs 3. — Refunding, when party does not at- tend. See Attorney 3. WRITS. ' — Attidavit for taxation of. Sec Costs IS. — Allowance of — St. John City Court. ; See Costs 25. Woodstock Civil Court— No apjioal pro- vided for. See Review 2. Woodstocl<, town 'of— Power of magis- trate to try offences agauist Canada : Temperance Act committed outside of Town. See Canada Temperance Act, , 1878, 11. — Whether town council has power to asse&s inhabitants of town for expenses of carrying on prosecutions under the 1 Canada Temperance Act. See Canada j Temperance Act, 1878, 12. 1 — Whether a city within meaning of ; the Canada Temperance Act. See 1 Canada Temperance Act, 1878, 12. I Words-" Next." See Execution 1. — " Valuable security." See Criminal Law, 3. —"Heirs." See Will 6. — " Warrant and defend." See Es- toppel 4. — "City" and "county." See Can- ada Temperance Act 10. — " Anything done by virtue of office j of secretary." See Notice of Action. t — " Absence." See Canada Temper- ance Act 19. —"Fixed." See Ship 2. — "Spirituous" and "intoxicating." See Summary Conviction Act 8. WRITS. Issue of, without authority — Confir- mation of, byiparty having no authority at time of issuing writ, but having sub- sequent authority— Held good. Albert Mining Co. v. Spun; vol. 18, 666. — Writ good on its face — A justifica- tion to offer. See Justification. Capias — Issuing wrong form — Irregu- larity. See Practise 12. V-Al WILL. WRIT. 241 — Sifjnecl and sealed by clerk of the court, but issued after appointment of his successor. See Practice 12. — Affidavit to obtain order for arrest need not state plaintiff's belief that de- fendant is about to quit the province. See Arrest 1. — Time of filint,'. See Court General Rule 3. Writ of error — Prisoner not bound to proceed by. See Criminal Law 4. Writ of prohibition — Scrutiny. See Canada Temperance Act 8. Writ of restitution — See Summary Ejectment 2. WRIT. Service on lunatic— Service of— Where de- fendant is insane— Whether service good. It appearini was on the plaintiff to prove iiis authority ; and in the absence of such proof, the affidavit was a nullity, and the objection was not waived by enterini^ special bail. Halifax Bankimj Co., V. Smith, vol. 25, 010. Arbitration— Award— Uncertainty. An award ought to be so certain that no reasonable doubt can arise on the face of it as to tlie arbitrators' meaning, or as to the nature and extent of the duties imposed by it on the parties ; and if it be doubtful whether the award has decideil the questions referred, it will be set aside for uncertainty. Two partners being possessed of a con- siderable quantity of real and personal estate, and having a large amount of debts due them, desired to dissolve the partnorsliip, but being unable to agree upon terms, submitted all matters in difference between them to arbitration. The arbitrators awarded that one of the partners should pay the otlier a certain sum in full payment, discharge and satisfaction of all moneys, debts and demands due or owing by him to his co- partner upon any uccount whatsoever. Held, that the award was bad for uncertainty, there being no decision respecting the partnership property. In re Fairleij and Wilson, vol. 25, 508. County courts— Practise— Cliange of venue —Non-resident plaintiff — Appeal — Certi- orari. Where the plaintiff in an action in the county court resides out of the pro- vince, and the defendant applies to change the venue, the plaintiff on op- posing such application, may shew that the cause can be more conveniently tried in the county in which he had laid it ; and if he omits to do so, and an order is made to change the venue, he cannot afterwards make a separate ap- plication to bring it back to the original county. Qmerc, Whether an appeal will lie under the County Court Act, sec. 51, from the order of a judge to change tlie venue. Ex luirte Brown, vol. 25, 5',)S. Crown grant— Bed of tidal river— Riparian owner— Public right of navigation— Injury to piers in the tide way — Injunction to protect rights of riparian owners— Assess- ment of damages by consent— Right (o appeal from. A grant by the crown of a tract of land fronting on the shoi'e of the Bay of Fundy described it as comniencint^ at the bay shore and running a certain course and distance inland, thence alonj^ the exterior lines of the tract till it again met the bay shore at a different point, and thence following the bay shore to the place of beginning, conveys to the grantee the bed of a tidal river which runs through the land, and dis- charges into the bay between the start- ing point of the grant and the place where the line again strikes the bay shore. The Provincial Act, 15 Vic, cap. 100, passed since the British North Americn Act came into force, is ultra vires so far as it professes to authorize the erection of piers and booms in a tidal river. Piera erected in the river under the supposed authority of the Act become the property of the owner of the bed of the river ; but may be used by persons navigating the river, for the purpose of protecting and securing lumber floatini^ down the river, and to prevent its loss by floating out to sea. What will be a reasonable use of the piers for that purpose, will depend upon the quantity of lumber in the river, and the state of the tides, winds and cur- rents at the time. Where lumber floating down a river in the course of navigation, is left by the u CASES IN VOLUME 25, OMITTED IN DIGEST. 243 tide on the shore between hi^'h and low water mark, without any nej^lif^ence on the part of the owner of himber, it is not an improper interference with the rif^ht of tlie riparian owner, if it is re- moved within a reasonable tinie. Where, on an application for an in- junction to restrain the erection of piers and booms in a tidal river, tlie bed of which belon^js to the plaintiff, and to prohibit interference with his riparian rit^hts, it was a^^reed that the judge should assess the damage which the plaintiff had sustained by the acts of the defendant ; the amount assessed is not the subject of appeal, it being mere matter of agreement and no part of the duty of the judge under the Equity Act. (^itiddy lliver Uoum Co. v. Davidson, vol. 25, -jHQ. False imprisonment— Liability of informant for arrest under warrant— Omission in warrant to state information on oath— Irregularity— Malicious injury to property —Act 32 & 33 Vic, cap. 22, sees. 49, 50— Statement of value. A party applying to a magistrate for a warrant to arrest another for an alleged offence, is deemed only to appeal to the magistrate to exercise his juris- diction, and is not liable in trespass for an arrest under the warrant ; but if he j^oes beyond this, and interferes in the exercise of the ministerial powers under the warrant, he will be liable. Where an information is on oath, the omission to state that fact in a warrant to arrest is an irregularity only. Neither an information against a per- son for malicious injury to property under the 32 & 33 Vic, cap. 22, sees. 4'J, .JO, nor the warrant issued thereon, stated tlie value of the property injured. Held, an irregularity only, as the magistrate had jurisdiction over the offence, either by way of preliminary examination, if the value exceeded ^20, or summarily, if it was within that sum. Kingnton v. Wallace, et «/., vol. 25, 573. Municipal taxation— Employees of Federal Government— Assessment on income- Principle governing. Persons in the employ of the Inter- colonial Railway department at Monc- ton were divided into five classes : 1. Members of the civil service of the Dominion, under the Civil Service Act of 1882, who received a yearly salary, and contributed to the superannuation fund of the civil service. 2. Persons who receive a yearly salary, but were not appointed to the civil ser- vice as provided by the Act of 1H82, but held an office created by a Dominion statute, or were appointed by the Gover- nor-General under authority of a statute, and who did not contribute to the super- annuation fund. 3. Persons paid monthly, at a certain rate per year, and were liable to be dis- missed at any time, and who were not appointed under the Civil Service Act, nor as mentioned in class 2, and did not contribute to the superannuation fund. 4. Engine drivers and conductors, employed in running trains, and paid by the mileage run, who received their pay monthly, and were subject to dismissal at any time. 5. Carpenters and other mechanics and workmen, who were paid monthly according to the time employed, and were subject to dismissal at any time in same manner as class 4. Held, 1, ;)(')■ tot curiam, that the per- sons in classes 1 and 2 were not liable to be assessed for municipal purposes on their incomes received from the Govern- ment, (following Acliiiian v. Toicu of Monctoii, 24 X. 13. Rep. 103). 2. Per Allen, C.J., Wetmore, King, and Eraser, JJ., (Palmer, J., dissenting), that the persons belonging to the third class were also exempt. '13 -^:i.,i 244 CASES IN VOLUME 25, OMITTED IN DIGEST. Slander— Justification— (Malice — Privileged communication — Evidence in mitigation of damages— Amendment — Adding new count. Plaintiff having held the office of trustee, and also of secretary of the trustees in a school district, was suc- ceeded in the office of secretary by the defendant, who was also the auditor of the trustees' accounts. At a meeting of the ratepayers of the district, at which the accounts of the school district, while the plaintiff was a trustee, were dis- cussed, the plaintiff swore that the de- fendant charged him of having stolen the school funds. The defendant denied using the words charged, and swore that he only stated at the meeting that as he understood the plaintiff's book, he had received more money than he had paid out, and that he (defendant) had re- ceived a letter from the Chief Superin- tendent of Education, stating that the trustees had paid a teacher a certain sum out of the school funds. Neither the letter nor the book was read before the meeting. In an action for slander in charging the plaintiff with stealing and embezzling the monies, in which the defendant pleaded "not guilty," only, Held, per Allen, C.J., Fraser and Tuck. J.I., (Wetmore, J., dissenting,'), that the letter and book were admlHsiblc in evidence in mitigation of damages, and to lebui any presumption of malice — no objection having been made that such evidence was not admissible under the plea. If language, which would otherwise be privileged, be unnecessarily violent and excessive, and used in a manner not suited to the occasion, it loses its pro- tection as a privileged communication. Where, in an action for slander, a count was added at the trial, charging the de- fendant with speaking other slanderous words of the same character, but at ii different time and place from those charged in the existing declaration, and there was no affidavit by the defendant that he would be prejudiced in his de- fence by the amendment ; Held, per Allen, C. J., Fraser and Tuck, JJ., (Wetmore, J., dissenting), that the amendment was properly allowed, tlie defence on the trial being a denial only of the speaking of the words charged, Boher v. Grossman, vol. 25, 550. 1 1'. I wm ADDENDA Ml !"■ )tf List of Cases in Addenda. NOTE. Tlic t'()llo\vinpfllititt-i, and The Queer, on the prosecution of Thomas IJarker, rexinindent 2 — Charles Russell, appellant, and The Queen, on the infornnitlon of John Woodward, respoiutent ;j--James Clark, uppellaiit, and The Scottish Imperial Insurance Company, renpoitdent 1 — Charles W. Weldon, (ippeUuiit, and James Vauglian and David Maurice Vautjhan, resptnidents o— John Mowat, «^)^jt'//a«t, and William McFee, ni^poiulent (1 — Henri Jonas, appelldiit, and Humphrey T. Gilbert, respondent . . . . 7 — Louis J. Almon, et al., appellants, and James D. Lewin, et al., respondents 8— Nicholas Power, appellant, and Thomas Ellis, respondent il— John Dewe, appellant, and David H. Waterbury, respondent 10 — John Walker and William Spears, ajypellunts, and James McMillan, respondent , Pai^e. •217 217 21 H 218 21!) 2:,0 2^0 2.j1 2.V2 253 Ui'\ HiP' 246b list of cases in addi'.nda. No. Name of Case. 11 — James McSorley, appfllnnt, and The Mayor, etc., of tlie City of St. Jolin, iuul William Saiidnll, /•('•-yw/x/r/i/.v . 12 — Tertullns Theal, (ippellaiit, and The Queen, rfspdiulciit I'ii — Dennis Commeau, appellnnt, and Kennedy Burns, respdndci't .... M_J. n. Clinpniiin, (tppcUnnt, and Francis and James .\. Tufts fi'^pdiidi'iit-'' 1;")— James DeWolf Hpnrr and John N. Moore, nppidhmts, and The Albert Mininj,' Company, rc-^poiuleiits 10 — William II. Venning, (ippelhnit, and James Steadnnm icxjMiKh'iit v do. do, Edgar Hanson do. do, do. James DeWolf Spnrr, do. ' 17 — I'atiic'k George Carvill, George McKean and George T. Carvill, (defendants) (ippelldiitx. and George A. Schofield, Thomas Gilbert and James Nevis, (plaintiif s) ri'npDiuleiK-i 18 — Gideon Vernon and Mary E. Vernon, (plaintiffs) uppt'lhtiits. luid Wairen Oliver, (defendant) ri'spoinli'iit Ill — The Millville Mutual Marine and Fire Insurance Co., (defen- dants) uppclldiit^, and Bartholomew J. Driscoll and John M. Driscoll, (plaintiffs) r('xpon(lt'nt--< •20— Thomas R. Jones, Hobert T. A. Scott and Norman Robertson, (plaintiffs) appcllaiit.<, and William H. Tuck, ^defendant) rcapoiuh'iit •Jl— Austin J. Roberts, (defendant) iippi'llunt, and Lorenzo H. \"anghan, Thomas A. Vaughan, Rob !rt 'SI. ^'aughau, (plain- tiffs) ycspoiiilciits '22 — The Town of Portland, (defendi ;. >) (tppvlUints, and William Griffiths, (plaintiff) vcxpotuhnti •2:5 — John Taylor, (defendant) appellant, and Robert G. !\Ioran, Benja- min Wishart, Robert (ialloway and David Smith (plaintiffs), n'Kpomh'iit'f , '2 1 - -/•.'.!■ [I n-tf -James D. Lewin "2") — The New Brunswick Railway Company (defendants), aj'prllanti, and Isaacher N. Robinson (plaintiff) rexpoinli'iit •20 — Robert A. Chapman and W. J. Robinson, ppellaiitx, and Silas W. Rand, n>spo)i(h'iit 27 — John P. Lawless, iij^pcUaiit, and James Sullivan ct al., )exp<)iiih'nl'< Page. •2-,l •2.'.i; 2'.s •2V.I 2.j'.( •2i;) •2'il •J(V2 •2t;2 •2o;i •2i; i •2' 4 2iil No. •2.S- '2'.)- .•11- ;i2 - H4- :-!.■) ~ .■ii;— .'!S :i'.t- \" 11- 1-2- i:5- tl- tr,. lii- 17- LIST OF CASES IX ADbEXDA. 24(')C Name of Cast-. ri\i;c. James I). Luwin and G. Sidney Smith, simiviny trustees under tlic marriatje settlement of Martha M. H. liohertson, appcllinita, an, I Georj^ina Wilson, Benjamin Lawton and .James Harris, fi'-tt! '2i'i'> E/okiol McLeod (assiL,'neo of .lewett A Co.i, appt-IUnit. and The New Brunswick Railway Co., rifpowlfut* 'IW) The (.hieddy River Drivinj^ Boom Co.. and IItii.'h K. Robertson and Ijanibert L. L. Bevan, (ippcllaiit/!, and William Davidson, ri'ypniidi'iit ^t'l" ■Tames II. Ray, (7 «/., •ippilhiiits, and Tht- Annual Conference of N'.'w Jirunswick and Prince Kihvard Inland, in connection with the I\Lethodist Church of Canada, tt nl.. rfipinKhiits . . . , 2li,S The South West Boom Co., (ipp<}Uiiiif. ■^tuX David McMillan, ir-'poltdcnt 'IM Joshua Spears and William C. Si^'ars (ijlaiiitiffs), npprilunt^, and James Walker, rcapoiKhnit ^I'l'.t Tames Flana<;an and Johanna, his wife. drfendanU, and Joim Doe, on the demise of Gilbert R. Elliott, tt al., plainti(f)i. . . . ^il'.) Fawi"ctt r. Anderson "270 Hdwards v. The Mayor, etc., of St. Jolm 270- 1 Byrne r. Arnold 271 Teniple r. Nicholson 271-2 Waterous /•. Alorrow 272-:! Swim r. Sheriff 27;{- 1 The ^layor, etc., of St. John r. Patii-^on 27 1-;')-0 Collins r. !•', veritt 2711 The Trustees of the St. John Youny Men's* Christian Association r. 'lutchinson, ct dl 270-7 Pufjsley r. Rin<,' 277-H Donnille -. Gleeson 27'.l-.S0 Sovereipi Fire Ins. Co. of Can. /■. Peters 2Sl Providence Washin'.4ton Insurance Co. r. Chapman 2.sl.'2 W\ iff I 246d list op cases in addenda. No. Name of Case. 4S — Tlie Delaware Mutual Insurance Co. c Chapman. 49 — Domville v. Cameron .jO— Snowball v. Stewart ')1 — Frascr c. Stephenson o2— Hall V. McFadden ;■>;{— Peters v. Hamilton ill — Temple v. Close il-j ".Jones c. DeWolf i)l) — The Dominion Telegrapli Co. r. Gilchrist. ...... Page. 282 •282-8 2s;} •2S8.i •2.S4..> •285 G 28(1-7 •287-8 288-'.t mm ADDENDA. CONTAINING CASES SUSTAINED, MODIFIED, OR OVEE- EULEI;— EEPOKTED AND UNREPORTED. ON APPEAL. TO THE SUPREME COURT OF CANADA, AND TO WHICH REFERENCE IS MADE IN THE FOREGOING DIGEST OF CASES. The Mavok, Aldehmex, and Commonalty of the City of Fredericton, Appellant);, and The Queen, on the Thomas Barker, prosecution of Respondent. On appeal from the Supreme Court of New Brunswick. Canada Temperance Act, 1878 — Consti- tutionality of — Powers of Dominion Parliament— Sees. 01 and !)2, B.N. A. Act, 1807 — Power to prohibit sale of intoxicating liquors — Distribution of let^islative power. llehl, 1. That the Act of the PaJn.- ment of Canada, 41 Vic, cup. 10, "An Act respectinti the traffic in intoxicatinj^ liquors," cited as " The Canada Tem- perance Act, 1878," is within the legis- lative capacity of that body. 2. That by the British North Am- erica Act, 18G7, plenary powers of lef,'is- latioD are given to the Parliament of Canada over all matters within the scope of its jurisdiction, and that they may be exercised either absolutely or conditionally ; in the latter case the legis- lation may be made to depend upon some subsequent event, and be brou.yht into force in one part of the Dominion and not in the other. 3. That under sub-sec. "2, of sec. !)1, B. N. A. Act, 1807, " regulation of trade and commerce," the Parliament of Can- ada alone has the power of pi'ohibiting the traffic in intoxicating liquors in the Dominion, or in any part of it, and the court has no right whatever to enquire what mot've induced parliament to ex- ercise its powers. (^Tenry, J., dissent- Appeal allowed with costs. Supreme Court of Canada Reports, vol. H, TjO.-*, 1'.) N. D. R. V.V.). Sec next case. PRIVY COUNCIL. Charles Russel, Appellant, and The Queen, on the information of John Woodward, Jie'i her, contrary to tli- i rectiona, and sent her on a voya},'e to j Liverpool, of which he disapproved. Appellant wrote to reupondents com- plaining of theii conduct, and protesting against the expense incurred. Tliey replied that appellant could have no cause of complaint against them in their niauagement of the vessel, and alleged that they would not have pur- chased a fourth interest in the vessel if they had not understood that they were to have the management and control of the vessel when on the other side of the Atlantic. A correspondence ensued, and finally, on the 17th November, ISCt'.i, appellant wrote to them, referring to the fact that respondents complained of the " eternal bickerings," and that it was not their fault. He then re-asserted his right to control the vessel, stated in de- tail his grounds of complaint against them, and closed with the words, " To end the matter, if your brother will dis- pose of his quarter, I will purchase it, say for ^4,200 in cash." This amount was about the same price for the share as appellant had sold it for some years before. Respondents accepted the offer, and the transfer was made to appellant. Held, on appeal, reversing the judg- ment of the Supreme Court of New Brunswick, that the expression "to end the matter " should be construed as applying to the bickerings referred to, ! and there had not been an accord and , satisfaction. | The contract having been made be- { tween appellant and respondents only, and being a contract of agency apart ! from any question of ownership, the action was projierly brought by appel- i hint in his own name. j (Taschereau and Gwynne, JJ., dis- senting), j Appeal allowed with costs. I Supreme Court of Canada Keports, vol. -., nr,, IH N. B. R. 70. John Mowat, and William McFee, Appellant, lieKpondent. On appeal from the Supreme Court of New Brunswick. The Fisheries Act, 31 Vic, cap. ()0— Jurisdiction of Dominion Parliament over liay of Chaleurs — 14 and 15 Vic, cap. ()3, (Imp.) — Justification, plea of — Fishery officer, right of, to seize "on view." Under the Imperial Statute, 1± and 15 Vic, cap. 6.S, regulating the boun- dary line between Old Canada and New Brunswick, the whole of the Bay of Chaleurs is within the present boun- daries of the Provinces of Quebec and New Brunswick, and within the Do- minion of Canada and the operations of the Fisheries Act, 31 Vic, cap. (JO. Therefore the Act of drifting for salmon in the Bay of Chaleurs, although that drifting may have been more than three miles from either shore of New Bruns- wick or of Quebec, abutting ou the Bay, is a drifting in Canadian waters and witlun the prohibition of the las* mentioned Act and of the regulations made in virtue thereof. 'i. The term "ouview" in sub-sec. 4 of sec 10 of the Fisheries Act (1), is not to be limited to seeing the net in the water while in the very act of drifting. If the party acting " on view " sees what, if testified to by him, would be sufficient to convict of the offence charged, that is sufficient for the pur- poses of the Act. (1) "All materials, implements or appliances used, and all fish had in contravention to this Act or any regula- tion or regulations under it, shall be confiscated to Her Majesty, and may be 250 ADDENDA. ADDENDA. M, l¥\ seized and confiscated on view by any fishery officer, or taken and removed by any person for delivery to any ma<{is- trate, and the proceeds of disposal thereof may be applied towards defray- ing expenses under this Act." Appeal dismissed witli costs. Bnprenie Court of Canada Reports, vol. 5, (•)(), I'J N. B. R. '>.r2. Henri Jonas, AppelUmi, d HrMriiiiicY T. Gii.I!ert, llexponuent. On appeal from the Supreme Court of New Brunswick. By-law — Power to impose license tax — Discrimination between residents and non-residents— ;}8 Vic, cap. 4, (N .B.). J. brou^^ht an action afjainst G., the Police Maf^istrateof the City of St. John, for wronj^fully causin}^ the plaintilT, a commercial traveller, to be arrested and imprisoned on a warrant issued on a conviction by the police mafjistrate, for violation of a by-law made by the com- mon council of the City of St. John, under an alle.i^ed authority conferred on that body by 88 Vic, cap. 4, passed by the Legislature of New Brunswick, j Sec. 3 of the Act authorized the Mayor | of the City of St. John to license persons to use any art, trade, etc., within the City of St. John, on payment of such sum or sums as may from time to time be fixed and determined by the common i council of St. John, etc. ; and sec. 4 i empowered the mayor, etc., by any by- law or ordinance to fix and determine ; what sum or sums of money sliould be from time to time paid for license to use any art, trade or occupation, etc. ; and to declare how fees bh.uld be re- coverable ; and to impose penalties for I any breach of the same, etc. The bj'- 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 ^^40 on the latter. Held, that assuming the Act, 33 Vic, cap. 4, to be intra viri'^ of the Legisliiture of New Brunswick, the by-law made under it was invalid, because the Act ir (|uestion 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 Repfirts, vol. ,"), 8.5(5, 20 N. r.. R. 04. Louis J. Aljion, at al. and Jamks D. Lewin, et al., Ajipcllaitl" I{eq)oiidi')it:< On Appeal from the Supreme Court of New Brunswick. Will — Annuities, sale of corpus to pay. J. R. died on the 8rd August, LSTO, leaving a will dated Oth August. iHT^'i, and a codicil dated '2lst July, 1H7(). ]5y 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. Tliis 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 mm. ADDENDA. ADDENDA. 251 the clear yearly sum of $1,000 by ei]ual i^iiarterly payments, free from the debts, contracts, and en}^af,'ements of their re- spective hnsbands. Next, resumint^ the statement of the trusts of the scheduled property specitially given, the testator provided that from and after the death of liis wife, the trustees were to collect and receive the rents, issues, dividends, aiid profits of the lands, etc., mentioned in the said schedules, and to pay to his dauj^hter, I\I. 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, 31.. of those mentioned in schedule C; to liis daugh- ter, A., of those mentioned in schedule U ; and to his daughter, L., of those mentioned in schedule E ; each of said daughters being charged with the insur- auce, 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 directed the executors to keep the properties insured against loss by fii'e, and in case of total loss, it should be optional with tlie parties to whom the property was ajiportioned 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 i the following words : " The rest, residue and remainder of my said estate, botli real and personal, and whatsoever and wheresoever situated, I give, devise and l)ei|ueath the same to my said executors and trustees, upon the trusts and for the intents and purposes following." He tlien gave out of the residue a legacy of ^4,000 to his brother, D. R., 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 ^10,0J(> to the widow and the rent of and taxes upon his house in L., to pay in full the several sums of ?il,()00 a year to each of the daughters during the life of their mother, and the question raised on tlu^ appeal was whether the executors and trustees bad power to sell or mortgage any part of the corpii.i, or apply the funds of the corpii-f of the prc.erty 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 corpit.-< of the real and personal estate, subject to tlie right of the widow to have a sufficient sum set apart to provide for her annuity. Appeal allowed with costs. Supi'eme Court of Canada Reports vol. o,ol4, N. B. R. 2Sh Nicholas Poweis, and TiiojiAS Ellis, AppeUant, lii.'spoudi')it. On appeal from the Supreme Court of New Brunswick. Witness — Refusal to answer (juestions on cross-examination — I'rivileged 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- fendant (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 fi, vlf 252 ADDENDA. lirisoner at tlie police stittlou, the tlefeii- (liiiit went to pliiintiff' H boarding' house and saw his wife, read to her a tole},'ram, and denninded and obtained from lier money she had in her possession, tcllinj,' her that it belont^ed to the bank and that lier husband was in custody. In an action for assault and false im- prisonment and for money had and received, the defendant pleaded, inter aUd, that the money liad 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 tlie bank, and paid it over to them. Several witnesses were examined, and the plain- tiff being e.xamlned 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 remai.ied 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. Ilehl, (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 Reports, vol. «, 1, 20 N. B. K. 40. •John' Dewe, and DaVIU H. WATEUUUliV, AppfUdllt, Iie,ipondent. ADDENDA. On appeal from the Supreme Court nf New Brunswick. Slander — Public officer — Privileged communication. The appellant, D., having been ap- pointed chief post office inspector for Ca- nada, wasengaged, under directions fFoni the Postmaster-General, in making en- (juiries 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 his verdict, and the rule for a non-suit should be made absolute. Appeal allowed with costs. ADDENDA. ADDENDA. 253 Supreme Court of Canada Eeports, vol. (5, 143, 19 N. B. R. 22.J. Ispondent led under lin^s, and lUant bad ling, the to retain non-suit John Walker and William Spears, Appellants, and .James McMillan, IleKpondent. Appeal from the Supreme Court of New Brunswick. 41 Vic, caps. and 7 (N. B.)— By-law of city of St. John— Buildin<5 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 2Gth 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 tlie Legislature, 41 Vic, cap. (5, •' 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. j By the contract it was also declared i that W. had engaged B. as superinten- 1 dent of the erection — his duty being to enforce the conditions of the contract, furnish drawings, etc,, make estimates of tlie 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 McM., his neighbour. On an action by McM. against W. and S. to n'cover damages for the injurj' thus sustained, the jury found a verdict for the plaintiff for general damages, f3,- 'J52 and $1,375 for loss of rent. This latter amount was found separately, in order tliat the court might reduce it, if not recoverable. On motion to the Su- preme Court of New Brunswick for n non-suit or new trial, the verdict was allowed to stand for '&3,f»r>2, 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, .T., 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 con- 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 tliereforc the verdict should stand for the full amount claimed and awarded. Per Gwynne, J., dissenting, that W. was not, by the terms of the contract. li.ihle for the injury, and, even if the by-law did make the building 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. •H ADDENDA. 254 Appeal dismissed with costs, and cross appeal allowed. Supreme Court of Canada Reports, vol. 0, 241, 21 N. B. R. U. See No. 32. J.VMKS McSoRLEY, Appellant, and TiiK Mayou, etc., of tlie city of St. .John, i and William Sam>all, Reapondcntn. \ i On appeal from the Supreme Court of New Brunswick. False imprisonment — Arrest — Assess- | ment — 41 Vic, cap. '.), N. B. — Execu- 1 tion issued by receiver of taxes for city of St. John — •' Ilisponili-at sn- \ perior." i Tlie 41 Vic, cap. 'J, entitled " An Act 1 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 wlio would be beneritted by the widening' of the streets, and in their report on the extension of Canter- | bury street, the commissioners so ap- ; pointed assessed the benefit to a certain i lot at ^41!). i(), and put in their report, the name of the appellant, (McS.), as | the owner. Tlie 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 I tlie same. McS., although assessed, was '■ not the owner of the lot. S., the receiver | of taxes, in default, issued an execution, ! I anil for want of goods McS., was arrested and imprisoned until he paid the amount at the cliamberlain's oftice 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 ]McS. on the first count against both defendants. ADDENDA. Held, (reversing tlie judgment of tlie Supreme Court of New Brunswicki, that S., who issued the warrant, founded upon a void assessment, and caused the arrest to be made, was guilty of a tre-i- pass, and being at tlie time a servant of tlie corporation, under their control, an 1 specially appointed by them to collect and levy the amount so assessed, the maxim of respondent xiiperior applied, and therefore the verdict in favour of McS. for 'SliHo.By against both respond- ents on the first count should stand, (Ritchie, C.J., and Taschereau, J., dis- senting). Per Gwynue, J., that the corporation had adopted the act of their officer as as their own by receiving and rutairiing the money paid, and autliorizing McS."s discharge from custody only after sucii payment. Appeal allowed with costs. Supreme Court of Canada Reports vol. U. 531, 20 N. B. R 4'.t7. Tertullcs Tiieal, Appellant, and The QrEK.N", lie.^pondent. Criminal appeal — Indictment — Mis- joinder of counts — Evidence. An indictment contained two counts, one charging the prisoner wich murdei'- 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 , passed in pur- suance of section lit of tlie Act, wliich order was in these words : — "Fishing for salmon in the Dominion of Canada, except untler the authority of leases or licenses from the Department of Marine and Fisheries is hereby prohibited.'' The defendant was armeil antl was in company with several others, a sufficient I number to have enforced the seizure if resistance had been made. There was no actual injury. A. recovered ?;},000, afterwards reduced to §1,500 damages, B. «1,200, and C. 81,000. Held, that sections 2 and 10 of the Fisheries Act, and the order-in-council 17 Wi¥ 258 ADDENDA, ADDENDA. E' [.^'\n 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 ])ro- prietors of fishing at the locii^ in quo ; out tliat tlie damages were in all the cases excessive, and therefore new tria.„ should be granted. Held, also, (Gvvynne J., dissenting) [ that when the defendant committed the ' Trespasses complained of, he was acting as a Dominion officer, under the instruc- j tions of the Department of Marine and \ JTisheries, and was not entitled to notice ' of action under C. S. N. B,, cap. 8'J, sec. l,or cap. 90, see. 8. | Appeal allowed without costs. | Supreme Court of Canada Reports, vol. 9, 201], •:i N. B. R. (339. ; Patkick Geouge Carvill, Geokge Mc- Keax and George T. Cauvill, (Defen- dants, Appellants, aii.d George A. Sciiofield, Thomas Gilbert and James Nevis, (Plaintiffs), liespondentg. On appeal from the Supreme Court oi New Brunswick. Charter party — Damages to ship— Un- avoidable delay — Refusal of charter- ers to load — Act'on by shipowners. By a charter party of December 11th, 1878, it was agreed that plaintiffs 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- ers a cargo of deals for Liverpool ; and jf 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 liarbor of St. John she got upon th? 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 2()th March — the charterf'r> gave the owners notice that they would not furnish a cai'go for her. Tlu- owners sued for breach of the charter party, and on the trial defendants gavt evidence, subject to objection, tluit freights between St. John and Liverpool were usually much higher in winter than in summer; that lumber wouM depreciate in value by being wintered over at St. John, and also as to the rela- tive value of linnber during the winter and in 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 voyatre. The judge directed the jury that if the time occupied in getting the vesr°'. oft the rocks and repairing her was so loni; as to put an end, in a commercial sense, to the commercial speculation entered into by the ship-owners and charterers, they should rind for the defendants. The verdict benig 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 (juo) 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 tt^ken in repairint: the damagi was not unreasonable, and the delay did not entirely frustrate the object of the voyage, the charterers wore not justified in vefusing to carry out the contract. Appeal dismissed with costs. Supreme Couit of Canada Reports, vol. 9, 370, 22 N. B. R. .5.>S. ADDENDA. ADDENDA. 250 GiDKON- Vkkxon and Maiiy E. Vkunon Appeal allowed without costs. Award (Plaintiffs), AppeUanU, ordere^i to be set aside and i)laintiffs" and Warren Omvku, (Defendant), factum to be taken off the iiles of the court. Supreme Court of Canada Reports, 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 tlie plaintiffs, because that defendant's brother and partner was a party to such receipt, although the parlnership affairs of the defendant and his brothers were excluded from the submission. The bill prayed that the award night be amended and the defendant decreed to pay the amount due the plaintiffs on t};e 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, (affirming the judgment •" the court below), that to grant ti;'^ ree prayed for, would be to make i new award which the court had no jurisdic- t.'on to do, but, Hetd, also (reversing the decision of the court below), that under tlie praver for genera! relief the plaintiff' was en- titled to have the award set aside. The plaintiffs' factum, containing re- tlections on the judge in equitj and the full court of New Brunswick, was or- dered to be taken off the files as scanda- lous and impertinent. Tju: Mrf.Lvir.LF. Mni-.u, Mauink asp Fi]:i; lN--r:KA:;cF. Co., (Defendants), Appellant.i, and j BiETHf/L/^MEw .J. DitLscoLL and John M. D!:i^coLL (Plaintiff's), lirspondi'itt-i. ApjK-aJ f r »m the Supreme Court of New Brun-jwick. Commission from Supremo Court of N. B.— Con. Stats,, cap. 37 — Directed to twocommiss.oners — Return signed by one only — Failure to administer inter- rogatories — Marine Ins. — Total loss — Notice of abandonment — Wai'er. A commission was issued out of the Supreme Court of New Brnnswick directed to two commissioners — one named by each of the parties to the suit — *o take t\ idence at St. Thomas, W. I., with liberty to plaintiffs' commissioner to jiroc<*c majority of the judges holding that plaintiffs were 1 ound liy tlie order of the judge, and could not proceed on the special paper until that order was rescinded, tiie remainder of the enurt refusing the application on the merits. On appeal to the .Sn[nemc Court of Canada, //(■/•/. that the cause was rightly m the special paper, and should have been heard on tlie merits, and tlie court should have exercised its discretion as •w ADDENDA. ADDENDA. 2()1 should mill pro- lilted iil'li- ntiffs re- in reply. avitH dis- conrt ro- ioii, the n^ that order of 1 on the dor ■>v:is he court niei'its. Court oi :htly "■.' ive been he court rotion as n -W." to the reception or rejection of afiidavits them as of the date the draft was drawn, in reply ; Strong,', J., dissenting;, on the which was at least two days prior to the ground that such an appeal should not date on which they were actually fixed. be heard. i The draft was not paid, and an action ■r,.. , . ^, -r r 1 ' war, brought against K., who pleaded, Per Ritchie, C.J., a court of appeal -,. " . . , ^ r. . , , ,.„ . ^11 accordni'' to provisions of Con. btats oudit not to differ from a court below ^, „ t , on a matter of discretion, unless it is absolutely clear that such discretion has been wron^lv exercised. The statute. New Brunswick, cap. 37, sec. S'^i, sul)- sec. i, " that lie did not make the draft." On the trial the draft was offered in evidence and objected to on tlie ground (Con. Stats. N. B., cap. H7, sec. 173), ap- ! . «• • x, , -, ^, \, „ , ,. , . • 1 that it was not surliciently stamped, the plies as well to motions for new trials, ,.,.„, . . ,\ ,.,.-, ^ , , , , • , „ nlamtirf having previously testified as to where the grouiuis upon which the mo- '-^ • , • , x, ^ , , 1 , a-n the manner m wlucii the stamps were tion IS made arc supported by atiiaa- ■ , , . , , , . _^, \^ , _ __ _,. ^ put on, and having also sworn that he knew the law relating to stamps at the vits, as in other cases. It makes no dis tinction, but applies to all "motions iounded on afiidavits." Appeal allowed. Supreme Court of Canada Reports, vol. 11, 197, 23 N. 15. R.,447. Austin J. Robehts, Defendant. Appellant. anil Loni'.xzo H. YAroH.vN, T^'om.vs A. \xv- (iiiAN, Roiiicia M. V.\uuHAX, (Plaintiffs), JiespondentK. 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 alhxed. 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 Supi'cme Court of Now Brunswick set aside the non-suit and ordei'ed a verdict to be entered for the plaintiffs on the ground that the defect in the draft of On appeal from the Supreme Court of ^^ant of sti-mp should have been ape- New Brunswick. j dally pleaded. Bill of exchange — Not .stamped by On appeal to the Supremo Court of drawer — Aflixed by tlrawee before tlaiuida : being discounted —Double duty affixed ' //t7(/, (Strong and Gwynne, .IJ. .dissent at trial — Knowledge of law relating to ing,, that double duty should have been stamps^4'2 \'ic., cap. 17 — Plea that pi iced on the note as soon as it cumo into defendant did iu>t make draft— (!oii. tiic hands of the drawee unstamped, and Stats., N. B. cap. 37, sec. 83, sub-sees, that it was Loo late at tlic trial to affix ■land .5 — Kvidence of want ot stamp — such double duty, tlio plaintiff ha\ing sworn ihat he knew the law relating to stamps, which jjrecludes the possibility Special plea. R. remitted by mail to V. a draft on Bay of Fuiidy Quarr\ ing Co., Boston, Mass., in payment of an accoui;i. of Lh.:' Co., of which R. was superintendent. The draft, when received by \'.,was un- of holding that it was a mere error or inistii!\e. Ili-ltl, also, that under tlie plea tiiat de- fendant did not make the draft, lie was stam))ed, and V. affixed stamps required entitled to take advantage of the defect by the amount of the draft, and initialed , for want of stamps. 262 ADDENDA. ADDENDA. ^r Per Stroiifi, J., that the note was ' in the declaration, and she was therefore sii ficiently stamped and phiintiffs were not entitled to recover, entitled to recover. | ^p^^^, ^jj^^^.^^^ ^^j^h costs, and new Per Gwynne, J., that if the note was ' trial granted, not sufficiently stamped the defence should have been specially pleaded. Appeal allowed with costs. Supreme Court of Canada Reports, vol. 11, 273, 23 N. B. R. 343. Supreme Court of Canada Reports, vol.11, 333, 23 N. B. K.,55!). The Town of PonTLAXD, (Defendants), Appt'llanta, and William GRimxHri, (Plaintiff), liettpondent. Ne<^ligence — Defective sidewalk — Law- ful use of streets — Contributory negli- gence. In an action against the town of Port- land 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 dwelling 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 natun^ and extert of the hole, nor was affirma- tive evidence given of negligence on the part of any officer of the corporation. The jury awarded the plaintiff ^300 damages, and a rule iiixi for a new trial was discharged. Held, })i;r 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 John Tatlou (Defendant), A])peUant. and RORKRT G. MORAN, BENJAMIN WlSHARTv Robert Gallaway and David Smith, (Plaintiffs), Respondents. 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 Ray, 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. ADDENDA. 263 'as therefore ts, and new da Reports, I. Appellant. IN WiSHARTv •avid Smith, RespoudmUi. me Court of policy- -Sail- of entering —Attempt to e policy con- ranted not to ;o use the Gulf le 10th day of W of October, Korth to Cape tt of Canso to jreof, shall be (le Gulf of St. was as fol- The voyage Ibec, and ship fug happened (southward of id sail and [.ys trying to One night |er main top- she drifted 'here was ti uid the ship Ire in this ice to all the [her along on kout twenty- 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 .rial swore that from the entries in the log-book of the ()th, 7th, 8th and dth 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. Kx purte James D. Le'vin'. On appeal fi'om the bupreme Court of New Brunswick. St. John City Assessment Act, 1882, J5 Vic, cap. o!), N. B. — Chartered bank — Assessment on capital stock of —Par value — Real and personal property of bank— Payment of taxes under jn-o- 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 St. John shall be raided 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, j corporations, or persons asssociated in I business." And after providing for the ' levying of a poll tax, such section goes on j to say that " the whole residue to be raised ' s'.iall be levied upon the whole ratable ^ property, real and personal, and ratable i income and real value, and amount of j the same as nearly as can be ascertained, J provided that joint stock shall not be ! rated above the par value thereof " ^ Sec. 28 of the same Act provides that j " All joint stock companies and cor- j porations shall be assessed, under this I Act, in like manner as individu:ils ; 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 persouiil estate, I 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 j stock of the bank at the time of such I assessment was only 11,000,000, and he offered to pay the taxes on that amount, which was refused. It is not I disputed tliat tlie 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. WTTT. 264 ADDENDA. I I'*' : The cliamberlain of tlie city of St. John is autliorizeil, without any previous proceeclint»s, to issue exec ■+iou for taxes, if not pa 1(1 within a certain time after notice. 1 1 order to avoid sucli execution the bank of New Brunswick paid their taxes ur der protest. Ilehi, that sucli payment did not prechide them from afterwards taking proceedings to have the assessment lualilied. Appeal allowed with costs. Supreme Court of Canada Reports, vol. 77, 484, 28 N. B. It. oiJl. Thk New Bruxswick Railway Company, (Defendants). Appfllunts. and IssACHEH N. KouiNsox, (Plaintiff), liespondciit. On appeal from the Supreme Court of New Brunswick. Railway 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 ]3runswick Railway Company's line, and sucli haru was destroyed by lire, caused, as was alleged, by sparks from the defendants' engine. An action was brought to re- jover 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 tliat coal was less apt to throw out sparks. It also appeared that at the place where the lire occurred there was a heavy up- grade, necessitating a full head of steam, and therefore increasiu;;; the danger to surrounding property. The jury found that the defendants diil not use reason- able care in running the engine, but in ADDENDA. what the want of such care consisited did not .appear liy their liiiding. Jh'ld, reversing the judgment of the court below, that the company was under no obligation to use coal for fuel, and the use of woo;I 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 Reports, vol. 11, (J88, 23 N. B, R., ;523. RoBEUT A. Chapman and \V. J. Rohinson, Appellanti. and Silas W. Rand, ReKpniident. On appeal from the Supreme Court of New Brunswick. Can. Tern. 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 jy\wer to incjuire into offences against the Act. and allow or reject ballots as a result of such iiKiuiry (lleury, J., duhi- taiitc.) Appeal allowed with costs. Supremo Court of Canada Reports, vol. 11, ;n2. (N. R. R. 374). -Toux P. Lawless, and James Stlmva- ct al., Appelhnit. Ixc'itpondiiita. On appeal from the Supreme Court of New Brunswick. ADDENDA. ADDENDA. 265 Taxes — Foreijin corporation — Branch liank — "Income," as distinguished from "net profits" — 31 Vic. cap. 3, sec. 1 (N. B.) L.. maniiL^cr of the ]?ank of B. N. A., a fovfi,i,'n baukin;^ corporation, having a liraneh in tlie city of Kt. John, derived from such business during tlie fiscal year of 161'), an income of H'ifsOOO, but, during tlie same period, sustained losses in its business beyond that amount. Tlie bank, having made no gain from said business, tlisputed tlie corjioration's authority to assess them under '22 Vic. Clip. 37, 31 Vic. cap. 3(), and 34 Vic. cap. 18, on an income of 8'ili,000. i field, 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 tlie gross income received by them during the fiscal year ; and that L. had been properly assessed, (Henry, J., dissent- ing.) Appeal dismissed with costs. Huprems Court of Canada Reports, vol. 3, 117, 18 N. B. B. r/20. Above judgment reversed by Privy Council on appeal. The tax imposed by sec. -1 of New Brunswick Act, 31 Vic. cap. 30, 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. C. App. Cas. 37o L. R. James D. Lkwex and G. Sihnky Smith, surviving trustees under the marriage settlement of ^Martha M. S. Robert- son, Appelhint^. and Gi'.oiioi.vNA Wir.soN, Bkn.iamin Lawton. and Jamks Hauuis, Jic'tpmidrnts. 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. Hi, sec. 40, and cap. 8.5, sees. 1 & (> Con. Stata. N. B. — Covenant in moi-tgage 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 fii4,000, two separate mortgages were given ; one by J. H. and wife on H.'s wife's property, ioiid 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 upiii repayment of the sum of £1,000 and interest, according to tlie condition of the bond by J W. and J. XL, 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 Ij., rt nl.. (the (appellants) in 1H70, and the prin- cipal nioncv has never been paid. J. W. died in 1858, and liy his will Jevised rdl his residuary real estate, including the lands and preinis. . in the above men- tioned mortgage, to J. W., (one of the resjiondents) 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. m- IL< 266 ADDENDA. Neitlicr J. W., nor any person claiming by, throuf the currency of the Statute of Limitations to a point which, being reached, frees the mortgaged lands from all liability under the mortgage, must be either the original party to the mortgage contract, that is oO say, the mortgagor, or some person in p'-iority 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 ADDENDA. quality of a payment made under the liability created by W.'s mortgage. Appeal dismissed with costs. Supreme Court of Canada Reports, vol. {t, G37. EzEKiEL McLeod, (Assignee of Jewett & Co.,) Appellant, and The New Brunswick Railway Co., Ileii2}on(le)tt!i. 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 timber lands in New Brunswick, granted to C. (fe S. a license to cut lumber on 2.5 square miles. By the license it was agreed niter alia : " Said stumpage to be paid in the following manner : Said company shall first deduct from the amoun: 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 loth 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 loth 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. 2()7 sums due or to become due for stump- age or otherwise, shall be fully paid, and any and all damajjes for non-perfor- mance of this aj^reement, 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. :t lioom Co., 17 N. B. R. 715. Appeal dismissed with costs. Canada Supreme Court Reports, vol. 10, 222. (See post 31.) 208 ADDENDA. ADDENDA. Ml ill BH1 Ja.mks II. Ray, et al., and Tin; Annuai, C( xrEiiKNci: ok Ni:\v BnnNs- WICK AND PlilXCK EoWAIlI) IsLANI), ill coiuicctioii with the Mutliodiat Cluircli of Canada, ct al., Jli'sjuuidi'nti. On appeal from the Snpi'eine Court of New Brunswick. AVill — Construction of — Surplus — Whether residuary personal estate of the testator passed. AmoiiK other heqaests the testator declared as follows : — " I hequeath to tlu! worn-out Preachers' and Widows' Fund ill connection with the Wesleyan Conference here, the sum of £1,250, to be paid out of the moneys due me by Robert Cliestnut, of Fredericton. I be- ; •jueath 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. Tlic last clause of the will is : — " Should there be any surplus or defici- ency, a pro rata addition or deduction, as may be, to be made to the foUow- iu)-! 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 tliat there was a very lai'f,'e surplus of personal estate, after payini,' all annuities or beiiuests. U'liis surplus was claimed, on the one hand, under the will, by these charitable institutions, and on the other hand by t!;e 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 Ccirt 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 Appfllmit^. be made to the tlirce above named be- (juests. Statutes of ISIortniain not being in force in New Brunswick. Fournier and Henry, JJ., dissenting. Appeal dismissed with costs. Supreme Court of Canada Re[iorts, vol. 0, ;<08. TiiK South Wf.st Boom Co., Appellunt^ and Daniel McMillan, Rcitpondunt . On appeal from the Supreme Court of New Brunswick. Additional plea. Supreme Court no power to allow. D. Mc^NI., 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 River Miramichi by appellants' booms. The pleas were not guilty, and leave and license. On the trial tlie counsel pro- posed to add a plea that the wrong complained of was occasioned by an extraordinai'y freshet. The counsel for the respondent objected on the ground that such plea might have been de- murred to. Tlie 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 tliat ground before this court to reverse the decision of the court below. ADDENDA. Appeal (liBmissoil with cost3. Supremo Court of Ciumda Ilcpor♦'^, ol. 3, 700. '" " " " "'■ '• 29 ; post, 39. ADDENDA. 2G1> Appeal (liHinisKfil with costH. t'lviiadii Kupremo Court Reports, vol. I -.-J--. , w I-. - vol. 3, 700. 17 N. U. H.71">. See .(»^^ ^ 11, 113. (See (^l^' No. It.) Joshua Spi'.aiih ami William C. Speaks (Plaiiitil'fs), Appellants, and •James Walker, llespomlent. On appeal from the Supremo Court of New Brunswick. Buildinj^ contract— Enforcement of — Violation city bylaw — Liability of owner — Effect of by-lav/ passed after contract was made. S. & Co., contractors for the erection of a buildint; for the respondent in the city of St. John, N.B., brout,'ht an action claimiuf^ to have been prevented by re- spondent from carrying,' out tlieir 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 ti'ial of the action the plain- tiffs were non-suited, and an application to the Supi'orae 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. Jolui made the said contract illegal, and therefore tlie plaintiffs could not recover. Walker V. McMillan, (J Can. S. C. R. 211, 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. James Flanaoa.n and .Johanna, liis wife. l)l'/cllllillltr:, and John Doe, on the ilemise of GiLiiiciii H. Elliott, et «/., riainliil's. On Appeal from the Supreme Court of New Bruuswielc. Assessment on real estate— In nanu' of occupier— Description as to persons and property — Con. Stat. N. B., cap. 100, sec. If)— Several assessments in one warrant — One illegal assessment — Warrant vitiated by. Sec. H), 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 tlie 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., ami in 1S7'S it was assessed in the name of " widow G." //('/(/, allirnung 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 suf'licient 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 vears IMAGE EVALUATION TEST TARGET (MT-3) A 1.0 I.I 1.25 lUUe |25 |50 *^^ PR^^l £ DS. 1120 U 11.6 A" o

    ^-^t^^ -y O ■/r >^ HiotogTdphic Sciences Corporation 23 WEST MAIN STRICT WEBSTER, N.Y. 14580 (716) 872-4503 <^. ^ ff^ 270 ADDENDA. ADDENDA. I r i hv hi h h^ ■I ly > f included the amount of an assessment wliich did not appear to be either a{,'ainst tlie owner or the occupier of the property ; Held, aiiirminji the judj,'nient of the court below, that the inclusion of such assessment would vitiate the warrant. Appeal dismissed with costs. Supreme Court of Canada Repoi'ts, vol. 12, 135. N. B. Reports, vol. 25, 154. A^ent — Sale of lands— Authority to de- liver deed and receive purchase money — Af^ent exceedin<^ authority — Memo to aj^ent — New a«!reenient. One W. sold land under power I Je in a mortgage, and F. became t ••■ pur- chaser, and paid ten per cent, of r" ; purchase money, it being agreed ti.ciu the balance was to be paid in rM-tf . Shortly after the plaintiff A. brougli. a deed to F. and demanded the notes. F. wished to show the deed to his 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 'ought at auction, Saturday the tliirtieth day of September, 187(), 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 #572, 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 tlie plaintiff to move for a verdict in his favor for nominal damages, the purchase money having in tlie meantime been paid to W. C*n 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. (1!) N. B. R. U.) On appeal to the Supreme Court of Canada, Held, reversing the judgment of the court belovif, (Strong, J., dissenting), that the said memorandum did not con- stitute a new contract between the plain- oiff and defendant to pay the purchase money to the plaintiff, who was merely he agent of W., and therefore the ver- v!ict for the defendant should stand. P"r 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. V. Anderson, 22nd June, 18H5. I'liwcett 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 family, and after leaving them in the town of Portland, went to Boston, in seai'ch 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 yi ADDENDA. ADDENDA. 27 property until the 8prin<^ of 1880, when the phiintiff returned from Boston and livec' with liiH wife. For the taxes for 187((, assessed aj^ainst liim in respect of his wife's property, and for an income tax at^ainst liimself, both beinji; inchuled in one assessment, he was afterwards arrested and taken to jail, where he remained two days, when he paid tlie amount under protest, and was released. He brought an action for false imprison- ment, and obtained a verdict for f 1")0. The full Court of New Brunswick set aside the verdict, and gi-anted a new trial, a majority beinj^ of the opinion that the plaintiff was constructively an inhabitant of St. John, and as such was liable to be assessed, and that there ou!,'ht 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 Canaua Held, that the plaintiff was not liable to assessment, and that the verdict should stand. Appeal allowed with costs. Kdiranh v. Tlie Mayor, etc., of St. John, 1st May, 1883. Canada Temperance Act, 1878 — Justice of the Peace — Conviction — Canada Temperance Act, 1878 ; sec. lO'i — 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 ft subpoena, to give evidence for the de- fendant on the hearing ; wlie. upon two other justices ^the respondents ) at the recjuest of A. and B., under the pro- visions of sec. lOJ of the Act, heard tlio case and convicted the appellant. A. antl B., though present in tlie court room as witnesses, took no part in the proceedings. The Supreme Court of New Bruns- wick ordered a nonsuit to be entered. On a])peal to the Supreme Court of Canada : IIell,2o0, totjetlier with freif^ht anil expenses, making in all 'i:4,7'.IO. Some payments -.vere made, but the ilefendaiit refusinj,' to pay a balance of $1,'J00, the plaintiffs brouj^ht 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 vviiat was represented, but defective, and in many parts had to be repaired, and that he had already paid as much 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 I'eturned a verdict for the plaintiffs for 1^1, RoO, having deducted »200 for tlie defects and $H0 for that part of the machinery not supplied. A rule iii.ti 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 tlie machinery, tlie complaints he made about it from time to time, and all the circumstances connected with it, shoulil have been left to tlie jury, with a diivc- tiou for them to consider whetlier from the defendant's deiiliugs with it th(.\ could infer a new implied contract mi his part to keep the machinery and pny 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. 278 verdict e abso- |of Nuw |, on the hUouM leiif^tli Ised the mill to all t\\v slioulil la iliivc- |cv irom lit tlu-y ract ''U |iiul i>!iy lan t'le lourt (if lontnict laiiitili'a to have averred, as a condition prece- 1 (lent to their riyht to recover, that tlie I work, besides having been skilful! , pro- perly, sufticiently, and in a workmanlike manner executed, was completed to the satisfaction of the defendant. In cases in which soirethinjj has been done under a special ct ._ract, but not in strict accordance with the terms of the contract, althouf^h tlie 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 payinj,' 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 haviuf^ 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 t^rantiuf^ a new trial should be dis- char<,'ed with costs. Appeal allowed with costs. IVateroux V. Morrow, r2th December, 1H79. Contract— Contract to cut lumber - Vesting of property — Writ of replevin — Sheriff's possession under — Tres- pass—Pleading' — Jus ^')V(/— Justifica- tion by sheriff under writ — Amend- ment, power of, by Supreme Court of Canada. In November, 1S74, one Arbo entered into a written a^jreement with one ^luir- head to ^et lo<,'s off land under ;\[iiir- hcad's control, the lo^s to he Muirhead's l)roperty as cut. In December following' one Marooney agreed with Arbo to cut 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, Is?"), the logs not having been driven, and Arbo not liaving furnisiied sufticient supplies, he and INIarooney rescinded their agree- ment, Marooney giving his note to Arbo for the supplies delivered. The logc remained on the landing, and in Feb. ruary, IHTfi, 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, 187(), Marooney sold tlie logs to the plaintiff, who drove them to the boom of the S. W. Miramichi, where they were replevied l)y 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, proh. 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. 2. Goods, not the plaintiff's. 3. Goods the goods of the assignee of Arbo, and defendant did acts complained of by license of sucli assignee. -1. Goods, the goods of ^luirhead, and defendant did acts complained of by license of ISIuir- head. "). Goods, property of defendant. A verdict was entered for plaintiff by consent foi !?l, .").")!, the value of all the logs, subject to be reduced to '■120.47, the value of the logs not cut by Maroo- ney, if the court sliould be of opinion that plaintiff was not entitled to Ma- iDoney's logs. Tlie Supreme Court of New Brunswick reduced the verdict to the said sum of 9420.47. See 4 Pugs. & Bur. 2o. On appeal to the Supreme Court of Canada, 18 274 ADDENDA. ADDENDA. it I ■i.i p» ■', i !l!i II , 1\! Ili'ld, }><•)• Ritchiu, C..J., that the jud;^'- nient appealed from Hhoiild be iif'lirmed on the followinj^ t,'rouiid: It haviiit,' bf'en proved on the trial, without objec- tion and made part of the case, that the lo^s in (piention were seized by the defendant, as Hh<;riff, under a writ of replevin issued out of the Supren^e Court of New Brunswick, direetinj^ him to take the loj^s in (jnestion, the sheriff was justified in takin>^ the lo-js tliere- under, and tliat as ajjainst the plaintiff it was no wronj^ful takinj^ or conversion ; that this defence could be j^iven in evi- dence under the pleadinj^s in the cause, or if it cuuld not be so f^iven, this beinj{ a strictly technical objection, and this defence havint^ been put forward on the trial v/ithout objection, and no such technical point reserved on the trial, if necessary the record should be amended. Per Stronj^ and Gwynne, JJ. — The parties at the trial haviuf^ rested their rij^hta upon the question of title, viz., were the lo^^s the property of the plain- tiff, or were they the property of Ellis, as assif^nee of Arbo, or of Muirhead ; and the plaintiff claiminj; 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 he 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 bare jiu ter.tii without showing 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 therefoi'e alleged in the 3rd, 4th and oth pleas were matters which could have been given in evidence under the issue joined upon the 2nd plea. As to the yth 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 a' eriff to be executed, did not vest in t'" defendant any property in the goods, tiie takin ^ of which was complained of, so as to er.able 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. i 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 — Charter of 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 2(j Geo. III., cap. 4C, and the right to alter the levels of streets is recognized by 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. 27* owners of the laud tlirou},'li wliicli it passes, who j^avo the land for the street. In 1H71, the corporation raised Churcii street below Canterbury street, Hlliun 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 autl shop tlie corporation erected a fence. By reason of this the plaintiff had no access from the street to liis 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 Willuim street. An action ha\ ' ug been brought against tlie Mayor, etc., of the city for the dam- age sustained by the plaintiff by reason of 80 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, Fisher 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 carelessly and without rea- sonable skill and care, and that the con- sideration of this should not have been withdrawn from the jury. See '1 I'ug. A- Bur. ():Jt;. On appeal to the Supreme Court of Canada, //<'/(/, that the non-suit should pot have been set aside ; Fournier and Henry, J.J., dissenting. Per Gwynne, J., (Taschereau, J., con- curring), that the defendants have, under the several Acts of Parliament whicli confirm and amend their charter, com- plete legislative power to raise or lower the level of the streets to any extent tliat the irregularities of the ground may seem to the corporation and its council, as representing the public, to re(iuire 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. Thr power of altering, amending, re- l)airing 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- i sauce, the non-suit was right and should ' be affirmed. 276 ADDENDA. ADDENDA. ii' 6l'i P I Appeal allowed with costs. Tlw M/iyor, etc., of St. John v. I'attimii, 23r(l Febru- ary, 1880. Damafies — Action on the case — Injunc- tion, declarint^ alloyed order for, ob- tained maliciously — Demurrer. Action for maliciously obtaininj^ an f.r parte injunction order from a jud;,'e, whereby the plaintiff was restrained from disposinf? of certain lumber, in consequence of which he had sustained damage as was allef^ed. The declaration set out that plaintiff was possessed as of his own property of certain lumber ; that defendants wrouf^- 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 I'eason 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, 3tc. To this declaration plaintiff demurred. The demurrer was sustained by the Supreme Court of New Brunswick. See 2 Pugs. & Bur. 4G9. On appeal to the Supreme Court of Canada, Held, attirming tlie judgment of the Court below, that the declaration dis- closed no cause of action. By the Statute of New Brunswick, 2 Key. 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 sut'ti- ' cient ground shown by affidavit on the part of the defendant. Here there wiis no allegation that the injunction was dissolved, or that any application was made for its dissolution, or that the order was obtained by any sumientiofahi, or KupprexHio veri on the part of the plaintiff, and for ought that appeared in the declaration, the judge exercised a sound discretionin granting the order. Appeal dismissed with costs. CoUim 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— Declarc- 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 1818, the time their ancestor Stephen- son purchased it, tlicre was a house. There was a cellar under the houso 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 ^h. mt ADDENDA. ADDENDA. 277 holes collected larne «' existence of the windows ; the windows when he bought, which f«i'i^ thetenancycontinuedsubsequently was in the spring of 1H74, and did not *° August, l8-,4, tnere was manifestly know of them till the obstruction was "o user for twenty years with the con- made. The evidence was not certain ''^"^^'''^^'l''''^^'''^'''^'"'^ ^^'^'^'^'-'^endant and to when Mrs. Kanny's tenancy termi- ^'^"^"^ througli whom he claimed, for nated. No question appears to have ^^^^'y- *'"^ ^''^^'^ °'''""' °* ^^'^ ^"""-'^ ^V""'<1 been raised at the trial as to the '"'^'^ "° "«^'* *° ^"^^'^ "l'°" *''« P"^''*^^- time ber lease terminated, nor was '^'^'^ °^ '"« t*'"'"^* ^°^' ^''^ I'urpose of this point left to the jury, the con- °^«*'^"''^'"« t''*^ ^'f^'^*- teution of the plaintiff's counsel being ' 2. There was also a misdirection as to tbat tbe time began to run from tbe the measure of damages ; tbe plaintiff period when the windows were put in, j should have been limited to a recovery and that tenancy had nothing to do | in respect of the loss and inconvenience with tbe question. | caused by the darkening of his windows ' up to the time wlien tbe action was The learned Chief Justice of New j brought, and for future damages he Brunswick, before whom the case was could bring successive actions from time 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 tenau'-y 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." to time tinned. as long as the nuisance con- 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, tfe 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. Pugdev V. iiing, 12th December, 1879. I I. ADDENDA. ADDENDA. 279 'IT IiiHolvcncy — IiiHolveiit Act— Deiimml of asHi^nnicnt, wlien iinimlled, iiction for iMiikiiiK — UeasoiKible iind prolxihli- ciiuse— Order of jiulj^e iiniiullint; de- mand not piiniii facie evidence of. In 1H74, the firm of James Domville iV Co. was composed of James Domville and James Scovil ; and tlie firm of ilsta- brooks iV Gleeson wiis then composed of John F. Estabrooks and the plaintiff. The latter firm carried on business then in the city of St. John as dealers in riour, meal, etc., and there had been dealint,'s between the firms forabout two years previously, but not, so far as ap- peared, to any very larj^e extent. In the fall of that year, three promis- sory notes, made by Estabrooks A' (ilee- son in favour of Domville & ('o., which had been endorsed by the latter firm, and which had been discounted forthem by the Bank of Montreal, were lyin^ in that bank when they matured. The first was a note for .S40!t.Hl, and it fell due on the 23rd November, 187 i ; the second was for »10'.».71, due 4-7 Decem- ber, and the third was for 8137.13, due 11-14 December. On the '23rd November, when the first of tliese notes became due, the plaintiff called at the ottice of Messrs. Domville A- Co., where he saw Mr. Scovil, and told him that he was unable to pay the note in full that day, but he offered Mr. Scovil ^25 per cent. ;on account of it then, and asked to be allowed to renew for the difference. Mr. Scovil promised to speak to the defendant on the subject, and requested the plaintiff to call at,'ain and \!,et his reply. The plaintiff accord- int^ly [called a^ain shortly afterwards and found both Mr. Scovil and Mr. Domville in their office. The defendant then at once refused peremptorily to accept the offer which the plaintiff had made to Scovil, or to accept 50 per cent, and to renew for the balance for one month. .\fter three o'clock on the same lay, the defendant called at the office of Estabrooks iV (lleeson, and told the plaintiff that if the note was not taken up ny one o'clock the following day an attachment would be issued at,'tiinst the tirm of iOstabrooks iV (iloeson. The plaintiff ur>,'ed him not to issue any attachment. ass;urinx him that, not only Messrs. Domville iV Co., hut every one of the creditors of l-lstabrooks iVdleeson should be paid in full every dollar due tiiem. The defendant, however, refused to listen to these assurances. The note for *lO'.t.Hl was not then re- tired, neither was the next one for ^lO'.t, when it becanu! due; but the third was paid in full at the maturity. Sometime in the month of December, (the plaintiff thout,'ht about the 7th), Estabrooks it Gleeson received a letter from F. E. Barker, purporting,' to have been written by him as the solicitor, and on belialf of Domville cV Co., inti- matiufj that Domiville A- Co's., claim must be paid, or that Estabrooks & Gleeson must yo into liquidation. As the solicitor of Domville A Co., Mr. Barker, on the Kith December, 1H74, issued an attachment at their suit at^ainst the property of P^stabrooks it Gleeson, but which so far as appeared on the trial, was never executed. The Deputy-sheriff, in whose hands it had been placed for execution, testified that no property was pointed out to him, and that he found none to attach under it. On the 12th January, 187'), a demand was served on Estabrooks it Gleeson at tha instance of Domville & Co., re((uir- ing Estabrooks it Gleeson to make an assignment under the Insolvent Act of IHfil). Within five days after service of such demand, a petition, under the L5th sec- tion of the Act, signed by John F. Esta- brooks and Patrick Gleeson individually, 280 ADDKNDA. ADDENDA. wftH preaonteil to Jtidf^o Wattcrs, the tlio said Jolin F. Kstiibrooks, in [mi'- Himnco of the provisions of tlio same Act, applied by, and pioHentod to l-i' pi. Judne of the Count;^ Court of Ht. John, praying,' that no further proceedinj^s '• should bo taken under it and due notice CharloH Wiitterrt, EHcjuire, tlic Jud^e of of the preHcntnient of Huch petition the County Court of the city and county havint^ been t^iven, and all parties beiufj of Kt John, their petition prayin>^ that present either in person or by their no further proceedint^i. under tho said counsel, before Judt,'e Watters, he pro- ceeded to emiuire into the subject matter of it, and made the following order : " Aflcr hearinji tho parties and their evidence, as adduced before me, and it appearing to me that the said John F. Estabrooks and I'atrick Gleeson have not ceased to meet their liabilities t;en- crally at the time of such demand, I do order that the prayer of the said petition- ers be t^ranted, and that no further pro- ceeding's be taken on such demand, with costs to be paid by the said James Dom- ville and James Scovil to the said peti- tioners or to their attorney upon de- mand." Estabrooks ct Gleeson effected an arran^jement with Domville it Co. for the amount of the indebtedness for which the demand liad been made by j^ivinj^ them an endo.'sed note, payable, with interest, in twelve moniis, which note tho makers subsequently paid in full. The plaintiff brou','ht this action on the ground " that the defendant falsely and nniliciously, and without I'easonable and probable cause, made, or procured to be made, a demand under the 14th section of the Act of 180'J, signed by the defendant and by one James Scovil, partners, under the name, style and firm of James Domville & Co.,re(juirin},' plain- tiff and the said John F. Estabrooks to make an assignment of his estate and effects for the benefit of his creditors, and falsely and maliciously, and with- out reasonable or probable cause, caused the same to be served upon the said plaintiff and the said John F. Esta- brooks, according to the provisions of the said Act ; and the said plaintiff and demand should bo had against them under tho said Act ; and such procetd- ings were thereupon had under the said petition, that the said judge beiu'i authorized to act, and having comi)etcut authority in that behalf, ordered that the prayer of the said plaintiff and of the said John F. Estabrooks sliould hv granted, and thereafter and thereby such demand so made and served as aforesaid, became and was of :io force, etc., and the proceedings theroon were determined ; and by reason whereof the plaintiff was put to inconvenience and anxiety, and was prevented from trans- acting his business and carrying on his said trade with the said John F. Esta- brooks, and was injured in his credit and incurred expense in procuring the said demand to be annulled, etc." At the trial. Duff. J., directed the jury that the annulling of tlic demand by the order of Judge Watters was prima facie evidence of the absence of reasonable and probable cause, and threw upon the defendant the burthen of proving the affirmative. Tliis ruling was upheld by the- Supreme Court of New Brunswick. H Pugs. A- Bur. 77. On appeal to the Supreme Court of Canada, Held, reversing the judgment of the court below, that such order was not in itself even prima facie evidence of the absence of reasonable and probable cause ; but further, the evidence suffi- ciently established the existence of rea- sonable and probable cause for making the demand of assignment. Appeal allowed with costs. Domville V. Gleeson, 10th June, 1880. m ^Jourt of of the not ill of the )robable ce suffi- of rea- making ^onivilli- AUDKNDA. IiiHUrance, flro — Coiiilitioii in policy — Nut to assitjn without written coiisont of coniiinny— lireacli of c.jiulition — Chattel mortj,'a^,'e. Appeal, by coiiHent, from the decree of Mr. .Justice rulnier, Jiidj^e in K(]uity for th.e Province of New IJruiiswick, in favor of tiie re8p., effei.-ted an in«urance for the sum of S2,00U with tiio Sovereifjn Fire Insurance Company ,'ment of the court below, that a chattel mort}4aj,'e of the property insured was not an assii,'n- ment within the meaning of such con- dition. Appeal dismissed with costs. Sorereiun F. Ins. Co. of Can. v. Peter.s. 8th March, 188G. Insurance, marine — Condition of policy — Not to load more than regis- tered tonnage with stone, etc., with- out agent's consent — Loading with ADDENI>A. 281 I phosphate rock— Kvidence of consent by at^ent— Proof of contract — Prior insurance. A voyage policy on the plaintiff's vessel Pretty Jt'iiiinut, contained inter (tlid, the following clauses ; — '• War- ranted not to load more than registered tons with stones, marble, lead, ores, or brick, without the (•onseiit of tlie agent of the Providence Washington Insurance Company of Providence, provided al- ways, and it is liereby further agreed, that if the said assured siiall have made any other assurance upon the premises aforesaid, prior in date to this policy, then the said Proviilence W '-.liington Insurance Company of Providenie shall be answerable for only so mucli as the amount of such prior ins.i;ince may bo deficient towards fullv covering tli.' premises hereby assured." In an action on the sail pnlicy, it appeared the vessel was loaded with phosphate rock, and the plaintiff gave evidence of a conversation with the com- pany's agent in which the latter wanted to cliarge more premium than on a pre- vious policy, because the vessel was going to carry phosphate. He also cautioned plaintiff about loading tiie vessel, how to lay the floor so as to ilis- tribute the weight over the ship. The plaintiffs evidence on tliis matter closes as follows: " Itanney (the agent) said I could load down to the mark, the load line, same as if loading coal." It also appeared that there was '&1,100 prior insurance on one-eighth of the vessel, which plaintiff had bouglit, but of which he had never received the title. Held, affirming the judgment of the Supreme Court of New Brunswick, (Gwynne, .J., dissenting), that the agents consent had been obtained to the loading of the vessel beyond her regis- tered tonnage, and there was conse- 282 ADDENDA. ADDENDA. ID' iiuently no breach of the above condi- tion of the policy. Held, also, that the defendants were liable up to the amount insured, only for so much of the assessed value as was not covered by the prior insurance of «1,100. Per Gwyune, J,, that tlie consent of the a^^ent should have been alle^^ed by the plaintiff in his pleading, and not having been so alleged could not be set up as an answer to the defendants' pleas; that the jury should have been reipiested to find whether or not phos- phate rock was stone within the mean- ing of such condition, and that there sh.^uld be a new trial to have such a hnding by the jury. The policy was signed by Kanney, as the company's agent throughout as such agent, and was so recognized by the president of the company. //('/(/, that this was sufficient in the tirst instance, if uncontradicted, to justify the jury in finding that Ranney was the agent of the company. Robertson v. Provincial Imurance Com- pany, 3 All. N. I>., 371), followed. Appeal dismissed with costs. Provi- dence Wasliiwjton Insurance Company v. Chapman, 12th January, 1885. Ini'urance, marine — Policy to be coun- ts 'vvd by agent — Proof of agency. A policy insui-ance on the respon- dent's vessel contained the following reservation : " But this policy shall not be valid unless countersigned by Henry R. Ranney, the said company's duly authorized agent, at his office in St. John, N. B.' The policy v-as not coun- tersigned by Ranney, and in an action thereon the respondent gave evidence to shew that it was issued by Ranney and sent by him, as directed by the respon- dents to a person in Nova Scotia. A verdict was oiven for the plaintiff at the trial, and the company moved for a non- suit on the ground, inter alia, that the policy was invalid on account of not I'jing so countersigned. The non-suit was refused. On appeal to the Supreme Court of Canada, Held (Fournier and Henry, JJ., dis- senting), that the appeal must be allowed and a non-suit entered. The policy, as set out in the plaintiff's declaration, contained a stipulation that the vessel was not to load more than register tonnage with stone, ores, etc. The defendants pleaded to this count that she did load more than her register tons with stone or ores, namely, phos- phate rock, contrary to such condition. The plaintiff replied that phosphate rock was not stone or ore within the meaning of such condition; the defen- dant demurred to the replication, and. on argument on the demurrer, the repli- cation was held good. 10 N. B. Rep. 3 P. & B., 28. The Delaware Mutual Insurance Co. v. Chapman, Ifith Febru- ary, 1885. Jurisdiction — Appeal quashed for want of jurisdiction — Verdict against weight of evidence — Sees. 20 and 22 Sup. C. Act— Costs. Appeal fror-. a judgment of the Su- preme Court of New Brunswick, making absolute a I'ule to set aside a verdict for the defendants, and for a new trial, on the several grounds of improper recep- tion of evidence, misdirection, and be- cause the verdict was against the weight of evidence. Held, that the court below having proceeded as well on the ground that the verdict was against the preponderance of the evidence, as on the law, the ap- peal came within sec. 22 of the Supreme Court Act, and would not lie. But see now S. & Ex. Ct., Am. Act, 1880, sec. 4. ADDENDA. ADDENDA. 283 Appeal quashed for want of jurisdic- tion, but without costs, the appeal hav- ing been heard c.r parte, the respondent not appearing?. Domvilli- v. Cameron, Dth February, 1880. New trial — Evidence — "Where impro- perly received and afterwards with- drawn by judge from jury — License to cut timber. The plaintiff was the licensee of cer- of Sutherland and Kirwan were not evi- dence against the defendant, and that the plaintiff's case must depend upon the conversations between Coleman and the defendant respecting the logs. Upon this charge, the jury found a verdict for the plaintiff for ftttfir,. A rule nisi was obtained for a new trial, and after argument, the rule was discharged by the first division of the Supreme Court of New Brunswick, the tain crown lands, under license from the I judge holding, under authority of IVil crown, to cut timber and logs thereon. These licenses did not contain any description or boundaries, but were described as (1) " No. 1',I2 east half block 17() Muzzerall Brook, containing three square miles," and (2) "South of Main S. W.Miramichi River, north-east quar- ter of block 42, and the southern IJ miles of block 41." The plaintiff endea- vored by the evidence of one Braith- waite and one Freeze to identify the lands alleged to be included in these licenses, and in their evidence and that of one Flynn, proved that logs had been cut upon these blocks by two parties, respectively named Sutherland and Kir- wan, and on the trial the plaintiff offered to prove the statements of these two parties and admissions made by them. The defendant's counsel objected to these statements as no evidence against the defendant, and on the objection being taken, tne Chief Justice only admitted it on the plaintiff's counsel undertaking to connect the defendant with these parties, Sutherland and Kirwan. This he failed to do, but called one Coleman, an agent of the plaintiff's, to depose as to certain statements of the defendant. Theplain- tift's counsel addressed the jury upon the whole evidence, commenting upon all the facts, but the learned Chief Jus- | tice, in charging the jury said that if the oase rested on the evidence of Braith- waite, he was opinion that the plaintiff failed to make out his case, and also stated his opinion that the declarations mot V. Vanwart (1 V. & B. -I'M)), that when evidence, which has been improperly re- ceived, has been withdrawn by tne judge frOm the consideration of the jury, such improper admission of evidence is not a ground for a new trial. On appeal to the Supreme Court of Canada, Held, that the Supreme Court of New Brunswick was correct in refusing a new trial on the ground of the improper ad- mission of evidence ; the plaintiff having failed to connect the statements of Sutherland and Kirwan with the defen- dant, such evidence was properly and sufficiently withdrawn from the jury. But as regards Coleman's evidence, there was not sufficient to go to the jury, and the learned Chief Justice should have left nothing to the jury. On this ground the rule nisi for a new trial should be made absolute. Appeal allowed with costs. Snowball v. Stewart 16th February, 1881. New trial— Verdict against weight of evidence. An action was brought to recover the price and value of goods sold by the plaintiff to the defendant's brother, and on the trial the plaintiff gave evidence of an agreement with the defendant where- by the latter, as the plaintiff alleged, undertook to give notes at four months to retire notes at three months given by his brother, the purchaser of the goods. if' m ' ! 284 ADDENDA. 13;. ^1il I > The plaintiff swore that this af^reement was carried out for a time, but that the defendant finally refused to continue it any lonj^er. The evidence showed that the defendant always gave his notes to his brother, who carried them to the plaintiff. The defendant, on the other hand, swore that he never made any such agreement, but only gave notes to his brother to help him in his business. The evidence of the plaintiff was entirely uncorroborated. A verdict was found for the plaintiff, and the Supreme Court of New Brunswick refqsed a new trial. Held (Ritchie, C.J., and Taschereau, J., dissenting), that the weight of evi" dence was not sufficiently in favor of the plaintiff to justify the verdict, and there must be a new trial. Appeal allowed with costs, and new trial granted. Fraser v. Stephenson, 8tli March, 1880. Railways and railway companies-Inter- colonial Railway— Negligence of con- ductor — Accident to passengers — Right of action — Contributory negli- gence. Plaintiff having a first-class ticket from Sussex to Penobsquis by the Inter- colonial Railway, intended going to Penobsquis (her home) by the mixed freight and passenger train, which was due to leave Sussex at 1.47 p.m. The train on that day was an unusually long one, and when the passenger cars were brought up to the platform the engine was across the public highway, ^\'lu'n the train came ni it was brought up so that the forward part of the first-class car was opposite the platform. It was then about ten minutes after the adver- tised time of departure. Plaintiff was standing on the platform when the train came in, but did not then get aboard. The conductor of the train (the defendant) got off the train and went to a hotel for dinner. While he was absent the train was, with- ADDENDA. out his knowledge, backed down so that only the second-class car remained opposite the platform. The jury found that the first-class car did not remain at the platform long enough to enable plaintiff to get on board. The defendant after finishing his dinner came over hastily, (being behind time, and there- fore in somewhat of a hurry), called " All abcard," glanced down the plat- form, saw no person attempting to get on board, crossed the train between two box cars to signal the driver to start, (it being necessary to cross the train in order to be seen by the driver, owing to a curve in the track), and almost imme- diately the train started. The 124th regulation for government of the Intercolonial Railway prescribes that conductors must not start the train while passengers are getting on board, and that they should stand at the front end of the first passenger car when giv- ing the signal to the driver to start, which was not done in this instance. Plaintiff and a lady friend F., wlio were going on the same train, were standing on the platform, and when they heard the call," All aboard," they went towards the car as (juickly as they could. F. got on all right, but plaintiff who had a paper box in her hand, in attempting to get on board, caught the hand rail of the car, when sae slipped, owing to the mo- tion of the train, and was seriously in- jured. The jury found that the call, "All aboard," was a notice to passen- gers to get on board. The Supreme Court of New Bruns- wick held that although the plaintiff's contract was with the crown, the defen- dant owed to her as a passenger a duty to exercise reasonable care, and that there was ample evidence of negligence for the jury. The facts will be found fully reported in Hi N. B. R., 3 Pugs. & Bur. 340, and 21 N. B. R„ 58lj. ADDENDA. ADDENDA. 285 Bruna- laintiff's le defeu- diity to lat there ;e for the reported 110, and On appeal to the Supreme Court of Canada, Held, that the judgment of the court below should be affirmed, (Taschereau and Gwj'nne, JJ., dissenting). Per Ritchie, C.J,, there was no obliga- Per Taschereau and Gwynne, JJ., dissenting, whetlier the omission to stop the first-class car at the platform, or the not waiting a i-easonable time after calling " All aboard," wei'e or were not breaches of the defendant's duty, such breaches could not be said to have tion on the part of the passengers to go : caused the accident if the plaintiff had on board the train until it was ready to ! ^^^ voluntarily attempted to pet on the start, or until invited to do so by the ' t^ain while in motion, which she was intimation from the conductor, " All aboard." It was the duty of the con- ductor to have had his flrst-closs car up in front of the platform. Should cir- cumstances have prevented this, it was his duty to be careful before starting the train to see that sufficient time and op- portunity were afforded passengers to board the car in the inconvenient posi- tion in which it was placed, and the evidence shewed the defendant e.xer- cised no care in this respect. Per Henry, J., there was no satisfac- noL justified in doing. Appeal dismissed with costs. Hall v. McFadden, 1st May, 1883. Sale of goods— Contract, parol evidence to establish when admissible — As to whether a mem. in writing contained the terms of agreement, a question for jury — Statute of frauds — Damages — Common counts. The plaintiff sued defendants upon a contract alleged to have been made by tory proof of contributory negligence on j them with the plaintiff to deliver to the the part of the plaintiff. The package plaintiff at St. John, N. B., 200 cords of she carried was a light one, and such as is often carried by passengers, with the knowledge and sanction of railway con- ductors and managers, and a tacit license is therefore given to passengers to carry such with them in the cars. The plaintiff violated one of the regulations in attempting to get on tlie car while in motion. But the defendant could not shelter himself under those goof' merchantable hemlock bark, luit- ablo for tanning, at S-1 per cord, the plaintiff paying freight from Shediac. He also declared upon the common money counts. The plaintiff at the trial gave evi- dence to the effect that the contract was wholly verbal, and that the defendants had agi'eed that the bark should be all good bark, that it was to be delivered at regalations, for when he gave the order, ! St. John and measured on the cars "All aboard," he knew, or ought to ; thei'e ; that the defendants were to send have known, that the lirst-class car was j some one to measure it, and that if they away from the platform, and ho ought did not, plaintiff's son was to measure to have advanced the train, and stopped it ; that the plaintiff was to pay freiglit it so that the plaintiff could have en- from Shediac, where the defendants tered such car. The conductor was i were to load it on the ca a. And as to estopped from complaining that the plaintiff did what by calling "All aboard " he invited her to do. After the notification, " All aboard," is given by a conductor, it is his duty to wait a reasonable time for passengers to get to their places. payment, plaintiff gave evidence that *:i04.H4 then due by defendants to plaintiff, was to be applied upon the bai'k, and that the defendants were to take leather from the plaintiff in payment of the balance ; that the bark was to be delivered in two or three months, as the I':l 286 ADDENDA. U;:: li'i th'^ plaintiff wanted it. In answer to plain- tiff's order to forward bark, the defen- dants sent forward three car loads, which proved to be utterly worthless. The plaintiff also f^ave evidence that at the solicitation of the defendants he gave them his note for loOO at 4 months on the defendants promisinf,' that the bark would be all in before the note was due, and that notwithstandinj^ the givin}* of the note, the defendants would take leather in payment of the bark as af^reed, that when plaintiff asked defendant at Hamilton for a receipt for the note for ■JilOO, the latter wrote out the following paper : — C. H. Peters, Esq., 1876. To Hamilton & Smith. April 20, To 200 cords hemlock bark at Shediac, »4 . . S«00.00 4.84. 1804.84. Cb. By note at 4 mos ^500.00 " goods per statement of acct. 304.84 »804.84. The above bark to be measured on the cars in St. John. Settled as above, Hamilton & Smith. Upon this document being produced the defendants insisted that it contained the contract, and that the plaintiff's evi- dence of the contract must fall to the ground. Both parties were permitted to give oral testimony to establish what the contract was. The evidence was chiefly that of the plaintiff and defen- dant Hamilton, and was very contra- dictory. The jury believed the plain- tiff and rendered a verdict for him for $945.80 damages. The Supreme Court of New Bruns- wick made a rule for a new trial abso- ADDENDA. lute, being of opinion that the contract had been reduced to writing and was contained in the memorandum of the 20th April, 187(5 ; that the words " at Shediac " in the mem. showed that the bark was at Shediac at that time, and that the parties were contracting with reference to that particular bark. That being the case, it was unnecessary to make any stipulation about the de- livery, because by the sale the property vested in the plaintiff without any de- livery, and the evidence of the plaintiff as to delivery should not have been re- ceived, for it was either immaterial or the effect of it was to vary the terms of the written contract, which, being for the sale of goods above the value of £10 were required by the statute of frauds to be in writing. On appeal to the Supreme Court of Canada, Held, that whether the mem. of the 20th April, 1876, was or was not drawn up by the consent of both parties with intent to be that should settle and con- tain their contract in whole or in part, was a question for the jury, and the onus of proving that the document was drawn up for that purpose lay upon the defendants. That the nature of the case required that both parties should be permitted to give oral testimony to establish what the contract was, and as the jury had wholly disbelieved the de- fendant's evidence, the plaintiff was entitled to recover both on the common counts and on the special counts, and the verdict of the jury should not have been set aside. Appeal allowed with costs. Peters v. Hamilton, 10th June, 1880. Sale of goods — Contract of sale — Goods not specified — Intention to pass pro- perty — Appropriation. T., a brickmaker, sold, by sample, 50,000 bricks out of a kiln containing in .^ ADDENDA. ADDENDA. 287 100,000, to tlie plaintiff, who paid the contract price, and hauled away ahout 10,000. The halance remained in the kiln in T.'s yards, and were never in any way separated from the rest of thi^ kiln, or appropriated to the plaintiff. The defendant (the sheriff) subsequently sold them under an execution at the suit of W. a','ainst T. Plaintiff brought trover against the defendant, claiming property in 34,000 of the bricks. The Supreme Court of New Brunswick held (Wetmore, J., dissenting), that the contract was executed, and the property in the bricks passed to the plaintiff at the time of sale, i Pug. & Bur. 234. On appeal to the Supreme Court of Canada, Held, reversing the judgment of the court below, that the sale was one by sample ; the bricks sold were not speci- fically ascertained, and there was no evidence from which it could be infeired that it was the intention of the parties the property in the bricks should pass before delivery. Appeal allowed with costs. 'Temple v. Close, ICth February, 1881. Sale of goods — Agreement for sale of deals— Contract not complete — New trial. Action for an alleged agreement con- tained in the following letters : — MoNCTON, September 13th, 1880. Messrs. T. L. De Wolf, Halifax .— Deab Sirs, — I will send and deliver to you on the cars at Point du Chene, all the merchantable deals and deal ends I can manufacture at my mill at Meadow Brook, this season and next, during the shipping season, an estimated quantity from two to three millions. Deal ends not to exceed what may be required for broken stowage, and to be from three to eight feet long. Price — Nine dollars per thousand su- perficial feet for deals, and two-thirds price of deals for ends, and fourths, if any. Specification. 33 per cent. 35 10 14 8 7x3 and 8x3. ttx3. 10x3. 11x3. 12x3 and upwaids. I Average length, fourteen feet or more. About ten per cent, pine, balance i spruce. I The pine I will stick and pile well, j and keep on my wharf until you re(]uire them sent forward. About two millions to be ready for shipment by the first of Jidy next, and a large portion ready as soon as naviga- tion opens. Terms — Cash on delivery. This offer to held good until the first of October next, Yours truly, (Signed) Abner Jones, Halifax. H.U.IIAX, 29th September, 1880. Abner Jones, Esq., Moncton : — Dear Sir, — We wired you this morn^ ing that we accepted your offer for rext season's cutting of deals, which we now beg to confirm. If you have any deals sawn this fall we might be able to take them here, we paying the difference of railway freight between Point du Chene and Halifax. Please let us know what quantity you think you will cut this fall, what railway freight per car is to Halfax, and also to Point du Chene. Please let us know if you .would ship v'hat you cut this fall to Halifax if we required them. We accept your offer, cs made in your letter of the 13th inst., in all particulars. ■|! 288 ADDENDA. ADDENDA. mi\ 61 !> m fHi We think this will serve instead of writinf^ out a contract, but if you re- quire it, will fill one up and send you. Yours truly, T. L. De Wolf & Co. The action was tried before Mr. Justice Kinj,', at the Westmorland Circuit, in December, A.D. 1881, and resulted in a verdict for plaintiff for »3,500. The jury were directed to find for the plain- tiff, and that l;he only question related to the damages to be awarded plaintiff. The defendants' counsel moved for a non-suit at the close of the plaintiff's case. The defendants applied to the Court en banc to set aside the verdict, and that a new trial be ordered on the grounds set out. This was granted. The learned judge at the trial held that the letters of the 13th September, 1880, and 2<)th Sep- tember, 1880, constituted a complete and binding agreement, and that the sub- sequent correspondence between the parties did not show that such agree- ment was rescinded. The Court (Allen, C.J., Weldon, J., Wetmorc, J., Palmer, J., and Fraser, J. — King, J., delivering a separate judg- ment), in granting a new trial, dealt only with these points, and held that the two letters above quoted constituted a com- plete binding contract between the par- ties, but that both agreed to abandon it — or, at all events, that certain letters were evidence of such abandonment — and that in this respect the direction to the jury was incorrect. King, J., while also of the opinion that the two letters constituted a complete and binding contract, was inclined to think that there was a question for the jury whether the conduct of the plain- tiff, after receiving the defendant's let- ter of the 17th December, and that in reply to his of the Ifith December, was not such as to shew that plaintiff acqui- esced in the defendant's notice of I'e- fusal to abide by the bargain. On appeal to the Supreme Court of Canada, //(•/(/, that the two letters of the 13th and 2(>th September, 1880, did not con- constitute a complete contract between the parties. The rule having been taken for a new trial only, the court refused to direct a non-suit or verdict for defen- dant, but affirmed the rule for a new trial. (Counsel for respondent not called on.) Appeal dismissed with costs. Joiie.t V. DeWolf, 27th February, 1884. Trespass — Telegraph Company — Erec- tion of line — Right to cut trees — Company bound to show necessity — 34 Vic. cap. 52, incorporating Dom- inion Telegraph Co. The Act, 34 Vic. cap. .52, incorporat- ing the Dominion Telegraph Co., de- clares in the 4th section that the com- pany may enter upon lands or places, and survey, set-off and take such parts thereof as may be necessary for such line, etc., and in case of disagreement between the company and owners of lands so taken, or in respect of any damage done to the same, it may bo settled by arbitration in the mode therein described. By section 20 the company are authorized and empowered to enter upon the lands of any person or per- sons, and survey and take levels, and to set out and ascertain such parts thereof as they shall think necessary and proper for making the said intended telegraph, and all such other works, matters and conveniences as they shall think proper and necessary for the making, effecting, preserving, etc., the said telegraph, and to build and set upon such lands, such station houses and observatories, watch- S.D. ADDENDA. liousea and other works, etc., as and uliere the said company shall think re- (jiiisite and convenient, etc. Provided always, that the said company shall not cut down or mutilate any tree planted or left standing for shade or ornament, or any fruit tree, unless it be necessary so to do, for the erection, use or safety of any of its lines. In an action against the company to recover damages for cutting down orna- mental trees, the defendants pleaded that the trees were standing by the side of a public highway, and the defen- dants were erecting their line of tele- graph along the highway ; and because the trees were in the way and obstructed the passage of the line of telegraph, and because they deemed it necessary and ! advisable to do so, they committed the I acts complained of, by virtue of the i statute, and not otherwise. | The Supreme Court of New Bruns- ' wick, ADDENDA. 289 Held, Ist. That the arbitration clause m the 4th section did not apply to a case like this, where the complaint was that the defendants had wrongfully des- troyed plaintiff's trees; 2nd. That the proviso in the 20th section imposed on the defendants, if the ornamental trees should obstruct their line on the side of the highway where they located it, the burthen of showing that it was neces- sary for them to take it on that side, and that the defendant's pleas were bad for want of an averment that it was neces- sary to cut the trees, not merely that the '/ deemed it necessary. See 3 Pug. A liur. 553. On appeal to the Supreme Court of Canada, Held, that the judgment of the court below should be affirmed. Appeal dismissed with costs. phCo.v.Oikhrut, The Dominion Teleg loth February, 1881. 8.D. 19 ,'!' A A A A A a: a; Al ii A! Ai Ar Ar Av, P ! r.ai Bail Bar Bai-i Bed Bell Bely Beui Best Table of Cases. A VW- OK liKPORTS AND I- Abell, ex parte ,,, .,,, Abbinnett v. TJie NorthwesteVn" MuUmi ' "' ^'^' "^^ ■'■ Iiisunuice Co q, .,, , Ackman v. Town of Mon^ioVi:.'. .' ." ." ." .' " " 'oV ri'' ' ^' ^''^^ " " ' A&iSili; : v^'^^'""-' i"«"^-nce c;,;.^; 'IS;.: : : : Aiotit KulwH.v Co., exparte i.) -m M.nin- Co. v. Spun- ' " .,: ' ^ ,,j A Men v. McDonald, et al on .J i' Award V. Ma>_or, etc., of St. John;; iio ' j^iy Alexander v. Mayor, etc., St John . , V. Cowie ■!!», 5!)!» V. Cowie and forVie ".'.',".'. oq 47,; Almon V. Lewin '.: ' f.Ll Anderson v. Fawcett , . ) ' " V. Mowatt ....■.■; ; ; ; ; ; ; ; ' , 21, ns ■, m, 34 ; 20, Appleby V. Black ' ot -n. v.Secord on \n. Armstrong v. McGoiuty ] " ' ' ' o"' .,;;'^ y. The Mayor, etc., St.' JolnV 2f)', .H,S8.". V . Botsford 94 .JM4 \ , a^ V. Grand Trunk 1{ y. Co .' .' " 'fs ' 44 -, Avon Stone Co. v. Dunham. .. ... , [i^] 4J;;; ; ' ; ; AflE. INI'KX I'AOK. ■11, llo, 171 .... ilO, 212 20 12(1 Itl r>2 UH 107 193 I'.li 234 ^- !», 4!t, GO . . . 205 , . . 223 . . . 03 . . 224 . . 1!»1 ...!)7 ...40 o B Bank of New Bk. v. Brown V. Flaherty.... ,'.' r> , , ^, ^^ parte Deveber Bank of Nova Scotia v. Steeves "V n,„i ,, , ^'- Gushing .. . Barbour v. I^oberts Barry v. Logan V. Hegan .....".".".",'.'.'.'.■ Beckwith, in re . . Bell V. Carlvle . . V. Moffat V. Wetmore Belyea y. Merritt . , Bennet v. Murdock ......" Best V, Berastain ..10, 100., ..10,407., ..21, 401,. ..20,333 ..21,408. ..24,211 , . . 18, 41)0 . . . iH, 4(;r, . ..21,104., ..22,4o3 . . . 10, 201 ; .10, .534 . .23,225 . •20,317.. .20, 106.. 20, 721 108 ....2 . . 121 .. 121 .. 121 . . . 20 11,47 ,. 121 . 107 . . . 20 .. 7 182 114 158 . 57 10 !!-! 'I : M ; I 292 TABLE OF CASES. VOL. OF RKPOnrS AND PAOE. INDKX PAOE. It I/ h Birmingham, ex parte 18, 'M\i 101, HH BiHhop of Cliatham v. Western Ass. Co. 22, 242 120 Black V. Cogswell lit, 44 22!) Black V. Doherty 22, '2ir, lit<» V. Municipality of Kt. John. . . .2H, 24i» lii.i Boice, ex pirte 24, l.V.t 177 Bolser v. Cressman 2"), ■'>'>(> 24 1 Bolsteail, ex ^.arte 21, 227 14 Boss V. Millar 22, 4il4 Ho Boston Belting Co. v. Gabel 20, 847 47 Botsford V. Trites r.», 13.") 23 Bourgeois v. Gilbert 1!», 3")H 120 liowes V. National Insurance Co 20, 438 125 Boyce, ex parte 24, 1 ')!», 345 177, 215 Boyer V. Town of Woodstock 24.521 181 Boyne, ex parte 22, 228 3(1 Brewer v. Brewer 22, 450 117 Briggs V. McBride I'.t, 202 13!), 221 Brown v. Maltby 20, !)2 43 V. Vaughan 22, 258 204 ex parte 25, 5!)8 242 Brownell v. Ila worth 21 , 11 8 Buckley v. Russell 24, 205 143 Burke v. Clarke 18, ()ti2 . ■''' Cahill V. Cahill 18, 438 (j Calhoun v. Rourke, et al 1<), 5!)1 84 V. Un. M. Ins. Co 1!), 13 122, lf;7 Canada Life Ins. Co. v. Calkins 24,270 101) Carleton Ry. Co. v. Grand Southern Ry. Co 21, 331) 18(J Carman v. Dunn 23, 335 70 Carter v. Landry 11), 510 4!) Casey v. Hannington 11). 282 1)3 Chapman v. Doherty 25, 271 05 V. Providence Washington Insurance Co 11), 41)0; 20, 91 ; 23, 105 5!), 00, 122, 130 V. Delaware M. Safety Ins. Co 11), 4!)6; 23, 121 51), 1.^0 V. Mutual Safety Ins. Co. .11), 28 122 Cheesemau and wife v. Hatheway 23, 415 22!) Chestnut v. Dovle 24, 505 05 Clark V. Griffiths 24, 507 104 V. Kimball 23, 412 ,V2 V. Town of Portland 1!», 181) 213 ex parte 24, 128, 023 (i7, 77 TABLE OF CASES. 203 VOL. OK ItKl'OltT.S AMI V.WV.. IXI'IA I'AdK. Clemeutson, ex parte 20, 413 121 Clarke v. Calkin 20. 0 5 Colwell V. Robinson 21. 4811 ; 23, C.'.l ir,, i:,{) Commeau v. liurns 22, .')73 S2 Coniuii,'lier v. Parlee 24, 'iH'> 'yii Connell v. Yerxa IK, ")37 145 V. McLeod 22. 310 02 Connelly v. Hhives, et al.exts IH, (100 "), 14S Coram, in re 25, 404 117 Cormier v. Ottawa Aj^l. Ina. Co 20, 520 125 V. McKee 21, 1 01 Cook, ex parte 22, 557 105 Cou-^hlan, ex parte 24, 30rt 14'.» Coujililin, ex parte 22, 032 37 Coulthard v. Caverhill 25, 84 8 Copp V. Read 1'.), 455, (Ul 14, 217 Courser v. Kirkbride 23, 404 04 Cox V. McMann 10, 121 lOH Cruikshank v. McAvitv 20. 352 3 Currie v. Stairs ", 25. 4 200 C vr V. Ouilette 20, 204 100 D De Forest v. Holland 23, 411 02 Delaney v. McDonald 23, 130 lO.S Delon^ V. Burrill Johnston Iron Co ... . 25, 140 155 Derrv v. Derry 20, 00 ; 10, 021 i, 70 Deveber, in re, ex parte 21, 307, 401 32 Dezeter, in re 20, 267 11 Dibble, ex parte 25. 110 See Errata Dickie v. The Western Ass. Co 21, 544 120 Diffin V. Dow 22, 107 03 Doe dem. Appleby v. Secord 22, 377 171 Barnes v. Belvea 10, 541 .SO Barnett v. Roe 10, 102 85 Bennett v. Mnrdock 20, 317 57 Black V. Cof^swell 10, 44 220 Brideau v. Budreau 22, 5.")0 145 Chambers v. Douj,'las 23, 484 115 Crothers v. Koe 10, 138 173 Doherty v. Brown 10, (105, 008 87, 91 Dorionv. Roe 23, 307 80 Estabrooks v. Towse 22, 10; 24, 387 158, 173 Elliott V. Flangan 25, 154 21 Feri^uson v. Roe 10, 337 85 Gallant v. Roe 22, 423 87 291 TABLE OF CASKS. Vill,, OF Kl'.l'OUrS ANI> PAUK. m INIiKX I'MIK. Doe (Ifin. Jones and wifo v. Nevorn. . . . IH, i\27 llasen JKl JlllllfH .7K V. Liiski'y .... V. Kector St. dnircli IH. 47!» 'M. ir.f,. 47;) irciitlicoto V. Hiit^lies VK :«W 142 .Jiirvis V. TritfH 1!», 171 h\\ lIllSKOll V, (' 'tlitlis •_'(). ll.'t lllll Mayor of S. .loliii v. Roe. .-'l, :t.'>7 ; 'J'», Mil n7, SH U.uikin V. Aiiilrcws •_'2, 12") I'Jit V. Cli.vrlton '21. UK 117 KiinouM V (rilhert 22, '>H'> 2;t!t Wooil V. J)l' Forest 2;i, '2(>'.» l.V.I Dolicrty, ex parte. 2/), :js. r.7 Domvillo V. O'Brien 1h, ti'iC, 4 Dooliiui V. F.eFoivst 21, .')•'.:< 21'.» Doisa'' V. C.'oiiiiell 22, r)(i4 11") DoiithVite V. St'jeves 21, ".1". I'.U Dowliiiii V. McNeilly l'.», I'i ',i:l DriHuoll, et al. v. Meliville Ma. Ins. Co. 2:5, IdO llH Drury'H Will, in re 22. ;il.S 2:tH Dnni'i V. Allen 24. 1 2H Dwyer. et u.\. v. Town of Portlaml, in re 20, liiU 21.'i m ' ; ■1 ■ , E •■,1: Estahrooks v. Sears... 2(t, •".lO ; 2:',. •".!:! HI. 1:17 ex parte" l'.>, •-'>:< IS V. ^Ic(Jowan '22, i'l'i r.d Eastern Townsliips Bank v. IIannin'4on is, f,:U 2)i, ls() Earle v. liotsfonl 2:!. Iit7 s;!. l:;4 Eihvanls v. Unr^ovne 21, ■-!2S 14s V. Mavor, etc., St. JoJni 2'i, 2'.i7 llK Elliott V. Parks 2:J, r,ll r,:i Jlllis V. Powers 20, 10 lOr, Everitt, et al. v. Lvn.ls 20. ■'•''.t2 42 Fairley and Wilson, in re 2-">, ")iiS 242 Farrel, ex parte 2.'., 4()7 Fawcett, ex parte 24, 22S .:!8 111 Fer^^nson v. Dumville I'.l, ■")70 22 ,.;I2 l'^7 HI re 21, 71 14, 2.15 V. Savov 28, 87 (Id V. Troop 2.5,440 U.i V. Johnston li». 27'.l e.K parte , l'.», 117 %i TAULB OF CASES. 295 Vl)I<. OF IlICronTH AND PAOE. INDEX PAOB. Fkmiim V. N. Britiuli ami Morcaiitilo Ills. Co '20. ir>:i ' r.rt JMewilliuj,', ct 111. V. Lawrence "J I, "»2!l r»7 Flood V. Moi rissoy 20, n fiO e.\ parte "JH, HCi '2(\ ForbcH V. Temjilo 'I-i, oil 21'2 Ford V. Keid 'Ji:\, '220, r,H'.) !», 170 V. BrowHer and wife 21. 510 147. 227 Fox, in re 20, aill jri Fox and wife v. Mayor, etc , St. John. .2:{, 241 115 Foxwell V. Smith . .' IS, 4;i',» If.ft Frank, et al. v. McClrath 2r.,4!t!» 120 Fraser v. lUlock 2r», ")5 i'l."* in re 24, 24:> 200, 211 Friar v. IMcCiowan lit, 2') 228 V. Wiliiiot, et al. cxra 2H, ■■>4() ; 10, ".21 110, .120 Fiirlin;^ v. KnHsel 24. 47H 54 G Gannon v.Chaiiman 21. 2^)1 ; 18. 440 02. 156 (Sallant v. Calder 2;{. 7;» 107 (rerow V, Prov. U. Ins, Co 25, 2711 03 .Holt 412 182 Gitchell V. Bnrchill 22, 031 [>-l Gibson v. (Jill Ill, 505 1<.»2 V. N. li. A Mercantile Ins. Co.. .10, 052 157 Gilbert v. llavniond 10. :{15 ' 28 Ciilchrist v. Dom. Tel. Co 20,241 223 Gillis V. Morrison 22. 207 04, 142 Gleason v. Domvillo 10, 17 120 Gliddon, ex parte 24, 250 29 (ioldin-,', ex parte lit, 47 213 Good V. (Jood 22, 4:V.t 208 V. Merithew 24, 100 Goodens, ex parte 25. 151 . Green v. St. John & M. llv. Co 22, 252 03 210 187 V. Harris 21. 41l(; 55 Grey v. Chapman 24, 542 177 Cirieves, ex ))arte lit, 4 . . VIO Grifliths v. Town of Portland 2;i, 551» 171 Gru^ain v. Lam^is 21. 511) 01 Groves, ex parte 22, t)21); 23, 38 ; 111. 4 24, 37, 14(5 Guy. et al. v. llanken, et al 23, 411 143 V. Brady 24, 503 148 H Hackett, ex parte 21, 513 Halifax Banking Co. v. Smith 25, 010 Hall V. McFadden I'J, 340 ; 21, 586 36 . . . . 242 18l», 190 296 TABLE OF CASES. VOL. or REPORTS AND PAGE. INDEX PACK. Mi' i Hamilton, et al. v. Dumphy 21, 214 13 V. Simpson 19,407 li)-2 V. Calder 23, 373 223 Hannington, in re 20,413 121 Hanson v. Venning 22, G3'J 225 Harney, in re 24, 623 C7, 77 Harnett v. Wry 25, 258 G7 Harris v. Clavton 21, 237 208 V. Green 25, 451 201 V. Fowle 22, 388, 572 107, 175 Harrison v. Aiton 20, 371 Ill Hayes, ex parte 23, 313 37 Hasen v. Hasen 20, 70 232 Hasen v. Town of Portland 24, 332 173 Hen«y v. Bostwick 24, 414 53 Hickey, ex parte 23, 467 42 in re 24, 245 200, 214 Hickson v. Loban 24, 358 137 Hilyard v. Wood 19, 39!) 23 Holstead, in re 20, 512 6 Hoar V. Lewis 22. 286 56 Hotham V. Philips , 23, 136 .52 Howard and Crani^le, ex parte 25, 191 39 Hutchinson v. Shireff 20, 25 193 V. Trustees, etc 19, 65 220 Hyneman, ex parte 23, 480 176 1(1 ingraham v. Parks Intercolonial Express v. McKenzie , . 19, 101 220 .24, 616 63 t: II •■ ■if Jack V. Lyons 19, 336 80 Jackson v. McLellan 18, 694 ; 19, 432 14, 46 Jonas V. Gilbert 20, 61 33 V. Marshall 20, 64 33 Jones V. McMillan 19, 378 Ill V. Municapality of Albert 21, 200; 20, 78 77, 152 V. DewoKe, et al 23, 356 52 V. Tuck 23, 447 135 V. Maritime Bank 20, 544 33 V. Landry 22, 417 28 V. Milliken 22, 315 25 V. Morgan 22, 338 5 ex parte 19, 104 .59 Jordan v. Great Western Ins. Co 24, 421 133 a TABLE OF CASES. 297 13 .... 11)2 .... 2-2S 121 225 . . 67, 77 07 .... 208 .... 201 107, 175 .... Ill 37 232 . . . . 173 53 42 200, 214 . . . . 137 23 6 5(5 52 3i) .... 1!)3 ....220 . . . . 17(5 220 . (53 .... 80 14, 4(5 . . . . 33 . ... 33 ...111 77, 152 . ... 52 , .. 135 . . . . 33 . . . . 28 , . . . 25 VOL, or nKpnpTs and paok. index vxap.. Kane, ex parte 21, 370 40 Kerry, in re " Keiller v. Chariers, et al " ' .' .23, 493 . . 1 u-j Keenan v. Trustees ot Leinster St. Bap- tist Churcli 22, 11 • 21 211 (j-) 1-4 Kerr Executrix, etc. v Squires 22 ' 448* ' " 1' 1 44 V, Stevens, et al 22, 124 ..... ". i. i^^ ex parte v. Thorne is, G25. .". King, et al. v. Murray 22, .^82 Kingston v. Wallace ' ' 25* 573 ." jvlnnear v. Black .21* 272 14 Knox, et al. v. Gregory .'•" -21,' 19(1! .'.".'!!.".'! .'i i!! " •>-, . 1(58 . . 24 . 23!> 243 La Banque Nationale v. Beckett 25, 145 Vill»i Marie v. Lord) ^• 21, 273 Landry v. Town of Moncton . . .\ 24^ lo3 Lantolom v. Anchor Marine Ins. Co. . .22, 14. ..... Law v. Landry ' itj'j'^ijo v. Harding '///'[ 19,' 590 "; " 20,' 120 . Lawless, ex parte jg ,520 Leigliton v. Deering ..'2l] 440 Lemon, ex parte ! ! ! ! 2o' 5(53 Leonard, et al. v. Griiifin .' . ! ! 2li 188 Lewin, ex parte ly' 425 .' '2*3 ' ;/()"i' Lipsett, ex parte ' '2,5' fi(T . ! ." ' Loane, ex parte 22, (529 Lockhart, exr. v. Ray, et al '.'.'....20, 129 Lynds v. Turner . . .'. '22,' 28(5 Lunt, et al. v. Lloyd 21 " ^2 Lyon V. Barnes , .^) -,.-," 28 HI .... 20 . . . 127 23 .23, (50 ....18 . .. 195 . .. 113 , . . 121 . 18, 20 ....42 .... 24 .. 232 . . . . 5(5 .. 154 . . . 175 133 M Mailer, ex parte 22, (532 Magee v. Mayor, etc., St. John '..OH, 27.1 Magner v. Hutchinson 21! 221 v. Sullivan 2I.' 53?' Manchester, ex parte , . 25, 552 Manser, ex parte ! . 23 31.^ Maritime Bank v. Carvill ......24, 250. V. McKean 22, 52(5 V. Guardian Ass. Co.. 19, 297 Warehousing Co. v. Nichol8on.24, 170 , Mar !;s v. Newcomb 22, 419 Marshall v. Armstrong, et al !!'..'.] 21 1(52 37 85 '=^7 212, 238 212 78 37 29 175 122 151 105 95, 102 M «' m nn 298 TABLE OF CASES. vol.. OV r.lOl'Olilri AND PACiK. INDEX PACiK. Mayor, etc., St. .John v. Patclmll "i'i, 17;{ 170 V. Lockart ^'A, i;{0 (»5 V. Masters 1<», 'tH't 170, -JIS McBean, ex parte 'it, 'M','2 210 McCall V. Gillespie 21, OS l 01 in re McCleave, ex parte -1. McCormiclv v. McBride '-^'^^ McDonald v. :Mayor, etc., St. John -1. ex parte -'^ V. Potts --• McFeo V. jMowatt ..'.'. . .............. .1''. '-''''^ 102 McGilvray v. Grant 1!», ^17 104 :McGil)bon v. Burpee, et al 2."), 81 <,)7 IMcHuah V. Murray 'il, 12 o8 Mcludoe, ex parte 2:{, ^58 ;-!7 Mcintosh V. Hamilton lil, 1 ; IH, Oo4 28, 12U, l.-)0 McKean v. Commercial Union Ins. Co.'21, ^>x'.i 120 McKiught, ex parte 2:5, 272 211 McLaughlin v. McLeod I'.l, '""^^K 121 McLood V. James IS, 4:5'.t l;;") V. Pve 21. 212 20 McLellan v. Barnes I'.i, ^>'M ; 21, 22() ; lU, ;{71 oil, 01. 174 V. Davidson 20, X^^^^ 2!) V. Kankine 22, I I'l 0() :Uo ;5y 12 !t4 ;m) ; 2"), :U8 ; 20, 114. .15,-), ISS, lito .")12; 21, 57 ;i4, 214 140 140 McManus Blakeney 25, 210 ;)2 V. Walsli 22, ;W2 SI McMillan v. Walker 21, :U 50, 15;5, 174 Mc."\Iullin, ni re 2.i, ;iS2 181 IMcNair v. Stewart 2 4, 471 ;)7 :\IcPiierson v. McKeenan I'.l, H 141 ^McKory v. Mc Alpine 2 >, 557 27 ^IcSorl'ey v . Mayor, etc. St. John I'.i, 4 isV -U- N icholson, et al. v. Temple •>() 24M • -'1 Vi> Vi "<"i Nevers, ex parte i(( .3 ' ' ' " '^' "j j O O'Brien v. Churchill 24, r,i\o , Orr, ex parte ' ' 20, 07 . ORe.,'an v. Quobeo cV Gulf Port^ Steain- shi[) (Jo p.), 528 O'SuUivan v O'SuIlivan ." .' .' .' ." .' .......'. P.', 3'.M) . . Otty, et al. v. Crookshaiik, et al ..'21, Itlli Oulton antl Allan, in re .' . .25, lii Onlton V. A llan '. '. [ 25, ;iii'.l Owen, ex parte .'-iO, 4s7 171 Fourier, ex paite Powell V. Wark V. Haunin,i,'ton Price, ex parte Prince iif Wales Coal Co. v. Oaman. ,25, 211 .23,511, 10, 57 ; 22, 55!) 23. S-, . 177 . 34 .. 7 . 10 237 . 27 . People's National Baidv v. Stewart. . . . ]s,' 20^ Peters v. Waterbury 24.' 151 V. Ilamilton ^'.l, 2sl Phair v. Vennin,i,' •_>2, ;i(i2 Pheeny v. Aiken •2-2] o.j,-, Philip V. McLaiii^dilin . . 2I.' 532 Philips, ex parte 21," 111) Pitfleld V. Kimball . . . .2.'>, \UA 27 . 20, 1(12 . . . . 221 . ... 114 104, 170 . . . . 221 4 . 30 1.S3 107 108 . 01 210 215 Pomares v. Muuih Ins. Co. . . . . .' . .' . .' .' .' Is.' (15 1 ' .' ^' *^' j -j! Porter v. ]\Ic:\Ialion ' Purchase v. Seelye m 5^,) 71, 200 3S -0, 15 i,-,7, 201 135 42 03 22, 115 I 171 ■:l.,| 300 TABLE OF CASES. Q VOL. OF REPORTS AXI> P.VOE. Quickly River Boom Co. v. Davidson. .2), jISO IXI>F.X PAGE. 24:} B m'i' §■ TJand, ex parte 24, Randolph v. Taylor, et al 20, Ranney v. Sheraton 25, Raymond v. Dom. Tel. Co 24, Record v. Record, et al 21, Regiua v. Blair, in re McCarthy 24, in re Hickey 24, in re Keary 24, Blair and Stapleton 24, Burtt 22, Budge.., 20, Close ly. 374. 2()4 521. 337. 277 245 : 72.. 74.. 245 51 . m , liiO 78 t)3 102 24, 71 200. 214 214 , 214 200 , 3(5 531. 502 V. Corey 22, 543. v. Dayton, et al 21, V. Dibble, ex parte Shaw 23, V. Dewitt, ex parte Shaw 23, V. Dewitt 21, V. Ellis 22, V. Ferguson 20, V. Fredericton 1!(, V. Gilbert 18, V. Grimmer 25, V. Hannington and Walsh 23, V. Horseman 20, V. Long, et al 21, 1!)5 30 . 30 . 17 . 440 25i». 139. . . . 93 2, 11(5 ...70 . . 174 . . . 37 , .. 37 . .. (58 .■4,Vl . . . 38 ()19 33 424, 480 140, 181 540 71 529 71, 133 208 110 V. Marsh 25, 370 (5, 21(5 V. Mayor of Fredericton 19, 139 209 98 V. McCafferty 2.), V. Morrison 18, V. Mulholland 20. V. Municipality of Charlotte 22, V. O'Neil 19, V. Risteen 22, V. Rose 22, V. Rose Milne 20, V. Simpson 20, V. Perley, in re White , 25, Shannon 23, Sullivan, in re Dwver 24, Theal " 21, Tower 20, Waddell 25, White and Perrv 25 Wilson, et al....! 21, 39(5 (582 G8 478 112, 11(5, 192 (]3() 140 49 17 51 3(5 309 37 394 44 472 41 43 215 1 71 483 . 178. Richard v. Simpson 20, 118 149 215 449 •») 1(58, 478 68, 71, 97, 112 93 103 182 19 182 TABLE OF CASES. 301 VOL. OF UErOKT.S AND PAGE. INDEX I'AGK. Richardson v. Vaughan 2 i, 7o . 3!) liiO 78 t)3 .... 102 .200, 214 214 .... 214 . ... 200 8(j !)3 .. 2, 11(5 70 ... 174 37 37 m '.'.'Xn 38 33 140, 181 7i .71, 133 .... 110 . . G, 21t) 209 OH 68 IK), 192 . . . . 140 17 3(5 37 44 41 .... 215 71 . . . . 215 (59 , 97, 11-2 . . . . 103 .... 182 19 .... 182 Robertson v. Robinson v. V. Rof,'ers Rose V. Jones, et al 20, 2(57 Clarke 20, 150 Ellis 19, 0.. V. Ferguson 23, 332 V. N. B. Ry. Co 23, 323 V. Shireff 25, 08. , V. Topley, et al 20, 301 V. Colwell 23, (59. V. Wallace 24, 459 Schoetield 25, 127 Ross, ex parte 21, V. Citizen's Ins. Co 19, Ross and Wife v. Town of Upper Mills22, Russell, ex parte 20, V. Buckley 25, V. Bishop 24, V. Legere 24, Ryan, ex parte 24, S 257 120 . . . . 1(58 53(5 ; 25, 2(54 .... 298, 322 29H, 322 528 .... 437. ..34 03, 105 . 58 . (50 121 22(5 188 202 100 150 . S3 121 . (59 122 102 , 39 143 158 1.58 177 Saint John and Maine Ry. Co. v. Mont- gomery 21, 441 ; 22, 252 180, 187 Sayre v. Le Blanc 23, 147 ,i(j V. Harris 18, (i77 ; 22, 142 24,03, 119 Schoefield et al. v. Corvill et al 21, ,5.58 44 N. Bk. Patent Tannery Co. . 22, 599 l'2') V. and Wife, Sherriff, etc 18, 443 . .' .' ." . . . . .' ." .' ' ' ." '. '. ', [ .' ." ' " " .' .' ' ' 22(5 V. Chapman 25, 20(5 ..............'.'.'.'... .!.!(), ir,H V. Cormier 25, 487 lijl Snowball v. Muirhead 22, 5(51 15 V. Stewart lit, r)<»7 ".'....!.!!....!..!!. 157 Somers v. Wilbur 20, 502 '.'.!."..!....... 12 43 Southwest Boom Co. v. Pauley '25, 41 ..'.!!!!!.!!!,!!".!.!.!.. ,". (57 302 TABLE OF CASES. VOL. OK REPORTS AND PAGE. INDEX PAGE. Hi- IP' Spurr V. Yennin{{ 22, (i^i) 22.5 Staclacona Ins. Co. v. Ilainsforcl 21, 80!) ()") Star Kidney Pad Co. v. McCarthy 23, 88 17, KiH Stather, ex parte 2o, 871 113 Steadman v. Venninf{ 22, (18',) '22') V. Robertson IH, .580 108 Steeper v. Harding, et al 24, 148 8 Steevea et al. v. Foxwell 28, 470 23 V. Sovereign Fire Insur. Co. . . . 20, 804 128 V. ex parte 22, 5.58 iy,5 Steplienson v. Fraser 24, 482 !)8 189 V. Hoar 24, 014 ^ine Works Co. v. Camp- bell 22, 503 184 Watt V. Scrith W. Boon Co li), (j-ii; 14 Watters v. Millif^an 22, (;22 8 Ward V. Outhouse et al 22, 220 104 V. Keed 22, 279, 4.55 (ilj, 140 Weldon v. O'Sullivan 19, 402, 441 1(), 217 West V. Trustees School District 22, 5(i 119 Wetmore, in re 1'.). ()89 25 White, ex parte 20, 5(i9, 552 ' 84, 41 V. Riley 24, 47f5 ..'.'.'.' '. (;5 Wheeler and Wilson Manuf. Co. v. Charters 2I, 480 51 Wilbur V. Jones 2I, 4 ; 19, 53() 13, ()8, 91 Willett V. Lockhart m, (137 KM Wilson, ex parte 25, 209 109 Williamson, ex parte 24, ()4 ".!'.'.*.!..!!. 140 lt')2 Woods V. McKav and wife 2I 109 • ''0 'n\-> >)H '^07 V. McCann 25 253 11 ()7 Woodward, ex parte 2I, 221 ' . . . 135 Woodman v. Town Council of Moncton lo, ;^;{,s _ ' ' '_ ' ' '_ "_ '_ '_ ' '_ " ' '_ " '_ '_ '_ ' ' ] ^ "_ " j^yj. Worral v. Brideau 22^ 502 ". '. '. '. '. '. . . . . . . . ..!.!! . . . '. 195 Youn^claus v. Wallace 24, 8(J5. .27 89