Vol.l.J [No.8.

R E p·O R l' S OF

A s E s ARGUED AND DETERMINED

IN THE

SUPREnfE COURT OF NEW BRUNSWICK,

WITH A TABLE OF THE NAMES OF THE CASES.

BY JOliN C. ALLEN, ESQUIRE, B01'rister al Law.

r;:ONTAINING TH& CASES OF :HILARY TERlII IN THE THIRTEENTII YEAR OF

QUEEN VICTORIA, lS50.

SAINT JOHN, N. B.

PRINTED BY WILUAM L. AVERY: lHn'::;SWICK PRESS, PRINCE WILLIAM BTRE!::'!'.

1850.

T ABLE OF CASES CO NT AINED IN THIS NUMBER.

Page. Bacon v. Hoar-Bond and warrant of attoT71e,Y-Setting aside for

fraud-Affidavit of consideration, - - - - 664

Rank of British North AllIerica v. Fisher-Assumpsit-Replication de injuria, - - - - - - - - 606

Beardsley v. Stepheoson-Assigneeofbankrupt-Power to sue after repeat of act, 631

Rlakslee v. The Saint John Water Company-Construction of sta-tute-Duty imposed on public company, 639

Boyd v. Kennedy-Limit bond-Breach-Improper designation of limits, - - - - - - - - - 624

Bustin v. Howell-Review-Certiorari-Costs, 5~6

Crawford v. Willox-Administrators-Assets-Real estate unsold, 63.1

Dcn d. Fauls v. Fen-Mortgagee defending as landlord-Costs of setting aside J ud,!!;e's order for, 633

Doe d. Hill v. Todd-Amendment of demise-Delay, 601

--- Mewburn v. 1\1 'Guire-Trustees of ab:;condill!j debtor-Power to convey land-Fraudulent conveyance, 6J:l

Donohue v. Todd-Omission to serre rille nioi-Enlargement of rule, 598

Dunn v. IIowanl-Laudlord and tellallt-Refu~al to take possession, 6J.")

Ferguson, Ex parte-Statule labor ael-Notice of time and place of meet ing-ell!"t iorari, 6133

Fluglol' 1'. Richards-Review oftaxatioll of costs-\Vaiver of objec­lion-Voluntury atlelldance of witness-Charge for attendunce, 59!)

Good v. Bnll-Covenant for title-Bl'cach-J utlgmcnt non obstante veredicto, 603

Jb~sell v. Wil"on-Pleading-Concnrrent acts, 618

Jones v. ~llOdgra~s-Pr((ctjcc-l;' ~. ,.,·ing causcs 011 motion paper, 603 'Jillion

O'Brien v. \Vetmol'e-Clerk of House of Assembl,Y-Pel'sonltllia-bility-Quantum meruit, ;")tH

Regina v. \Veb,tel'-Indictlllenl-Olfcllccs cOlllmitted on voyages-Act 12 Viet. c. 30, 589

Rennie v. Hankin-Mt'mbers of .:lsmnblY-Pl'oceedings against-Privilege from Ul'rest, 6::!O

\Vilson tI. Jones-Slter!ff-Escape-Form of action, 659

CASES .'RG~ED _\'ND DE'I'ERIU!NED 1"5U.

IN TIlE

SUPREME COUR'f OF NEW BRUNSWICK, IN"

II I L A It Y 'I' E R 1ft ,

IN TIlE TlllRTEENTH YEAR OF TIlE REIGN UF VIC'fOIUlI..

e---

THE QUEEN against WEBSTER aut.! ANOTliEIL 1'dCStiilfj,

fit/I, Fc/,ruaT!J.

TilE defendant:,: in this case were convicted before Parker, nil v t le act :J J., at the sittings for the counly of York after last Trinity Vicl. c.30, So 34,

\

0 d to h °d 0 0 0 where any felo-term. " que~tIuI' was reservc or t e consl eratlOn ot tillS "y or misde-

COllrt under the provisions of thc Act of Asscl11lJly for COIl- m~anor is com· mltted on any

soliduting and improving tlIC law!! relative to the adminis- I'crSOll on board . t' . . I 0 • I") L" 30 '~7 ( allY vessel em· tratlOn 0 CrImma Justlcc, :.. Y let. c. , S. u a). and the ployed on any

sentence was resllitcd in the mcantime. It al)l)eared Ly the voya~cbol tl any JJavwa C fiver

case stated, that the indictmcnt charged the defendunts with &c.,o.ucl. of· . . fence tna y be

havlllg cUl11l1l1tted UII assault upon one Ja/m L. llIarsh, at dealt Wilh, tried.

Fredericton in tlte County of York. The assault complained determined, and pUDlshed III allY

of was provcd to have beell committed on board a stcamboat county through o • 0 • any part uf

on the nver Smut Jolln, 111 the course of Its passage frolll which slIch ves·

Saint John to Predericton, before the steamboat arrived within ~)~:~~'l:~h: the county of York, and while it was passing throuo-h anodlCr course ~fthe.

o passage III whJch county; and the qucstion for the opinion of the Court was the otfence was

h h d I l Oti h 0 f h h 0 commllted in w et el· un er t le t l1rty ourt sectIon o· t at act, t e 111- the sallle ~all.

diclment ought not to have alle<Ted specially that the offence lIer as if it had _ !:> actually been

was committed on hoard the steamboat on her voyage. cOlllmitted ill

G. W. Ritcltie for the defendants. The Jud!!es have no "IUIeClhdcloullty.: .... , D on lll~

I,ower to try any offences at [he sittings except such as are dictmellt for an assault comollt.

committed within the county of York, unless there is some- ted 011 board a .. steamboat, on i l~

passago bctweeu A. and B., but before II came wilhiu the county of B., that it was sufticient to allege that the ,,,sault took plUCcl within the county of B.

(a) Sallie as the Act of l'arliament 11 & 12 Vi';l. c. 7~

VOL. I. V:2 thing

1~!50.

'f1l9 Qn't~ flgai, .. ,

\\' E B.-r E 1<'

CASES IN HILARY TERl\l

thing in the act 1~ Vict. c. 30, cxten.ling the jurisdiction beyond that given hy the 5 Jfm. 4, c. 37, s. 6. The thirty fourth sect ion of tho former act declares " I hat Ivhen any " felony or misdemeanor shall be ('ommitted on any per~on " on board Any vessel or boat whatsoever, elllployed on any "voyage or journey upon any navigable river &c., such .. felony or mi3demeanor may be dealt with, inquired of, tried, .. determined and pUlJished in any county through any part .. whereof such vessel or boat shall have passed in the COllrse ., of the journey, voyage or passage, during which such fe­" lony or misdemeanor shall have been committed, in the " slImo manner as if it had been actnally committed in such .. county." This act does not take away the juris(Jiction to try the offence in tho county where it wa~ cOlll/uilled, and therefore in order to gin! a jurisdiction to the Court in uny olher county, the indictment should have desclibed the facts as they actually occurred, in order that the defendants may know with what offence they are charged, alHi also, in case they should be again indicted for Iho same offence in either uf the olher counties through which the Loat passed, that they /\lily he able to plead autrefois cOlwict, and prorlnce the record of tllis conviction in support of their plea. There is nothing on the indictment to identify the offence cOIlHl,itted with that of which the defendants are convicted. The aver­ment of the place where the offence was committed is u neces!'ary part of the description, without which an indict­ment is void. By common law, the trial must have taken placo in the county where the offence was committed, and the prosecutor was bound to prove that the offence was com­lIlitted in the county where the venue was laid, 1 Chit. Crim. Law 17i; and therefore where a wound was given in one county and the death took place ill another, the venue could not be laid in either, and the offender went altogether unpu­nished. 3 Ins. 48. In Rex v. Mellor (a), whet'e the offence was alleged to havo been committed in the county of Not­tillg/lam, but was proved to have been committed in the town 0f Nottingham, which was separated from the county and "':v1 an exclusive jurisdiction, it was held, that though by

(a) R~· Ry. 144.

Act

I~ TilE TIlIRTEENTH YEAn OF VICTORIA.

Act of Parliament the indictment might be preferred in the county, the fact should have been alleged according to the truth. In llex v. Cartwright (a), the offence was so des­

criued. If it is not necessary to describe the place truly in proceeding under the thirty fourth section. why wus it neces­sary in the next section relating to prosecutions for forgery, to declare, hat the offence might be indicted, " and laid nnd charged to have been committed" in any county whcre the offendcr should be apprehendc:l ?

J. A. Street, Q. C., for the Crown. The section of the

act under which this offence was tried, is a copy of the English act 7 Geo. 4, c. 6/1, s. IJ; and what appears to be conclusive against the defcndants, is tI.e auscnce of Hny pre­cedent of un indictment charging thc offencc in the manner contended ful'. Though it is nece~~ar'y that timc and place should ue laid with ccrtainty in an indictment, it is not IIcces­sar}' that they shollld bc laid according to the truth: nil !hut is necessary i!l to shew that the place was within the juris­diction of the COllrt. Arch. Grim. Pl. (91 h ed.) 40. The act clearly gives thc Court jurisdiction, and the eighty fifth scction dcclarcs that no judgmcnt upon any ine\ictment shall be arrcsted " tor want of 1\ propel' or perfect venue, when " the Court simll appear uy tho indictment to have had ju­" risdiction over the offencc." There is nothing to prevent the defendunts from pleading flutrefois call viet, in case of another inllictmcnt, becausc tlwy wOllle\ UC ouliged to aver and prO\'c the identity of thc (lH'ences, Arch. G,i1ll. Pl. 91 ; thereforc it is of no coo~cquencc whether thc offcnce is des­

criued llccol'l\ing to the fact or not.

Cllr. arlv. vult. Clllr~IA~, C. J. nolV (\e\il'N('lllhe jlldgment of the COllrt.

Thi~ was tho case of a conviction ut the sittings for the county of York ufter Trinity term lust, in which nnder the provisions of a lute Act of Assemhly for consolidating and

improving the laws relative to the aci!llinistl'ation of criminal justice (b), a qllcstion IVa" rescrved for the consideration of the (;ollrt, and the sentencc was respited until the ncxt sitting!>.

The indictment charged the defendants with having com-

(a) 4 T R l!HI. (b) I':? Vice , .. :lil, s. 34.

mincel

591

1850.

TRS QUF.E" againsl

\VEBiTER.

592

1850.

'filE QUEEN

against WEBSTER.

CASES IN HILARY TERM

mitted nn assault on one John L. Marsh, at Fredericton in the county of York. The assault as proved at the trial, ap­peared to have been committed on board a steamboat on the river Saint John, in the course of its passage from Saint John to Fredericton, but some time before the steamboat arrived within the county of York, while it was pas1<in; through another county. There was w) doubt the Court had juri1<­diction over the offence, and that tile trial might properly be had in York county; but the objection taken, ,vas that the indictment should have alleged the special circumstances which enabled the Court to try it, namely, that the offence was committed on board the steamboat while on its passage from Saint John to Fredericton. The point being raised for the first time, and it bring important as a guide to future prosecutions that it should be settled, aftel· careful examina­tion we have heard it argued, and taken time to consider it, and we have made inquiry as to the forms of indictments used in England in prosecutions for offences under similar acts, and the conclusion we have come to, is that the indict­ment is sufficient, and that the defendants were properly convicted.

It must be admitted that there would be no great difficulty in specially charging the offence to have been committed as it must be proved to have been committed, in order to bring it within the jurisdiction of a Court sitting in and for a dif­ferent county from that in which the offence actually took place, and such a form of indictment might have the advan­tages insisted on at the argument; but the question is, whether the act requires it. The enactment so fur as it is applicable to the present case is, " That when any offence " is committed on any person on bo:ud of any vessel or boat "what.soever, employed on any voyage upon any navi­" gable river, such offence may be dealt u'ith, inquired oj, " tried, determined and punished in a;;y ccm;~y through any " part w hereof the vessel or boat shall 1m vo pas~cJ in the ., coursc of the vDyage, in the same lIla:H:CI us if it had ne­" tually becn committed within such county."

Neither the wurJ "inflicted," nor the words" laid und duuged to 1:11·C be:::" cc:rnmittcd in the county," arc used in

till

IN TilE TIIIRTEENTIl YEAR OF VICTORIA.

the thirty fourth section as they are in the next seclion, the thirty fifth, in regarrl 10 the crime of forgery, and it is perhaps in consequence of these particular words having been in­serted in the thirty fifth Sf)CI ion, that this d()ubt has arisen in regard to the thirty fuurth ; but we think that the terms " dealt with and inquired or," are sufficiently comprehensive to include the indictment or information for the offence; amI this appears to us to ha ve been the obvious intention of the Legi!<lature. It is only in fact putting the charge in criminal proseclltions on the same footing with that in civil actions, where the venue woulrl no doubt be tmnsitory. It is trlle that in a civil action the defendant might change the vellue, hilt that is a different malter, which does not affect the present question, as it is admitted on all hanos Ihat the defendant may be trierl at the option of the prosecutor, in any of the counties through which 01' any part of which the vessel passed in the course of the voyage.

It is possible, though in the general course of criminal pro­secutions by no means probable, that the inconveniencies which have heen suggested at the argument, will arise from the general form of indictment, namely, that a defendant will not have sufficient knowledge of the offence with which he is charged, or that he may be liable to be twice triell upon the same charge; but if so, it lies with the Legislature, not the Court, to supply the remedy. No inconvenience of this sort occurred 01' is likely to occllr in the present case.

Some doubts arose in OUI' minlls from the statement at the end of the case of Regina v. 'Whiley (a) ; but we ha ve oscer­tained that the reporter has not correctly stated the opinion of the Judges as to the conviction ill that case, and that this was pointed out in a velY recent case, Tile Queen v. Smi­tlties (b), by Parke, n., who said there was no difference of opinion among the Judges, although Lord Denman had some doubts. It is stated, in n report of the snme case in I C. lY [(ir. 150, that the convict ion \Va" supported.

Conviction ntllrmed.

(a) ~ l,food. C c. 18r.. (b) 13 JUT. 1031

593

1850.

TilE QU>:E' against

WED,non.

.')!H CASES IN lllLARY TERM

1650,

O'DltIEN against WETMORE.

'NDE[lJT_~TUS RASllml)sit tilr work llnd labor, trierl before TIo" clerk of tloA UnlloeofA •• elll· Park~r, J., flt the sittings after last Trinity term, The bly, in the ab· I f" A bl 1 h .enceofan ex· defendant was the clerk of the louse 0 sselll y, an( t c pre<>. contract~ aClion was hrOlwht 10 recover payment fOl' clltting wood, .s personally I.a· " !lIe toa per<on OlllkinO' fires, and c1canin<T rooms in the House of AssemlJly employed by . '" ,., 'd . d I f£31" him to cut wood, <llIrm; the years 1816-7, hesl es a private emanr 0 ;~S,

~~ar~~r~~e:;h:~d The plaintiff gave genernl evidence of the performance and mellial servico. value of the worl., II nrl also pr-cduced in evidence the contin-for the lIutlso of . A •• embly. gent Rccounts of the Assembly for those years; wherehy It

Inan action (If I h h" II . II d d indebitatus /U' appeare. t at t e .0 OlVlIlg sllms IVel'C a owe to nn re-sumpsil.to rcco· ceive4i by Ihe defendant ill the conlin"ent account of the ver payment for . " thoso services, sessIOn of 1846 : the plaintiff~ave ... . . . in evidence the .. 40 cords of wood, Including cUttlllg, sphlung and plltr.g, £37 10 contingent 3C' "Man for n~tenjing e.lerk's office, IU',lking fires, and} 5 0." connt of the As- cleaning committee rooms dUrlll" the recess .embly,whereby ,,,, it appeared that A \. L' .. 18 17 I .. II . a slim of money nt III Ille coni Ingent account lor '%, t 16 10 oWlllg slims: had been allow· " Edward O'Brien's (plaintilT) account for labor, £4 14 1 ed to the defen· oS d d' t d ' [" d d~nt for the "~cor 3 woo , inC U IIlg CUltlllg, sp Itllng an I 26 5 0." plaintiff's .ervi· haulll1g, . I ceo: Held, that the plaintiff was In order 10 prove the pilyment of the plaintiff's demand, the Ilotboundbythe d" I i1" l' '0 I I I ,I I I' IImollntaliowed, elenl ant 0llere4 In eVI once severa c lec {S urawn )y 11111,

but might recoh· payable to Ihe plaintilf or hearer, which checks had been paid ver more on t e quantummcruit, at the bank, bUI Ihere being no ovideuce to connect the plain-

tiff wilh I he paylllent, they were rejected. It was eontende(\ tbat the defendant was not personally liable; bu~ I he learned Judge directed the jury, that it was a qllesti(m for them 10

say whether the plaintiff did tho work on the personal res­ponsilJility of the defendant, or trusting t9 the Assembly for payment, and for services like these it was more reasonable to suppose that the plaintift'looked to the .1efendant for pay­ment, and he relied on the Assembly; at all events the defendant was clearly liable for any amollnt he had received for the plaintiff in the contingent account. Afler giving credit for certain payments, the learned Judge thought there was evidence to i!lIpport the plaintiff's claim to the extent of

£12

li'i III!:: TlllltT1:E:,\'l'1I Yt.:AR 010' Yll"l'OI:lA.

£12 6s., and thcl'c might be a question whethcr olle uf the paymcnts did not apply to work of the prcvilJlI~ yeur. Vcr­(Iict for the plailltiff, £15 lOs.

J. A. Street, Q. C., in Micltue{11Ias term last, obtaincd Ii

rulc nisi for a lIew trial on thc grounds of misdirection, and that the verdict was against cvidcnce; or to reduce the da­llIages to £12 6s. Cormier \". Tliibideau (a) \\'It~ ,·ilcd.

D. S. Kerr now shewell cause, and contcllded that it was It questioll fur thc jury, tu wllUm thc CI cllit was given, Gilbert v. Porter (b); that it would be UIII'l!ASOIIUblc tu suppose that for such services, the plaintitJ' cOlll1'aclcd wilh lhc defclllialit as a public agclI!, particularly where the defendant had the money in his hands. Thc value oj' Ihc wurk wus cutirely a qucstion for thc jury.

J. A. Street, Q. C., contra, urged that there was nothing to !Ii stinguish t hi, casc flO III the gCllcral rule of law exempting (lulJlic oilicers frolll personal liahility; and that it was a ques­tion of law whcdler till! defelldant contracted in his public or private capacity. That the plaintiff huving relicd upon thc contingent account to prlJI'c thc umount ullowed, could 1I0t go bcyond that !'unl ; alii! c\'cn if thc defondunt wut! liat..le, there was no el idCIJl:C to justify thIJ verdict to tho extent tOllnJ.

Clttl'MA;';, C. J. There is no doubt about tho defendant'tI liability. It would be absurd to say that tho Province wali liable for these mcnial services. On the other ground: there was clear evidencc to support a verdict to tilc extent of £12 6s., and sOllie evidence as to the remuinder; and I alii not disposed to disturb tile verdict for such 11 trifling amount.

CARTER, J. In an employment of this kind, a dcfence that the party is a public officer is not available. If the de­fendant did not wish to be liable for more than the House of Assembly gl'anted for the worlt, he should have made a con­t!'act with the plaintifi~ for otherwise hc is liable on the quantum meruit. Suppose thc House of Assembly had only allowed £1 for thc work, would thc plaillliffhave been bound

by it? PARKER, J. I should horc bcrn better satisfied if the

(Il) ) Krrr 207. (b) 2 Kcrr 390.

ICl'did

5f).')

1850.

O'!J''''N IIgfli7lSt

\\' ,1 lIOH>:.

,")!)(j

!t;50.

O'th"EN af:"insl

\\'1. f'\10f{f.

CASES IN HILARY TERM

verdict had been for £12 (is., but there was general evidence of other worl,. The qUC8tiOll is, whether the plaintiff diJ the work on thc credit of the defcndant 01' of the House of As­!';embly? and the object of granting the money bcfore the work is donc, scems to me to put an cnd to that question so far as the cutting of wood is concerned. I think the con­tingent accounts were put in cvidence for thc double oLject of shewing that the work was not done on the public credit, and that the defendant had the moncy in his hands. If thc dcfendant did not wish to be liable beyond the SUIlI granted, III: had it in his power to gual d himself by a contract; an(l if he did not do so, he 111l1St be liable on the quantum meruit.

Sl'I~EET, J. It would be prcposterous to hold that the (lcfendant is not liable: it would prevent him from getting any work done for the House of Assembly unlcss he had the money in his hand. Then, unless he makes a burgain for u

t=<pecific sum, it lIlust rest on the quantum meruit. Rule discharged.

BUSTIN against HOWELL.

ThoprocceJing" THIS \Va" nn action of replcvin for cattle, tried befure a JII re"lcviu be· J 1I"lice of the Peace, under the Act of Asselllbly I ff'm.4 J fore a JustICe of tho Peace under c. 9, in which a verdict was given for thc plaintiff'. An ap-the act 1 II'. 4, I' 't' . d II' 1-" 1\1 J . c. 9, cannot bo I' IcatlOn 101' a revIew was lila e to IS 1.0nor I'. ustlce re.moved into Street, whQ referred the question to the Court. The cause tlus COllrl by an , orderforreview, havmg been called on 3S provided in UT tt t' I I' 'ff' I' d I . I L' the Justices' act n a s, 101' tIe p amtl , c aline t le ng It to cglll. 4 W, 4, c. 45, PARKER, J. I think the Imrty who obtains the order for The mode of reo l1\o~al is. by I'e\'iew shuuld begin. CIlIPMAN, C. J. That is the practice. reT/IOTan. J A S Q C t' h . The jurisdic- •• treet, . ., 101' t e defenJant. By the mnth sec-tion by breview tion of the act, a Justice of the Peace is authorised to issue a cannot e ex· tended to ~ases writ of replevin where cattle aro impounded for tresllassing, not nalll8d III the I I d act 4 W, 4, c. 45. W len 1 Ie amage does not exceed fi vc pounds; and the same

If all ordcrfol' is t b I .J d t .' J L tl J' . h review is made 0 e leal an lie Y le ustlCC" 1Il t e same manner, by a Judge in a case where he has no jurisdiction, the Court has no power to gi\'c costs to the party OppOSIn~ the order.

The party obtai~ing all t;rdl'l for review, has Ihe right 10 begin at the hearing.

" and

IN TIlE TIIIRTEENl'l1 YE.\R OF VICTORIA .

.. and agreeable to the provisions of un act fOI the more " speedy recovery of small debts." Tho act here referred to is the.')O Geo. 3, c. 17; the thirteenth section of which provided an appeal from the judgment of the J IIstice by cer­tiorari, to be granted by a Judge of the Supreme Court. This act is repealed by the 4 Wm. 4, c. 45, which regulates the proceedings before Justices uf the Peace in civil suits, and substitutes for a certiorari, an order of a Judge of the Supreme Court for a review of the proceedings in the Jus­tices' Court. The words of the seventy eighth paragraph giving the reviewing jurisdiction are, " That in all cases " of judgment rendered before a Justice of the Peace in .. civil actions" &e. Nothing can he more comprehensive. If it had been the intent ion that the remedy in this case should be by certiorari, and not by review, the Legislature would certainly have limited the time of applying for the writ, as was the case under the act .'50 Geo. 3, c. 17, and as is also the case uuder the 4 1V7II. 4, c. 45, on applieatiolls for review. [PARKER, J. The review is in the nflture of RIl

appeal; can you apply it to any actions Ollt of rhe Rct of 4 If'm. 4? Trespass, trespa:ls on the case, and trover, are expressly mentioned, but replevin is not.] The reason for giving the remedy by review applies as mueh to Retious of replevin as any other at:! ions, and though it does nut eomr. within the word" of the act, it certainly comes I\' itliin tlw mischief intended to be remedied; which was the delay und expense of determining su(;h sllIali matters on certiorari. The Courts have always Lccn liLcral in construing remedial acts, and by an cquitaLle con~trllctioll, a case not within the letter of 11 statute is sometimes held to be within the, meaning, because it is within the mischief intended 10 be remedied; so as to suppress the mischief find advance the

remedy. Dwarris 011 Sial. 734. CHII'MAN, C. J. This case does not COIIIC within the

provisions of the oct 4 H'1II. 4, c. 4.'5, and there can be no jurisdiction by review except in thc cases named in the act.

CAHTER, J. I am of the sallie opinion. Had I found the

remedy in the repealrd act 50 G.3, c.17, the sUllie as in the nct 4 IV1I1. 4, c. 45, I shoulll ha ve thought t hero was a good

VOL. I. E2 Ileal

597

1850.

HU9TI~ againsC

HOW&LL.

598

18500

U usn N

af!flin~t liuw, 1.1 •.

CASES IN HILARY TERl\l

dcal ill the argument; but when I find the remedy under the repealed act was by certiorari, and that such remedy can stili he had by common law, I Ihink there is no remedy by review. The same question came before me at Chambers a few years ago, find my opinion then was, as now, that the remedy was by certiorari.

PARKER, J. The remedy is by certiorari, for it is clear that the act 4 Wm. 4, c. 45, was never intended to apply to actions of replevin. A Jutlge has no jurisdiction to review unless it is given by t.he Het, and it is impossible to extend the review clause to any case where the proceeding is not tinder that act.

STltEET, J. I thinl;: there is nodotlbt about the case. I refetretl the fJuestion to the Court in ol'del· to have it finally settled.

Watts Ihen applictl for costs of appearing to oppose the applicatioll.

Per Curiam. lVe have no power to give costs. lVe neither affirm or reverse the judgment, but merely dismiss the order for review, quia improvide emanavit.

Rule accordingly.

DONOGHUE against TODD. Wednesday, 6th February.

A rule nisi for a new trial had been obtained by the Where a rule nisi has not been plaintiff in last Trinity term, returnable in Micltaelmas, but 5en'ed. some h d b dId ti d ' d rea.on mnst be a not een serve on t}e e en ant s attorney, an an ap-shewn for the plication was now made by the plaintiff, after notice to the omission. to in-duce the em,t defendant's attorney, to enlarge the rule and compel the de-to en!arae it. fi d ' h ti h The o"vr 1ica• en ant s attorney to enter t e cause or argument un t e tion tohenlargea special paper, or in default thereof, that the plaintiff might nle S ould be made in the term be at liberty to move to make the rule absolute. The affi-in which it is d' hO h h· d retulnable. av}t on w IC t e motIOn was ma e gave no reason for not

having served the rule nisi, except that the defendant's counsel was present in Court when it was obtained, and the belief of the plaintiff's attorney that the defendant's attorney was aware that the rule bad been obtained.

The Solicitor General in support of the motion, urged that where

IN THE TIIIRTEENTH YEAR OF VICTORIA.

where through inadvertency the rule nisi was not served in time, the Court would enlarge or revive it. [CARTER, J. The omission to serve the rule here was not through inad­vertency.] Where the application was made by the party who obtained the rule, the Court usually granted it, where it was his own delay, and where it would not have the effect of detaining the opposite party ill custody; which it would not do here. 2 Cltit. Arch. (6th ed.) 1212. [PARKER, J. You should have applied last term 10 enlarge the rule.] In Row­bottom v. Ralphs (a), the rule was revived on an applicatien made in the term after the one in which the rule was re­turnable. [CARTER,.T. That case is not in point: there was not tillle there to serve the rule before the day on which cause ought to ha\'e been shewn, but your affidavit shews no sufficient reason why the rule was not served. It is saill in Chit. Arch., that sufficient groullds for enlarging the rille must be stated.] The only reason appeared to be, the pre­sence of the defendant's counsel when the rule was obtaincl!' [CHIPMAN, C. J. You wish to establish a preccdent withollt any rcason shewn.

Per Curiam. :\lotion dismissctl with costs.

(<1.) 6 Dowi. 2(1l.

I'LAGLOR agaillst RICHARDS.

599

1850.

DONOGHUE

against TODD.

THE Solicitor Gelleral moved for u rcview of the taxation . . Where 3 pn .. ty (I" costs In tillS cause, and to compellhe defendant to refund hasattendedt.!-

to the plaintiff any sum that mi!!:ht be found overclmr!!:ed for tatiodn ofcostts. af-LJ ~ er tie no Ice,

witnesscs fees. It appearct\ that the plaintiff' had brought \Vithont mnking o . any obJectJon to

two actions for an alleged trespass upon land-one agalllst the witnes.es

the defendant aloDe, and thc other against the defendant and ctlharbg:elldhfor in le I , e can-

five others-which actions were tried at the last Kina's not afterwards 0" • I:> apply for are.

county CirCUit, and a verulct found for the defendant ID each. view oft.xatioD. '}'h . 0 I I d f d . d fi On the disco,oery e actIOn agalllst t If.: sercra e en ants was tne rst, offacts whi~h he

and the same witnesses on the part of the defcnce were might have known at the

time, nnless a fraud hn< been practiRed upon him, or he h&~ been greatly misled. If a witness attends voluntarily. it is not ne~s.ary to serve him with a snbpama, in order to be

oDtitlcd to charge for his attendauce.

called

600

1850.

FLAGLO!\ again$'

RICHAR[;S.

CASES IN HILARY 'fERl\1

called in each case. Due notice of taxation II ad been given to the plaintiff, and the names of the witnesses stated in the copies of the hills of costs, and affidavits of their mileage, at­tendance and materiality, served upon him: the plaintiff'iI attomey attended the taxation of costs on the 19th October, but made no objection to the charge fOI' witnesses. About a 1lI0nth after this, and after an execution had been issned, the plaintiff sent his son to the defendant to complain of his having charged for the sallie witnesses in the two suits; and from the conversation which then took place, the plaintiff learned that one of the witnesses, named Graves, had only Leen served with a suhpoma at the Court, on the day tbis cause was tried; and it was stated in Graves' affidavit that he was not sworn as a witness in this cause, and was not in attendance at the Court more than three or four hours after he received the subpmna. It also appeared by the plaintiff's affidavit, that one of the witnesses charged for by the defen­dant had been subpmnaed and paid by the plaintiff (a), and that another was one of the defendants in the former suit. I Chit. Arch. (Sth cd.) 329, Trent v. Harrison (b), were cited.

Ritchie opposed the motion, and produced an affidavit of tho defendant, stating that a short time before the COIll­mencement of the circuit he accidentally met Graves, and from conversation he then had with him, believed him to be n material witness, but not having time to procure a sub­pmna, requested bim to attend the Court, and promised that his expenses should be paid; that his attorney advised him at the Court that Graves would be a material witness, and directed him to keep him in attendance, which he did, until after the tdal; and that all the witnesses chal'ged for in the Lill of costs, attended the trial, and were material, and that he had paid their expenses. He contended that if the at­tendance of n witness was bona fide a subpmna was not ne­cessary, and that all the ohjections now made, were known to the plaintiff before the costs were taxed, and should have been made bcfore the clerk.

The Solicitor General contra, urged that the fact of Graves not having been subpronaed could not have been known with-

(a) ~e6 Murray v. Willi3!OIl, Ante, p. 4~:~ (b) 2.DolCl. Sr /,. 941.

out

IN THE TIHRTEENTII YEAR OF ,'ICTORIA.

out the application to the defendant. [PARKER. J. It is noc necessary to suhprena a wilnes~ if h~ attends ,·oluntarily.]

CHIPMAN, C. J. After rcceivin,g notice of taxation a party is bonnd to make infJlliries, norl to makp h~s objections to the charges at the taxatioll: if he .ioc~ not d~ ~O, it is too late to apply to the Court nfrerwnrlk

CARl't..:R, J. I am of the "fllllC opinion. It woulll only be in cases of gross fraud tliat I qllOllltl hp inclinf'n to review a taxation of costs, where tho parly cr.rnpl>lining n<>es 1I0t

malie the objection at the time. PARKER, J. If the plaintiff had III~E\iIl greatly misled. 1

should have been inclinell to grant a review; hut 1I0t in such a case as thi.,. The rule of Easter term (ll) provides again8t such difficulties as this, by requiring the names of the wit­nesses and the days of their attendance to be specified in tilt, bill of costs: that rule has been complied with, and it i!l too late now to lIJake any objection.

STREET, J. All the facts cOldd have been ascertainell before the taxation, and the objections made at that tillle.

Rule refused with costs. (a) /Jntc, p. 438,

DOE on the <lemise of HILL and O'flIERS against TODD.

601

J850.

FLAOI.OR

"~flin3t R,CHARD.,

TilE declaration in this cause was entitled of j}Jicltaflmas Where Ill. de­

term 1843 and state<l a demise for fifteen years eommencillO' mise slated in a , 0 declantlOn of

on the 1st January, 1832. I n February lS4.!, the defendant ejectmpnt had

b . d J d' d II' h' I expired the CI tame a u ge s or er, a oWing 1m to amen< an agree- COlI't r~fll.ed,

lIIent fur a consent rule which he had entered into, and to "Ifler a delay of . .. . t )ree yean, to

defend for an undivided thUd part of the premIses, and con- allow the plain-

ti I d · I I . hi' 'ff tiff to amend by ess ease, entry an possessIOn on y, eavlng t e p ainu to extending the

prove an ouster at the trial. In MicTtaclmas term 184.'), an demise, though II was suggested

unsuccessful application was made to rescind this order (a), that the defend-

I I d I ant wOllld set up and to have t Ie consent ru e so amen e( as not to compel the .tatllte of Ii·

the Illaintiff to prove an ouster. mitation. ao II defence to II ne\\'

The Solicitor General now mo\'ed to amenll the declara- action,

tion by extending the demise for the period of sel'cn years, (fT) See 3 Kerr 2!l3,

on

60:!

1850.

Doe demo HILL

(I Jr(J.insl TUII.,.

CASES IN HILARY TERM

on an uRid.Hit of the plaintift' '8 attorney stating that the plaint ifl' intended to have gone to trial at the Charlotte assizes in April last, when it \Vas discovered that the demise had expired; that the reason for not going to trial sooner was the ina~jlity to procure evidence of an ouster; that one Freeman H. Todd had purchased the defendant's right to the property since the commencement of the action, and intended, if a new action had to be urought, to set up the statute of limitations as a defence.

A similar application had been made to 1\1r. Justice Parker at Chambers, in last Trillity vacation, who refused to mal,e an order, but gave the plaintiff leave to apply to the Court.

Thomson contra, contended that the affidavit shewed no sufficient reason fol' the amendment, and no reason why the lessors of the plaintiff had so long slumbered on their rights. The demise was allowed to expire in conseqllence of neg­ligence, and it was now too late to amend unless the lessors of the plaintiff could shew some probability of their ueing aule to recover if the amendment was allowed, and also unless they cOlild satisfy the COllrt that the granting of it would work no inj ustice to the defendant. Doe v. Tuckett (a), Bradney v. Hasselden (b). He also produced an affidavit, stating that Freeman H. Todd had expended about £90 in buildings on the property in 1847, which he would not have done if he had thought the lessors of the plaintiff intended to proceed in the calise.

The Solicitor General in reply, urged that if Todd had a right to the property, it could not inj ure him to allow the amendment, and if he had no ri~ht, it was his own folly to expend money upon it. The case~ cited were not in point, because in one of them the matter had been allowed to rest for nearly twenty years, and in the other forty: here only six years had elapsed since the suit was brought, and the delay was fully accounted for.

Per Curiam. The application is too late. The delay of three years is not accounted for; and to allow the amend­mcnt would establish a dangerous prccedent.

Motion refused.

(fL) 2 B. ~ .iZd. 77::. (b) 1 B. 0/ C. 121.

IN TilE TIIIRTEF.~TII YElP. 01' VICTORIA.

JONES against ~~ODGRA~~.

1850.

Thursday, 7t" Februury.

IVilson moved to enter this cause on the motion paper (all Where a callso the causes upon it havinrr been disposed of) in order to ob- has nol been ell-

. 0 , lered 011 Ihe mo-taw costs of preparing to resist a 1II0tion of which notice had lion paper ac-b . b h d r d I. I' I I cordinglolJolice een given y t e elcn ant, uut W IIC I hac not been made, Ihe parly 10 •

nor the cause entered on the motion paper. \~hOmSllch no· f lICe was given rhe Court at first doubteci whether the fIIul ion IIUO'hl not Illay apply 10 Ih .. h b d d· I '" . f Court for leave to ave een lila e sooner, accor wg to I Ie authol'lty 0 to enter il. in

Seelye v. Williams (a)' but U'lon consideration said that it orderto obi"'." • , 'J ' cos's, ImOledl-

should be con,itiered the practic(1 in f"ture, that motions of atelr afler Iho I . . h b d' I' I l'. I . mollOn paper I.

t liS nature mig t e rna e Imme( lale y alter tie mollon finished. paper was gone through.

Leave granted.

(a) Since reporled, .Qllle. 1'. ~42.

(;oon against E[\D.

Til tS was nn action for a breach of covenant, given uy tlte To an HClion of act 26 Geu. 3, c. 3, s. 20 (a), upon the words "grant, bargain chovenanl upou

• , , . t e word~. and sell," in a conveyance 01 land. 1 he declaration stated" grant, b.r~ain that on the 24th June, 1840, by an indenture and deed of ~~~:e~~~:~:r baro-ain and sale made between the defendant of ,he one land. assigning

o . . , as a breach the part, and the plaintiff of the other palt &c., the defendant III existence ofa consideration of £50, did grant, bargain and sell unto the r:~oJef.~rd~:fc,

Plaintiff his heirs and assiuns, all that lot or pal'cel of land &c. pleaded that tho • ' l:' " mortgage was

(settmg out the deed); and the defendant did by the said recorded in th .. . d d f b . did b' f h public records mdenture or ee 0 argam an sa e, an y virtue 0 t e and that the . statute in such case made and provided, for himself, his plaintiffreceived

the deed subject heirs, executors and administrators, covenant, promise and to sucb mort-

d . h hi' 'Lr I' h . d . h h g.ae: an issue grant to an Wit t e p amtlll, 1l!> elI'S an assigns, t at e, th:reon havin.; the defendant, notwithstanding any act done by him, was at bheend f~uDd for

t e elendaDt. judgment was given for the plaintiff, non obslante Tlllf'edulo: the plea being no answer to the action.

The covenant is broken immediately. Blld Ihe plaintiff need not wait until he is evicted, before briDging his nction.

(a) Re·enacted by 10 Viet. e. 42,6,25.

the

60-1

11'\50.

(1001,

uguinst ENU.

CASES L~ HILARY TERM

the dille uf the cl:ccution of the said indeuture or deed of

bargain and sale, seized of the hereditaments, lands and pre­mises thereuy gruuted, uargained and sold, of an indefeasible

estate ofinheritaoce in fee simple, free from all iucllmurances.

Averment, that the defendant at the time of the execution

of the deed, was not seized of atl estate in fee simple free from ull incumurances, because t hat before the making of the said deed, to wit, on the 7th Septt:mber, 1837, the

defendant by indenture of mortgage, made between the defendant of the one part, and J. Cunard of the other part, granted, bargained and sold the said tract or Jot of land and premises to the said J. Cunard, his heirs and assigns forever; by reason of which premises the plaintiff has acquired no I!stale or title in or to the said land and premises &c., and has not only lost and ueen defrauded of the said sum of £50, but has also lost a large sum of money, to wit &c., expended uy him ill improving the said land. The defendant pleaded­ht. That at the time of executing the deed to the plaintiff he wns seized in fee. 2d. That he did not mortgage to Cunard h"IiJre (,xecuting the deed to the plaintiff. 3d. That before /Ilal\ill:;' the deed of hnrgain and sale to the plaintiff, to wit, nn the 7th September, 1837, the indenture of mortgage fr»1n the defendant to Cunard had been made and duly recorded ill tllC puulic rceonls of the county of Gloucester, for the infor­

Illution of all Her Majesty's suujects, and that the plaintiff re­ceived the said deetl of bargain and sale from the defendant, well ({nowing that the mortgage to Cunard hatl been previ­ously gil'en; and that the deed of bargain and sale was gi ven

by the defendant and taken hy the plaintiff suuject to the said mortgage. The plaintiff replied, taking issue upon this plea.

At the trial, before Street, J., at the last Gloucester circuit, the two fi!:st issues were found for the plaintiff, and the tllird for the defendant; the learned Judge conceiving the covenant

to be only an implied one, and that no right of action accrued until the plaintiff was evicted under the prior conveyance.

In Michaelmas term last, Allen outaincrl a rule nisi to enter

judgment for the plaintiff on the third issue, non obstante ve­redicto, on the ground that the issue was immaterial, and

t hat the covenant, being express. was broken without eviction.

The

IN TilE TUIRTEENTII YEAR OF VICTORIA.

The uct 26 Gco. 3, c. 3, 8.20, and 2 Sugd. Vend. &- PUT. 537, were cited.

J. A. Street, Q. C., now shewed cause, and contended that the covenant arising from the words " gmnt, bargain, und sell," was only intended to protect the party from fraud, or an incumbrance of which he was not aware; and not to a case like this, where the plaintiff hfld knowledge of the in­cumbrance. The issue was not immaterial; and the plain­tiff'was not entitled to judgment non obstante veredicto, on the ground of the insufficieney of the defendant's pleading, when

the issue on the plea was found for the defendant, unless such plea implied an admission of the plaintiff's title. Pim v. Grazebrook (a). This plea was an answer to the action.

DesBrisay in support of the rule, ul'ged that as the act 26 Geo. 3, c. 3, s. 20, declared that tl>e words "grant, bargain and sell," should amount to an express covenant that the grantor was seized in fee, free from all incumbrances, it was unimportant whether the plaintiff' knew of the mortgage or not: the covenant couftl not be qualified, and the plea was no answer to the action. The covenant was broken imme­diately upon the execution of the deed, and the plaintilf was not bound to wait until he was Clvicted, befure bringing the nction. 2 Sugden 537. The bare existence of the incum­brance was the gist of the plaintiff's complaint. As to the I'luintiff'l3 right to judgment: this was just the case in which it ought to ue granted. The plea was bad in suustance, alld JIlight have beelll!elllurred to; it confessed that the defendant had no title; and the verdict, which merely shewed that tho plea was true in point of lact, could not entitle the defendant lO judgment. Stcph. Plead. (4th cd.) 107.

CIIIPMAN, C. J. It is very clear that tlte defenJant can­Dot qualify his covenant ill the way attempted by this plea. The plaintiff",; lwowledge of the mortgage was Jlerfectly

jmmaterial. CAHTEH, J. i ,dll ,,( the sallie opinion. p,\IUHm, J. Tlw del'l:lIdant undertouk tu convey the legal

estate ill fce silllple, and lIot lIIerely the e(}uity of rcdelllpti"a. The plea i,; 110 UI1~\\cr til the (lction.

(/I) 2 c. ll. ,121).

VoL. l.

605

1850.

GOOD

again8t Elm.

606

181'>0,

GOOD

"J!aillsl l~~ "

CASES IN 1I1I,ARY TERM

STREET, J. My attention, at the trial, was not dil'ectell to the words of the act; if it had been, I should have directed

the jury differently. Rule absolute.

THE BANK OF BRITISH NORTH AMERICA agaillSt FISHER.

De injuria may ASSUMPSIT by the indorsee against the maker of a pro­be ~ go.od reph. missory note for £1160. The declaration contained tWO catlOli In an ac· tlonofas",lIupsit, cOLlnts; the first, alleging the note to have been payable at the andi;nntconfin· I d ,-, h b bl II ed to actions of bank-t 1e secon , statlllg It to ave een paya e ,~enera y. tort. . The defendant Illeaded: 1st. The general issue. 2d. That

In an actoon by the indorsee the promissory note in the first count and the promissory note a uaonst the rna·, I .J f h d I' 'd d k~r of a pro. III tIe seconu couut 0 t e ec aratton lIIentlOlle ,are one all mi~,ory note, the the same (}romissory note, and not divers or different· and delendant plead. , ' , ' ed '<elting Ollt that before the malung of the promissory note, to WIt, on the nil the facts), 24 h A 1847 F d' 'I f y: k ' that the note l ugust, ,at 're erzcton III t Ie county 0 or, It was dlscollllted was COI'I'1I11tly and aO'ainst the form of the statute in such by the pial ntlffs ' ' '' on a lIsnrious case made and provided, agreed between the defendant and contract be· , , tween the plain. one George Taylor, the manager of the bank of BrztlslLNorll, ~!~tl~~~'~c':;. America in Fredericton, acting on the behalf and as the agent tion, de injuria, of the plaintiffs, that the plaintiffs should lend and advance Held good, •

to the defendant the sum of £1000, upon the following terms and agreement, that is to say, that the defendant should take as part of the said sum of money, bills of exchange for .£700 sterling, at a premium of JO pet' cent., and the balance in cash, less the discount of three months, being the period specified for the note hereinaftflr mentioned to be made to secure the said sum of £1000 to run, and that the defendant ShOlllri leave the remainder of the £1000, after deducting the discount of three months and the price of the bills of ex­change, in the bank, to his (the defendant's) credit until the 18th September then next following; and that the plaintiffs would forbem' and give time for the payment of the said sum of .£1000 for three months, and would l'enew the promissory note to b(' made to secure the same, from time to time, until

the

IN THE THIRTEENTH YEAR OF VIC1'ORIA. 607

the then following summer, the defendant agreeinO' to pay 1850. £100 on the first renewal thereof, and that for s"uch loan T B

HE 01<11: OF

and forbearance the defendant should pay ]0 per cent. pre- BRITISH NORTH

mium for the £700 sterling of bills of exchange, being 2 per ":~~~:t cent. more than the cash value of the said bills of exchange; F,IIHER.

and which said additional 2 pel' cent. was for forbearing and giving time fOI' the payment thereof, and in addition to the lawful interest of 6 per cenl. on the sum of money loaned. And that in pursuance of and in part perfol"lllance of the said cOl'rupt and unlawful agreement, the defendant afterwards, to wit, on the 24th August, 1847, at Fredericton aforesaid, made and drew a promisllory note for £1000 in favor of one Charles Fisher, which was indorsed hy the said Char/Is Fisher and one John L. Marslt, and the defendant then and there delivered the said promissory note so made and indorsed. to the said George Taylor, agent of and for the plaintiffs, on the terms aforesaid; and in further pursuance of the said corrupt and unlawful agreement, on the same 24th August, the said George Taylor, as the agent of the plaintiffs, did lend and advance to the plaintiffs the sum of £1000, by crediting him with the amount thereof, less the interest of three months, in the books of the bani., and on the following day did as part of the said sum of money so left in the bank, pay and deliver to the defendant bills of exchange for £700 sterling, which at the rate of 10 per cent. pl'emium, amounted to £855 lIs. Id., being 2 per cent. or £15 115. lid. more than the current cash price of bills of exchange; and the balance of the Slllll of £1000, less three months interest, remained in the bank to the credit of the defendant until the 18th September then next following; and thal the said 2 per cent., amounting to £15 lis. I:}d., f'xceeds the rote of £6 per annum for forbearing for £100 for a year, by the sum of £15 115. l:1d. And the defendant further saith, that when the said no(e became due, to wit, on the 27th _7\~ovember, 1847, he paid the slim of £100 in part payment thereof, and the discollnt of three months interest on t:,c rencwal note for £900 hereinafter mentioned, ami renewed the said note by drawing ancl making a note for £900 indor!!led as aforesaid, which he delivercd to the said George Taylor for the plaintiffs.

And

608 CASES IN HILARY TERIU

And that after the last mentioned note became due, to wit, on the 13th December, 1848, the defendant renewed it by

THE BANK OF • 'd h .\ B RITISH NORTH O'ivinO" a note for £1160, IOdorsl!tl as aforesa. ,to t e sal!

I:> 0

1850.

AME',lICA GeorO"e Taylor as u:l'ent of the Ilinintiffs, and which last men-atTamst I:> "" F~~HER. tioned note for £1160 was made up by irrcluding therein the

said £900, being the balance (less the interest paid at the time by the defendant) of the original note for £1000, made in pursuance of the conllpt and unlawful agreement afore­said, and another note for £260 due amI owing by the de­fendant to the plainliff...;; which said note for £1160 fell due on the 16th March, 1849, and the rlefendant renewed the la~t mentioned note by drawing and making the promissory note in the first and second counts of the declaration mentioned, which he (lelirered to the said George Ta,l/lor, the agent of the plaintiffs. And the defendant furthel' saith Jlmt the last mentioned note. being the note mentioned in the first and second counts of the declaration, and a renewal of the ori­ginal note for £1000 in the introductory part of this plea mentioned, was made by the defendant to secure the pay­ment of the slim of money so corJ"lJptly and unlawfully agreed hy the dcfendant to be paid to the plaintiffs, and which slim of money so unlawfully anti corruptly agreed to be paid, exceeds the Iawfnl interest of 6 per rcnt. pel' year, for the forbearance of the money so loanc:!, hy the "um of £15 lIs. lid., contrary to the statute in such case marIe and provided: whereby, and hy force of the str.lute &J',., t he promissory noto in the rleclaration mentione,j is wholly void. Verification.

Replication. That the defendant of hi!" own wrong, and without the causes by him in his pIca al\egeil, broke his pro­mises in the first and second counts of the declaration men­tioned, in manner and form as the pinintiffs have in the said declaration complained against him.

Demurrer, assignin!;' the following causes: That the repli­cation de injuria is inapplicabie to an action of assumpsit; t hat the plea is not matter of eXCllse, and the replication de injuria is therefore not applicable; that the plea discloses n contract illegal and void in its inception, nnd does not admit n contract, the performance of which the defendant seeks to excuse; and that the replication de injuria is inadmissible

under

IN TilE TmRTEENTH YEAR Of VICTORL\. 609

under the form of pleading hitherto adopted in thi" country, 1850.

and is not authorised by any law in force here, or by Hny rule THE BHK OF

or practice of this Court. Joinder. BRITISH NORTIf A\l£HI(;A

The plaintiff also gave no' ice of a number of objectionI' to against

the plea; the principal of which were, that it averred that f .. ,HH.

the note set out in the first eount and the note set out in the second count of the decl" ration. were one and the same; that it was multifarious and double, and put in i!;Slle ~everal distinct and independent facts; anll that it did not shew any usurious consideration in tho note in fJuostion, even Ils~"ming the original note to ha\'e been usurious,

J. Ir. Cllandler in support of tlw demli'l rer. The repJir.a­tion de injuria in an fiction of as;;1I III psit is ne\\' in t"i~ cOllntry. though it has recently I.cen very milch IIsell ill El1[illlnrl. Iti'l application appear!" to have been first r1isr,,~of'(1 in Crngaff'.<

case (aJ, but from that time down tothe year 18:113, no I'l1g"

can be fouud where it has Leen atlmiltell in flny other than:11'. action of tort. In Selby \'. Ell/'dons (b), it was II!'I'II in an action of replevin. Before the rulcs framplI hy the J illig,,: in England t\nder the act 3 & 4 H'm.4, c. 42, nearly all rn:ll( .. r~ of defence in assumpsit and dellt on ~implp- rflntrad, could have been given in evidence lInder thc gl'neral i~slle; uut since those rules, it being neccssary to pleml nearly all matter~ of dcfence specially, the COlllts, to rClllc") the incon\'eniencf' whieh plaintiffs suffercd, in heing compelled ill tlieir replica­tion to single out and talw isslle upon one filCI, a11l1, accord i II:!, to legal principles, admit all the rest, have from time to tilll" extended the principle of Crn~ale's CflSI' tn act ions of as­sumpsit; hut in Crisp v. GrU/ilhr. (t), nnll Xr".[ v. Rich (rl), it was dOllbted whether this replication was applicahle to such net ions. Isaac v. Farrar (e) appears to be the fil'.,,(

case in which it was decided that such a replication ":a~ good in an action of assump~it. In COl/'l,er \'. Garbett (/), C. B. Pollocl, says, that nntil the ncw l'Illcs camc into opera­tion, this rcplication was confincll to actions of tn'spas'l, rcplevin, anJ octions on the ea,!'. As those rules havc nor

(I!) f3 Rep. 66 b, (e) !Z C, A'.~ fl.le"I; 5 T,/'" lHI, (.) 1 M, 6t IV. fi,j. (f) J3 .U. ~. II'. 33.

Ii.) ~ B. & Arl1. (11) :! C . .AT S' R :JG'I

!'j TIIT,r h:{I.!.

hecn

tHO

Itl50.

THE B,\NK OF llHITI,n NORTH

A:\fERICA

against F'SHER.

CASES IN HILARY TERM

been adopted in this c:ollntry, the maxim cessante ratione legis, cessat ipsu lex, is applicable. If stich a replicatiun had been pleaded in the tillle of LOI'd KenYfJll or Lord Ellenborough, it would not have stood a moment-there was no necessity for it. [P.\RKt-:R, J. 'Vas there any necessity for your plea? If you plead a plea to which such a replication is applicable, can you deprive the plaintiff of it~] If the replication is adlllissible at all in this counlry, it is only where the plea sets up matter of excu~e. which this plea does not, and theretore it docs nut fall within the second resolution in Crogate's case. In England, in an act inn on a prolllissory note fonnded on an illegal consideration, the replical ion de injuria is admis­sible: but there is this distinct ion; such a note there is only void sub modo-it is good in the hands of a bona fide holder without notice of the usury, by virtue of the act 58 Geo. :1, c. 93, hut as there is no such enactment in this country, the case of an indorsee of such a note in England is very dif­ferent from the case of an indorsee here, where the note is void in the hands of a bonafide indorsee. In all the cases in England down to Bemlelt v. Bull (a), where usury has been pleaded, and the replication de injuria held sufficient, the note has been in the hands of an indorsee. Scott v. Cltappelow (b), Gibbons v. Mottram (c). The opinion expressed by Coltman, .1., in Scott v. Cltappelow, that the replication de injuria is propel' where the contract declared on is void in law, was unnecessary ill that case, and is not supported by authority. In JUlies v. Scuiol' (d) such a replication was held bad, where the plea amounted to matter of discharge, not of excuse; and that is the critel'ion of its admissibility. Secondly, as to the objections to the plea. The first exception is to the al­legation that the note set out in the first count and the note set Ollt in the second count, are one and the same. This is a very convenient tiJrm of pieaJing, as it saves the expense of a "pecial plea to each cOllnt; but whether it is sufficient or not, it is only the suhject of special demurrer, and is cured by the plaintiff's pleading over. Purcltell v. Salter (e). The ~hief objection is that the plea is mllitifarious. But it is not

(11) II Jur. lU67. (0") 6 ."f . .v (; (/I::? (d) 4 .Y. St· If' 123.

(b) 4 .M. 8(0 G. 336. (e) 1 Q. B. 201.

so

IN TilE THIIlTEE:'iTli YE.\K OF VJCTORI.\.

>;0, merely because it consists of a number of facls; if I hey

all constitute but one ground of defence, tlw plea is 1I0t open to that objecliull. The plea stales a variety of facts, which the defendant says, together constituted the u;;ury: it was necessary to state them all-to shew the origin of the tran­saction, and to trace it down to the lIote on which the action is bl"Ought. It is in the inception uf the contract that the uSllry arises: if the original note was taililed with IISIlIY,

that taint extends to the SlIb;litllte, 110 matler what lIIask the parties may lise to c()\"er the illt;gal object. [,OlfC v. Waller ~a), Young v. Wright (b), Ackl'llil \". Pel/ree (/:), Ch aplll a II v. nlaek (d), Wickes \". Uogerl!J (e), Marc/Wilt v. Dl)rigin (f).*

J. A. Streef, Q. C., contra. The replication de injuria in actions ex cOIl/rac/u has cprt:linly grown inlo lise :since the nelV rules, Llllt it i" not, as is contended, the crell!'Ir" oftho-o

rules, 1I0r \\,h there fltI)' principle of plearling before Iho", rules came into opcration, which would have pre\"'nted the adoption of this form of replication to a plea setting up matter of excuse. The reason why it was 1I0t u""d until ren:lltl.\' i~

obviolls, as staled hy Lord Del/mall ill Purclll:ll 1'. Sldtl'/" (g).

and Ly Pollock, C. B., in Co lip(/" v. Gl1rbell (I,), hecause 'pecial pleas contuining matters of excu~e wcre pruLaLly ,'cry rare in actions of assumpsit. But wherc tile t1efelldanl pleads matter of exc"se speeia lIy, the principle is the sume, and the plaintiff has a right by one traverse to put in issue the whole mattel' of excuse. This replication is proper in all cases where the contract is avoided by mallei' of law; and the opinion expreEsed by Colima", J. to that effect. in Scott v. CIWppt:lolO, is confirmed by the Court of Exchequer in Cowper v. Garbett, and by the Court of Common Pleas in Mortimer v. Gell (i). He was then stopped by the Court.

CHIPMAN, C. J. The defendant instead of relying on the general issue, spreads his defence on the record, and thereby

(a) 2 Doug. 736. (b) 1 Camp. 141. (el 2 Camp. 599. (d) 2 B . .t- ./lId. 588. (ell C.4- P. 396. (f) 2 M. Sr Scoll 633. (g) 1 Q. 8.202. (la) 13 M. 4- If 33. (i) 4 C. B. 543 .

• The argumeRt upon the objections to th~ plea extended to a much greater length, but it is omitted in consequer.ce of tho decisic'n being confined to the replication.

put.'>

fill

1850.

1'HE BAf<roK 0)·'

BRITISH NORI H AI'IIERI(A

flgainst t'l.H ER.

6l:!

It:l50.

THE flANK OF

BRITISH NOItl'1I

AM'RIC~ against t'1"II&R,

CASES IN HILARY TERM

plitt! it in tho power of the plaintiff to put the whole matter

of defence ill isslle lIy the geneml traverse. I think the re­

plicat ion is good. CARTER, J. I think the case of Cowper v. Garbett bO

much ill point, that we must be bound by it. 'fhe replica­

tion has cerlainly come into use since the new rules, but there

was nothing to prevent its applicability before, if a suitahle

plea had heen ploaded. PARKl':R, J. I cannot distinguish hetweell this case and

Cowper v. Garbett. The uefendant has made it necessary

to reply de injllria, by pleading the several matters which he

relics on as amountillg to usury, which he was not bound to uu in this forlll of action; then what situation wuuld the

plaintiff>! be in, if they could not reply generally, but were bound to take issue on a particttlar matter? It is very rca­tlonable that they shollhl be allowcr\ to do so. I should think usUt'y might be constituted in the mode set out in this plea; but as the general issue is pleaded, it is not necessary to give

tin opinioll on that point now, for the usury, if it exist, Illay be gi I'(!n ill cv ide nee at tlw trial.

~ mEET, J. I unl of the same opinion.

Judgment for the plaintifls.

DOE 011 the delliise of ~IEWnURN against TIIO:'I AS l\l'GUIRE and OI'IIEI~S.

The tru"tee. of EJ ECT31 F.NT for land in the county of }.'ell(, tried before the estate of an p abscol'ding luker, J., at the circuit fur that couuty ill Allgust last. The debtor, appoint- lessor of the plaintiff claimed under a dccd dated ill 1849 ed nnder the act ' 26 Geo, 3, c, 13, from the trustees of the e~tate of Jamts .M' Guire, all ab-have a right 10 .1' db' sell and c'onvey SCOnulng e tor, and provcu tbe uue ul1pOlntrnent of the thhe ~eablestate of trustees tlndcl' the act 26 Geo.:J, c.13, ano the re<Ttllar adver-t e (Ie tor, '" though they have tising and sale of the land by thcm. It \Va,., objected on a 'w"er taken pos- , c, ' ' seSSIOII. motlOu 101 a nonsuit, that lhe trustces should have taken

f :\ cUllvebyance possession of the lantl bcfore thc sale This motion was roUl an a scun- ~

.lIng Jebtor, overruled; and t I;c ,. :(!fc?1dant ]1' Guire, who defended as which IS tOIJllf1

tn be fraudulent. and \'oid: cannot def~at tlte title of tho trustees; for bein'" void as oaains! clod i-Il'le, It tS aleo VOId 8S ~g!ltU:lt tl:v;0 wlto represent them. 0 0

landlOl'd,

IN TIlE TIlIRTEENTII YEAR OF VICTORIA.

landlord, put in evidence a conveyance of the lanr! to himself from James M' Guire, dated the 26th May, 1837, and stated to be made in consideration of natural love and affection. The plaintifi', in reply, proved that James M 'Guire conti­nued in possession of the land several months after this conveyance to the defendant, and gave evidence of James M' Guire's declarations while in possession, that the convey­ance was made for the purpose of keeping t he property from his creditors. The learned Judge left the question of fraud to the jury, who found for the plaintiff.

Weldon, Q. C., in last Micltaelmas terlll, obtained a rule nisi for a new trial, on the ground that the trustees not ha­ving taken possession of the land, had only a chose in action, which could not be conveyed. He referred fo the Act of Assemuly 26 Geo. 3, c. 13.

D. S. Kerr now shewed canse. The tenth section of the act 26 Geo. 3, c. 13, declares that the ,. trustees illlmcdiately " from their appointment shall be, and hereby are decbred " to he vested with all the real and personal estate of such " absconding 01' concealed person or person;:, for the managc­"meut of whose estate they werc appointed; '" '" 41<

" and such trustees are hereby authoriscd and dircctell to " make sale by public vend lie of all such e,tates and died" " of such absconding 01' cOllcealed pcrson or persons as shall " come to their hands, after fourteen days notice of the tilll~ " and place of sale, and of all the estate and illtCr<;6t which " such ausconding or concealed person 01' persons had in the " same; and the deeds, releases, 01' other conveyances for " the same or any part or parts thereof, frOl1l time to time to " make and execute; which bein; so made and executerl by " them 01' any tlVO ofthelll, shaH ue and are hereuy declared " to be as good, valid and effectual, to transfer the property " thereof to all intents and purposes, as if executed uy t he said " absconding or concealed person 01' persons before such public " notice given, and shall be good, valid and efi'ectual in lal\' to " all intents and purposes, against the said absconding or " concealed person 01' persons, his, her or their heirs, e.\,· " cutore, admini,aator5 and a~si~Il';, and all persons claiming " under them or any of them. hy virtue of any act, deed,

VOL. J. G:.! " matl!'1'

613

1850.

Doe demo MEWBORN

against I\l'GU.kE.

614

1850.

Doe demo MEWBIJflN

against r .. 'GrIK1L

CASES IN 1:I11,ARY TERM

" matter or thing after such first public notice given." IC

the trustees were ouliged to tal,e actnal possession, before

they could ~ell the real estate of a debtor, it would fre­quently consume tIle whole of the property in expenses. They have tile estate vested in them uy law for the purpose

of selling. 'Vhat reason is there fur trustees taking posses­

sion of real property, any more than for a sheriff to take possessiun of tile land which he sells? The purchaser stands

t:xactly in the position of the deutor, and if the (leed was void as against the creditors, as the jury found, it is void also as

'\galilS! tho~e who represent the creditors-the trustees under whom the plaintiff claims. Doe d. GriJllsby v. Ball (a). In (lI·d,·r LO pre\'elll a COIl\'eyance frolll the trustees from ope­rating, t!tey llIust have heen tli,.;st'i~e(1. I n Payson v. Good (b) 1 !J("'~ Wi ~ an ad verse pos-;t'~",i"i1, but it \Vas held not sufficient tu prevent the operation of a r(':':'istercd conveyance .

.I. pr. Chandler in support of the rule. Tile plaintifflllust recovcr acconlin~ tu IllS legal title. 'fhe trustees stand in the same position as the tleutur, and if he could not have fe­cov'ered from the tenant ill possession, neither can they or 'lny pcrson c1ailllin",' undcr thew. Thc trustees had no right by virtue of their appointment either to maintain ejectment tli(·rnsclves, (1:' t:) convey tlte right over to another, without

having "Jade an actual entry. It was a sale of u disputed right, whidl is contrnry to the policy of the act ;;~ Hen. 8, c. :3;J. :By 11,(; COI''''J!111 law :l luan canllot cOllvey property of

which he has not the pt),'sc,;sion. An heir at law cannot (:O\1\·';Y \JlJtil b,~ mal,es an actual entry, and clothes himself

with till") po'><;e:;sion. e,;r'; the defendant was holding ad­vcr~f ly to the trustees.

ClltP~Il\:-:, C. J. I t:lltlk the case is very clear, and I

ran ~c·:, nn anah);y in this r.a."'e to the instances put by the defemb nt':" counsel. \v:w.t are trustees to do when thev IIR\C no assets ~ilt real ("tat c·? Arc they to expend their ow~ money in recO'. ;ring jl(J'i~e~S;fJ:l? The act vests all the

deutor'>I pr.':wf'y in ti,,; trustees, and directs them to sell it,

ani' their deed ve,~ts all the dcutor's ri·~ht in the purchaser.

Tbe conveyance to the Jefenl~ant IU' Guire havinO' been o (a) 11 .If ~. W. 531. (b) 3 Kerr 272.

found

IN THE THIRTEENTH YEAR OF VICTORIA.

found by the jury to IJc fraudulent and void, can never be allowed to defeat the title of the trustees.

CARTEIl, J. The trustees had the legal title under the act, and had !l right to recover, unless the defendant had such a possession as amounted to a disseisin: but there was no evidence of that. Both partie~ claim under the same titre, but the plaintifPs title is bonafide, and the defendant's malajide.

PARKER, J. I was of opinion at the trial that the trustees could convey the right of the debtor without taking posses­sion; but when it appeared that the deed to the defendant was fraudulent and void, it put an end to any question, for the deed being void as again,;t creditors, is also void as against the trustees, who represent the creditors, and there is nothing to prevent them frolll conveying. There could not be a disseisin in this case, as the defendant relied on a conveyance; and that was found to be fraudulent.

STREET, J. I had some doubtg at first how far the deed from the trustees could convey a title before they had made an entry; but on consideration, I thinl, that no entry was necessary in this case; and the jury having found that the deed was fraudulent, t.he defendant must be held to be in possession for the henefit of [he absconding debtor, or merely as It tenant at will. By the act, the trllstees have the same right as the debtor himself-they rll'e aproinl('d fur the pur­pose of di~posing of the property; and viewing it in thst light, I am quite clear thnt the deed to the }CSS01' of the pluintifr i~ good.

Rule discharged.

615

1850.

Doe demo MEwBu""

against l\I'GUIKE.

DUNN against HOWARD. l'ridny, !:illl Febr1<ary.

SPF.CIAL assllmpsit for hreach of an agreemtlnt to lease The plaintiff

a ~hOI' fl'oll1 the plaintiff for one year, from the 1st llt/aglast agreed to let II . . ' • shop to the de,

The declamtlOn after seUlDg Ollt the agreement, averred fendant in the same 818te that

the tenant then in possesBion had it; the tenant on quitting, re~oved some gas fittings which formed part of the "hop, 11\ conseqlleuce of willch the def"ndanl relueed to lake poste •• ion: Held. that he was not liable for the rcnt.

that

616

1850.

DUNN

(tgailLst HOWARU.

CASES IN HILARY TERM

that although the 1st August, the day appointed for the pay­ment ofllle first quarter's rent, had elapsed, and though the plaintiff had always been ready and willing to permit the defendant to take and accept the premises, and to use and occupy them as tenant to the plaintiff, yet the defendant not regarding his promise and undertaking &c. did not nor would take or occupy the said shop, and did not nor would pay to the plaintiff the rent due 011 the lst August, but wholly re­fused &c. Plea, the general issue. At the trial, before Parker, J., at the Saini John circuit in January last, it ap­peared that the defendant had agreed on the 12th February, 1840, to tal{e from the plaintiff a shop then in the possession of Garrett Sf Skillen, for one year froll1 the 1st May t hen next, at £93 per annum, payable quarterly. Garrett Sf Skillen left the shop un the morning of the ]st il/ay, and removed some gas fittings which they had put there. In the afternoon of that day the plaintiff called upon the defendant, and com­plained of Garrett 8f Skillen having removed the gas fittings, and told him that the shop \Vas ill such a state that he could not get into it that day, and admitted that the defendant was to have the shop in the same state that Garrett Sf Skillen had it. On the 2d May the defendant wrote to tbe plaintiff, that he considered himself no longer bound to take the pro­perty, as the plaintiff had not fulfilled his hargain. The defendant was willing to have gone in on the 2d ilIay, but not afterwards; and the gas fittings were not replaced until several duys afterwards. The learned Judge left the ques­tion to the jury, whethet· the gas fittings were a part of the demised premises; and told them, that if they were so, the defendant was not bound to take the SllOp without them. The jury found for the defendant, statinu- that the fittinrrs

o 0 were a part of the demised~premises.

Jack now moved fOl' a new trial on the grounds of misdi­rection, and that the verdict was against law and evidence. The plaintiff's saying that the shop Was not in a fit state to go into, was no release (If the agreement. [PARKER, J. He sai(1 more than than that: he told the defendant he could not get in.] The fittings were no part of the shop; the plaintiff let the shop as it was, and the defendant was bound to take

it.

IN THE TIIIRTEENTH YEAr.. OF VICTORIA.

it. There is no implied agreement that property demised shall be fit for habitation. [CHIPMA:'I, C. J. Is not the landlord bound to give possession of what be unrlertakes to do ?] Yes, as far as the body of the shop goes, but no fur­ther: if it was otherwise, the fact of a pane or two of glas!l being broken in the windows, might be a ground for the tenant to rescind the contract. In Sutton v. Temple (a), where land was demised for pasture for a specific lime at a certain rent, and several of the tenHnt'g cattle died in consequence of a poisonous substance which had been accidentally spread over the field without the landlord's knowledge; it was held that there was no implied obligation on the part of the landlord that the land should be fit for the purpose for which it was taken. Lord Abinger said, " The general rule mllst be. that " where a man undertakes to pay a specific rent for a piece " of land, he is obliged to pay that rent, whether it answer " the purpose for which he took it 01' not." This case is con­firmed in llur/ v. IViudew (b), where ull the previous cases was fully considered, and the case~ of Salisbury v. iHar­shall (c) and Edwards v. Etherington (d), which it had been thought decided that there was such an implied contract, were completely overruled. The case of Smith v. 1Harra­ble (e), if it is law, can only be supported on its peculiar circumstances; being a demise of a ready furnished house, which might distinguish it from the general rule. Where tho landlord is bound to repair. there is no implied condition thut the tenant may quit if tlw repairs are not done, Surplice v. Farnsworth (/); because the tenant may mal{e the repairs, and !'let of}' the amount against the landlord's claim for rent. Waters v. 1Veiga!l (g). If the gas fittings were fixtures, the tenants had no right to remove them, and their having donc so wrongfully, cannot affect the plaintiff's right to recoyer.

CHlPMA:'I, C. J. The cases cited are not applicable, because there the tenants were in the occupation, and the question was, whether having given up the possession in con­sequence of objections to the state of the property, they were liable to the future rent; here the defendant had never taken

(a) 12 .u. ~ W. G:2. (b) ]2 M. ~ W.68. (c) 4 C. ~ P. 66. (d) Ry. 4' M.268. (e) 11 N . .y W.5. (f) 7 M . .y 0.576. (g) 2 AlIstr. 575.

possession,

617

1850.

DUN" o,gflinsl

HOWARD.

618

1850.

DUN~ againsl

HOWAI"'.

C.\SES IN HILARY TERM

possession, und he was not bonnd to do so if the shop was in

a different condition from what it was when the agreement was made. The jury hllve found that the gas fittings were a

purt of the property demised, and the defendant had a right to hal'e them put in hdore he took possession. For these

reasons I think there should he no rule. CAHTEH, J. The question for the jury was, what was the

~hop de:nised? They havc found that certain gas fittings WCI'C a part of it; awl that being the case, I think the defen­dallt \\,:I~ not hound to takc possession, because the plaintiff could not give hilll what he agrced to. If the defendant had tukcn possession he could not have givcn it up \recause the fittings wcre not there; that distinguishes this case from those which have heen cited.

STllEEl', J. I think the case was properly left to the jul'Y· The real point was, what was demised? If any part was deficient when the time arrived fOI' the defellllant to go into possession, he had a right to say that he would not tulie a part. The plaintiff was not prl'pared to perform his contract, fur he could not give possession on the 1st of May.

PARKER, J. The case wus narrowed down to thi~-what lVas the shop the plaintiff ag-reed to let, and did the fittings ("rill a part of it or not? They clearly did: no person could douLt that they were substantially a part of tLe shop; and the plaint ill' considered them so, for he complained of Garrett _\- Skillell ha\·ing removed them.

Rule refused.

HASSELL against WILSON.

,\" award di· A:SSU-'1l'SIT on an award. The declaration after l'ecitin" recterllhat the tl t I'fl' I d 'b 'I' . e defenrlant"hu"ld ra t I erenccs ra ansen etween tIle p aIntlff and defen-pny thel~lailltijr lIant concerning certain quantities of cedar sleepers deals H sum of money _ • ' on a certain dllV, and Latten,;, purchased by the plaIntiff from the defendant, and that on '"ch . I - " d' payment being d so concci nlll; certain accounts an transactions theretofore made, the defendant .hould be entitled to recei,'e, and the plaintiff should deliver to the defendant, tw'.' parcels of sleepers then lying at L. : Held, that they were not concurrent acts; and that in an IlCIlOIl 011 th~ award for the money, It was not necessary for the plaintiff to aver a readiness to de. hver the sleepers.

existing

IN THE THIRTEENTH YEAR OF VICTORIA.

existing between them, and that they had agreed to refer all

Inatlers in dispute to the award uf Robert Gurbutt, an(1 that

they had mutually promiscd to perform the award; averred

that the arbitrator made his award, and thereby ordered,

adjudged and determined, that there was due and owing'

frumthe defendant to the plaintiffthcslIlOof £1':;68 3s. lei., sterling' money of Great Britain, which slim the arhitrator

ordered and directed that the defendant should pay to the plaintiff in full satisfaction atHl discharge of all claims and

demands which the plaintiff then had again~t the Jefendunt,

in respect of the two uefore mentioned contracts, a~ also all

othcr disp!ltes, accollnt~ and transactions therefore had and

p.xisting hetween them, and that the said slim should he paid

by the defendant to the plaintiff in cash, at the office of .JUr.

John Sanelbye, solicitor, 14 EUICt Alley Lanl', ill the town of

Kingston-upon-H ull, un JlJOIulu!I the 20th Nuvember, 1;:3-16; amI the said arbitrator did further order, aJjud;e ulal deter­mine, that on such payment being llIade, the defendant should

be entitled to retake and receive frolll tile plaintitr, and the

plaintiff should redelivcr to tlte defelHlant, two parcels of

sleepers then in the plaintiti",; p"s.';l',~i()lI, ""Uleiy, 3140 cedar

sleepers ex Chilj/aill, allu '~!)7 1 helltluck ,leeper,; ex UUIt­gannon, then lying in a yard ueiollging to UIIC 1'1wlJI{ls Sw'­march, situate at Grellt Grill/sby in the county uf Lil.Coln, and that the defendant should relllove the same at his custs

and charges; and that all contra"':; uetlVeen the \lllIintil1'

and t.iefcut.iullt for the sale and purchase of allY sleeper" deals and battens, should ue delertllined: of whicll alVaI'd

the defendant afterwards &c. had notice. That although

the defendant afterwards, to lI'it, on the :20th lYuvelllot:r ill the

year aforesaid, at KillgstuIHlpon-IIllll, 10 wit, at SlIillt John, was requeshld by thc plaintiff to pay him the said SUIII uf

£156~ 3s. Ill. act:urdi IIg to tlte kiWI' and eflcct of t he alVard and of his promise, yet the defendant did not 1101' would on

, he day and year aforesaid, at the oflicc of the said John Sanelbye, ur at any other tillle or place pay the plaintiff &c Plea, the general issue. At the trial, ucfurc Parker, J., at

the last Saint Jolm circnit, a verdict was fuund for the plaintifl:

J. A. Street, Q. C., HUW woved in arrest of judgmellt.

The

619

1850.

H ... ELL

(I [[lliUSI

WILSON.

!tjGO.

If <SHU.

atJa;l1sl W"J UON.

Moni!ay, ] Itll February.

CASES IN IlILAHY 'fERM

The Ilflymeilt of the money Ly the defendant, and the deli­very of I he sleepers by the plaintiff, were conCUlTent acts, and it was necessary for the plaintiff to aver his readiness to perform the acts required to be done by him, that is, to shew that he was ready to deli ver the sleepers. 1 GMt. Pl. (5th cd.) 325.352, Rawson v. Johnson (a). If Wilson had brought an action for not delivering the sleepers, he would have been obliged to aver that he was ready and willing to pay the money. Galfiwell on Awards 472. If the defendant had pleaded that the plaintitfwas not ready to deliver the sleeper~, it would have been an answer to this action. [r:HIPMAN,

C. J. No, it would nOL] The acts here arc mutual, Ie be performed at the same ti!lle.

CIIIP,\IA .... , C. J. The liability to deliver the sleeper5 does not arise until the money is paid; and then, if they arc 1I0t delivered, Wilson has a right of action.

CARTEl:, J. The award malws the payment of the money a condition precedent to the delivery of the sleepers. The defendant iii bound to pay the IllOney, whether the sleepers are delivered or not.

PARKER, J. How is it possible that the payment of tllc lIIoney and the delivery of the sleepers could be concurrent acts? The money was to be paid in one place, and the sleepers delivered in another.

STREET, J. The payment of the money is a condition precedent to the delivery of the sleepers. In other respects they are independent acts, and if the plaintifr refuses to de­liver the sleepers, lVilson must bring an action on the award.

Rule refused. (a) 1 Ellst 203.

RE::iNIE against RANKIN.

A h f h J. A. Street, Q. C., moved, in 1llicltaelmas term last to set mem ero t e '

House of As· aside a nonbailable capias ad respondendum issued in thi~ sembly must be . . sued hy bill and cause, for Irregulanty, on the ground that the defendant luTmhmons:'

I being a member of the House of Assembly of the Province. e pnvi ege

of members of ~he Asse.mhIy from arrest, exists during the session, and for forty days before and aner a prorogation or dissolutIOn. I

should

IN THE THIRTEENTH YEAR OF VICTORIA.

should have been sued by bill Bnd summons according to the practice in suits against members of the House of Commons in England. 1 Tidd (8th ed.) ] 13, and the Act of Assembly 8 Geo. 4, c. 2, were referred to.

Allen contra. The decisions in Keiley v. Carson (a) and Hill v. Weldon (b) have shorn the Colonial Legislatures of many of the privileges which they formerly claimed. Those cases have decided that the laws and customs of Parliament do not extend to Colonial LegislatUl'es, and that they have not any greater privileges than such as arc essential to their existence and the proper discharge of their legislative func­tions. It is not disputed that the members are privileged from anest; but it is suhmitted, that with that exception, they are subject to be sup.d by the same process as other people. There are no negative words in the first section of the act of 8 Geo. 4, c. 2, and therefore though practice may have rendered the proceeding by bill and summons proper, there is nothing in the act to prevent a suit being commenced by a common capias-the only tiling prohibited is the arrest. The title of the act is important: it is called" An act to " prevent unnecessary delay and expense in proceedings " against persons haYing pri\·ilege of the General Assembly." The mode of proceeding adopted here meets that object. Why is it necessary to resort to tllp. proceeding by hill and summons, when the less expensive one by capias will answer all the purposes? It is t rue, the capias in form requires tho sheriff 10 take the hody; hut that is a mere form: in sub­stance, the nonhailable capias is only a summons, ond the defendant's privilege from arrest is as much preserved when sued in that way, as it is when the proceeding by bill and summons is used.

J. A. Street, Q. C., in reply. The cases cited hare no bearing upon this case-they arose IIpon the right of th" Assembly to imprison. The proceeding by bill and summon~ has been the uniform practice in this Province, and the prac­tice of the Court is the law of the Court. But besides this. the act of 8 Geo. 4, is a complete recognition of that practice, which is founded upon the statute of 12 & 13 Wm. 3, c. 3 (c).

(a) 7 Jur. 137. (b) :I Krrr I. Cr) 1 Tidd 113.

VOL. I. H2 It

621

1850.

RElllln:

against RAIIK.II.

1850.

R.N~IR

('g(t'n~' R. ""IN.

CASES IN HILAR \:' TERM

It i~ I!ubstantially a copy of the Act of Parliament 45 Geo. 3, ('. 124, which was passed for the purpose of abolislling tile proceeding by distringas to compel the appearance of members, and to authorise the plaintiff upon service of the iIIummons, to enter a common appearance for the defp-ndant, and proceed to judgment. The practice of the Court in every case ought to be certain; if members of the Assembly could be sued by capias as well as summons, it would produce confusion in the practice,

Cur. adv. vult. CIIIPMAN, C. J. now dcli\'ercd the judgment of the Court.

The question in this case is whether the defendant, being a memuer of the House of Asscmbly, can be sued by the ordi­nary nonbailable proccss of the Court? This i" the first time the question has been brought before the Court, and it flIust therefore be decided on principle, in the absence of direct authority as regards Colonial Lf~gislatures.

It cannot be denied thnt from the first establishmellt of this Province, the proceeding by bill and summons has been al­Illost the universal mode by which actions against members of the House of Assembly have been commenced. This long continued practice, though it would a\'ail nothing, were the mode of suing adopted in this case reconcileable with legall'rinciple and authority, is nevertheless a matter of some weight in the absence of authority, or in the doubtful applica­tion of principle, should such doubt exist. It is evident that tlte mode so universally adopted has been recognised by the Legislature as a mode of proceeding, in the S Geo. 4, c. 2, lhe oLject of which was to facilitate and expedite such mode, nIt hough it may be freely admitted that if the right to sue members of Assembly by common process existed before the passing of that act, there is nothing in the act by which that right is talien away.

One leading principle is admitted on both sides-that the defendant as a member of the House of Assembly is privi­leged from arrest. Now is not this privilege from arrest the reason and foundation of the proceeding by bill and summons? If'l person cannot be arrested, a writ of capias ad responden­dum, which directs that his body shall be taken, would seem

to

IN THE THIRTEENTH YEAR OF VICTORIA.

to be contradictory and absurd. A privilege of this descrip­tion should appear on the face of the process; and how could a writ direct the sherifI' to take and safely keep A. B., "having privilege of the General Assembly"-inother words, being privileged from being taken and kept? It must not be forgotten, that independent of statutory enactments, under a writ of capias ad respondendum a person might be arrested (or any amount however small. The object and effect of the different statutes passed from time to time regulating the law of arrest for deuI, seeUl to ue this: the writ which in its terms authorises an arrest, shall not have that authority with respect to parties who might be arrested under it, un­less the debt sued for shall alllolint to a certain sum; but it leaves the form of the writs the same, applicaule only to casus where without the interposition of statutory enactmont, all arrest would have ueen luwful. i\ow a,,; in its original nature such writ never could have ueen applicable to persons who could not by law be arrested, and the statutory restriction, could not apply to sllch persons, the writ itself must be equally inapplicable to sllch persons now, as if these restrictions did not exist. The original principle of law ail regards the capias is arrest; the admitted principle of htw as regards a memuer of the HOllse of Assembly, is freedolll from arrest. These two principles are opposed to each other, and the pl'Oceeding Ly Lill and summons wuuld seem to hllve its urigin in this very state of things. It would not he ul\I't:a~onablo to say (in the aLsence of any statutory enactment providing for such 11 case), that a capias for fl surn under ten pounds, cannot be good against a person who woultl not he liable to arrest if the debt was above ten pounds.

The privilege froUl IlITf'Et in members of the House of Asselllbly in thi" Province, ueing the sallle as in member,. of the House of Commons in Englalld, the same mode of suing' would seem naturally to follow.

\\' c do not mean to say that a memuer of the House or A!!sembly must necessarily, during all the time he is a member, retain the pl'ivilege against arrest. The privilege cannot go beyond that enjoyed by members of the House of Commons, which as hus been gellcrally understood and acted on, anr! ill

"

623

1850.

RB"NIB ag";?U1 RA"KI~.

624 CASES IN HILARY TERM

1850.

RENNIB

again~C

RUKU!.

a late case (a) is expressly settled, as existing during a session and for forty days before and after a prorogation or dissolution. No question arises here on this point, and we believe care is always taken to prorogue for such period as will leave the privilege constantly in force. The rule to set

aside the process must be granted. Rule absolute.

(a) Goudy v. DUnC01llU6, I Exch. I{ep. 430.

BOYD against KENNEDY and OTHERS.

The act6 Wm.4, THIS was an action of debt, brought by the plaint if!' as c. 41, a~thorised assi ... nee of a limit bond given to the sheriff of the county of the Justices of ~ , the Peace in t.ho Charlotte, alleging as a breach, the escape of the debtor from several counties .. . i" P k J I Uk Z it to designate cer- the lImits. At the trial bClore ar 'er, "at t Ie ar 0 e tain gaoillimits, circuit in April last, it appeared that by the Act of Assembly not to be ess than 40 rods nor 6 ff,Tm. 4, c. 4], s. 12, the Justices of the Peace in the several to exceed 1 GO • I . d d' . I" d rods from any countles were aut lOrISe to eSlgnate certam Imlts roun gaol: the JU5ti- the several gaols which lilllits should in no case be Icss than ces of C. made ' an orde~ that the forty rods, nor exceed one hundred and sixty rods from any gaol hmlts of I I I I . I . I I'ff 1'·1 that county gao ; ant by t Ie t llrteent I sectIOn, t Je S Jen was aut 10l"lSeu should p.xtend to to pcrmit any f}~r~on in his eustouy '0 have his liberty within 160 rods from • - ~ • the gaol, and the limits desi;llated upon givin!; a bond to the sheriff, with that the shpritr . . . should cause the a conditIOn that the pnsoner shollid not go at large out of :~I~~~o ;:s~;:a~: such limits. In 1837, the Justices of the Peace for t he county ed by erecti~lg of C:"arlotie made an ordcr of Sessions to define the limits, P05tS at the ex- . tremities. In whereby It was declared that they should extend one hundred pursuance ofthis d' .1 Ii I I ti . I I II order the sheriff an sixty rous rom t Ie gao, ornllng a square para Ie to t c marked o~t Ii- streets, and that the sheriff be requested to cause the same nuts ID k37, \~hich had lieen to be defined and designated by erecting posts at the four BlUce acted up- .. I f. I . I' d I\J on: Held, thata extrenlltIeS t lcreo • n pursuance ot t liS or er, 11' r. Camp-!imit ~ond taken bell, at that time sheriff of the county, with the assistance of III relCrence thereto, was not a surveyor, made a measurement and marked Ollt a square forfeited, though ' the posts erected were afterwards found to be 174 rods distant from the gaol. and the prisoner had gone beyond the 160 rod., but not beyond the posts-it not appcaring that he was aware of the excess . . Persons entering into 3. limit bond ar e not required to make a measurement to ascertain tbat tha

limIts marked out by the Jll~llces are m due conformity to the law.

putting

I:'> THE 1'IIIr.TEr:'JTII YEAR Of VICTORIA.

putting down posts at the angles ani! at intervals along the line, marked wit II the Iclt<:cs J. L, to signify Jail Limits. These were the only marked limits, and hilt! always been considered as the true limits by the prisoners confined therein, by the public generally, and by the present sheria' since he came into office in 1839; u nJ the bond was taken expressly with reference to these limit,. A ,hort time before this actill.l was brought, it was ascertaul,d by an accurale measurement that the limits marked hy tile pu~h eAICI)(;,::l, otJ une side, II' the distance of one hundred and ,('vcnry ('II.r rud, frulII tl,,, gaol. The defendant Kellnfll,1 I,ad neyel gOlle 1",),I,l]d tile line of the posts, hut had gon<: bl'Y' nr! wilerl' Ihe 1)11e IJUntlre,1

and sixty rods terminated; and lloi~ wus 11." c~cape rcilt.d on as a bl'each of the conditioll oftl,e LGud. The jury, under the learned Judge's direction, found a \f rdict I'Jr lite plaililitr.

In Trinity term last, J. W. CllIWdltT obluintJ U I ule lIisi for a new trial on the gronnd of IllI,Jir('ctioll, alld !llat tIle verdict was against law and nidellce.

D. S. Kerr shewed cause in Mic!ta~l1Jjas term last. A lillllt bond, like any other written instrunll'lll, must be construed by its own words, ano [Jot lJy any parol evidence of what tIle parties meant by it. The condition of the hond i~, that the debtol' "shall not go or be at large out of the said limits of such gaol;" the bond call therefore only be construed accor­ding to the legal limits, and not according 10 any ullauthori~c,l limits which the sheriff may choose to mllrk oul. The sheritl"~ evidence, Ihat the bond was taken with reference to the liUJil~ marked, was therefore improperly :ldmitted. The act doe~ not require the J usticeR to lay Ollt the limits; and wil(;a they made the order that the limits should extend one hundred and sixty rods from the gaol, they designated them a=. much as they were bound to do, and any person having the Lt:nefit of the limits must take care not to go beyond the legal li!;]iu. The words of the act are express, that the limits shall not exceed one hundred and sixty rods, and the act of the bbddf authorising the defendant to go beyond that distance, cannot alter the law or prevent a forfeiture of the bond; ani! any marl{ing out which exceeded that distance was entirely roid.

J. W. Cfzandler in support of the rule. This bond i3 a

contract

625

1850.

BOYD against KK~""DY.

626

1850.

Ron, against

K&.NKVT,

CASES IN HILARY TERM

conI ract Let ween the sheriff and the defendants, and \Vas given by them and taken by the sheriff expressly with re­ference to tlte limits us mar~ed out by the former sheriff; they were universally recognised aO! (he limits, in fact none other were known, Suppose the sureties before execllting this bond had said to I Ite sheriff-and in contemplation of law they did say so-where arc the gaol limits? He points Ollt these posts, and the sureties then execute the bond; could the sheriff afterwards turn round and say to the debtor, , You have escaped frolll the limits-the lwunds I pointed

• out to you were more than one hundred and sixty rods • from the gaol?' It would be a gross fraud; he would be estopped by his own act from saying these were not the limits. Then if the sheriff could not have maintained an action on the llOnd fur this alleged escape, neithet' can his assignee, who in this respect cannot slaml in any better position than the sheriff: he cannot give a right of action to another unless he had one himself. Unless the limits are defined on the ground, they exist only in the imagination, and who in such a ca~e would Lecome bail fur Ihe limits? Taking the order of Sessions as the designation of the limits, by what testi­mony could it appear that the deLtOl" ever went beyond them? !twas therefure ahsolutely necessary to resort to extrinsic /J\'ic:lenee to ascertain where the limits were; and this ex­trinsic evidence was the marking out. If no limits were defined, the bond is ruirl; anrl therefore in either view this action IIJl1,;t Lil.

CUT. adv. vult. CHIPMAN, C. J. now delivered the judgment of the Court.

This was an action brought by the plaintiff, as assignee of the sheriff of the county uf Charlotte, on a limit bond, al­kging as a breach of the condition, the escape or departure of the defendant Kennedy from the limits of the gaol of that county; and the question arises as to the legal extent of those limits within the meaning of the bond.

The provisions of the Act of Assembly under which these bonds are taken, 6 If'. 4, c. 41. are as follows: By section 12 it is enacted "That the Justices of the Peace in the several " Ilnd respective counties, !O;hn\l and Ih"y are hereby autho-

" rised

IN THK THIR'I'I:E:'l'l'lI YEAR Uf' \TICTu!UA,

" rised and empowered at any general or special Sessiun, to " designate certain limits Itl'ound the several and respective " gaols, which limits shall in no case be less tlmn forty rods "1Ior exceed one hundred and sixty rods frO1/! U"Y gaul." Section 13 enacts" That when any person is confined in any " gaol either upon mesne process 01' execution, the sheriff is "authorised and empowered to permit SUell person to gu " about and have his liberty witlain the limits designated for "such gaol, on 11 bond being given with sureties on the .. condition thereunder written, that such defendant "I!allno! " go or be at large out of such limits or escape at any rime " while he has the liberty of the ,arne," This sectip,n gi\'e~ the form of the bond to the effect above statell, and IHo\'ides also for the assignment of it tu the "Iai III iff in the action; and for relief by rule of Court to operate as a defeasanc£', adupting in this respect the same provi~ioll <1S ohtains in case of bail

bonds. It is evident that the Legislature intended to confine the

discretion of the Justi,;cs ill de,igllating gaol lilllit" 1,0 It

minimum of forty rods and a 1IIU:Cilllllll/. of one lallndn·d Itlill sixty rods; and in order to gil'£' the 1'1111 f'xtellt a 110\\'(,<1 hylaw, u circle round the gaol with a radills of (l1IC! hundred und sixty rods might have been ",allied out, 01' indeed Ihe ex­treme limit might go a little bC)'Ollf\ tlris circlC!, liS till' gaol itself is neither a lJIere point, nor is it circular.

At the General Sessions of tile Peace in April 1"'37, an order was made-the material part of which, as affecting' the present question, is as follows: "Ordered, that the gaol " limits extend to olle hUlldred and ~ixty rotls from the said " gaol, forming' a square parallel to the streets, and that the " sheriff of Charlotte be requested to cause the same to be " defined and designatell by erecting posts at the foul' extre­" mities thereof, but not to extend below low water mark at .. the town plat." If the Justices intended by this order, as would appear to be its literal construction, to prescribe for the limits a square, the sides of which should be one hundred and sixty rods distant from the gaol, it is clear they have exceeded their powers, as the angles must necessarily go beyond that distance. It appeared that the then sheriff of

the

627

1850,

BOVD Ill[oins.

KENNI!D",

18fJO.

Boyu against

K~NNEIJY.

CASI::S L\ HILARY TERM

the cuunt)', Mr. Campbell, who was appointed under this

ort\pr to mark out the limits, so understood it; but not con­

tent with thi~. he (in one direction) took for the limits the

side of a street one hundred and seventy four rods distant

from the gaol. It appeared that Mr. CampbeU had himself

been a surveyor, and that he had another surveyor wi~h him to make the measurement. How this error arose was not

very sal isfactorily shewn. It appeared however that on the limits fix:ed by I his survey, posts were put down marked with

the initial letters J. I •. , to signify Jail Limits; that these were t he only marked limits, and were always considered the true

limits by prisoners confine'\ therein, and indeed by the public generally; that the pre;;ent sheriff, who came into office in 18:39 and has con tinued sheriff ever since. has always consi­flered the gaol limits to be marked by these posts, and so supposed at the time of taking tbi;; bond, and consequently that persons who kept within the limits of these posts did not exceed the limits allowed by law. There was nothing to shew that any error was detected or supposed to exist until it was brought to light by this action, at the trial of which it was prm'ed by a surveyor, of whose accuracy thel'e was no dou"t, that the street in which these pl)sts were set, was one hundred and seventy four rods distant from the gaol. Tile defendant Kennedy had been seen in this street within • he litnit~ de~ignated by the posts, but at the distance of one

hundred and seventy four rods from the gaol; and this was t he only escape " or being a~ large withuut the gaol limits" which was proved.

The learned J urlge expressed great doubts at the trial, but feeling bound to direct the jury on the point, and being

then unoer the impression froOl the strong wording of the act

" that the gaol limits should in no case exceed one hundred and sixty rods," and thinking also that the order of the

Sessions for laying them out had not been duly obeye~ di­rected the jury that the going beyond one hundred and sixty

rods amounted to an escape at law, and consequently made

out a breach in the condition of the bond; and under this direction, the jury found a verdict for the plaintiff.

On full consideration we are of opinion that this direction

was

Ij'; TilE TIIIR'l'EEN'l'H YEAR OF VICTORIA.

was not right, although we have had Borne difficulty in deter­

mining the question. It docs nut seem to us to have been the intention of the J.egi:;lature in providing for gaol limits, within which prisoners might be allowed to go at large on giving 1J0nd to the shcrifi', that they, 01' the persons inte­

rested in the bond, should bc required or expected to make

a measurement of the limits in order to ascertain the extent thereof. Neither has the Legislature left it for the sherifi'to

point out the extent of these limits. The Act of Assembly indeed does lIot define the exact extent, but delegates the power to the J u~tices of the Peace, giving a rule for their guidance, evidently contemplating that lIit hin this rule, the Justices should not only pre,criue the distance to which the limits should extend beyolld the gaol, bllt shoult! also desig­nate 1111'111 Ily marks on the land ~et for that purpose, or uy

reference to marks already in existence, which when pro­perly describcd woultl equally answer the purpose intenlled. For illstan(e, the lines of streets might «1"lYer the purpose

without allY other lllarL~. It could hardly be contellded, that a Irifling uuilltenti,'lIul

cxcess coulll bc so lIJaterial <IS to llIal,c the laying out void,

01' to causc an involuntary UrC<lcll ill thc !tond, allll that the

rule delllinimis non Cllrut lex \\'oul,lnot apply to a case of tlli~ sort. The Justices might prescl'iue tllC di~tance ill Sessions as u judicial act, but the Illarking sllch distance on the laud must be an act to Le done lIut of Court. In tllC prcsent case thc difficulty is more ~t'rious, us neither tlte tel"ms of the order

of Sessions, 1101' the carrying of it out, seem to admit uf the deviation being excused 01' explained Ly this rule, But con­siderable us the exct'~s llIay HOlY ~eelll, after an accurate

survcy has been lIlade, it must be borne in mind that it was not so glaring as to manife~t itsclf to the present sheriff, or as far as \\'e l(IIow, to anyone el3e Irho was not aware of the \\,I"ong measurenlellt in the first instance; and if the sheriff' had been aware of ii, lie du not see 1'0\'; III' could have cor­

recterl it except Ly HI'I .i.\ ing to the J (lSI i~es for a lIew order, The liberty gil'en, aecording to the express proli.ion of tile thirteent It section of the act, is to Le uititin tile limits desig­nated for Slid gaol: thnt i~, the limits de:iignated (Ly the

Yol.. I. U Justic!'s

629

1850.

Bo1'D agai1Ut

KENNEDV,

630

1850.

BOVIJ

against KENNI;l!~.

CASES IN HILAItY TERM

Justices of the Peace) fOI" such gaol. If the enol' committed

had been so outrageous as to malie it obvious to anyone looking at the marks put up, that the extent permitted by the law had been exceeded, the designation and marking out might pel"haps have been treated as altogether nugatory and void; but we can hardly conceive that an errol" of such mag­nitude could have been committed, 01' would I"emain for any length of time unconected, It would clearly be the duty of tho Justices to take the earliest opportunity of remedying the defect; and we arc not now dealing with the case of an error lwown and uncorrected, but with one unlmown and unnoticed.

As this is a case which would evidently p.ntille the parties to relief by summary application to the Court, so that the hardship, if the verdict IV :cre to stand, would not ue so great as would at first appeal', and as the defendants are not quite remediless, we have had the 1I10re doubt; but the relief in that mode would only be partial, and this relief would not be sought agaillst a lmown breach of the bond from which no real damage lIad ensued, 0\' one of which the defendant could be conslllered cognizant before or soon after bringing the action, !.Jut it is a breach which not only the defendant Ken­nedy had no intent.ion of committing, Lut one of which he and the other defendants, might ha \'e been all quite unconscious of having been committed, Lefore the trial.

U ndel' all these circumstances our opinion is, that within the tme meaning of the condition of the bond no breach has heen committed.

'fo hoJJ the defcndants liable in this case, would be to make them "esponsible fo\' lhe fault of the Justices or their agent, the correctness of whose orders or surveys the defen­dants were not authori~ed or required to test; and they should no' he made to suffer, at kast unless they can be fixed with 0. !Hlowlcdge or participation of the fault.

T!le ruic; fOl' setting asidc the verdict and granting a new trial must fct' these reasons be made absolute, unless the parties can agree to a stet processllS, which in a case of so trillIng an ilmo,m~ and of much perplexity, would be the best way of disposing of it.

Rule absolute.

IN THE TIIIRTE~N'l'U YEAR Of VICTORIA. 631

1850.

BEARDSLEY, Assignee &c. against STEPHENSON.

THIS was an action in u Justice's Court, brought by the Where e Eot in

plaintiff as the assiO'nee of the estate of IV. Sf J. Connell bankruptcy has '" .. ' been g rantetl

bankrupts, 011 a promissory note gIven by the defendant to and puLli;hed h L r I' I k . before the pas.-

t em eaure t telr Jan ruptey. A fiat III ballkruptcy was in~ oflhe act I~ granted a"'ainst them on the 4! h March IE: IS and the plain- ri,'1: c. 43. re-

o "pealmgthe bank-tiff appointed assignee of thcir estate soon after. TheJ uslice rupt act •. the

. provlslOoal Bi· gave Judgment for the defendant, on the ground that the signee Ulay

ri"ht of action \\'1\;; dcstl'Oved h' the act l~ Viet. c. 43 (aJ sue ror and reo et J J , cover dcots dw->

which repeals all the uankrupt acts. All order for review to the bankrupt; . . that bciug a ne·

had bccn oLtalllcd, and at the hcartng, the c'a~L was referred cessary part of I C . b 1\1, J ' I'" • the proceeding. to t lC OUi t y t.. ustlce ,-.(/1 ftl. COlllin" witbin

Dibblee now appcared tu ~lIpport the jud"ment, and con- Ihesa\~llgcl4Use o of the act,

tende,l that tIle right (,r action was gone, no power having

Leen reserred to the assignee by the act l~ rid. c. 4:l, which only authorised the bankrupt to procecJ (lnd get his ccrtifi-

cate where a fiat had beell grauted. and could not reasonably be c'"'nstrued to intenll a savillg of the P;W:C!'S of assignecs.

No counsel appcared fer the plailltiff. (:1:,.. adv. vult.

CII1P3IAN, C J. BOW delivered thejudgmf)nt uf the Court.

'l'his is a case of a review of a judgmcnt of a Justice of the Peace, refcrred to the Court by IUr. J list ice C!: rIa; allll the question is as to thc right uf t lie plaintiff to sue as assignee of

two bankrupt enpartllcrs. Thc Provincial bankrupt acts were repcaled by the 12 Viet. c. 4:J, and at the time this act passed,

the plail:riff was hy virtue of the act 5 Vid. c. ,n, ss. 7 & 12, vested with all the pl'Opcrty and ri:,;lt,; of property of thc LJUulullpts, and the hankrupts 'were divested of the samp,

It seems to liS, it canllot he said that the subsequcnt repeal of the act wOllld tul,e away property which \vas so vested; for by t hi3 rull', any tran, {(;r of property made bJ' the assignee

p!'evioll'; to the !'l'i,\'al of lhe LJallkrupt I~:ws m::;';1t be held

null an:l void. VVe tllink l1loreover, that the fair construction

of the proviso ill the repealing {lct, would preserve to the

(aJ Passed 14th :}Fril, H',!:'.

assignee

632

1850.

BEARD~r.EY against

STlliFHKIlIiOIl.

CASES IN HILARY TERM

assignee the property and rights of property ,previously vested in him. The olJVious intention of that prov'iso (though the

expression of that intention is certainly somewhat meagre), is that where previous to the passing of the act, a proceeding in bankruptcy had been comrllcnced by granting a fiat, such proceeding should he carried to its termination, in the same manner as if the act under wbich it commenced had conti­nued in force; 01' in other words, the banluupt acts remain in force, in the same manner as if no repeal had taken place, as to all cases where a fiat was granted alH..l published before the passing of the repealing act. The management anti control of the bankrupt'S property ami assets by the assignee is a necessary part of such proceeding. It is a part of the machinery lJy which the final result is to be produced. Hby

force of the repealing act, the bankrupt became revested with all his property, and the assignee had no power to appro­priate it for tile payment of his creditors, the signature of the creditors to tht! certificate could llardly be expected; and supposing the final certificate ohtained, it would have the effect of relieving the bankrupt from his dehts, and pre­serve to hilll all the assets which by the policy of tile ballIuupt laws should, as far as possible, have paid thosc debts. This conclusion would in tile main he disa!\rantageolls to both parties-the bankrupt and thc crcditors ; and is one which justice and common8en"c would avoid if possible. \Ve think it may be avoided by giving to the words" the same may be proceeded with to the final certificate," the uroad con­struction wc have set forth.

Such being the case, and there beillg no defence to the uction except what arises out of this objcction, we are of opinion and do adjudge that tlrc J list ice's judgment be re­versed, and a judgment entered for the plaintiff for the amount of debt and COl§ts, and that the case bc remitted to the J IIstice of the Peace for the purpose of having the j IIl1g­mcnt so cntercd, and execution issucd accordingly. 'Vo adjudge also the costs of review to the plaintift'.

J udgmcllt revcrsed.

IN THE 'fIllRn:ENl'W YEAR OF VICTOI~L\, 633

1850,

DEN on the u(~tlJise of FA U LS against FEN.

0;'1 making the rule absolute in this case at the last lerm (a), Where n morl,

J. A. Stred, Q. C., npl-'Iied for costs, and the Solid tor Ge- gagee improper­ly obtained a

nerat opposed the motion. JudgH" order

Th C' k' '1 'I I'd I I expaTlc,tobe.l-e ollrt too tlllle to cunsJ( er untl t liS ay, w !Cn tIe 10Wfld to defend

jll(lO'ment was deli\'ered by An nction of ,:) ejectment 88

CHIPMAN, C. J. It appears to us that the lessor of the landlord. tho

I , . ff .. le<sor of the p amtl should have the costs of tillS mollon. It I\'CIS cer- iainlilTw," nl-

tainlv not a case in whic:h n rlilo sholiid Itave been taken out row.'d Ihe costo • . ' , , , ofarrlymg to

for allowlnO' R. J1. Andreu's to defend JOllltly W lilt Jones the COllrt to oct , I ':' I I f I I' '(r ,I I J I ' a.ide the order,

Wit lO11t notice to t Ie essor 0 tIe p awtl I, UOu yet tIe u( g-e s Iflhe relati.,"

fiat for the rule was al'IJlic(J fur lind olttailled as II malter of of landlord alld tenant noes nol

course, and the lessor of the plaintiff has lteen cOIIIJlelled 10 clearl,V Cliot. , , , there should ho

come to tillS Comrt to get It discharged. It seem); but rea- a ""mmon. or

sonable anrl quite ill nccordanee \\'ith the nllthorities 011 tl:e TIlle nisi beforo , a PtHSOI1, clUlIll-

point, that failing to sustain his rule he should pay the costs ill!: a< landlord, . • call be allowed InCtlI'I'ed Ly It. to d.fend an .e-

The cases on the point all go to shew that where tl.e rela- ::~;;l~;~~:~~~t~~~ tionship of landlord allli tenant doe~ not clearly exist, so as in

fact to malw their intere,t the same, there should he a Judge'~

summoml or rule nisi ill the tirst instance. 'Ve refer to the

following authorities: Adams all Eject. 260, CMt. Arch. ((it h

cd.) 785, Doed.l1otlOlI v. B!t!)s(b), Hinton v.Acrall,wn (c). The renson for not allowing R. M. Andrews to defend

jointly with Joncs, the tenant in possession, in this case, is

that Samuel G. Andreu's, tinder whom Jones was let into po~­

~ession, having purported to mortgnge in fee to Fallis, the

lessor of the plaintiff, is estoppel I from shewing tbitt he htltl

110 litle to uo so, by reason of having given a previou,q mort­

gage to R. M. Am[reu's; and that if the mortgagor's tenant were allowed to set tip title paralllollllt to thnt of Fauls, it

would deprive Fauls of the henefit of this estoppel. The title

of U. M. Alle/rell's is iIlCOll:;i"tclI~ with that of JOIles holding

under Salllud G . .Andrcu·s. Doc d. Gai.ifonl v. Slo.c (cl).

(,,) ~ee .1nte, p, 585. (.) 3 G. n. 7·1-.!.

(h) 2 Y.!r J. 8S, (d) ;, C. B. 176.

If

634

1850.

Den demo FAvr.s

against FEN.

Saturday, 16th l'tbruary.

CASES IN HILARY TERl\1

If R. 111. Andrews is entitled to the possession he mllst Lring his ejectment; Lut 1I0t ha\'ing got possession, or had Jones attorn to him before Fauls commenced his action, he should have come in as plaintiff aud not dcfendant, in con· testing Fallis' title to the possession. The object of Fauls in brill"inlT this eJ'ecllucnt, as stated in his affidavit, is per·

e ~

feclly legitimate and proper; he has a right to have the

property he purchased discharged from the claims of the legatees. 'Ve think therefore the costs should follow the

dismissal of the motion. Rule accordingly.

CRAWFORD against WILLOX and OTIIERS, Adminis­trators of JAMES WILLOX.

. A-SSUl\Il'SIT on a promissory 1I0te for £·10, drawn by the On an Isme of . . r f I I" ~ 'rl I r did d plcncadministra. 11Itestate In laVOI' 0 tIe p amlll!. Ie (elen ants pea e !lit •. real estate of J7lene adlllinistraverunt and O'a vc notice under the act 3 riel. an Intestate, un- , ~ sold, is not as· c. 61, s. 34, that there were deLLS of the intestate unsatisfied, sets in the hands . ., of his admillis· of a pnor class antI also of the same class With that 011 wluch

~,~tl~:'O~)Je'1.~t this action was brought. lsslh~ was taken on the plea. QIUfT<. whe.. At the trial befure Parker,J., at the sittings after last Trillit11

ther under a olf. J fere~tissue, all term, the plaintia' gave ill evidence an examined copy of the admllllstratnr· fil .1 I. I d {' d . I . f h S lIli!!ht be made Ill\,Ctltory Cu uy tie elen ants In t Ie registry 0 t e un-o-lIa~leJor the va· o'ate Court, in which uoth the real and personal estate of the Ille of real estate, ':" . which he had JIlt estate were InciudecI. It appc:ared that the estate was neglect cd tn. d I' make available. IIlsolvent, an tl.at after ex IUlISCll1g' all the personal assets,

the defendants had, a felV days before the trial, outained a license from the Surrogate Court to sdl the real estate to­wards paying' tile deLts; it 11'1I1 been advertised for sale, but

the ti me had not expired. More than eighteen months bad elapsed between the grantiu;,;' of the letters of administration

and the applicatiun, uut no Ilf',;-li!,;cnce on the part of the

defendants was shc\\ 11. It was conte,ded that tile real estate

was a8~ct~ ill tlte hands of tiJe dt:fcndants; and a verdict was taken for Ihe plaintiff by consent fOl' £14 13s. 4d., his

rateable proportion of both the real and personal estate

according

l;-.l THE THIRTEEl'\TH YEAR OF VICTORIA.

according to the appraised value, subject to be reduced to £3 ]5s., the rateahle proportion of the personalty. if the Court should be of opinion that the real estate unsold Wll3

not assets in tile hallds of the administrators. In Michaellllas tC1'1II last, Allen ohtaim·i\ a rule nisi for that

purpose, and cited Doe d. Harc v. M' Gall (a), and the Act of Assembly 3 Vict. c. 61, ss. 44. 4i. 52.

D. S. Kerr shewed cause on a former day in this term. The question is, whethel' the real estate is assets in the hands of the administratol's. The twenty ninth section of the act 3 Vict. c. 61, I'equires that thp. inventory shall contain ., a tl'ue " description ami estilllate of :dl the real e,tate, goods, chat­" ~els ami credits of the deceased." The act :!G Geo. :$, c. 1], s. 10, did not I'equire the real estate to be includml in the inventol'Y: then when the Legislatlll'e altcred the law, it mllst have been for some pllrpose; and what is 1Il0re rea­sonable than to hold that it was intcndetl that the real estate should he assets in the hands of the administrators; othel'­wise why is it included in the inl"clltol'Y? Assets al'e defined in 2 (j'iIlS. Ex. 1298, to be " All those goorls and chattels, " actions and commodities, \\ hich were uf the deceas('(i in " right of action or :lOssl's-iulI as lIis own, and SO continued " to the tillle of his dcath, and whiclt aftcl' hi~ death the ex­" ecutor or administrator doth get into his hands, as duly " belonging to him in right of his executorship or uclllJinis­H tratorship; amI all stich thing,; as do come to the executor " or administrator Ity rC,~;Oll of that. shall be assets in his " hands to make him chargeable to a creditor or leg3tee." The English statute 5 Geo. 2, c. 7, s. 4, enacts that the h0I1;;e3, lands, hereditaments and real estate witbin the Plantation~, belunging to any person indebted, shall be liable to and chargeable with all just de!.[,; &.c. owing by any "lIeh person to His Majesty or any of his subjects, alJ(1 ~l.al\ and lIlay be assets for the satd'detion tl);~i'eOr, in lilw manner as real estates ul'e by the luws of E.'I!.)tllld liable to the satisfaction of debts due by bond or other specialty; allll shall be subject to the like remedies, proceedings and process, in any Court

of law or equity in any of the said Plunlatiol1t, fOlo seizing,

selling,

635

11'50.

Cr:.AWFORD

llfluinSl \YILLn,

11'450.

C"'''Yunt> otrtJi'flst

',{II.tuX.

CASLS IN lIILAHY 'fER])1

selling 01" disposing of Bny 8uch houses &c. towards the sa­t isfi.lct ion of such debts und demllnds, in like manner 8!!1 per-8011(11 estates in uny of the sai,l Plantationll are seized, sold or dispo,~ed uf fur the satisfactiun of debts. In TItan/son v. Grallt (a) it is said that by this act, lands in the Plantations !ire converted, with respect to payment of debts, into personal Ilssets, and as such are possessed by the executor. The term " assets" in the act fully warrants this decision: il is a term peculillrly applicable to property in till-l hands of executors or administraturs. The case of Doe v. jl' Gall is not applicable 10 tlli~ question. By the act 3 Vict. c. 61, s. 35, administrators IHe bound to render an account of their administration within eig'htectl months after their appointment: if they neglect to do this, it alllounts to a devastavit. Neglecting to dispose of assets "hich he lIIight have disposed of, is a devastavit by IHl ulllllinistrator which makes hilll personally liable for tlte tlmount of such property. 2 Tf'ms. Exors. ]412. 1417. Here it was in the power uf the defendants to have disposed of lite rcul estate long before the action "'['.s broll!!'ht; and ha\'ing Ilcg-Icctell to do ;;0, they lIlu,.;t be held 10 have made theulselres liable for tho appruised ,·ulue of the land, as assets ill their hunds.

Allcn in support of the rule. The case of Doe d. I~are v. A1'Gall decides this ca~e. 1t was there held that the "eal estate of a decease«1 debtor descended to his heir, subject to be dirested in case a license \\'as obtained hy the executor for t he sale of it, in consequence of a deficif!ncy of personal assets; allll also, that the real estate could not be taken in execution on a judgment against the executor, under the Englislt statute 5 Geo. 2, c, 7, but that the only mode of ob­taining payment of the debts out of the realty, was by sale ullder a license. If such was the law under the act then in force, 26 Geo. 3, c. 11, there is an additional reason why it should continue, because the 3 rict. c. 61, s. 48, authorises the creditors to apply for a license-a power which did not {'xi"t under the former act. The only object of including the real estate in the ill\'entory, is to enable the Court to judge whether it would be necessary to sell the whole or a part

(a) I Ru .• ",;,41,.

only,

IN 'fur;; THIRTEEN1'U YEAR 0.' VICTORIA.

only, in case the personalty is insufficient; there is nothing in the act to alter the common law of descents, and to vest the realty in the administrator instead of the heil', and the definition given in Wms. Exors. of the terril "assets" clearly excludes real estate, because that doe~ not get into the hands

of the administrator. The term" real estate" has a well defined meaning, and the frequent use of it in the act, shews that it was the intention to preserve the distinction between real and personal estate. If it could be held that the real estate vested in the administrator, several difficult questions would arise, as to the time it so vested, and by what means it could be divested. The estate could not be in abeyance, therefore it 1II11st \'est immediately, whether the personal assets were sufficient fIJI' the payment of debts or not; and if they proved sufficient, how was it to be revested in the heir? The fifty secolld section of the act puts an end to the question. It declares "that upon a license to sell any real estate being •• granted, the executor or administrator shall be deemed " entitled to all the rents and pr6fits &c., and all the proceeds " of such real estate shall be legal assets in the hands of such " executor or administ rator for the payment of such debts." The real estate may produce far less at a sale than it hai been valued at by the appraisers, it would therefore be very unjust to the administrators to charge them with the appraised value. If the real estate was assets in their hands. it could be seized on an execution against them, and in that case all the sectiolls of the act, relative to obtaiDing a license to sell the land, would be useless incumbrances, and lite proceedings and expense necessary to obtain it, would be worse. The statute of 5 Geo. 2, c. 7, was passed to enable Briti:;a cre­ditors to recover their debts in the Plantations, where there wns no mode of proceeding against the real estate; bllt it does not apply when the question is between the representatives of a doceased debtor a nil a colonial creditor; nor w here the laws oflhe Colony point out a particular mode of lIIaking the real estate a\·nilable. It i~ unnecessary to consider the case of Thomson v. Grant (a): that was a !luit in equity, and ad­mitting the case to be law, there is n wide distinction between

(4) I Ruu. 540.

VOL. I. K2 tl16

637

1850.

CRAWFORD agGin6t

WILLO];.

(;38

1850.

( :KAWl'ORtJ

41[ainst 'VII. LOX.

CASES IN HILARY TERM

tho administratioll of legal and equitable assets. The fact

of the eighteen months having expired before the defendants

applied for the license, cannot make the real estate asset!',

when the law declarel> that I he proceeds of it only shall be so : rhe only effect of their delay was to render them liable to be

cited to account by any person interested in the estate. The

'lllel>tion of a devastavit Wl18 not talien at the trial, and

cannot arise now. Cur. adv. vult.

CIl1PMA~, C. J. now delivered the judgment of the Cour" and after stating the facts of the case, said :-The plain tift·

sought to recovel' his ratable proportion of the assets in the

hands of the defendants to ue administered, and there was no

dOllut of his right to recover to the extent of £3 J5s., being

the rataule proportion of the personal assets; but the plaintiff

chimed a right to recovel' also his rataule proportion of the value of the real estate of the intestate included in the inven­

lory, but which remained unsold, and could not be sold and

made available to the payment of the deuts without an order

frOlil the SlIrI'ogate, which order had not been obtained at the

tilllf' of bringing this action, but was afterwards procured, a few £lays before the trial.

A~ a general rule, we thinl, it impossible to consider the

real estate of an intestate to be assets in the hands of an ad­

ministrator to be administered, before the sale, or certainly

not :wf')re he has authority to sell. We do not say but there

may possibly be cases in which, under a different issue or dif­

ferent state nfcircumstances, an administrator might be made

liahle for the value of real estate which he has neglected to make available; but under the issue and circumstances of

this casf', we sec nothin;- to take it out of the general rule we

Jlfn"e laid down. The rule therefore to reduce the verdict

to the ~lml of £3 15s, IIlll,t be made absolute.

Rule absolute.

IN THE THIR'rEENTIl YEAR OF VICTORIA.

BLAKSLEE against THE SAINT JOHN WATER COMPANY.

630

1850.

CASE. The first connt of the declaration stated, that be-. The defondant. fore and at the tIIne of the passing of an act of the General were incarpo. A hi d d I · I . . .. ted Lv the act

ssem y rna e an passe! III tie mnth year of the reign of 2 Wm. 4. c. :!ti,

Her Majesty Queen Victoria, intituled "An act further to for the p~rpo.e . . .... of ~upplymg

" facIlitate the means of supplying the city of Samt John with Sam! John with " I t' h a' I ' \. water, and were water, am or t e more ellectuu preventIOn an! exlIn- requiredtomako " guishment of fires within the suill city" and before a nd at in every street . 'throll~h which the time of the demandin~ and receiving payment by the their pipes were d

~ d . 1.,,1, vents for elcn ants of the rate, tax, or as~essment theretnafter lIIell- supplying water

tioned, and also before and at the time of the happening of ~~~~l~~~~:p~~e: the fire thereinafter mentioned, and before and at the time of in the city. Th9 I .. f h' I. I d ~ d h' 9 Viet. c. tj4, t Ie committing 0 t e gnevances uy tIe e.en ants t erelO- made all build. fi . d . I 14 I A '1 1846 h' illgs frontin" on a ter mentlOne , to IVlt, on t Ie t I prt, , at t e city Slleets thw.;'gh

of Saint Joltn, the defendants were a company incorporated which pip,·" .. were laid, sub·

under the authority and by virtue of several acts of Assembly, ject to an annual by and under the name of The Saint John WaleI' Company, ~~~/~;tl~ee ~:~. and had been and were established in the city of Saint John pany. amI re-

. .. qutred them du-for the purpose of supplYlIIg the city with water. And whereas ring the continuo b ~ d h' fl' f I 'd f A alice orthe act elore an Ht t e time 0 t 1e passlllg 0 t Ie sal act 0 s- to establish fir~ sembly intituled &c" and before and at the time of demanding plugs for sup-

plYing water and receiving payment hy the defendants of the rate, tax or whenever lire.

I . fi . d d I L ~ d I should happen assessment t lerellla ter mentlOne ,an a so UI~lore an at t 1e and to keep tb~ time of the happening of the fire thereinafter mentioned, and same in good nnd Rutliclent before and at the time of the corllmittingof the several gric\'- ."rvicrable or·

I d ~ d I' f . d . der: Held, th.1 ances by t 1e etCn ants t lerellla ter mentlOne ,to Wit, on the duties im the day and year afuresaid at the city aforesaid, the defen- po~ed upon the

, . . company could dants III pursuance of the power and authority In them vested not be carried

. I I d . d did beyond the fair by the acts OC: Assembly 111 SIlC I case mal e an prov Ie, 18 import of Ihe C1'ected set lip and carrierl into opel'ation divers buildinas, terms used by

, , • • 0 the Legislature; erections, engines, machinery, reserVOirs, tan\{s anll other and therefore

\ f , I · h . t' S . tTl that they wen, works, for t 1e purpose 0 Supp ylllg t e ellY 0 am JOftn not bOUlld to with water, a\l which buildings &c. were tht!n and there situate keep a sluI PhPly uf water a t ~ time. by day Rnd n.ight. in tho pipeR, "0 ns to be made lia~le to~ the damage 8ustaiued by tire eatching to a hlllldmg owned by aile aftlte. rate p3yerg, wluch mlgltl have been s3Vad hod th. wa­tpc bgen immediately available for c1tlllglllsinng tbe fire,

and

640

1850.

B,.AKSLEB against

THE SAINT

JOHN WAn:R COllrHY.

CASES IN HILARY 'fERl\f

nnd being, and lawfully continued for the uses, purposes Bnd objects of the said Saint Joltn Water CompatlY· A nd whereas before and at the time of the pa!lsing of the said act of As­sembly &c. (as before), the defendants had laid down, set, provided and placed divers mains, pipes, leaders and conduits, for the conducting of water in, under, through, across and along a certain public street 01' square in the city of Saint Joltn, commonly called King's square, and in, through, linder, along and across divers other roads, streets an·1 squares, into, throuah and about divers parts of the said city, for conveying

~ . the water from its source, and from the reservoirs, tanks nnd works of the defendants, 10 the said square ami to dif­ferent parts of the said city, and through and along which mains, pipes, leadp.rs and conduits, the water of the defen­dants had been accustomed to run and flo\v for the supply of the city; all which mains, pipes &c. were th,en and there situate, lying and being, and lawfully continued so situate, lying and being, for the uses, purposes and objects of the said Saint Joltn Waler Company, to wit &c. And whereas before and at the time of the passing of the said act of Assp.mbly &c. '(as before), a certain fire plug, vent or opening had been lawfully placed and established by the defendants in and upon one of the mains or pipes of the defendants in the said city, at or near the street or square called King's square, to wit, at the corner of Great George's street and Sidney street, nnd divers other fire plugs, vents and openings had been law­fully placed and established by the defendants in, along and upon divers other mains, pipes, leaders and conduits in the said city, for the purpose of supplying water whenever fires should happen in the said city, for the prevention and extin­guishment of fires within the said city; all which fire plugs, vents and openings were then and there situate and being, and lawfully continued so sit·nate and being, to wit, on the day and yeal' aforesaid at the city aforesaid. A nd whereas the plain­tiff, theretofore and after the time of the passing of the said act of Assembly, and before and at the time of the demanding and receiving payment hy the defendants of the rate, tax or assessment thereinafter mentioned, and before and at the timo of the happening of the fire thereinafter mentioned, and

before

IN TilE TIJIRTEENTR YEAR OF VICTOHIA.

before and at the time of the committing of the grievances hy the defendants thereinafter mentioned, to wit, on the 16th June, 1847, at the city aforesaid, was lawfully possessed of and intel ested to a large amount, to wit, to the amount of £500, in divers stores, houses, outhouses Rnd buildings, fronting on the said ~treet or square, commonly called King's square, and nrlar to the said fire plug, vent or opening, Rt tho corner of Sidney and Great Gem'ge's streets aforesaid, to wit &c. And whereas after the time of the (lassing of the saill act of Assembly, ano for a lung time before, and IH the tillle of the demanding and receiving payment by the defenda0l8 of the rate &c. (as hefore), to wit &c. the plaintiff had exer­cised and carried on, and thpn and thero dill exercise anll Carryon the trade, business or employment of n tallolV chandler in and upon the sflid stMes, hOllses, ollthol.i~es and Lmildings, and had then Rnd there large cu~tom aud a great many customers in his said trade, itllsiness or employment, ~nd had thereby acquired and wa" then and, here daily ar­quiring great gains anll profits in hi.~ ~ai,1 trade, husiness or employment, to the comfortable SUppOlt of himself and family, and the great increase of his riches, to wit &-e. A nd wherea~ the plaintiff theretofore and after the tillle of the passing of the said act of Assembly, and before ant! at the time of thp happening of the said fire thereinafter mentioned &c. (a~ before), wa!'! possessed of divers goods, chattels, uten,ib, stoek in trade, fixtures ano efl'ec'~, being his own property, to Wil,

five hundred weight of tallow &c., all which goods, c:hattel~ &c. were then and there situate and being in and upon tht! said stores, houses, outhouses and buildings so in possession of the plaintiff, to wit, on the day and year last aforesaid at the city aforesaid, !lnd which said goods &e. were then and there of great value, to wit, of the value of £150. Anll whereas before the time of the happening of the fire therc­inli'fter mentioned, and after the passing of the said act of Assembly and under color of the provisions thereof, to wit, on &c. the defendants did demand of the plaintiff payment of a rate, tax or assessment of fourrence per running foot front, for and in rcspect of the said stores &c. so in the po~­scssion orthe plaintifl', which rate, tax or assessment, then and

there

6-11

1850.

BLAK8f •• 1I

agltin.l Tnr. SAINT

JOH. WATRR

CO~PAJVY.

6H

1850.

BLAKSl.EE

lLgainst THI! SAINT

JOHN W ATF.R

COMPANY,

CASES IN HILARY TERM

there amounted to a large sum of money, to wit, the sum of .tao, and which the plaintiff then and there paid to the de­fenelants, who recei ved the sallie undel' color of the authority and provisions of the said act of Assembly. And whereas from the lime of the payment of the said rate &c. to the de­fendants, up, to and until the happening of the fire thereinafter mentioned, no furtiJer rate, tax or assessment had become due and payable for or in respect of the said stores &c., and no further rate &c. for or in respect of the same had been or was demanded or required by the defendants. By mean'! of the premises and by force of the said act of Assembly, it then and there became and was the duty of the defendants rluring tile continuance of the said act of Assembly, at their own proper cost and charges to uphold and preserve, keep and lIIaintain the works of the said t:ompany in guod and sufficient serviceable order for the prHention and extingui~hment (,f fires within the said city; and during- the continuance of the said act, at their own proper cost and charges to keep and maintain the fire plug, vent or opening, at the corner of Great George and Sidney street, and all other the fire plugs, vents or openings of dJe defendant:" ill the city, in good and suffi­cient serviceable order for supplying water whenever fires should happen in the city. Averment, that afterwards, to wit, on the day and year last aforesaid at the city aforesaid, a fire broke out in a certain wooden huileling in the said city in the vicinity of alld contiguous to the stores &'c. so in the possession of the plaintiff, and ah,o contiguous and near to t he fire plug, vent or opening at the corner of Great George and Sidney street, :l,lId to divel's other fire plugs, vents or openings of the defendants in the city, at which fire, and before the store~ &c. so in the possession of the plaintiff caught fire, or were burnt or consumed as thereinafter men­tioned, and during the progress of the fire, and at the time when the stores &c. so in the possession of the plaintiff caught fire. and whilst the sarr,e, and the said goods, chattels &c. were being burnt and consumed a;; thereinafter mentioned, divers, to wit, fifty engine-men, fifty fire-Olen, fifty hose-men, fifty hook and ladder men, and one thousand other men, were then and there present. with di\'ers, to wit, five engines, one

thouSllI1d

IN THE THIRTEENTH YEAR OF VICTORIA.

thousand yards of hose, fifty axes. twenty hooks, and twenty ladders, and all other and necessal'y implements, ready and willing and fully prepared to use the water of the said Saint Juhn "Valer Company in subduing, quenching and extin­guishing the said fire, and to have therewith prevented the same fl'om communicating with, igniting in, burning, con­suming and destroying the stores &c. so in the possession of the plaintiff, or the goods and chattels of the plaintiff' so being therein; and that the said fire could and might have been prevented from burning, consuming and destroying tho stores &c. and the goods and chattels of the plaintift· then and there being therein, if the defendallts had upheld and preserved, kept and maintained their works in good antI sufficient serviceable order for the extinguishmellt of the said fire and the prevention of the spreading and communicating of the same to the said stores &c. of the plaintiff', and if the defendants had kept and maintained the fire plug, vent or opening. at the cornel' of Great Geurge and Sidney street, Of

liny other of the fire plugs, vents 01' opl·nings, near to or con­tiguous to the place of the said fire, in good and sufficient serviceable order for supplying water at the lillie of the said fire. Yet the defendants well kllowillg the premises, and not regarding their duty in that behalf, so improperly and negligently conducted themselves, that hy and through their carelessness, negligence and improper conduct, the \Iurk" of the defendants were not at tlw time of the breaking out and discovery of the said fire, and for a long and unreasonable time, to lVit, for the space of one Iwur thereafter, in good and ~ufficient serviceable order for the extinglli~hrnent of the said

fire, and f(of preventing the spreading and comrnunicat ing of the same to the stores &c. of the plaintiff; and the fire plug, vent or opening at the cornel' of GrEat George and Sidney street, and all other the fire plugs, vents or openings of the defendants, were not in good and sufficient serviceable order at the time of the breaking out and discovery of the fire, and for a long and unreasonable time, to wit, for one hour there­after, for supplying water for the extinguishment of the said fire and for preventing the spreading of the same; but on

the contrary, the defendants at the time of the happening of the

1850.

BLABSLEE

against 'rHi: ~.l.I!'tT

JOHII W.TER

COMPANY.

1850.

13 ... KSI. ... a again.t

THE S~INT JOHN W ATKR

CUMr~SY.

(.;:\SES L\ HILA1~ Y TERM

tht1 ~llid tirt: Uild lor it long Ilud uureluontlLle lime, 10 wit, for one hour after the discovery of tl;e same, by and through their neg-ket, default Ullt! improper coniluct, wrongfully and inju­

riously suffered and permitted the said fire plug, vent or opening at the corner of Great George and Sidney streels, aud all other the fire plugs, vents or openings of the defim­

dants neal' to the place of the said fire, to be without any !<upply of water for thn extinguishment of the said fire allll for preventing the spreading of the same. By means whereof and for want of such supply of wllter, and without any default

or neglect of the plaintiff, the sl~id fire afterwards, to wit, on &c. r:1gctl and spread with great rapidity, and extended to and communicated 'with, ignited and caught in, and then and there utterly consumed and destroyed the said stores &c. so in the po~session of the plaintiff, and the said goods, chat­tels, stock in trade, fixtures and effects of the plaintiff, in and upon the sume then aud there situate and Leing; and by reason and means of the premises, the plaintiff not only lost IUld was depri ved of the usc, Lenetit and enjoymcnt of J.i~ !laid stores &c. so burnt, cousumed and de:>troyed, but was then and there greatly injured ill, and was hindcred and pre­vented from carrying on his trade, business and employment of u tull,Hv ciJandler for a Ions space of time, to wit, from the time of the bumin!; of the said stores &e. until the commence­ment of this suit, alit! then and there lost and was depri\'ed of divers great gains and profits resulting fmlll the said trade &'c., all!! was allll is otherwise greatly damnified and injured. There were several other counts varying the stfltement of tbe clefendants' duty and the breach. Plea, the general issue.

At the trial, before Parker, J., at the Saint Jolm circuit in Junuar!J 1849, the facts, as far as are now ncccssary to be stated, appeared to be, that the defendants were incorpo­

rated in the year 1832 for the purpose of supplying the city of Sai'lt Jolln with water, and were authorised to lay down pipes through the streets, and required to make vents and

openings in every street for supplying water whenever fires

should happen; that they accordingly laid down the pipes, and commenced their operations, furnishing a supply of water at all times for tho use of the inhabitants and tha

extinguishment

IN THE 'fHIR'fEEN'fH YEAR OF VICTORIA.

extinguishment of fire~, until the year 1846, when they ceased to allow the water to flow in the pipes through the city during the night, which their engineer said, in his evidence, was done in consequence of much watet' being allowed to run to waste in some pat'ts of the city. By an act 9 riet. c. 64 (a), all buildings fronting on streets through which the pipes of the company were laid, were made subject to a certain rate fOl' the benefit of the company, who were required to establish fire plugs for supplying watel' whenever fires should happen, and to keep the same in good and sufficient serviceable order. On the nig-ht of the] 6th June, l841, a fire broke out in the city, which communicated with and destroyed the plaintiff's house before any watet' could be obtained from the pipes, they being at that time empty, but in good order to convey the water, and a sufficient supply thereof being in the defen­dants' reservoir at a consideralJle distance from the fire. It was the general opinion of the plaintiff's witnesses, that if water had been got in time, the plaintiff's building would have been saved. The plaintiff's pt"Operty had been assessed under the act, and the rate paid. The learned Judge was of opinion, that the defendants were not bound to keel) the water constantly running in the pipes in order to have them in serviceable order within the meaning of the act, but thought a liability might be incut're,l by the company to the plaintiff for damage sustained by failure of the water, if the supply of watet' in the pipes was diminished after the passing of the act 9 Viet. without sufficient reason, in regard to the public interests and not the mere private interest of tlte company; nnd tlte jury found a verdict for the plaintiff, damages £15:j-stating that the defendants were guilty of a breach of dllty in not havi.IJg a supply of

water in the pipes. In Hilary tC1'1II last, J. A, Street, Q, C., obtained a rule

nisi fora new trial on the following grounds: 1. I\Jisdireclion as lothe construction of tlIP. acts and [he defendants' liability. 2, Verdict against law and e"idence. 3. Tltat the injury to the plaintiff was too remote, and the damage slIstained not the natural consequence of the want of water in .the pipes,

VOL. I. (a) Passed in 1t'4G

L~ 4.

645

1850.

llLAKSLEE

againBt THE SAI~T

JOHN WATER

COlllPANY.

(;.16

1850.

ULA KSL":E

against THE :--1AINT

JOH~ \Y An:1I

l'OIllPANY.

CASES J:, IlII.A I: Y TEILH

4. Tlmt the da1llages were cxcf~~~i ve, there ueillg 110 sufii­cicnt pwuf of the loss of IJlIsinc,;s.-

Ritchie and Du.!! ~helVed cause ill Trinity terlll lusl. It seems to ue conceded that au action will lie at the in"tauce or un iudividual, if Iw has sustained auy special dUlllage, al­though the duty illlposed upon the oefeudants IHIS one of a

puulic nature. This point is clearly estaulished, and has heen often recognised. Russell v. Tlte JI en of lJalJlt (a). Wilkes v. rite llllllgerfvrd Murl.et Company (b), lleuley v. The Mayor and Burgesses of Lyme Rpgis ( c). 'fl.is last Cdse not uuly senles the questiuu as to whether an individual lJas his

pri vate remedy to recover damagcs fur tllc neglect tu pcrform

a Jlllulic duty, bllt it also affords a pertinent illustration of the nlUnuer ill which such a duty IIIHy ue cast uJlou a party. it decides that whenever a curporation acccpts a charter whieh CUllcecles IJrivileges and illlposes uurl hens, it shall 1I0!

he permitted to receive the uenefits and reject tllO IJUrtheus. Ifit enjoys the advantages which the charter cOllfers UpOIi it, it IIl1lst also ue subject to discharg-e the duties that it impose,;; the at:l'cptance uf tile one invariauly entailing' an ouli!!;ation to pcrform the other. To the same effect is Tlte A'jng \". The Severn ulld lVye Ruilwll,lJ COli/pully (d). In this case the duty of the cumpany to reinstate the railway was 1I0t even questioned, althougll it had ceascd to be of allY service to

themselvcs. Rex v. Tlte Inhabitants of Kent (e) is also an liuthority upon this point. These cases are decided upon principles of sound and ouviolls policy; they are in accor­dance with reason and justice, and with the well known

lIIaxim of the common law, Qui sentit comnlOdu1ll, sentire debet I't OIlUS. 2 lust. 480. It is necessary then to inquire what

duty, if any, has been imposed upon the defendants by their ehancr. They are incorporated under various acts of the General Assembly, extending from the 2 Wm. 4, c. 26, to

the 0 Vict. c. 64. Relating as these acts do, to one subject,

and being in pari materiu, they mllst be tal,en and construed

• As the ca'e was decided upon the liability of the defendants under the acts, the argumeAt on the other points is omitteil.

(a) ~ T: R. 667. (b) 2 Bin!!. N. C.281. (c) "Bmg. VI. (d) 2 B. ~ .!lId. G46. (e) 13 East. 220.

together.

IN TilE THIRTEEXTH YEA~ OF VICTORIA.

toget het·. Dwarris on Slat. 699, Earl of Ailesbury v. Patte­SOIl (a). And this rille of construction includes not only acts that are in existence, but also t hose which are obsolete. Per Lord Mansfield, Rex v. Lo.dale (b), Dwarris on Slat. 700.70].

The great object of thi, as well as all other rules of construc­tion, is to discover the intention of the law. Dwarris on Stat. 6UO. And this intention may be sought for, not only from the purview of the acts, hilt al~o from their preambles and titles and from extrin~ic circllm~rances. Dwarris iO:!. Suhordinate to, but consistent with these general principles, there are ~ome particular rilles which are especially appli­cahle to the Hets in qllestion. In the event of there heing any ambiguity in tlwir languap:e, tllf~ Court will give them that construction which is ngainst the company and in fal'or of the public. And this for two rea~oll~: First. Because they confer privileges upon the compallywhich nre in derogation ofpuulic

rights. DIl'arris Oil Stat. 749, 7':'0, Scales v. Pickering (c). Secondly. Be(:allsf~ they are to be taken as speaking the

language of the company; and the maxim applies to them, " J 'erba clwrtarlllll fflrtius accipilllll11r contra llraferentem." Gildart v. Gladstone (d), Slourbridge Canal Company v. TVltecley (c), Priestly I'. Foulds (j), Parker v. Ureat Western Railway Company (g). Applying these rilles of construction to the :1ct~ which incorporate the defendan:s, let liS proceed to an examination of thei r contf'nts. The first of these is the :2 IT'm. 4, c. 26. Thi~ act illcorporall's the I'prsons therein named, tlwir assoeiates, SIIf'O's""rs and assigns, by and under the name or The Saint John WaleI' Company. After clothing them with the uSllal powers incidp.nt to a body politic, slIch

8S the right to sue and ue !'lwd by their corporate nallle; to have a cor'porate seal, and to make bye laws, appoint din~c­tors &c.; and after making various provisions relative to

the management of the afiitirs of the company, it proceeds

to invest them with privileges of a very high and responsible character. Bv section 15, tllf'v are authorised to invade the

rights of pri va~c property; tll;I' are empowered to take the

(n.) nt/II!! ::0. (e) 1 liill~. 4.-,0. (e) '.! n. 1,- .1el. 7~1:.!. f,fl :! .1/ .• \' G. 17.-,

(b) 1 Rurr.117 (el) 11 FII .• I. 1,7::'. (g) 7.1f. .\. G. :!,,~.

tnnu;;

64.7

1850.

BLAK8LKE

a!!ainst 1'H& SAINT

JOHN 'VAT~1l CO!'lIP'&'NY.

648

1850.

BLA.KSL1:E

against 'rHE ~AJ"';l'

JonN WATER COMPANY.

CASES IN HII.ARY TERM

lands of individuals, at a price not to be fixed by the pro­prietor or with his approbation, but according to the estimate of others, and whether the owner is willing to dispose of them or not. The 16th section also authorises operations on the part. of the company, which must necessarily occasion great public inconvenience. Tlte 4 IVm. 4, c. 40, extends some further indulgence to the defend.ants, and the S Wm.4, c. 11, authorises a loan to thelll of £5000 from the Province. The 2 Vict. c. 33, is another act of grace, curing the irregu­larities and rectifying the blunders of the defend~nts down to the time when it was passed. The 3 -Viet. c. 7:!, and 5 Viet. c. 26, were enacted to enable the compllny to surrender their charter to the corporation of the city of Saint John; and some of their provisions are of a very stringent nature. Amongst other things the corporation of Saint Julm is em­powered to make rules and regulations for the management of the works of the company, and to enforce those rules by fine and penalty; and by section 7, it is made a felony to break or injure any of the pipes &c. of the company. Section 13 authorises an assessment to be made upon the inhabitants to defray the expense of carrying on the works &c. It is manifest from these enactments, that the operations of the company were considered by the Legislature to be of great public importance. The recitals to several of the acts expressly say so; and an interference with private property, such as that permitted by 2 TV1/!. 4, c. 26, s. 15, is never to­lerated unless with a view to secll\'e to the public some benefit of adequate il1lportance-sorne advantage commensurate with the rights invaded. The language of Lord Langdale, in Gray v. The Liverpool and Bury Railway CO'lllpany(a) is very much in point,and shews with what extreme caution and reluctance IlI"ivileges, such as those referred to, are conceded to private and irresponsible speculators. The recitals however state more than this: they inform us why the existence of the company was considcred a matter of so much con~equence ; they shew in fact what was the cquivalent that the Legisla­ture required from the company, for the conccssion of so many favors and such largepowcl'S. Thc~- allude to the

(a) to JUT. 361

purpose

IN TilE THIRTEENTH YEAR OF VICTORIA,

purpose fOl' which the company was incorporated. It was to " supply the city of' Saint John with water;" and in that connexion, they allege that its" objects" were of " great public importance." ?ul'lhermore, that I he" objects" would be frustrated unless a loan was made by the Province to COIll­

plete its" works." The loan having been made and the " works" completed, it is said in the recitals to the 3 Viet. e. 72, and 5 Viet. e. 26, that the I' operations" of the company had been found very conducive to the" security of property." It was therefore in consideratiun of " the security" atTordcd to propel'ty by a ., supply of water" furnished through tbe " works" of the company on the oecasi In of fires, that the defendants obtained so lIIuny uoon!;] from the Legislatul't" In order that such a supply might ue available on those oc­casions, the company were required under no less a penalty than the forfeiture of their charter, to place venls or fire plugs at such places on their mains and pipes as they should IIC required to do by the corporation of Saint John. Tliesl' plugs were to ue paid for by the corporation of Saint John, and their erection by the company was therefore no equiva­lent for the extensive alHl peculiar pOlVers conferred upon them. The plugs in themselves, moreover, could ill no de­gree conduce to the security of propcrty-they arc only useful as tlie means of conveying water: it was the supply of water only which was valuable for the extinguishment of fires; and the defendants had themselves so understood their liability, for thcy had always supplied water on the occasion of fires. The recital to the next act shews the construction which they had put upon the previous acts. It alleges that they had afforded" copious supplies" of water "gratuitously" for the extinguishment of fires, whereby property had derived much benefit from their op~rations. The corporation of Saillt

Jolm was then authorised to Icvy an assessment on property, for the purpose of defraying the expense of preserving works so essential to its security. The corpol'Ution of Saillt Jolln, however, did not think it advisable to order the required as­sessment ; and thereupon the 9 Viet, c. 64, was passed, to enable the defendants themselves to tax the inhabitants.

Down to thi~ timtJ, as it appeared in evidence on lhe trial and as

649

1850.

Br,AKSI.EI:.

against TH~ SAINT

JOHsWATl-:R

CO~lPA ~ Y.

(;,")0

1850.

HLAI\"'" I. I·. !\.

"ff"illsl Tit; ~,'I:--'T

JOII~' ,\' "or t.R

(;0,\1 rAN f.

C:\SES IN JIlLARY TERl\I

a~ IIlny he gathered from the ar-t~ of incorporation, the de­

fendallts had always afforded an immediate supply of water

whenevel" reqllired; they had kept it on, ready for lise, night

alld day; and they had ne\"er exerci~ed or even claimed the right to shllt it off, except fOI" such periods as were absolutely

Ilee'~~silry whilst the piJl"s were IIndergoing repairs. These

facts, indced, arc the !!TOlllids IIpon wllich they lmse their

a pplication fiJI" the pri vileges conceded to them hy the 9 ricf. They a liege that the 3upply of water to the public which llao Ilitherto heen gi ven wit hOllt remllnerat ion, in j list ice a n(l

rca"cn ollg-ht to he paid for. It might he admitted, indeed, that hitlwrto they wcre nhliged to afford slIch a "!'pply on ~lIch occ::t~iolls only as the water was reqllired to he in the

pipes for the purpose of slIpplying their cilstolllers. Hitherto

the company had hrcll a priv:lte "per-Illation; hilt the 9Vict. elltil"e1yalters its Chal"flctl·r. It liftS been alllHled to in pre­

violls acts as estahlished for "~Ilpplying the city of 81//111

fohn with watel';" it is now recognised as constituted fOI"

" tltc c.rlillgllishmcnt of.fires." The 9 J'ict. c. 64, is intituled ... \11 act fUl"ther to faeilitate rhe supplying- of the city of

" ."'·aillt John with water. and for the more cffer-tllal preven­.. tion all(1 extingui~hlllel~t of tlre~ within the said (·ity."

Thc ohjcct of this act i<; thc prevention and extinguishment 0f fires, a!'< well as the supplying of Water. It appears by

the recital, that the assessment was to be milde "towards

" the expense of csta"li~hing &c. IvrJrf,S so highly importnnt, .. as well to the healtlt allll comfort of the citizens as to the

" l"ofection and preservation of property. A nd what are the

" works" which conullce to thc " health and comfort" of the

iuhabitants and the '( pre.,crvation" of property from fire?

Surely not the fire plugs alon,>. They do not in the least

affect the sanatory condition of the people; and, unsupplied

with water. as little do tlwy tend to the safety of property.

It appears from the same preamble that it was to remunp.rate

the company for the water, which had hitherto been given gratuitollsly, that property wa~ to be taxed. The public

w('re now about to become the cllstomers of the company, by buying the watcr which contributed to the safety of their

property. The first section of the act also shews that the

i III pos ilion

1:'< TilE 'l'ulltTEE:nll YI::.'d: UF V lCTUlU.\.

impositiull of the tax IIUS entirely i .... espective of the plug~ ; it was regulated by the position of the pipe~ of the company;

it was not confined tu property as situated with referellce to

the pusitioll ufplugs; Lut it was provided that IItJ house shuuld Le suLject to it .. unless a main uf the cumpany now is placetl and ill uperatiull in front uf the sallie." lL will Le ouserved thut thero arc twu parts to the proposition cuntained in thi::! pruviso. The one refers to the muins or pipes of the com­

pany as Leing placed; the other alludes to tllO~e pipes as being­in operation. A llIain nmy he considered as placed when it is laid dOWII in cOllnexioll with the worl,s; but it can ollly Le said to Le in operation whell it is carrying out the ohject for \Vhicl. it su placed. And what object had !llC collipany in

view whell they placed their pipes, if it was not to conley water? The wurd "uperation" illlplie,; action, but what action were theHe pipes ~o be subjected to unless it was the conductillg· of water. The title, the preamble, and the cun­text of thi . ..;, and all the other acts relating to the company, clearly define what llH!aning is here to attach to this Ianguagc. The extinguislllllent of tires uy the water supplied frum the wurl,s of the company ucillg the object which the Legislature had in view, the seventh sectioll of this act puints out the

mean~ Ly which the puulic lIere to ubtain the necessary

supplies for that purpuse. it was by 1ll,~aIJS of fire pings established tiJl· ""upplying water" at fires, which the defen­dants were to keep and lIIaintain in " serviceaule order." Can it ue said that tile defendants I,ept thosc plugs in "ser­viceable order" tur the purpose for which they were esta­Llished, when they excludcd the water fronl them? They

had the contrul of their UWII works, and if they are permilted

to shut olf the watcr whenevcr they cho(l"e, the oLject uf the law might Le cOlllpletely frustrated. They might impose the tax, levy and recover it by distress, aud even by imprisonment, and then refuse to concede to the public the very benefit it

was intended to secure. If there Le any alllLiguity in the

expression "serviccable ordcr" in this section, the design

and policy of the act will Lc called in to aid in its elucidation.

" In construing the words of an act of Parliament the terms

" are always to be understood as having a regard to the " subject

1850.

BL,\KSl.l·:b:

(Jguin~t

THE ~.O\I~1·

JUHN \VATI:R

CU:'IIPA:'iY.

6;'):2

1850.

Ih."sl.EE a,'ainst

'rH~: SAINT

JOll. WATER (~jIMPAf'iY.

CASES IN HILARY TERM

" subjl'ct matter; for that, it is to be remembered, would " always be in the eye of the fmmer of the law, and all his " expressions would be tlirected to that end. Thus the terlll " , maintenance' is, in itself and abstractedly, equivocal; but " when we tintl the statute in which it OCCllrs, direcletl against " theencouragementoflitigation, and the uphoJdingofparties " to suits, we easily perceive what was designed to be pre­"vented. The same with the terms 'false informers' and " , evil procurcrs of dozens,' upon which many fanciful in­" tcrpretations may be put; yct in a statute relating to juries " thcre is no difficulty in understandillg that the former is " meant of embracers and untlerhand instructors and leatlers

" of jllrors returned." "So, the tcrm 'Englislt money' is " used in the statutes of employments, which relate to the " circlliation and employment of money with which the " stranger who brings merchandise into England is to be " paid, and to hestow the same muney upon other mer­" chandises of England; the design and polir:y considered, it " becomes clear that what is intended, is a II money current " within England, although not coined in England." Dwarris OIl Stat. 754.755. Applying this rule to the seventh section of this act, looking upon the words" serviceable order," as connccted wit h its subject matter and its design and policy, do they not imply that a supply of water was to be attainable at all tillJe's through them for use on the occasion of fires? This too will be found to be the meaning put upon those words in the 7 Viet. e. 4:3, s. 6. That section gives a legis­lative declaration of the construction which should be given to them in this act. Dwarris Oil Stat. 701. It is not to be presumed that the liability of the defendants would be more limited under the 9 Viet. than under the former act; inas­much as under the latter, they are themselves invested with the power to levy the tax-whilst by the former, that power is intrusted only to the municipal authorities. But even if there could be any question upon the point, the public, under the cases which have been l'efel'red to, are entitled to the most favorable constl"llction against these defendants. It i~ submitted that the mere erection or maintainance of the plugs under the 9 Vict. c. 64, s. 7, could not be the

equivalent

I~ TilE TIIIRTEE~TIf YEAR or VICTOR1A.

equivalent that the public were to receive for the powerll conferred upon this company. Any expense which they might he subjected to for that purpose, was only an invest­ment of so lIIuch capital at legal interest; for the interest was secured to the company by the provisions of the act. An!1 for these I"f13S0nS it is contended that the delendant" were bound, at least, to have used reasonable care and dili­gence to have I.ept tile plugs in serviceable order, lJy being ready to afford a supply of water at the fire which destrol'erl thc plaintiff's property. •

J. A. Street, Q. C., in support of Ihe rule. The cases referretl to on the part of the plaintiff do not shew that the action can be maintained in such a case as this. In Henly v. The Mayor of Lyme Rrgis (a), it was fl condition of the grant to the corpul"alion that they should keep the sea walls in repair. The Killg v. The Severn amt lI'ye Railway Com~ pally (b), was the case of a public highway. That case shews that the (ll"Oper remedy for a breach of dUly on the part of either a public or privl\te corporation, is by mandamus. Bllt adlllitling that an indivi(lual can in certain cases main~ tain an action for nn injllry snstaine(\ by the acts of a company, though the duty imposed on them is of a puulic nature, yet it is suhmitted this case does lIot fall within tbat r1ass of authorities, h('callse there i~ no sucll duty imposed Ull

tbe tlefendants by law, as the plaintifr contends tor. The act of incorl'oration 2 IVm. 4, c. 26, contains nothing extraordi­nary in the pri\'il!';.;-f'~ conferrerl-they cannot interfere with private property without paying comp(~nsation, to be deter­mined either hy arhitration or hy ajllrv to he summoned hy the sheriff. Thi>! is a pri\'ilege allllo~t invarial-:-Iy granter! to the numerous railway companies in ElIgllwd, an(1 was essen­tial in this case to enable the defendants to carry out the objects of their incorporation. The only duty imposed on the company is hy the eighteenth section of the act, which

reqllil'es them, in every street through which the pipes shall he laid, to provide vellls and openings for sl1pplying water whenever fires Ehall happen in the city, prO\'ided that the

mayor kc. of Saint John shall pay the additional expense

(a) :; Hi",:. 91. (/.) 2 R,~· .11d, ("i,Hi.

VOL. I. 1\f2 that

653

1850.

BI.AB"LEE against

THF. ~AI!lT JOHN W.TER

COMPAI<Y.

654

1850.

IlI.AKSI.EE

fl(T(tinst TH~ SAINT

JOII~ WATJ,;R

CO"PA:'\Y.

CASES IN IHI,ARY TERM

that may be incurred lJy making and maintaining such vents and openings. There is nothing in the act to compel the inhalJitants to tal<e the water; and if they should decline to clo so, surely the company will not he compelled to supply it? The 4 /I'm. 4, c. 40, merely enlarges the lime fOI' paying in capital. The 8 Wm. 4, c. 11, authorising a loan of £5000 10 the company does not treat them as possessing any pecu­liar privileges: it requires them to give security to the Crown for the payment of the principal and interest, and binds them as stringently as any dehtor is 1J0llnd to his creditor. 'fhe ;l Fiet. c. 72, and 5 Vict. c. 26, have no lJearing on the ques­tion, having been passed to enable the corporation of Saint f(lhn to purchase Ollt the water company; the former was ,epealed by the latter, ancl that never having lJeen acted on iJecame a dead letter: besides which it imposed no burdens on the defendants; and any additional powers contained in the act wen~ given to the corporation of Saint Joltn and not to this company, and cannot he IIsed as an argument to lIIake Ollt their liability. If the plaintiff can recover at all, It IIlllst he hy virtue of the 9 Viet. c. 64, for the preamlJle of that act states that the water had been supplied lJy the com­pany "gratuitously." The sevent h section of that act irnposes upon the company the duty of placing fire plugs for supplying water in case of fires, and directs them to keep the same in good and sufficient servicealJle order. The question is, what is meant by " serviceable order?" Before this act, it was optional with the company to allow the water to flow in the pipes or not, and there is nothing in the act tn compel them to keep the pipes full of water; they rnay lay down pipes and assess the inhabitants under this act, though they never allowed the watel' to flow in the pipes: all they are bound to (10 is to keep the fire plugs in serviceable order. If a person should be bound to keep a gun in serviceable order, it could 1I0t be contended that it was part of his duty to keep it loaded; but merely tbat it should be in a proper condition to receive the chal·ge. So here, "serviceable order" means that the pipes should be in good order for the reception of the water. [CARTER, J. "Vhat damage could a party sus­tain by their not keeping fire plugs, if they are not bound to

keep

IN THE THIRTEENTH YEAR OF VICTORIA.

keep water in the pipes?] That is not the question: It IS simply, what duty has the law imposed upon the defendants? It is contended on the part of the plaintifi~ that these acts must be treated as a contract between the company and the public. But a contract must bind both parties, 01" it is obli­gatory on neither; and there is nothing in the acts compelling any person to take water from the company, therefore the pract.ical operation of the ronslructiun contended for on the part of the plaintiff would be ruinous to the company, be­cause they would be at all the expense of a constant supply of water in the pipes, without any corresponding ohligalion on the part of the public to take and pay for it. The duty of the detendants cannot be canied beyond what I he words of the act impot·t, and if the Legislature had intended to compel the defendants to keep a conslant supply of water in the pipes, they could have very easily expressed it. It is a primary rule in the construction of statutes, that the inten­tion of the Legislature is to be collected from the words of the statute. Dwarris on Statutes 694. And the Court must not, in order lO give effect to what they may suppose to be the intention of the Legislature, put upon the provisions of a statute a construction not supported by the words, though the con~equence should be to defeat the object of the act. Dwarris on Stat. 703, Rex v. Ramsgate (a), Rex v. Great Bentley (b). In Rex v. Bar/tam (c), Lord Tenterden says, " Our decision may pel'hap~, in this particulat' case, operate " to defeat the object of the statute; but it is bettel' to abide " by this consequence, than to put upon it a construction " not warranted by the words of the act, in order to give " effect to wlmt we may suppose to have been the intention " of the Legislature." In Notley v. Buck (d), the same rule of construction was adopted, It is conceded, that whet'e un act imposes a tax or burthen upon the public, any ambiguity in the lanO'ua!J"e mllst he construed in favor of the public;

'" " hut the answet' to that is, that thcre is no ambiguity in the language of this act, and no question arises as to the impo­sition of any tax. Thcre is another rule in the constntction

(aJ 6 B. ~. c. 7t~. (c) 8 B. Sr C. 104.

(b) 10 B. [,., C. ;326. (d) ~ B.lo,' c. 164.

of

655

1850,

BLARSLEE

against THE SA,"T

JOHN WATER

COMPANY.

656

1850.

BLAKBLF.B

agui1lst l.'HK SAINT

JOHN WATEa

COMPANY.

CASES IN HILARY TERM

of statutes-that wherever a charge or dUly is imposed, it

must be by deal' and unambiguous language. Dwarris 0"

Stut. 749. Thi,.. operates in favor of the defendants, for the

plaintiff seeks, upon the language of un act which he admits to be ambiguous, to charge them with the expense of keeping

the pipes constantly full of water. The whole question must turn on the act 9 Vict. c. 64; lIone of the former acts, which are 1I0t now subsisting, can be referred to, to assist in the

construction of it. Dwurris on Statutes 701. Cur. adv. vult.

ClIIPMAN, C. J. nuw delivered the jildglllent uf the Court. After much cunsideratiun, we all concur in opinion that this

action i!; not maintainable. It is an actiun UII the case, bruught against the defellduuls

for an alleged breach of duty, in nut supplying waler from their works in sufficient time to extinguish a firc that broke out in the city uf Suint Juhn, by which the plaintifPs pro­perty was cOllsumed. The plaintiff' contends, that a legal duty to that effect is imposed on the defendants by the Acts of Assembly which relate tu the said water cumpany. This company was incorporated by the act 2 TVIII . ..t, c. 2G, as a

private speculation, for the purpose of supplying the city of Suillt JOlt11 wit h water. The eighteenth section of that act provides that I he company " in every street or road tI-,rough "which their pipes shall be laid, shall make and pr.ovide " proper vents aud openings for l>upplyillg water whenever " fires shall happen in the said city or the vicinity, in such " places anrl at such distances from each .other as the mayor, " aldermen and commonalty .of the said city, in commoll ., council conl'ened, shall fr.om time tu tillle direct and ap­

.. p.oint, uuder the penalty .of f.orfeiting the privileges granted

.. t.o them by this act; and that any additional expense the

" making amI maintaining th.ose openings may cause, shall "be paid by the city corporation." The act 7 Viet. c. 43, authorises and requires the city c.orporation to issue a war­fallt annually, tu lIJake Iill aSSeSSlilent nut exceedillg £300, Oil all property in buildings ou the casterll side of the harbor, t.o be paid over to the walcr company, for every year that

the income .of the company should llot be sufficient t.o defray

the

IN TilE TtIlIlTE«;:'\TIl VEAl: OF Y1CTOI:I.\.

the legal inlorcst on tlie alll01l1lt of capital im'cstcd, and ex­

penses. To this was <lllached a condit iUII, t hat the company should in consideraulllI thereof, durillg thc cUlltinuance of

that act" have, keel' and maintain thcir various lVurl,S, and

•• all the fire plugs thell ur tllcrcaftcr tu he established, in

" good, sufficient and ctfective ~l;r\'i('('ahle order, so as to Le

"immediately available ill dll case~ of fires. ('reI' of all ex­

" pense to the city or its inhahitallLs." 'I'll,) duration of this

act cxtended only to the ht Octll/nl, 1";17, flllrl it expired

without evcl' havillg been acted IIpon. The next act was that of 9 Vict. c. 6,1, atHl that act llIade nil bllildings fronting

upon all streets &c. in the said city, 1V1J(~reill 11j(' IlluilP; of

the cOlllpany are placed, suuject to a CCI lain allUlial rate or assessment during the continuance of that act, to IIC r.lj,(;.1

tor the benefit of the cOII'pany ill the IIlanller llwrelll pro­

vided. The seventh section of this act Imposes the IlIlI'tlll'n

upon the company during its continuance, ilt their own e.\­

pense, "to place and estaLJlish fire plugs luI' !>llpplyiug water, ., whenever fires shall happen, at such distanccs frulll each

.. other as the city corpuratioll shall frolll tillw to tillie direct,

" and to keep aud lIIaintaiu the sallie ill guod aud ~lItlicie"t " serviceable order during the continu<lllce uf this act, free " of expense to tile city." it i,,; oLJservalJlc that the burth{'11

illlpused upon the cumpany by this act is not so extl'llsil'c ill

itl'! term as in the previous act 7 Viet. c. ·n; and by the act

9 Viet. c. 64, the question IJIlist IIwinly be decided. Nuw the

privileges granted to this water company 011 the one hal'u,

ancl the duties imposed upon it on the other, are matters of

positive legislative regulation, and cannot LJe carried !Jeyonl\

the fair import of the tenns used uy the Legislature. There

is no duty imposed on the company with regard to the U1flllIlVl"

and measure of the supply of wuter for the purpose of c.x­

t-inguishiog fires. 'fhe only duty imposed is to establish fire

plugs for supplying the water when in the pipes, and to keep

these fire plugs ill serviceable order. It ut1l'cars to be taken

fur gmnted, that the compuuy woulll furnish water at fire"

for the safety of the city, ill like mallner as an individual

would 011 such occasions furnish \Vater from his well, without

there ucing any legal ouligation or duty so to do. By hog-a I duty,

657

1850.

BUKSI.EE

ogftinst TH .. : ~ \1:'101'

JOlt, \VAT>:R Cu~rA:-;Y.

658

1850.

BLAKSLEE

against rrHi: ~AINT

JOH' WATER

CO>lPANY.

tiaturday, 16th February.

CASES IN HILARY TERM

duty, we mean a duty which could be enforced by action at law. That this was the understanding of the Legislature is apparent from the recital in the act 9 Vict. c. 64, as well as ill that of the act 7 Vict. c. 43, where tht:l water of the com­pany is stated to have lJeen furnished gratuitously fOI' the extinction of tires. If it had lJeen the intention of the Le­gislature to change the charactel' of this gratuitous supply into a legal burthen, we can conceive no good reason why they shuuld not have expl'essed themselves to that effect, es­pecially when we take into view the extensi\'e and almost ruinous liahilities that such a legal obligation would impose upon the company, and as the only duty in this respect ex­pl'essly imposed by the act relates to the fire plugs, we must take it to be the intention of the Legislature that. the liability of the company should not extend beyond this.

On this ground therefore we are of opinion that this action cannot be sustained; and being of that opinion, which dis­poses of the whole case, it is not necessary fur us to advert to any of the other grounds which were discllssed in the ar­gument. The rule for a new t rial must be made absolute.

Rule ab!>olutc.

WILSON against JONES.

An action of DEBT against the sheriff of the county of Cltarlotte, for debt.jfag;illst a the escape of a prisoller. The declaration stated that in sherI Jor an es-cape, call not be Micltaelmas term 11th Victoria, the plaintiff I'ecovered a maintained in • d . h S C . this Province JII glllent 111 t e upreme ourt agalll'3t one Brockway for underthestatute .£39 5s. 3d., and on the 25th September in the twelfth year 1 Ru;h. 2, c. 12.

of Her Dlajesty's reign, sued out upon the said judgment a writ of capias ad satisfaciendum, directed to the sheriff of the said county, commanoing him to take Brockway and him safely keep &c., which writ was indorsed with a direction to

the said sheriti'tu levy £39 5s. ad. besides sheriff'& fees and expenses, and was afterwards, to wit &c., delivered to the defendant, who then and from thenceforth, until, at and after the return thereof, was sheriff of the county of Charlotte, to

be

1:'< TilE TIIIRTEENTII YEAR OF VICTORIA.

be executed. By virtue of which writ the defendant after­wards &c. arrested the said Brockway, and detained him in custody thel'eon, nntil the defendant afterwards &c., without the leave or license and against the will of Ihe plaintiff, permitted Bruckway to escape and go at large out of the defendant's custody, the said sum of £39 5s. 3d. then and still being wholly unpaid to the plaintiff: whereby an action hath accrued to the plaintiff to demand and have from the defendant the said sum. Yet the said defendant &c.

The defendant demurred to this declaration, assigning the following cause :-1'hat an action of deut will not lie in this Province against a sheriff for the escape of a pri­soner; such action not being maintainaule at common law, and the English statutes which authorise it not being ap­plicaule to, or in force in this Province. Joinder in demurrer.

The case was argued on a former day in this term, by J. A. Streef, Q. C., in support of Ihe demurrer. It was

decided in this Pl"Ovince many yeals ago, that this actioll would not lie, and that decision has never been overruled. [CHIPMAN, C. J. It was decided ill the lillI!' of Chief Justire Ludlow. We will hear the other ,id(,.

TlwlIIson contra. It is laid dowlI in all C()lIstillilionul text writers, and recognised as law ill Doe v. J1J' Fat/den (a), that all the laws of the mother country applicahle to the condition of a colony, are in force in the colonie~: no distinction is made between the common law and the statute law; and in­deed the common law had its origill in statutes passed before the time of Richard thc First, the rccords of which have been lost. By an equitable construction of the statute 1 Rich. 2, c. 12 (b), the ~heriff is held to be liable to un action of debt fOI' an escape: there is nothing local in the statute, and therefore the colonist imported with him all the rights inci­dent to the recovery of the debt: there is no reason why he

(a) Bert. R. 153. (b) This statute enacts that" No King, upon pain to lOBe his office;

warden of the Fleet shall suffer any and if such warden be attainted that prisoner, there beiogjudgment, tv go he has suffere~ 8~ch pri.onerto go ~t out of prison by bail nor by baston, large, the pl.alDtlffs shall have theIr without making gree to the parties of recovery agalDst the warden by Writ that whereof they were judged, un- of debl." le8s it be by writ or command of the

should

659

1850.

WII.SON'

"gainst iONES.

fiGO

1850.

W" .• O,.. (/!.!f1.iusf

Jo:-.' E"".

CASES IN HILARY TERiU

shollid liure only the common law remedy of an !Iction on the

ca~c. Do hi~ right s hecome ahridged hy crossing the Atlantic:1

Th., ('on~Ir\lclio\l given to the statute in ElIgland is as

inalienuLle as the slatute itself. If the statute of use~ auti enrollntenl~ is in tllrce in the colony, as was held in Due v. ,11' Fadden, why is not the statute of 1 Ric/t. 2, also?

The right to I'ecoy!)r a debt is just as dear to a colonist as 1 he right 10 his lanl\. There is much in the statute of uses to ~hew that it dill not apply to a colony. The Judges of

this I'ourt arc vested with powers similar to the Judges at

IfeslllliJlster, and have therefore an inherent ri!dn to give the

action of debt, as mlleh as the Jlldgcs ill England have;

and t1w fl'lestion therefore is not, how they would construe the act; bllt what ('on~trllction has it received in the parent

~tate, as applicahle to a new creative right? The statute

has he('lI rer:o;;ni~el in XoVrt Scotirt and also in the United .\;,tateg. III the former, by an act 4 T('m. ,1, c. 5, the Legis­latlll'f~ has to a cel·tain extent, altered the law with regard to the sheriff',; liability to an action of debt; bllt there is an

absoilite recognition of the statute, and it II1Il"t ha\'e attached upon the ~ettlelllellt of .V(JL'a, Scolia, and \\'hile this Province

\Va;; P;lI't of it. Then wiJen ha~ it been aurogated here?

Unle~s it call he shell'n tll;:\ there is some statute in this Province alJri(Lill~' the sllf'l'iti"s li>tbility, the COllrt must

hold that the action \\'ililie. In !'Ieverul of the United States it has ueen helt! as clear law that the statute extended there

while dwy were colonies, anll that the aClion of debt \Voul(1

lie. Rawson v. Dole (a), Porter v. Sayward (b), Burroughs v. Lou-wier (c), Fullerton v. Harri:; (d). In Greenlf. Evill. s. 58U, it is said that the common law has been altered in

some of the United States, Ly statl:tes which provide that in

an action of debt for an escape, the plaintiff shall recover no

1I10re than theactu81 damage he may prove he has suscainelJ.

It is singular, that while the jurists throu~hout the Ullited States have held that the statute extended there, and the

Courts in Nova Scolia hare constantly acted IIpon it, it should

be considered inapplicable to this Province. Under these

(~) ~ John., 454. (t) ~ .\fa .. " ~7:l,

(b) 7 Mass, 377. (d) 8 Greenl. 393.

circumstanCe!!,

IN THE THIRTEENTH YEAr. OF VICTORIA.

circumstances, the Court ought to pause before they give effect, in this more enlightened age, tu an isolated decision in the earlier ages of the Province. It may almost be said that there has been a prerogative recognition of the statute in this Province; for as the commissions of the Judges re­cognise the office of sheriff~ it must be with the same duties and liabilities as in England. When the Crown appointed sheriffs in this country, it had not the power to say to them that their liabilities should be different from those of the sheriffs in England. "The King cannot abridge the sheriff of any thing incidcnt 01' belonging to his office." Bac. Ab. "Sheriff" (A). It llIay also be contended, that there has been a legislative recognition of the statute in this Pruvince. The act 6 fVm. 4, c. 41, $. 14, enacts" that no sheriff shall " be liaulp. to any action of escape for or on account of any " liberty grant cd to any confined debtor" &c. That shews that the Legislature contemplated more than one forlll of remedy; and one of those rcmedies must Le debt. The action of debt is a righteous rcmedy-it is no hardship on the sheriff; for if he gives the debtor the bcnefit of the limits, and has aftcrwards reason to suspect the solvcncy of thc bail, he has power at any time to lo(;k the deLtor up, and thus secure himself(a); and he may also refusc to allolV the party to have the limits. But not so with the creditor­he has nothing to say to the bail, nor any power to prevent the debtor from getting the limits. If an action on the case is brought against the sheriff, he may pl()ad that he took bail fOI' thc limits which he considcrcd sufficicnt, and that they Lecame insolvent: the creditor may thereby Jose his whole

(a) The eighteenth soctiOA of the act 13 Viet. c. 31, to alUcnd the laws relating to insolvent confined debtors, passed 26th .I1pril, 1::<:;0, declares as follows :-" Whereas in cases where the sureties of any debtor executing a bond uuder the provisions of this act, may be considered insufficient, or where any sheriff or other officer may die, resign or be remo,·ed from offic~, It is considered proper that the she· riff or other officer, or his successor, should be authorised to require a new bond; be it therefore enacted, that in 80y case where the sheriff or other

VOL, I. N2

ofileer holding any bond taken under the provisions of this act, ur tIle suc· cessor of any such sherit!' or other officer, shall require such new bond from any debtor within the limits, the same .hall be gi ,·en by the debtor in tile same manroer as if such debtor was in actual custody, and on the reo fusal or neglect of tbe debtor to gi,·. such bond, it shall be lawful for the sheriff or othe,· officer to commit such debtor to cllstody,in the same manner as if such debtor had been rendered by his sureties under the provisions of this act."

debt

661

1850.

WILSO/(

against Jo~ES.

662

1850.

WaSON

61[0"UI JOUi •.

CASES IN HILARY TERl\1

debt through the acts of the sheriff, which he has no power

to control. J. A. Street, Q. C., in reply. The action of debt is a hard

action; and as it did not lie against the sheriff at common law, and has been once held not to apply to the circumstance~ of this country, it is submitted that the Court will not now think it necessary to adopt it, particularly as the Englisl, act ~ & 6 Vict. c.98, has virtually repealed the statute of 1 Ric". 2, and declared that the sheriff shall not be liable to an action of debt for an escape; and it has been held that no action at all can be maintained for an escape unless the plaintiff has sus­tained actual damage. Williams v. Mostyn (a). It would be monstrous to hold that an action of debt would lie, after tbe statute of 1 Riel,. 2, had been repealed ill England; and if the Court was now called upon to give a construction to this act, it would never adopt tho forced construction that wall given to it in England.

Cur. ad/}. vult. CHIPMAN, C. J. now delivered the judgment of the Court.

This was a demurrer to a declal'ation in an action of debt against the defendant as sberiff of Charlotte, for an escape, on the ground that such action does not lie. It cannot be dis­puted that under the Imperial act 1 Rich. 2, c. 12, this form of action had, until the passage of a recent act, been held good in England, that it had been held good in some of tbe U.'lited Stotes, and that it had been adopted in Nova Scotia. 1 t seems Lilat at a very early period after the establishment of this Province, this Court decided that the 1 Riel,. 2, c.12, was not applicable to the circumstances of the country, and therefore the action would not lie; and that decision has ever since been acted on. We should feel ourselves bound by those decisions, unless we saw very good ground for over­ruling tbem.

Now when we consider that the construction put on this statute at a very distant period is very forced and unnatural, and one which, were the matter new, would probably not be put by any Court in modern times; that the act has been expressly repealed in some of the Ul1ited States, and

(0) 4 M. ~ W. 145.

virtually

IN THE THIRTEEN1'H YEAR OF VICTORIA.

virtually repealed in England And Nova Scotia; we think we are quite justified in abiding by the former decisions in this

Court, and holding that though the statute itself may be in force in this Province, we are not bound by the somewhat

unreasonable construction which has never hitherto been law here, and which in other countries where it was law, has been avoided by positive enactment. There must he judg­ment for the defendant 011 the demurrer.

J llIIgment for the defendant.

663

1850.

WIf .• O~ o.q-ainlt Jo~u.

IN !fI,c/lae/.mas term last, D. S. 11'err obtaIned a rule nj~i [n 8 prosecution

for a certiorari to remove the proceedings taken in this case uJ:;der4the2ac~S ,m . . c. ,lor

before a Justice of the Peace in the county of Northumberland, nonperformance . of .tatllte labor,

fOl' nonperformance ofstatnte lahor, on the prosecutIOn of the it mllot be provo

('ommissioners of hi.,.hwavs· on the ground that there was ed that the part ... l:> .' h,. been notified

no proof that Ferguson had recei~'ed notice of the place by the overseer,

I h I . I . I h' I 1 ofthe time and W lere e was to appear, or tIC Imp ement Wit I W IC I Ie place ofmePting

was to pcrform his statute lahOl'; nnd that Iw had performed !~!.~r:f:r~ the

work on a particular part of the road, by the clirect ion of one wher,' thp. affida. • • • Vlt~ In Hn!iiWer to

of the commISSIOners, beyond what. he was reqUIred by law an application

{' I' I h T . I -' f I II '1'1 for a tertiu",r' to perlOrm, W IIC 1 t e • LlS!ICP, la .. re user to n OW. Ie to remove the

act 5 11'111.4, c. 2, SS. 18. 20, \'''o1s citell. proceeding. in . . ~llch a pro.;;p,cu-

J. A. Street, Q. C., shewed catl,;p, on a former day In tlll~ tion, stated that

ffid . f fl" 'I the party had term, on an a flVlt 0 one 0 t w romml~SlOners statmg t Jat heen duly notifi.

Fergll.~on Ilnrl heen "dilly notified" to perform his labor; ed. the Court made the rule

also an aflicla\'it of the Jtlstiee ~t;lting that it l1as pron~d a",olllte, ill or-

I, f I' II Ii I bid der to ascertain that the 1St 0 persons IU I e to per orm statute a or la what the notice

hecn dul\' published, amI that the o\'erseer notitipd the dc- really was-:he '. . , appl,oant haVing

fendant of the time and place of meeting to perfllrm IllS in hi. atlid3vit

I . I lb" I I' denied notice. !'Itatllte labor, nl1l\ t Ie Imp ements Ie was to rlOg Wit 111m. Semble. that it

It was also stnted that the "'ork he claimed to he allowed i8not_~ss~.nti".J . ' to nOI"y tue par.

(or, was performed on n private road, and Without the Dutho- I)' to bring an, . • • '10 plement t~

rlty of the commISSIOners. perform the

D r;;; Kerr was heard in ~;t1111IOrt of the rule. work; ~nd un-• I • • le~j hA I~ ~n no-

ClIr. ll/lv, 1'1111. ti6ed. he ,,"od The not bring 'DT

664

1850.

Ex parte l'ERGo80N.

CASES IN HILARY TERM

The judgment of the Court was now delivercd by CHIPMAN, C. J. On the whole we think it better to Ict

the certiorari issue in this case, that we may ascertain from the evidence gi ven befol"C the Justice w hat is meant by the

terms duly notified. The affida vit of Fergusun distinctly points to the objection

made by him to the notice, that it did not specify the place

or implements. It might not be essential to state the imple­

ments, as it might he inferred that if no implements were mentioned, it would be unnecessary for the party to bring any: the surveyor might possibly intend to furnish them;

but it should appear that the party was notified of the place of assembling. Now if this objection was improperly disal­lowed by the Justice, we are not prepared to say that the defence afterwards set up, and in support of which the de­fendant called evidcnce, of having done his statute labor not in pursuance of the notice, but at another time and in a place not warranted by law, would be a waiver.

It seems pretty clear to us that the defendant had no in­tention of performing his labor under the order of the com­missioners; but as it is important that the requisitions of the act in regard to notice should be observed, and it would have been easy for the J llstice or commissioner to have stated in his aflidavit what the notice really was, we make the rule for the I;erliorari absolute, though with some reluctance.

Rule absolute.

BACON against HOAR.

It i~ no answer D. S. Kerr moved, on a former day in this term, on bc-toanapplication I If fA I 'L P I d' I by a creditor or Ja 0 ca ll~ • a 'Iller, acre Itor of t Ie defendant, to set the deFendant, to aside a bond and warrant of attorney <rj ven by the defendant set aSIde a .lndg. I .• . ' ::> ment on a bond to tIle plamtlff, and a Judgment and execution fouorled and warrant of I I Iff . . attorney given t lereoo, on t Ie groul\f s 0 raud and want of consideratIOn, by him to the plaint!ff. on the gronnd of rrnlld and want of consideration, for the plaintiff to state that the bond was gIven for. the amount of a promIs<ory note gIven by the defendant, of which the plaintiffwa" the holder, WIthout stalin;! In what character. under what circumstances, or at what time he be. ('arne tlto holder, and ",hat ron,idcralion liC ~ayc for it.

with

IN THE TIIIRTEENTH YEAR OF VICTORL\.

with costs. The afficlavits in support of the application dis­closed a strong prima facie case of fraud.

BeriIJ1I opposed the motion, and produced an affidavit of the plaintiff stating that the defendant was and still is indebted to the plail:tiff in a large sum of money, and that the judgment obtained by the plaintiff was to enable him to recover the same, and not to defraud the other creditors of the defendant. That the bond and warrant of attorney upon which the judgment was enterec\lIp, was given to sec lire an,l recover payment of three promissory notes made by the de­fendant, and of which the plaintiff, previous to the execution of the bond and warrant of attorney, wus the holder.

D. S. Kerr in reply. Cur. adv. vult.

CHIPMAN, C. J. now delivered the judgment of the COlli t.

We are all of opinion that the rule must be made in this case to set aside the judgment entered up upon the bont! and warrant of attorney, and the execution issued IIpon such judgment, as we consider it clearly shewn that the bond and warrant were given in fraud of t he creditor who makes this application, and without lawful consideration.

It is no answer to this application, for the plaintitr to state that the bond was given for the amount of certain pro­missory notes of the defendant, of which the plaintiff was the holder-without stating when, under \\ hat circumstances, or in what capacity the plaintiff became the holder; and to be entirely silent as to the consideration for which the note was given, or which the plaintitr gave for the same. He has not been called on hcre to give proof of the consideration by witnesses, but to state it upon his own affidavit, which he evidently would have dOriC hnd thcre been any bona /ir/c consideration.

It is incumbent on the Court not to allow its proceedings to be abused for purposes of frand ; and it is the constant practice, in such cases, to set aside judgments on warranls of attorney, on the application of any creditor whose ri~ht <

nrc affected by them. Rule to set aside thejnclgment :lnd execution with cost 'i.

END OF HILARY TERM.

665

1850.

BACON

against Bu.".

666

GENERAL RULES.

(Trial by the Record.)

I. IT IS ORDERED, That if the party \\'ho may have given the notice of trial uy the Record, pursuant to the rule of Trinity term 9th Victoria, shall not entcr the same for trial on the first day of the term, as required by !'uch rule, the other party may 1I10ve to enter the same for trial on the

~econd day of the term, and proceed to trial at such ~ime as the Court may therellpon appoint. on delivering' to the Chief J uf;tice a paper hook, in case such book should not already have been delivered.

n. IT IS FURTHEr.. OI~DEI~ED, That either party may give notice of trial by the Recore!, and enter the same pur­suant to the rule of Trinity IeI'm 9th Victoria; but that if notice be [!;iven I,}' both parties, the notice of the party !';ceking to perfect the Record shall have precedence, pro­vided he duly enter the casc, and deliver the paper book to the Chief Justice.