Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEnORV OF JUDGE DOUGLASS BOARDMAN , FIRST DEAN OF THE SCKOOL i By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS „ „ Cornell University Library KEP 104.A3 1850 Reports of cases determined in the Supre 3 1924 016 962 320 Oforn^U Ham i>rl|oal Eibratg Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016962320 REPORTS OF DECISIONS OF THE SUPREME COURT, i AN© COURT OF VICE ADMIRALTY OF PRINCE EDWARD ISLAND. DELIVERED BY HONOKABLE JAMES HORSFIELD PETERS, lUASTER Ot THE BOIiLS AMD ASSKTAMT JUDGE OF THE 8DFREME CODBT FROM EllAEY TEEM. 1850, TO HIlAEY TEEM, 1872, PREPAilED FOR THE PRESS BY THE HONORABLE T. HEATH HAVILAND, BARRISTER-AT-IiAW. CHARXOTTETOWN, aPBIN'OE! KD^VA-RD ISLAJTD; J-BINTBD BY JAMES H. PLBTOHEE. ^18:2. TA.BLE1 OiP C^SES. VlTORNEY GENERAL v. WEStAWAY,— (Road Compensation — On information against owner of land for preventing opening of new road laid out by Commissioners under 14 Vic, Cap. 1, sec. l4, being opened, it must be alleged tliat it ran through defend- ant's land,) . . 1 81 BRENAN, MARTIN,- . (Support of poor rSlatickis — ^Sop-in-law not liatjlS lipder 7 Vic, Gap. 7, to support wife's father,) I 53 BOtJRKE V. MURPHY,— (Public Wharf— ipower of Governor and Council to make regulations under 15 Vic, Cap. 34 — cannot im- pose excessive rates on some boats or head money on passengers going by them — ths term Vessel does not comprehend boats,) . : 90 JBRENAN v. MoISAAC,— (A person employed as a shopman, and who lives in employer's house, liable to conviction under the Ser- vant's Act 3, Wm. 4, Cap. 26,) . 112 BLACK V. SHAW,— (Absent Debtor Act — Summons to Trustee or Gar- nishee must be served by SterifF — none but defendant in the suit can take advantage of a mere irregularity — but a stranger may object to irregularijy which ren- ders proeeedings void,) . . 13S BRECKEN & UXOR v. WRIGHT,— (Construction of Will — acquiescence,) 187 BOUCHE V. AYLWARD,— (Merchant Seaman Act 28 Vic, a. 18, «. 22— though 'jurisdiction of Justices is confined to £50 — where ■ Justices to ascertain balance enquired into accounts exceeding £50, Court will not set aside Judgment,) 210 BELL, ROBERT, in the matter of,— (Appeal from Insolvent Court — to sustain a charge of undue prelerence, the payment or transfer must be voluntary, i. a. originating with the debtor — if made in, consequence of threat or pressure, or in expectation of procuring further advances, it is not Voluntary,) 211 h TABLE OF CASES. BANK OF P. E. I. V. McGOWAN, Sheriff,— (Escape — Limit Bond — Where prisoner has given a' Limit Bond under 12 Vic, cap. 1, ». 1, and escapes be- fore Bail justify, Debt for, Escape does dot lie against the Sheriff — Action must be uader the Statute for a breach of the Bond,) . • 214 CORMACK V. WORREL,— (Absent Dabttir — Agent may defend first tfial without waiving {jriscipal's right to rehearing,]? ■ 1 COLLEGE, ST. ANDREW'S, v. GRIFFIN AND OTHERS,— (Corporation cannot demise lands by parole,) . 56 COMPTON Ti. CROSS-MAN,— (Replevin — One seal to a deed by several giamtors sufficient, if it appears that each intended to use it — Until entry Widow hvk tio right to Dower — Where reserved rent was £5 and a ton of hay and avoWry alleged only the money to be due without acknowl- edging satisfaction for the hay held no variance,) 125' CALLIGAN, Applt. j>. HOBKIRK, Respot.,— (Highway — to constitute right of way by user short of 20 yefirs; evidence must shew owner's intSntioil to dedicate — Where A grants a piece ot land' to B, and afterwards lays off the- residue in Building , Lots with Streets for the convenienofe! of his granteesj * B acquires no right to use the Streets,) . .127 COMPTON «. FOPE,— (Redehflptidn of Land' Sold' ftjr tax Undei- 11 Vic, a. 7, sec. 12^— Relation of ownei' and purchasSr^^Purchaser i>oi allowed for cleari-ng wild land, nor for cost of hew buildings — Purchaser claiming for improvements must prove exactly what each improvement wdS,) 129' CRESWELLd. HUNT,— (Sheriff's fees — Sheriff , levying on land under JEixecu- tion not entitled to poundage if debt paid to plaintiff before day of sale-^MO'ej-c if entitled to poundage where' land levied on in any case unless he receives and pays the mon«y,) . . 136 CAPELL j). CAPELL,— fJudge.at Chambers will, not discharge a prisoner committed' by Court of Governor and Council for con- tempt in not paying alimony pursuant to decree,) 183- DOE D. COLVILLE & OTHERS v. MARTIN,— (Ejectpient — Statutes of Limitations — #hen tbnancy at will merely 'cbtivened into' tfehancy dt suflhrahcb, owner' barred in 20 years from end of first year of ten- ancy iit-t^^ill.— Acknowledgment of title under 11 See: must adtnit ri^ht to possession — Discovfery of new evidence— whBh ris*r trial grahttd ibr, iti ejebtittSnt,)) jg' TABI^E OF CASES. v DOE D. TULLIDGE ». ORR,— (Statute of Limitations-^pf ;po3sesi5ipn-^(ieath.si,b!r09.cl after may years' absence without recejpt of .any remits and profits not necessarily a discontinuance of posses- sion — the return of owner who was und,er disability at passing of A,ot and )vho ,hf|.3 sold ,whi,l6 wmler si^ch disability— rdoes not determine the disabili,ty,) 77 DOE D. YEO-w. BETTS,— (Land Tax Sale under 11 Fiie.,Cap. 7, — Wantof Notice of sale cured by the 2^ Sec— Sheriff's deed void if lands not described by metes and bounds at time of sale,) . 83 DOE D. WIER V. SHAW,— (Judgment as in case of nonsuit — .Plaintiff must-shew that the not proceeding to trial accqrdirtg;to, Notice was not caused by his own negligence,) 135 DOE D. STEWART v. McPH^E,— (Ejectment for w?int of , property to distra,^l;^-^.■W^^ejre bailiff in searching, for property to distrain on— in pass- ing hovel a^k^d tenant if|it conta,ined,property, and, he answered, no^-held tenant was not estopped on trial from shewing that it contained property,) 165 DOE D. MoDONELL v. l^oISAAC,— (Perpetuity — Deter-ninable .Fee — Trustees' E^t^ta; — where with respect to the two first trusts, the trusteei' estate would only be commensurate ,with the trusts, ' but the other trust rexjuired the fee — held that the latter trust being void the trustees' estate determined on the expiration of the first trusts,) 236 DUNCAN, HODGSON & ROBERTSON v. THE MONTRE- AL ASSURANCE COMPANY,— ' ' (Policy partly printed ^nd partly written — :Ir>surance — Warranty — time of sailing — Where. ship insured in time, policy covering date of sailing from Liver- pool — with.-ljbe^ty to-?ail from Chi^J:}ot,tetow^inot later than 15th Deceniber, sailed frpm, .Ch,arlott^tpwn on the 17th of December — held underwriters not liable =— policy paiitly .printed and ^partly written, all must be construotsd /together if possible, if not the writing prevails. 243 HOWATs.iLAIBD,— (Riparian owner of stream — Has right to the water in its natural course, without interruption in quantity, or retardation of flow — Action lies for injury to right, though no actual, damage sustained;) 5 HOWAT V. LAIRD,— (Injunction — Running Water — Mere recovery at Law for injury to right of riparian owner does not per se, entitle I Iji.m ,tp ,injunctipn, .but equity will restrain if injury lubstantial or recjijfjng,) . 15 TABLE OE CASES. HOWAT V. LAIRD,)— (Injunction — Equity will restrain owner of Mills on Stream from penning back water to injury of plaintiff below so far as such detention is really prejudicial, but no further — General principles on which Equity exer- cises its power in such cases — Where from circum- stances it appeared that penning back the water between 10 o'clock at night and six i'n the morning, would not really injure plaintiff, Court refused to restrain him between those hours,) . 113 HEARD V. PHILLIPS,^ (Absent Debtor Act — a person in possession of choses in action of absent debtor, not chargeable P.s garnishee,) 155 HODGSON, E. J. u. THOMAS DAWSON,— (Application for time tD plead — on what terms order granted,) . 191 HASZARD V. THE MUTUAL INSURANCE CO.,— Pleading — duplicity — general allegation of fraud suffi- cient where alleged fraud lies in knowledge of oppo- site party — amendment after demurrer argued, when allowed,) . , 193 HODGSON, E. J. V, THOMAS DAWSON,— (Judge at Chambers no power to order viva voce exam- ination of a witness de bene esse,') . 198 HODGSON V. DAWSON,— (Judge — what interest disqualifies him from trying a cause,) . . . 198 HALL & MARSHALL v. YATES,— (Merchant Shipping Act — where fishing vessel is seized and condemned under 53 section of Merchant Shipping Act, seines and implements put on board for fishing purposes also forfeited,) , 229 HALL & HEARD v. PRINCE EDWARD ISLAND MARINE INSURANCE COMPANY,— (Insurance — Constructive total loss — cargo damaged, landed and sold, but no evidence given to show that it could not have been forwarded, or that if forwarded its value at the port of destination would not exceed the salvage and other expenses — held plaintiffs could not recover for a total loss,) . . 252 -— - v. IRVING,.- (Bankrupt— English protection, 23 Sec, 5 & 6 Vic. does not apply to Colonies — affidavit made in England must be authenticated by affidavit made in this Court,) 27 LEFURGY V. MoGREGOR & MoNEILL,— (Contract construction of— distinction between liqui- dated and unliquidated t'.amages,) jgl TABLE OF CASES. yjj Mcdonald v. longworth,— (Absent Debtor— Debtor summoned under Trustee Process not liable to assignee of absent debtor without notice — reasonable time before Assignment — Assign- ment of chose in action to Trustee without assent of Creditors void against attaching Creditors,) 35 McKINNON V. MoKINNON,— Ejectment — Estoppel by acts' and cortduct,) 4S MITCHELL V. HARVIE,— Lieut. Governor may pardon prisoner before or after trial, but cannot, without pardon, order him to be disr charged before trial — In action for escape, plaintiff must prove some damage,) . . 45 McINNIS V. MoCALLUM,— (Illegitimate children — Action by mother of — The IS Vic. c. 23, only applies to women who have a parent, guardian, or master, who might maintain the action,) 72 McKINNORT v. MoKINLEY,— (Distress — Bailiff may use force neoessafy to ascertain if door is fastened,) . . 81 MeLEAN v. "WHELAN,— (Challenge to array — Court will set aside special J"ury panel for misconduct of officer returniag it-^certainty and conelusiveness of allegations necessary in affidavits to support application,) . 97 McKEAN & SUTHERLAND v. MffKENZIE,^ (Absent Debtor Act — A non-resident who comes for a temporary purpose to this Island, and while here con- ceals himself to avoid arrest at suit of a plaintiff resident in Nova Scotia — is an absconding debtor within 20 Geo. 3, cap. 9 — and such plaintiff may proceed against him by attachrnent,) . 145 McKAY, GEO. IN RE,— (Held that an assignment to a creditor by an insolvent person after service of process under pressure did not deprive prisoner of right to weekly allowance under Insolvent Act,) -^ . 195 MoPHERSON y. RAMSAY,— (Description of Boundaries — words necessary to ascer- tain the premises cannot be rejected,) . 205 McINTYRE V. McINTYRE,— (Award — When award stated that both parties attend- ed, and that arbitrators heard and considered allega- tions of both parties, Court will, on Demurrer, assume that facts justified award — if facts existed- which would render award uncertain they should be pleaded,) . . 216 TJU TA^LE OF iq^SJlS. PIDWKLL V. MoDONALD,— (Summary suit^Debt teduped by paymentB-rBalanoe due if ujider,;^aO,m,ay be sped for on Supimary side,) 33 PLEADWBLL v. BRENAN,-^ (Surveyor of City of Charlottetown has no power to remove an erection which he thinks encroaches on the Street, but which has not bsen use;d as ,a Street — City Bye Law givii^g him such power u^:r,a vires and void,) 1^5 ROBINSON, APPLT. v. McQUAID & OTHEJIS,-^ (Board ;of Education^^order .locating sehxj,ol-toou^ under 15 Vic, Cap. 13, valid,, until , quaahad though house within three jjiiles , pf another — Requisition must be in writing and addressed to Board established under the Act,) . 74 REGINA p. COX,— (Fishery ^eserv;es™-0|Oiastr,uctiAB of ToiWnship grants,) 122 PEGINA V, WHELAN,— (Libel — criminal information?— where libel charges applicant for Rule with having by previous ad-ticle provoked it — the charge must be answered ,lpy,3jfl5(J?ivi|, on which Rule moved,) . . 156 REGINA t)-,WHELAN,— (Libel — criminal inforfliation^rra parity jSpefcing a crimi- nal information . against another must himseilf .bevfree from blame,) " " 158 REGINA V. THOMPSON & WALSH,— Qury de,mediiB,tate.li^y,af-'— If right to ever existed ia Prinop .Edward jlsi^nd js abolished, by .Island, Jury Act) 162 REDDIN 1'. JENKINS,— (Registry Act — Judgments binding lai|id^.where L con- veyed to I, and subsequently to the conveyance, but before its registry judgments were entered up against L — held such judgments did not bind theland conveyed,) 163 REGINA V. CHAS., WM. & ARTEMAS LORD,— (Sea Shore — right of Public to have way over ^hore when tide out — right of riparian owner to make erec- tions on shore — rijiarian owner hasi the .right to sea- weed de'posited between high and low water mark,) 171 REGINA V. GORBET & ORS,— (Criminal Law — Indictment quashed, because agent of prosecutor on Grand Jury who found Bill,) • 184 REGINA V. DOWEY,— (Grand Jury — no objeetion .to Grand. Juror th?,* he was foreman of Cororner's Jury which. returned verdict pf murder against prisoner) • • jq^ TABLfi O*'' (i^A'SfiSi ix REGINA a. SCHOONER " S. G. MARSHALL,"— (.Seizure foi' breach of Merchant Shipping Act, 1854, and of the 59 Geo. 3, cap. 38, for regulating the fisheries under theConventionof 1818 — Condemnation for navi- gating under a register illegally iistied, ahd flyiiig a British flag, and falsely assuming th'e British National otaraeiler,)' • . ■ 218 SULtlVAN «. RAMSAY,— (Land'Tax Act 11 Vic. c. 7. see. 12 — Supreme Court has large' pc wer in ordering tedertlption of lands st>ld' under Act — Purchaser under Act standsin positioil'Of Mortgagee in possession and cannot clear land or com- mit waste &c,)' • ■' 14?' SULLIVA-j^V. llAMSAY,— (Land Tax Act. 11 Vic. a. if *. 12 — If qffet to rsdeem be made in two yearsfrotn sale sufficient — Rule to redeem may be taken out after expiration of the two years — where there are no circumstances to excuse .a tender, u\vnei must ihake a legal tfe'ndet in*money^i'f dispute as to amount of redemption, either party may apply to Court,)" •■ ■ • ,,.,;. 163- SULLIVAN ». CARR and H. & J. RAMSAJ,— (Land Tax Act — Redeiiiption — where purc'lias'et of*' ' land under Act transfers his right' to another before time for redemption expiredi tendfei to purchasbt is sufficient — where purchaser must be awarS that per- : • son tendering does so as agent of owner, sufficient though owner not eipressly named by agent.) letf SULLIVAN ». CARR and H. & J. RAMSAY,— (Land Tax- deed — Redemption — Attachment granted against defendants, purchasers, for not executing deed of reeonveyance according to order of Court,) 169 SANDERSON,- APPLT. »: HAYDEN, RESPDT-,— (Appeal from Commissioners' Court — notice not en- titled in any Court bad,) ■ ■ 19&" sWaBEY ®. PALMER,— (Trespass for shooting dog — master liable for acts of servant done in course of employment — if from facts master's concurrence can be presumed trespass lies — in absence of =uch presumption case against master proper remedy,) • 202 STEWART, ALEXANDER, EX PARtE,— (Absent debtor suit made a remanet at third term — same effect as if special leave to stand over were granted,) • 242' THE UNION BANK »: TffOMAS DA'WSON,— (Application for Commission to examine witness abroad — where cii'oumstances s'i3picious, affidavits must state facts excusing delay in ihaking application fully — and allegations must not be argamentative,)' 196 X TABLE OF CASES. WHITE „. White,— (Father and Son— Where a son continues to work with father after 21 without agreement for wages — action will lie if circumstances show some remunera- tion was to he made though amount to be fixed by father,) • i ■ 53 WEATHER BIE o. GREEN,— (Foreign Bankntptcv — Action for debt Contracted in New Brunswick, barrSd by certificate of Bankruptcy obtained there. ^-^Aot of New Brunswick proved by a Barrister of tliat Province,) • • 68 WOOD V. GAY,— Absent Debtor Act, 20 Geo. 3 c. 9 — In suit commenced by attachment against absent debtor plaintiff must bring cause to trial at third term, or obtain leave to continue it — otherwise suit discontinued)) 143 WINSLOE, JOHN HODGES, in the mSUer of the peti- tion of, — (Partition of Lands under Acts 1€ Vic. u. 18 and 27 Vic. c. 27,) • . -254 YOUNG V. YOUNG,— (Witness remaining in Court after order to withdraw — It is in discretion of a Judge to allow him afterwards to be examined,) • §9 Cases ARGUED AND DETERMINED IN THE SUFREME COURT AND COURT OF CHANCERY OF PRINCE EDWARD ISLAND. CORMACK V. WORREL. Hilary Term, 1850. Absent Debtor — Agent may defend first trial without waiv- ing principal's right to rehearing. This action was commenced under the 20 Geo. 3, Cap. 9, by attachment against the property of the defendant, late an inhabitant of this Island, without Summons on the agent. At the trial, the agent of the defendant, by his Counsel, wished to cross examine the witnesses and address the Jury. It was objected that he could not do so without waiving the defendant's right to a rehearing under the 8th section, and that as no ap- pearance had been entered by the agent for the defendant, the agent could not be heard to defend. My opinion at the trial was, that the agent had a right to make the defence he desired, but as the point was new I refused to allow his Counsel to proceed and reserved the point. The Statute gives extraordinary powers by allowing a suit to be tried and a person to be condemned in any amount with- out notice of the suit against him. Now, however necessary this departure from the ordinary rule (that no one shall have judgment against him without notice to answer the Suit) may be, and it is, no doubt, very necessary, it is plain, that, unless it were coupled with provisions widely different from those which regulate the practice in ordinary suits it would render 1 2 CORMACK V. WORREL. the property and assets of absent persons insecure, and furnish the unscrupulous and dishonest with facilities for making the Courts of Justice instrumental in the commission of fraud. To guard against this the statute provides, " That a declaration shall be left at the defendant's last place of abode fourteen days before the sitting of the Court, and that his attorney, factor, agent, or trustee, shall, if he desire, be admitted to de- fend the suit on behalf of his principal throughout the course of the law,' 'and an imparlance shall be granted two terms successively that he may have an opportunity to notify his principal,- and at the third term without special matter alleged in bar, abatement or continuance, the cause shall peremptorily come to trial. Now though a person may be the genej al agent of an absent debtor he may not be conversant with all, or any of the transactions out of which a suit may arise, and claims not founded in jastice would be those with the circumstances of which he is least likely to be acquainted. Suppose an ac- count rendered to the principal containing gross over charges had been settled by payment of a smaller sum, he would not suppose it would be again called in question, and would there- fore not probably on his departure, inform his agent of the fact. If this account were sued for under the act, to make a successful defence, the agent would require instructions, but his principal may be in some distant country, or he may not know where he is, and cannot therefore obtain the information before the trial. Is the agent therefore to be silent and allow a verdict to be obtained for perhaps £200, when, if his counsel were allowed to cross examine, and the value of the articles in the account and other circumstances to be inquired into, he might at once, without any instructions from his principal, reduce it perhaps to £100, or if he ventures to dp so must he deprive his principal of a rehearing under the 8th section, and thereby fix him with the £100, when in fact, nothing was due ? Again the three years allowed by the 8th section may expire before the principal returns, or is heard from, or in fact before he knows that he is sued. And then if the agent, induced to silence through fear of waiving his principal's right to a rehearing, makes no defence, his principal is fixed with the £200, when even the half defence of his uninstructed agent would have reduced it to £100 ; I cannot think such a con- struction would be in accordance with the spirit and intention of the act. CORMACK V. WORREL. 3 The Act recognizes the necessity which may exist of the agent's communicating with his principal, and gives a very limited time for that purpose. It then spealts of a trial to be had in the defendant's absence, and on which trial the agent may or may not have received instiructions from his principal. A trial necessarily supposes the probability of something more than a mere hearing on one side only, and the provision allow- ing the agent to defend the suit if he desire, and giving a certain time to communicate with his principal, and then ordering the trial peremptorily to take place at the thirdi term, shews the Legislature to have contemplated the agent's taking part in it whether he received instructions or not, (if notj, why in case of non-appearance did it not allow the plaintiff to take judgment by default ? Why should' it require fche intervention of a Jury not to assess damages but to try the cause ?) and then the 8th section (without excepting cases where the agent may have appeared at the first trialj or confining it to a mere ex parte trial) enacts, that the " absent person against whom' judgment shall be recovered as aforesaid,. shall be entitled'to a rehearing within three years." These provisions i appear to me irreconcilable with the idea that the agent must be. a, mere silent spectator atthe first trial, or, if he attempts to cut down the plaintiffs demand concludes his principal, by the result. It was urged (on the principle ''quifacit per aliumfacit per se") that the appearance of the agent cured the absoondi ency, but the fallacy of this argument lies in assuming that the appearance of the agent must be the > appearance of the principal. To make the appearance his act; he musti have authorized it to be entered. It by no means follows ■■ that the agent Ifeft in charge of property has authority to' defend i suits brought against the owner /or debts, yet bis duty would be to protect it, as far as he could; from 'attachments,' or other claim%i with the validity of which he is unacquainted'; before th&r&fore ' the maxim " qui facit' per alium faeit per se" would apply it must appear that he was authorized! to defend that particular suit, and then, the appearance would, in fact; be the appear- ance of the principal and might' deprive him ofhis-righftft at rehearing under the 8th section. But how can a person be presumed to have given authority to defend a partieukr suit, when, for anything that appears he may never have had notice' of the plaintifPs intention to bring a suit against him ? Besides the 2nd section in express words speaks of a judgment' td be 4 CORMACK V. WORREL. recovered in a trial to be defended by the agent, and then the 8th section in equally express terms enacts that in the cases mentioned in the 2nd section in which judgment is recovered as therein mentioned, the defendant shall be entitled to a re- hearing. A provision which is quite inconsistent with an intention to make the appearance of the agent tantamount to the appearance of the principal, or, in other words, cure the abscondency. The defence of the agent in cases of this kind is, in truth, his own act, to protect the assets committed to his care, and not the act of the absent party at all, and the novelty of allowing a person not a party on the Record to defend, is a necessary consequence of the novel manner in which the plain- tiffis allowed to prosecute his suit. It was insisted on by the plaintifl's Counsel that unless notice was given of the agent's intention to appear at the trial the plaintiff would be taken by surprise, but I cannot see the force of this argument. In every suit where the General issue only is pleaded the plaintiff might make the same objection. The only intimation the defendant gives of his ground of defence in those cases being, I don't owe anything, which is precisely what the defendant, (or rather the Court,) in an absent debtor case says for him. The General issue in those cases is in fact put on the record, and the Jury are sworn to try it, and any defence which the defendant himself could make under it, can I think be made by the agent unless (as in case of set off) the law requires a notice of it to be given to the plaintiff in which case the agent would have to give it in the same way as the defendant must have done. An inference was attempted to be drawn by the Solicitor General from the 4th section to shew that the agent must come in at the first term, but that section applies to cases where the plaintiff not only asserts his claim against the absent debtor, but also puts himself a'* it were, in the shoes of the absent party, and attempts to call his agent to account for the assets of his principal in 1 is hands. That is a very different case from the present. There, the agent himself may become the defendant and say I owe the absent party nothing, and an issue may thus be raised between the agent and the plaintiff entirely collateral to the principal's suit. Besides, the section applies only to costs, which appear to be given in terrorem against the gar- nishee if he does not appear at the first term, to prevent his delaying the discovery which the plaintiff seeks from him, and HOW AT . LAIRD. • 5 which it may be material he should have in the first instance, in order that he may see whether tlie assets of the absent debtor will furnish the fruits of the judgment in the principal suit. A circumstance which may materially influence him in its further prosecution. Upon the whole it appears to me that the plaintiff can sus- tain no injury from the agent's being allowed to contest the first trial, but that the greatest injustice may result from his being excluded, a circumstance which, if the intention of the Statute had been doubtful, (which I do not think it is) would have caused me to ponder well before arriving at a contrary conclusion. The American cases which were cited at the bar were determined on acts having provisions different from our Statute and if it had been otherwise I should not consider myself bound by them in opposition to what I conceive to be the clear intention of the act. The Rule for a New Trial must be absolute HO WAT V. LAIRD. Easter Term, ? 1850. S Biparian owner of stream — lias right to the water in its natural course, without interruption in quantitj', or retardation of flow — Action lies for injury to right, though no actual damage sustained. This was an action for interrupting a natural water course. It appeared that the plaintiff's mill was erected in 1815, and that about ten years since the defendant had erected a mill higher up on the same stream. The evidence on both sides went to prove that at many seasons of the year the natural flow of the stream would not keep up a head of water suflicient to drive the mills, and that the defendant, was in the daily habit of shutting the gates of his dam and stopping ths water for considerable portions of time (chiefly during the night) whereby during those times it was prevented from flowing to the plaintiff's mill. The plaintiff contended that he had sus- tained actual damage by being prevented from grinding corn, which, but for such interruption of the water, he would have done (but on this point the evidence was contradictory,) and that even though he had suffered no pecuniary loss, yet, as he C . HOWAT f LAIRD. had shewn a material and continued interruption of the natural flow of the stream, there was an injury to his right and there- fore he was entitled to a verdict. I told the Jury that the running water of a natural stream was public property, and that no one had a right to interrupt or detain it, that though slight or temporary detentions might not be actionable unless actual damage were sustained, yet, that substantial and continuous interruptions of the natural flow of the stream were so whether actual damage were sus- tained by those below or not, because if they were suffered, at the end of twenty years the party making them would acquire a right to continue them, ani that, in the present case, if they found that defendant had been in the habit of detaining the water, either by night, or day, for considerable portions of time, whereby its flow to the plaintiff's mill was interrupted, tfae plain tiff would be entitled to recover nominal damages for the injury to his right, and that if under the evidence they thought the plaintiff had sustained actual loss in consequence of such detention, they should give such amount as would com- pensate the loss. The Jury found for the plaintifi" damages one shilling. The effect of this verdict is, that the Jury find that the defendant has caused substantial interruption of the naturcd flow of the water, but that the plaintiff has sustained no actual loss thereby A New Trial is now moved for, for misdirection, and the grounds relied on by the defendant's counsel are. First, that every Riparian owner has a right to erect a dami and daily to detain the water, for such spaces of time as may be necessary to fill a dam of such size as is reasonably sufficient to drive his mill. Secondly, that this is at most a mere injury to a right with- out any actual damage for which no action lies. In support of tie first proposition, the learned Counsel for the defendant relies on the doc|ifine laid down by Chancellor Kent 3 Com. 439, who says " That streams of water are in- tended for the use and comfort of man, and it would be unrea- sonable, and contrary to the evident sense of mankind to debar every riparian proprietor from the application of the water to domestic, agricultural and manufacturing purposes, provided the use of it be made under the limitations which have been mentioned, and there will, no doubt, inevitably be in the exercise of a perfect right to the use of water, some evapora- HOWATwLAIRO 7 tion and decrease of it, and some variations in the weight and velocity of the current, but " de minimis non curat lex," and a right of action by a proprietor below, would not necessarily flow from such consequences, but would depend on the nature and extent of the complaint and the mannerof using the water. All the law requires of a party by or over whose land a stream passes, is that he should use the water in a reasonable manner, and so as not to destroy, render ustless, or materially diminish or affect the application of the water by the proprietors below, on the stream." But this passage when rightly considered is not an authority for the position relied on for the defence. No doubt as incident to the useful application of water power there must be slight variations in the force, and temporary detentions of the stream. It may be necessary to shut the gates for short periods of timcj not for the purpose of checking the stream to raise a head' but to carry on the ordinary work of a mill. Short interrup- tions of this description producing very slight injury to those below may rightly be said to come within the maxim " de minimis non curat lex." Again, there may be interruptions which will be actionable or not according as they are pioduc- tive of actual damage or not. Every man has a right to erect a dam across a stream running through his own land, and he must necessarily (even on streams suflBciently powerful for his works) before he can start them, check the water to raise a head, but though he has a right to do this, he must do it so as to cause no serious loss to those below. For instance, suppose a person erect a dam which would flood some miles of ground and therefore require many days to fill it, and that during that time he constantly stops the stream, if the mill owner lower down could shew that he had been prevented from grinding corn, or had suffered material loss in consequ- ence of such detention of the water, he would be entitled to recover, but unless he did he would not, because the act com- plained of would be done by the defendant not under a claim of right to cause daily and frequent interruptions, but only of a temporary kind equally necessary to all mills, (however well adapted to the force of the stream) before starting. 80 a dam may break and the water 'be let off to repair it, the letting of the water would cause a temporary increase of cur- rent, and when repaired another detention would be necessary to refill it, but if the increased velocity or temporary detention 8 IIOWAT V. LAIRD. caused no actual injury to fhose below, it would not be action- able because they would su-fain no damage in fact, nor, (as the character of the act would not be such as to gain a right frequently to accelerate, or constantly to interrupt the stream) could there be any damage to the right. This distinction as to tht^ purpose with which an act is done was recoijnized in Greensdalev. HaUaday 6 Bing 381. There the defendant hadbeenin the habit of placing a board or fender across a stream to turn the water, but it had not been perma- nently fixed ; the plaintiff's tenant fastened the board with stakes. The defendant conceiving that the stakes gave a character of permanency to the board, removed both board and stakes, and although plaintiff recovered on the ground that the defendant had no right to remove the boards, yet, the opinion of the Court seeras to have been that if he had removed the stakes only he would have been justified. So in Greaves V. Burhury coram Bailey at York assizes " the plaintiff had used the water for his cattle and the defendant averted it under an asaertion of right and of his intention that the diver- sion should be permanent. It was held that the plaintiff was entitled to recover damages, although the stoppege was, in fact, but temporary, for if no action was brought a stoppage with an assertion of right would afterwards be evidence of right. It is to temporary interruptions of such description which do not, and cannot, materially ,dimiuish or affect the application of the water by the proprietors below to the various purposes to which it may be applied, that I understand Chancellor Kent to refer. But the question assumes a very different aspect when the defendant claims a right daily to cause an almost total stoppage of the stream for considerable portions of time in order that he may raise a head of water necessary to drive his works. This appears to me an interference with the rights of those below not consistent with the principles laid down in some (even of the American) cases, which seem to be considered of the high- est authority in that country. In Tyler v. "Wilkinson 4 Mason Eep. 401, justice Story says, " I do not mean to be understood as holding the doctrine that there can be no detention whatt ver, or no obstruction or im- pediment whatever, by a Riparian proprietor in the use of the water as it flows, for that would be to deny all valuable use. HO WAT LAIRD. 9 The true test of the principle and extent of the use is, whether it is to the injivry of the other proprietors or not. There may be a diminution in quantity, or a retardation or acceleration of the natural current indispensable for the general use of the water, perlectly consistent with the use of the common right. The diminution, retardation, or acceleration, not permanently and sensibly injurious by diminishing the value of the common right,is an implied element in the right of using the stream at all. In Secldnder v. Beers, 10 Johns., Rep. 241, the court says, " The defendant has no doubt a right to build a mill on his own land, but he must so construct the dam, and so use the water as not to injure his neighbors below in the enjoyment of the same right according to its natural course." The prin- ciple of the American Law appears from these cases to be, that, although the owner above may cause slight interruptions, accelerations and detentions, yet, if they be such as sensibly to diminish any one of the advantages which it would naturally affoid the owner below, it will oe an injury to the right. There are many American cases which go much further, some not reconcileable with each other, and some permitting interrup- tions which might destroy the use of streams for manufactur- ing purposes altogether. Thus, in Perkins v. Dowe decided in Connecticut, it appears to have been held that a Riparian proprietor may use the whole of the stream to irrigate his meadows, provided he leave sufficient to the proprietor below for kitchen purposes, and for watering his cattle. But if this be law in that country, it is a doctrine unknown to the law of England by which, in this respect, we are bound. A feeble stream may be quite sufficient to drive a small mill without material detention of the water, but if a person chooses, on such a stream, to erect a mill, which, at many seasons of the year, he cannot work without stopping the water for considerable portions of each day, such stoppage must be a permanent and sensible injury to the right of those below, because, even if they have mills of the same descrip- tion, (viz: requiring more power than the stream would constantly affi)rd), it would restrict their working in a great measure to such times as the miller higher up chose to let off the water. But there are other works to which those below may apply the water. The carding mill, the trip hammer of the engineer, the turning lathe of the mechanic, the loom of the weaver, the threshing machine and ehaff-cutter of the 10 HOWAT V. LATRD. agriculturist, and various other kinds of machinery, just aa important to their respective owners as the saw, or grist mill to theirs, might (when a head of water was once raised) be at all times driven by a stream quite insufflcient to keep a saw or grist mill constantly at work. The owners of such works would have a right to keep them at work during the whole twenty-four hours. Can the owner of works higher up, by the Common Law otBngland, require that right to be sacrificed, or abridged for his benefit ? If he can, then those lower down must be constantly subject to have the value of their property materially diminished, since the value of their participation in the common right, would then depend, not on the natural force of the stream, but on the power which the upper works from their construction may require from it. That the value of the water privilege does not, by the Law ot Migfland, rest on such uncertain and fluctuating grounds, appears plain from some decided cases. In Shears v. Wood 7 Moore 534, it appeared that the plain- tiff's were owners of Copper Mills, and the defendant, of a Silk Mill higher up on the same stream, that the latter caused a dam to be erected which prevented the water from being supplied to the lower mills, bnt that the stream was not diverted in consequence, as the water returned to its regular course long before it reached the lower mills, and that no waste of it whateve r was occasioned by the dam in question. It was proved that the plaintiff had sustained an injury by the erection of the dam, as, in the manufacture of copper, a regular supply of water was always necessary. It was objected by the deiendant that the injury done to the[plaintiffs, by the erection of the dam, was misdescribed in the declai-ation, as the regular supply of water was not diverted, but interrupted. The Court over ruled the objection, saying, " that it was in fact stated in the declaration that the water did not run to the plaintiffs' mills as they were accustomed to have it. That is sufficient to show that it did not come to them in its proper and its usual times, or as it ought to have done, and it was proved that it did not come to their mills in a sufficient quan- ity as it formerly used to do; that fact was sufficient to support the declaration." In Howard v. Wright 1 Sim. & Stat. 190, the Master of the Rolls says, " The right to the use of water rests on clear and settled principles ; every proprietor has an equal right to HO WAT V. LAIRD. 11 Use the water which flows in the stream, and, consequently, no proprietor can have the right to use the water to the prejudice of any other proprietor who may be affected by his operations. No proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back on the proprietors above. Every proprietor who claims a right either to throw the water back above, or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years," and he adds, " an action will lie at any time within twenty years, when injury happens to arise, in consequence of a new purpose of the party to avail himself of his common right." In Brady v. Shaw, 6 East 214, Lord EUenhorough says, "the Rule of law, as applied to this subject, is, that independent of any particular enjoyment used to be had by another, every man has a right to have the advantage of a flow of water in his own land without diminution or alteration. In Mason v. Hill, 3 Barn, and Adol. 304, where it was con* teftded that prior occupancy by the defendant, (which here is in fact witti the plaintiff,) gave the defendant a right which it was admitted he would not otherwise possess. Lord Tenterden decides the case on the authority of Howard v. Wright* And in the same case 5 Barn, and Adol. 18, Lord Denmarif after an elaborate review of the authorities (and particularly referring to the rule laid down by Lord Ellenborough in Brady V, Shaw, " that every riparian owner has a right to have the water flow in his own land without diminution or alteration ") says, " none of these dicta, when properly understood with reference to the cases in which they were cited, and the original authority in the Roman law, from which the principle, that flowing water is public property, is deduced, ought to be considered as authorities that the first occupier, or first person who chooses to appropriate a natural stream to a useful purpose has a title against the owner of land below, and may deprive him of the benefit of the natural flow of the water* But the case having the most direct bearing on the precise questions before the Court is a very recent one, not referred to on the argument Wood v. Wand, 13 Jur. 472. There a special verdict, amongst other facts, found that the defendant 12 HOWATi;. LAIRD. caused a diminution of the water of only 5 per cent. Chief Baron PoUock, in delivering the judgment of the Court, ex- presses himself as follows : " The defendants contend that the diminution of the water by 5 per cent, and the altering the flow of the water, are injuries too trifling to be the subject of an action." In considering this question, it is assumed that the plaintiflT's right is established to the use of this water. It is said, the true rule on this subject is laid down in 3 Kent's Com. 439, 440, and after quoting the passage (to which I have already referred) says, " In America a very liberal use of water for the purpose in question and for carrying on manu- factures has been allowed. In France also the right of the riparian proprietor to the use of the water is not strictly construed. He may use it Enfou pere defamille en fou plus grand advntages. He may make trenches to conduct the water to irrigate,his land, if he return it with no other loss than that which irrigation causes. In England it is not very clear that such a user would be permitted as arising out of the right to use the water Jure naturae, but, no doubt, if the stream were only used by the riparian proprietor and his family, by drink- ing it and for the supply of domestic purposes, no action would lie for this ordinary use of it, and it may be conceived that if a field be covered with houses, the ordinary use by the inhabi- tants might sensibly diminish the stream, yet no action would, we apprehend, lie any more th»n if the air was rendered less pure and healthy by the increase of inhabitants in the neigh- borhood, and by the smoke issuing from the chimneys of an increased number of houses." But on the other hand, as the establishment of a manufactory rendering the air sensibly impure by emitting noxious gases would be actionable, so would it be if it rendered the water less pure by the admixture of noxious substances. And if a mode of enjoyment quite different from the ordinary one is adopted, by which the water is diverted into a common reservoir, and there delayed for the purpose of a manufacture, an action seems to us to be main tainable, and so, if by that mode of dealing with the water,. it is sensibly diminished in quantity." From these authorities it seems clear that any frequently recurring detention of the water of a stream by those above, which causes a sensible alteration in its natural flow, is con- sidered in law an injury to the right of those below. The defendant here having caused such a detention, not for a HOW AT V. LAIRD. 13 temporary purpose, but under a claim of right constantly to ^o so, has, I think, injured the plaintiiF's right. But then it is urged in the second place, that as the plain- tiff has not shewn actual damage it is " ivjuria sine damna" for which it is urged no action lies. And for this the case of Williams v. Morland, 2 B. & C. 910, is relied on. In that case the plaintiff complained, that the defendant, by certain erections across a stream caused the water to flow with in- creased velocity, and thei-eby iujured his bank. The Jury found that it had not injured his bank, and therefore the Court held he could not recover, and Lord Denman in Mason v Mill after explaining the observations of Bayley Justice states it to be a decision on this ground and nothing more. In actions for obstructing ways> and surcharging commons, it is sufficient to prove that the means of uning the right are abridged, without shewing actual damage, and I can see no reason why a different rule should prevail in cases of this description. A person may have a valuable mill privilege on his property, but want of capital, or other circumstances may prevent his turning it immediately to profitable use. If he cannot bring an action for interruption of the water before he has done so, then he must either make a considerable outlay merely to place him in a position to protect his right, or else he must, after twenty years, lose it altogether. This point was alluded to by Lord Tenterden in Mason v. Hill. After observing that it seemed to have been considered that an action would not lie without actual loss, he says, " It is not necessary to say whether such a principle should be admitted." The same point (though not necessary to be decided) was subsequently considered by the Court in the same case, and Lord Denman after referring to tlie cases of Palmer v Kehlethwaite Show. 64, and Glynne v. Nicholas, 2 Show. 507, says, "It must not there- fore be considered as clear that an occupier of land may recover for the loss of the general benefit of the water without a special use, or special damage shewn. In Gardiner V. Trustees ofNewhurgh, 2 Johns Ch. Eep. 162, Chancellor ICeni, in granting an injunction against diverting a water course, says, " It must be painful to any one to be deprived at once of the enjoyment of a stream which he has been accustomed to see flow by the door of his dwelling." Upon which Mr. Angell, in his treatise observes, that " it is fairly to be inferred from his opinion in this case, that he 14 HOWAT V. LAIRD. considered the right to the water in its natural state to be a freehold right that could not be invaded whether the water were actually used by the party or not. And the same author after reviewing the American and English authorities on the infringement of rights of ways, commons, &c, concludes thus : " The rule established by these cases is unquestionably appli- cable to this subject, and they certainly evince that the owners of the land through which a stream of water passes in its natural course, are under no obligation to prove a specific injury for a diminution or detention of the water. That there exists a right, and that such right has been invaded, is suffi- cient, and if an action should be delayed until actual damage could be proved, the defe. dant by repeated invasions might himself acquire a title which could not be successfully opposed. But the point was expressly decided in Wood v. Wand. There the special verdict found the grievance complained of viz., fouling the water caused no actual damage to the plaintiff. Pollock, ch. Baron, in delivering the Judgment, says, " The fact as found by the Jury is that the defendant (whose works have been erected within twenty years and who has no right by long enjoyment or grant to do so) has fouled the water of the natural stream by pouring in soap-suds, wool combings, &c., but that pollution of the natural stream has done no actual damage to the plaintiff", because it was already so polluted by similar acts of mill owners above the defendant's mill, and by Dyers still further up the stream, and some sewer of the town of Bradford, that the wrongful act of the defendants made no practical difference ; that is, that the pollution by the defendants did not make it less applicable to useful purposes, than such water was before. We think, notwithstanding, that the plaintiffs have received damage in point of law. They had a right to the natural stream flowing through the land, in its natural state, as an incident to the rit; ht to the land on which the water course flowed,! as will be hereafter more fully stated ; and that right continues, except so far as it may be derogated from by user or by grant to the neighboring land owners." " This is a case therefore of an injury to a right. The defendants, by continuing the practice for twenty years, might establish the right to the easement of discharging into the stream the foul water from their works ; and if the dye works and other manufactories, and other sources of pollution above HO WAT V. LAIRD. 15 the plaintiff:!, should be afterwards discontinued, the plaintiff who would otherwise have had in that case pure water, would be compelled to submit to this nuisance, which would then do serious damages to them. We think the verdict must therefore be entered in this Court for the plaintiff." From these authorities, as well as on the principle that if the law recognizes a valuable right, the owner of it should have the power of preserving it until he may want to use it, it appears to me clear, that for any material diversion, stoppage, or alteration of a stream, of a description injurious to the rights of those below, an action will lie, though no ac^.ual damage may have been sustained. The question raised in this case, bearing as they do on valuable interests, rendered it one of considerable importance, and I have therefore thought it proper to enter at a greater length than I otherwise would have done, into the examination of the authorities and principles by which rights of this description are governed. The rule for a New Trial must be discharged. HO WAT V. LAIRD. IN CHANCEEY. February ? 1851. .S Injunction — Eunning Water— Mere recovery at Law for injury to right of riparian owner does_ not per «e, entitle him to injunction, but equity will restrain if injury substantial or recurring. In this case an injunction has been granted expartejre&tT&va.- ing the defendant from penning back and interrupting the stream of a natural watercourse. The plaintiff is the owner of certain mills on the lower part of the stream, and the de- fendants are owners of certain other mills higker up. Theff Bill states that in consequence of the water being penned back by the defendant for the use of the upper mill, its regular flow to his mill was interrupted, for which he brought an action in the Supreme Court against the defendant George Laird and one Benjamin Crew, and recovered a verdict for nominal damages of one shilling, on which verdict, after argu- 16 110 WAT V. LAIRD. meiit, the Supreme Court gave judgment on the ground tlat though no actual damage was found, it was an injury to his right. The Bill further states that since such judgment the defendants have, at different times, penned back the water so as to impede the, working of his mill, thereby causing him serious damage to his business. A motion is now made to dissolve the injunction, and numerous and lengthy affidavits have been produced on both sides. I have attentively read the bill and affidavits, and paid great attention to the arguments on both sides, and I cannot come to the conclusion that the plaintiff has sustained any considerable damage from the acts of the defendants. The Bill certainly states that the plaintiff's mills have been stopped on several occasions for want of water, and the affidavit of Joseph McDonald states two occasions in July and August last, when there was a deficiency of water which he found to be caase- ence of another d^t^ining the water, the kind of evidence wl)ich would then be best would be that of persons who ha4 been in the habit of grinding their com with him, but who could state that the water being now less fegularjy supplied, they were longer detained, or that from the uncertainty of )ii^ haying water t^ey ha4 ceased going to his mi}l. It is said the persons in the vicinity of the defendants' mill ^ave combined against the plaintiff in favor of the defendants, buf; the^e must i)e many persons near the pl^untif^s mill^ whQse convei\ienf@ and interest would lea4 them to support his right, rather than the defendauta' wrong, and the want of their testimony m^at^ in considering the question, weigh agfiinst him. Then, ^g^in, I fi.p4 th^t the defendants' n^ill w^s erecte4 in 1838 and though it is said it worked less regularly, yet it worked and with more water than it uses noicy, and yet until 1848 or 1849, he d,q^ not appear to have complainpd of its injuring him. On the contrary, about 1844 he tells Clarke and David L(mth,er th^ instead of )being an injury, it h^d proved a benefit to bJni. I by no means agrpe with the 4efendents' counsel as to the effect of this expression. ^ merely Ipok on it as the b£^ntering of one riral miller respect? ing his opponent's mill. I do not thin); it ^ license or such an acquiescence, as under any circumstances, would amount in 3 1» HOWAT V. LAIRD. law to a surrender of his right to the uninterrupted flow of the stream, But I do think if the detention of the water had been eeriously injurious to him he would not have used it. All these circumstances lead my mind to the conclusion that no such irreparable injury has been sustained as would warrant the continuance of the injunction on that ground — a conclusion in which I am much strengthened by the fact stated in the affidavit and admitted in the argument that on the trial at law on very similar evidence, the Jury found no special damage but merely a frequent penning back, or inter- ruption of the stream by the defendants. On the other hand, the affidavits and arguments at the bar satisfy me that the defendants have since the trial been in the habit of frequently interrupting the natural flow of the stream, and penning back the water for the use of their mill, perhaps more cautiously, but in very much the same manner as they were accustomed to do before the trial. It is distinctly stated in the Bill and sworn to by the plaintiff, that after the trial, the defendants at diflferent times penned back the water for the use of their mill and thereby interrupted its natural flow. The fact was a most material one, and if untrue should have been directly denied by the defendants, but they have not done so, George Laird, in his affidavit says, that since the Judgment of the Supreme Court, this deponent's sole object hath been to conform to the said judgment as near as justice and equity would allow in the use of the said stream of water, and that he has not nor hath any person on his behalf moUeri- aRy diverted, stopped, or altered the said stream ; that the water gates are open on all nights, and that the working of the said mill during each day, as he does, naturally keeps the said water from being penned back, or interrupted. Now this is no denial of the alleged fact ; it amounts merely to this, that in the defendants' opinion, he has not materiaUy interrupted the stream, but the materiality of the interruption is a question of law which it was not for him but for the Court to decide. He states again that the waste gates are open on all nights, but this is not saying they were open during all nights. It might be quite true that they were open on all nights and yet, that during a considerable portion of every one of those nights they were shut. The affidavit seems drawn, principally, with a view of contradicting the damage in his business of which the plaintiff complains, and for that purpose, in connexion HO WAT V. LAIRD. 19 with other facts, is sufficiently pointed in its allegations, but it seems cautiously to avoid an admission of actual stoppage, though, apparently, unable to deny it. And, indeed, such denial would be inconsistent with the whole argument for the defendants, in which it la constantly averred that their mills will be rendered useless unless allowed to pen back the stream for such a time as will raise a head of water to work them. It is stated by Mr. Palmer that an interruption of an honr and a half or two hours in each twenty four hours is sufficient to raise such a head. But if any argument was to be raised on the precise periods of time the defendants required to interrupt the flow of the stream to raise a head, it should have been distinctly stated in their affidavit, and not left to in- ference on the mere assertion of counsel. To meet this, the plaintiff, in his affidavit, swears positively, that from the weakness of the stream it requires 16 hours in ordinary seasons to collect water enough to drive his mill 8 hours, and that from this he knows it to be impossible for the defendants to work their mill with effect one hour, if the natu- ral flow of the stream was allowed to pass the previous night. And again he swears positively that on two difierent occasions in September last, when he passed near the defendants' mills, he each time particularly observed the water " wholly penned back by the defendants' dam, none being allowed to escape through the flume or waste gate, or by any other means. Joseph McDonald also, who has worked the plaintiffs mill, swears that if the water were allowed to flow all night without interruption, the defendants' mill, in ordinary seasons, would not have sufficient water to grind one hour with efiect, and (as I before shewed) he states two occasions on which he found them holding back the water. It is true the defendants' mill may work with far less water than the plaintiff's, but I can hardly imagine that there can be such a difference between them that when 16 hours are required to collect water to drive the plaintifiPs mill 8 hours, 2 hours will collect sufficient to drive the defendants' mill all day. At all events the defend- ants were best able to tell the precise time they required to stop the stream during each 24 hours, and as they have not done so, I am bound, under the affidavits, to believe that to work their mill so constantly as they state, they are in the ^abit of interrupting the natural flow of the stream for, much longer periods of time, although, as I have already said, not in 20 HO WAT V. LAIRD. such a manner as to have caused any serious loss to the plaih- tiflFin his business. iJpon this state of facts the case turns principally on two questions. First, Whether the owner of land through which a natural water course flows Can daily interrupt the natural flow of the stream, and detain the water tor su^h spaces of time as may De necessary to drive his mill without subjecting himself to an action by the ripaii^ti owner lower down for an injury to his HgM, although such interruption and detention cause no actual damage to the loWei* owner in respect of the purposes to Which as yet he has applied the water ? iSecondiy, if he can, whether after the owiier lower down has established his right in a court of Law, this court (where no aciuatdamaffe is, or will likely be sustained) should interfere to restrain the upper owner from continuing such interruption and detention of the Water ? But before considering these questions, it is well to advert to some minor points made during the argument. It appears that the plaintiflfs saw mill (in the same dam as his gi ist mill) was originally leased by the proprietor to a third person, and that up to the time of the defendants purchasin g it, the water in the dam was dividpd between the saw and giist mill. By the atiSdavit of Donald Palmer it appears that about l84i, he, Donald Palmer, and his brother became the owners of the tipper mill by assignment from Daniel Orew, the original lessee, that whilst he and his brother continued eo possessed of the upper mill, about the year 1842, they purchased the saw mill from the tenant, and, on the expiration of the term, they obtained a new lease of the saw mill from Col. Fane^ the landlord of both upper and lower mills. That whilst the deponent and his brother so held the saw mill and the upper mill they used the water of the stream for the benefit of both mills, in the language of the affidavit, " the one subject to the use of the same stream for the other, each fairly partici- pating in the benefit and use thereof." That the plaintiff afterwards purchased the saw mill from the deponent and his brother, which, the deponent says, "he considered he took subject to the same rights and restrictions as he and his brother held and enjoyed the same under." On this it was argued for the defendants, that there having been a unity of possession in Donald Palmer and his brother, in the saw mill and the HOW AT V. LAIED. 21 upper mill, the original right of the saw mill to the natural flow of the water was extinguished and must be held subject to the right of the upper mill, and the plaintiff claiming through Donald Palmer and his brother was, therefore, bound by the right so supposed to be obtained for the upper mill. To decide this point it is not necessary to follow all the arguments gone into at the bar. It is sufficiently clear that the plaintiff, even when Donald Palmer and. his brother held the saw mill, had a right to one half the momentum of the stream for his own benefit, and no user of the water for the benefit of the upper mill, however expressly or impliedly then made by Donald Palmer and his brother, to abridge the privilege of the saw mill, could control or effect the plaintiff's share of the water power, unless (which is not the case) a 20 years' acquiescence, on his part, appeared. Besides, it ia expressly laid down in Angell, on Water courses 58, that the right to the natural water course is not extinguished by unity of possession in any case, and the same point was decided in Wood V. Wand, 18 Jur. It was contended, at the bar, that an injunction could not be granted until after a trial at law, directed hy the Court, had established the plaintiff's right, and that the trial which has been had in this case, is not sufficient for that purpose. AH that the law requires is that the legal right of the plaintiff in the matter in dispute should have been ascertained. Whether it be ascertained by an action brought before the suit in this court is commenced or by an action brought afterwards by direction of this court can make no difference. In Hanson v Gardiner 7 Ves. 311 Lord Mdon says "I think myself authorized to take what passed at law as if an action had been directed by the court. And in Thomas v Jones Y & C 510, where the plaintiff's right was established in an action at law, brought oy the plaintiff and not in an issue directed by the court, a perpetual injunction was granted. It reoaains to consider the two impcH^tant questions above mentioned. The first, viz., whether the riparian owner can daily inter- rupt and detain the water for the use of his mill without being liable to an action by the owner lower down has been already fully considered in the Judgment of the Supreme Court in the action at law between these parties, and as I see no cause for changing the opinions I then entertained, it is 22 HOW AT V. LAIRD. unnecessary again to enter into the reasons which were then fully stated. The case of Wood v FawrflS Juris however so applicable to this point that I will briefly state the points there decided. In that case, (like the* present) the defendants were owners of mills higher up and the plaintiff of mills lower down on the same stream. The plaintiff complained first, that defendants fouled the water. The special verdict found it was so dirty before, that the dirt thrown in by the defendants caused no actual injury to the plaintiffs. The Court held notwithstanding that, as by continuing to do so for twenty years the defendants would gain a right to foul the water, the plaintiff was entitled to recover. Secondly, the plaintiff complained that the defendants had wasted the water. . The special verdict found that the water was used by the defendant's steam mill. That about 5 per cent of the water was lost by evaporation in passing through, the boilers, and that subject to that unavoidable loss, the whole of the water reached the plaintiffs mills. The Court held he was entitled to the whole of the water, and therefore to recover for this also. Thirdly, the plaintiff complained as he does here, that the defendant had stopped and hindered the water from running and flowing in its usual course to his mill. The special verdict found that the defendants detained the water in a reservoir for the use of their mill, and that after using it, the whole, as it does in this case, reached the plaintiff's mills. The Court after referring to the doctrine of Chancellor JKent, (which was here relied on for the defendants) say that if the water is diverted into a reservoir and there delayed, an action seems maintainable, and the plaintiff had judgment for that detention also. I cannot see any distinction between that case and the present and it seems to me decisive on this point. The last question is, whether this is a proper case for the preventive interference of this Court ? For the plaintiff it is insisted that his legal right having been established this Court can look at nothing else, but is bound to protect it. For the defendants, it was strongly urged that there was here no destruction or irreparable injury and, therefore, the Court could not interfere and Sanson v. Gardiner 15 Jur. 136, Coward v. Tickler 19 Ves. 619, and the Attorney General v. Hallet 16 M. & W. 568 and other cases were cited in support of the last proposition, but those were HOWAT V. LAIRD. 23 cases where the injunction was applied for, or had been grant- ed, before the right had been established at law. Where destruction or irreparable injury is threatened, and the legal right is doubtful, Courts of Equity interfere by injunction to preserve and keep things as they are until the legal right i^ ascertained by a trial at Law. Thus in the Atty. Gml. v. HaJM. {he Court refused the injunction on the ground that the injury complained of was not irreparable in its nature, but Baron Alderson expressly says that if the right should be established at law the plaintiffs would be entitled, to an injunc- tion. But when (as in this case) the right has been established at Law, there the jurisdiction is much wider. Then, when destruction or irreparable injury is threatened, or when the injury complained of cannot be adequately compensated by damages at law — as loss of trade for instance — or where it is such as frchn its continuance' must occasion a constantly recurring grievance, and will, therefore, require a multiplicity of suits for its redress, Courts of Equity interfere by injunction to prevent it. In this case no destruction or irreparable injury ic threat- ened. Serious injury to the plaintiff in his business is negatived by the case made for the defendants. Bat from the nature of the injury the grievance will be constantly recurring, and the question is, whether, as the loss it occasions the plaintiff, is nominal and not actual, it amounts to that kind of injury which (though constantly recurring) a Court of Equity should inter- fere to prevent ? Both Mr. Daniels and Judge Story, in speaking of injunc- tions against private nuisances, say the interposition in these cases is founded on the general restraining of irreparable mischief, or of preventing multiplicity of suits, but that it is not every case which will furnish a right of action, which yrWX justify the interposition of a Court of Equity to redress the injury or remove the annoyance. There must be such an injury as from its nature is not susceptible of being adequately compensated by damage at law, or as from its continuance or permanent mischief must occasion a constantly recurring grievance. For which they both cite Goulson v. White 3 Aitk. 21, which merely says " that if a trespass is so long continued as to become a nuisance the Court will grant an injunction to restrain the party from committing it." In this case (which is very shortly reported) it is likely that the act 24 HOWAT V. LAIRD. producing actual injury (as in the Atty. General v HaUet) was done on the plaintiffs land The other cases cited by these authors is the Atty. General v Nichol, 16 Ves. 342. In that case an injunction had been granted against obstructing ancient lights. Lord Eldon says " cases may exist upon which this Court could pot interfere, yet an action on the case might be very well maintained. And he dissolved the injunction upon the defendants' undertaking, if the verdiqt should be against him, to remove such building " as should b^ proved tQ affect the ancient lights in a material and improp^ degree" Both the expressions of Lord Eldon and the terms of the uitdertaking he imposed on the defendants ; to remove what affected the lights in a " material and improper degree," shew that he considered it quite possible that the plaintiff might obtain a verdict for such an obstruction as might amount to a nuisance at law, without being so hurtful to him as to entitle him to an injunction absolutely restraining the infringment of ^the l@gal right. In Winstanley v. Zee 2 Swainston 333, the Master of the Soils, in a case for obstructing ancient lights, says, " It may be perfectly clear that the plaintiff is entitled to succeed in an action, and yet a Court of Equity will not interfere by injunc- tion. The plaintiff i^ bound to phew not only a legal right to the enjoyment of the ancient right, but that if the building of the defeadactts is suffered to proceed such pn injury will ensue as warrants the Court to iqterfere. The doctrine laid down by the Vice Chancellprin the A(ty, General v, the Eastern ^Railway Cornpany, 7 Jur. 806 hears closely on the point under consideration. In that case tb9 defendants had committed an infringment pf a strict legJii right,to restrain which an injunction had been granted expefrte^ In giving Judgment, be says, "I cannot however, see that any practical injury has been done, and cpnsidering all the circum- stances of the particular dispute before me, I am of opipipn that it is not a necessary duty of the Covirt to interfere by injunction. In all oases it is subject to the judicial discretion of the Court according to the circumstances. The infringe- ment of a strigt legal right gojes a great, but not alwfiyg the whole way, to induce the Court to continue an injunction, and the Court will endeavor to do substantial justice between the parties," And he suspended the injunction on the defendants undertaking to keep the way open in guch a manner as would^ HOWAT V. LAIRD. 25 produce no real inconvenience to the plaintiff without entirely restraining the works of the defendants. Some cases from AngeU on Water courses were relied on for the plaintiff, but in all of them the diversion of the stream seems to have caused, or been likely to cause actual injury to the plaintiff. In Thomas v. OaMey 18 Yes. 185, the stone from the quarry which was taken was parcel of the inherit- ance, and, therefore, actually injurious. The law as laid down in Webb v. The Portlcmd manufacturing company, reported in the Appendix to AngeU, is certainly very strong against the defendants in this case. It was a case on a Bill for an injunction very similar to the present, in some circumstances. But though stated in the case that the diver- sion caused no actual damage to the plaintiffs mills, yet, as the Judge observed, it was hardly possible that there would not be actual damage to the plaintiff, as the diversion of the water must diminish the value of his mill privilege. And it seems to me this must have been the ground on which the injunction, in that case, was granted. If the doctrine laid down is under- stood as going to the extent that in every case where the verdict is obtained for the interruption of a stream which causes no actual damage to those below, a Court of Equity has no discretion, but is bound to grant an injunction, I think it goes beyond what the English cases warrant. The doctrine I draw from all these cases is, that the right of the plaintiff, to- the interference of the Court, rests, not solely on its clearly appearing he has a right, or on his having obtained a verdict establishing it, but on his also shewing an interruption of that right, attended with such loss or actual inconvenience to him, as on just and equitable principles should be prevented. Judge Story seems to entertain the same opinion, for in concluding his Chapter on injunctions he says, " it may be remarked upon the subject of special injunctions that Courts of Equity con- stantly decline to lay down any rule which shall limit their power and discretion as to the particular cases in which such injunctions shall be granted or withheld." Such being the discretionary power committed to the Court it is bound to look at all the circumstances and varied bearings of each particular case before deciding. And where the thing complained of, and which it is sought to prevent, is highly beneficial to one party, and not injurious to the other, it is prudent to ponder well before it allows its strong arm to be 4 26 HO WAT V. LAIRD. called into action. At Law, no inquiry, save into the strict legal right, can be tolerated ; here, other matters demand at- tention. And although we may not attempt to restrain a legal right,, the case may be such as should prevent a Court of Equity moving to enforce it. Or, if it does move, it should take care so to mould its decree as to meet the ends of sub- stantial justice. The circumstances of the country in which ■we are, may here, also, properly receive some consideration. And there is high authority for saying that where great and general public inconvenience would ensue, and where th© interference of the Court will have the effect of interrupting men in those modes of enjoying property which are innocent in themselves, hurtful to none, and beneficial to all, we should be very cautious how we interpose ,merely to prevent some possible or contingent evil. In such cases it seems to me, while we acknowledge the jurisdiction, we may (in the words of Lord Srougham in Blakemere v. The Glamorganshire Canal Gom- pany) decline to exercise it any further than is necessary to prevent real injury being done. In the present case it seems clear that the legal right of the plaintiff, if pushed to its full extent, will almost, if not quite, stop the working of defendants' mills and entirely destroy their value. That, although the penning back of the water at times especially selected by the defendants may be prejudicial to the plaintiff, yet, by doing so under certain restrictions it is hardly possible he can be injured. Under these circum stances it appears to me substantial justice will but be done between these parties by adopting a similar course to that taken by Lord Eldon in the Atty. General v. Nichok, and by the Vice Chancellor in The Atty. General v. The Eastern Railway Company f and as I find adopted in many other cases to which I have referred in considering this case, viz., by imposing such terms on the defendants, in using the water, as will prevent actual injury to the plaintiff without rendering their property useless, and declining to interfere further. There is another consideration which, I think, renders it extremely doubtful whether the plaintiff is entitled to insist on the interference of the Court for the protection of his strict legal right to the full extent he desires. It is a rule of Equity not to interfere if a plaintiff has been guilty of laches, or where by his conduct, he has apparently acquiesced in an encroach- ment on his rights. In Smith v. Clay, 3 Bro. Ch. C, 640, V. 1KV1J\«. 27 Lord Cnmden says, " a Court of Equity, which is never active va relief against conscience or public convenience, has always refused its aid to stale demands where the party has slumbered upon his rights and acquiesced for a great length ot time. Nothing can call forth this Court into activity but conscience, •good faith, and reasonable diligence ; where these are wanting, the Court is passive and does nothing." Now, the defendants mill was -erected in 1838. Granting that it was not worked so regularly as it has been for the last few years, yet it was worked, and must almost daily have interrupted the natural flow of the stream. Yet the plaintiff allows those in possession of the upper mill to int-erfere with the water, apparently, without much objection, until about 1847. And after the interference had continued for several years, he t^lls David Lowther and Clarke, instead of being an injury it was a bene- fit to him. Now, although these facts do not amount to such « license or statutory bar as would furnish a defence at law, it ■certainly looks very like slumbering on his rights, and appears to me to approadi very near to that state of circumstances in ■which Lord Camden says the Court should be passive and do tiotihing, except, indeed, so far as is necessary to prevent such an interruption of the water as will mot injure the pMatifTs present works. Looking at the whole of the case, I think, to a certain extent, the injunction should be dissolved, but I think it should be dissolved only to this exteBt, viz., to allow the defendants to pen back the water for a certain number cjf hours daring each night for the purpose of raising a head, feut not to allow them to interrupt it at any other time. The order will, therefore, be that this injunction, so far as relates to penning hack the water, or interrupting the flow of th« stream, between the hours of 11 o'clock at liight and 4 o'clock in the morning of each day be dissolved, bat, that with respect to all other times it be continued. The question ©frosts I reserve to fh^ hearing. At Chambers. Bankrupt— EnsUah protection, 23 gee., 5 & .6 ¥ic. dttes not apply to Colonies — affidavit made in England must he .authenticated by affidavit made in this Court. The defendant in this case has been arrested under an 28 V. IRVING. execution issued out of the Court for the recovery of Small Debts, for a debt contracted in this Island, and applies to be discharged under the English Statute; 5 & 6 Vie., Cap., 122, Sec, 23, alleging that he has been duly declared a Bankrupt in England, and that the Commissioner of Bankruptcy there. Las, by an indorsement on the back of the Summons, pursuant to the Statute, granted him time until the 20th. of August next, to finish his examination, jind that he is consequently not liable to be arrested in this Colony until that time has expired. This motion is resisted by the plaintiflfs counsel on three grounds : — First. — It is contended that the summons and indorsement thereon are not so authenticated as to prove it really to be a document under the hand of an English Commissioner of Bankruptcy. Secondly. — That admitting the Summons and indorsement to be sufficiently authenticated, that the 23 Sec. of Vic, Cap. 22, does not apply to the Colonies. Thirdly. — That if it does, the privilege from arrest in this case, is excluded by the provisions of the Small Debt Act of this Island, 7 Vic, Cap., 3, Sec, 34. With respect to the first objection, that the proceedings are not properly authenticated, the declaration of J. Holmes authenticates the Summons and proceedings in the usual manner, this declaration is certified by the certificate of Surr, who describes himself as a Notary Public of the City of London, and the fact of his being a Notary Public is certified under the seal of the Lord Mayor. The affidavit of William Burnie which has been made since the Rule was granted cannot be looked upon by the Court ; if the defendant wished to use a supplimentary affidavit he should have applied to the Court for leave to draw it up, on reading the supplimentary affidavit. Also SciUoway v. Whorewood, 2 Salk. 461 is certainly an authority in favor of admitting the affidavit, when only confirmatory of those used in moving for the rule, butjiS'ame v. Same 2 C. M. '& B. 637, where that ease was relied on, was determined contrary to it, and in Bury v.lOlench, 6*Jur. 666, it was laid down that a party must apply to the Court ^for leave to withdraw his rule and move it again. The affidavit of the defendant does not help his case on this point, as he does not authenticate the proceed- ■i;. IRVING. 29 ings of the commission at all, nor does he swear that his time has been extended, but only that " a further time was allowed by the said John Sheppard" until the 20th day of August, now, next " as appears by the summons and indorsements thereon annexed." The question therefore is, whether the certificate of the Lord Mayor or Surr, is a sufScient authentication of the fact that E. Golboum is a Commissioner of Bankrupts, and that the paper purporting to be the Summons is really signed by him. England with respect to this question must be considered in the same light as any foreign country. Both Mr. Tidd and Mr. Archhold in their books of Practice lay it down, that an affidavit made in a foreign country must be authenticated by an affidavit made before as officer of the Court in England. In (yMaUy v. Newell 8 East 372 Lord EUenborough in de- livering Judgment on a motion to discharge a party from arrest on an affidavit made out of England, says, " we are of opinion that the Practice itself may be sustained in point of law as to affidavits made out of England and verified here. In Einch v. Cullamore 3 M. & S. the signature of the Chief Justice of Ireland was verified by affidavit made in England. Some cases have been decided where acknowledgments of fines by married women were directed to be taken on affidavit made out of England, and certified by a Notary Public, but they appear to rest on the provisions of particular statutes, rather than on any general principle of law. It was urged by the defendant's Counsel, that though affidavits thus authen- ticated might not be sufficient in ordinary cases (such as arrests for debt for instance,) yet they were sufficient in application of this kind, to call on the other side to answer. But if an affidavit is necessary at all, I can see no distinction between the authentication requisite to satisfy the Court of their being genuine where used in moving for rule, and any other case. In both cases the Court before acting on them must see, first, that the person administering the oath had authority to do so, and secondly, that the signature to the Jurat is the signature of that person. In Dalmer v. Barnard 7 T Rep 251 where on shewing cause against a rule for delivering up a Bond and Warrant of Attorney to be cancelled, an objection was taken to an affidavit sworn before the Chief Magistrate of the Isle of Man and authenticated by an affidavit made in the Court of King's Bench, it does not appear 30 V. IRVING. to have been thought either by the Counsel or the Court that any such distinetion existed ; the observation of the Court was, " as to this not being properly authenticated, the affidavit of Christian in this Court is a sufficient answer. The conclusion, however, to which tlie Court have come on the second point renders it unnecessary to give any decision on this ; had it been necessary we might, perhaps, have required more time to consider biefore pronouncing judgment." ^ As to the second point. There is no doubt of the power of Parliament to bind the Colonies, where an Act shews a clear intention to do so, and I think it is clear that a " Certificate" of Bankruptcy obtained in England would be a bar ia this Court to an action for a debt contracted here. But the ques- tion here is, whether it was the intention of Parliament that the 23rd Sec. of 5 & 6 FjiCjCap. 122, should extend to the Colonies. That section after providing that the Bankrupt shall be free from arrest during such time as shall be allowed him to finish his examination, and for such time after finishing his examination, until his Certificate be allowed and confirmed as the Court shall appoint, goes on to enact, " That if such Bankrupt shall, after his surrender, be arrested within the time aforesaid, he shaU, on producing his Summons, signed as required by this Act, to the officer who shall arre st bim, and giving such officer a copy thereof, be immediately discharged, and if the pfficer shall detain him after he shall have been shewn such Summons, he shall forfeit to the Bankrupt £5 for every day he shall detain such Bankrupt, to be recovered by action of Debt in any Court of Becord at Westminster, in the name of such Bankrupt, with full costs of suit.'' The diffi- culty an officer would experience in a foreign country, in ascertaining whether the Summons produced by a person- he h^d arrested was genuine or not, must be very obvious, as he must act on it immediately, or at least, after a reasonable time for. inquiry into its authenticity. Ia Sn,gland the Gazette, and many other papers, contain the names of Bankrupts, the dates of fiats &c, and from those, and many other sources, the .offiser there would have no difficulty in satisfying himself on this point. But how is the officer to do this in a distant country wiere there are no persons in any way concerned with the EagUsh Bankrupt Courts, and where no paper published by authority, or otherwise, contains the names of Bankrupts, dates of fiats,, or any information on the .subjeet, and where V IRVING. 3t few, or none, can be supposed to know who the English Com- miasioners of Bankruptcy are, or be acquainted with their signatures? We cannot suppose Parliament could have intended to impose a duty on the ofiScer, the right performance of which would be so impracticable, and to compel him to discharge his prisoner, merely because he produces a piece of paper, the genuineness of which he has no means of ascertain- ing, and which, if not genuine, will be no defence for him in an action for the escape of the prisoner, he has (as he sup- posed) legally discharged. But the Act provides that the Penalty is to be recovered " bt/ action in a Court at West- minster." We are endeavoring to find out the intention. Now, if it had been intended that this section should apply to the Colonies, would it have limited the right to sue for the penalty to the Courts at Westminster, and, at the same time, make the right to be discharged dependant on the production of the summons everywhere ? It can only be on the suppo- sition that the officer has, or can obtain satisfactory evidence of the authenticity of the summons, that the Act compels him to discharge his prisoner. Why, then, when the officer is so satisfied, should the Bankrupt not have a right (if improperly detained) to sue for the penalty in the country where it is incurred ? We cannot suppose Parliament intended to make the Bankrupt's right to recover the penalty dependant on the improbable chance of his finding the Colonial officer at some future time in England. In the case of a " Certificate " these inconveniences do not arise, because the Bankrupt must plead it, and if issue is taken on 'it, must prove it at the trial. The 2 & 3 Wm. 4th C. 114, Sec. 9, enacts, that depositions and proceedings purporting to be sealed with the seal of the Court of Bankruptcy, shall be received as evidence of such docu- ments respectively ; yet, in Clark v. Mullich, 3 Moore P. C. 260, though it was not denied that the property of the Bank- rupt passed to the assignees, it was held that that section of the Act did not apply to the Colonies. In the Mayor of *Si!, John v; LochjBood the Supreme Court of New Brunswick refused to discharge a prisoner under similar circumstances It was urged at the bar that the protection would be of no use unless the Bankrupt could go to the country where his books and the bulk of his property is, and it is also stated in the defendant's affidavit, that he came here to assist in collect- ing his debts, but I do not see that it was necessary for him to 32 V. IRVING. come here before obtaining his Certificate. All that is required in the Bankruptcy Court is, that the Bankrupt should make a ^ full disclosure of Ms affairs, if his books were here he might have had them transmitted to him in England. The argument that his presence here was necessary to collect his debts, tends to shew the danger of acceeding to such applications, as a Bankrupt might then gather up his books, and such effects as he could lay his hands on, and by leaving the Colony before the protection expired, go where he pleased, or he might go to England, and in one month after this Court had discharged him from arrest, he might be refused his Certificate there, and then become liable to be arrested again, but the creditor here who had been diligent and arrested him must lose his debt, as the Bankrupt would then be beyond the jurisdiction of the Court. The English creditor, on the contrary, at v;^hose suit he might have been discharged, could watch the proceedings and when the Certificate was refused, arrest him again, thus, the application of this section to the Colonies would have the effect of placing the Colonial creditor in a much worse position than the English crediter. Again, during the running of the protection, and before a full disclosure, and while his property is in some degree under the Bankrupt's control, if the Bank- rupt was found to be secreting his books, or making away with his property &c, the Court in England could withdraw the protection at once and take measures to preserve the effects ; but if he were found doing so here, what power has the English Court of Bankruptcy over him here ? He is beyond their immediate control, and the creditor here might see him making away with property which ought to be applied in liquidating his debt, and yet neither be able to arrest him, or procure the interference of the Bankruptcy Court in time to save it for him. These last reasons, it is true, only shew the inconveni- ence which might arise from the operation of this section in the Colonies, but where the language of a Statute is ambiguous such reasons are entitled to consideration, as if Parliament had intended a section which might so operate to apply, the intention would have been clearly expressed, and not left in uncertainty. "We are, therefore, of opinion that this section does not apply here, and, therefore, this Rule must be dis- charged. As to the third point, the defendant does not claim any privilege not to he sued in the Small Debt Court, and, there- piDWELL V. Mcdonald. 33 fore, is not within the 34 Sec. 7 Vic, Cap. 2. The section applies only to cases of privilege to the person, in consequence of some office, as " an attorney," for instance, and not in cases where the defence is, that the action is barred in all Couits, Rule discharved. PIDWELL «'.M'DONALD. At Chambers. vSummary suit — Debt reduced by payment — Balance due i f wnde-r £20 may be sued for on Summary side. The plaintiff in this case brings his action on the Summary side of the Court, he states that the defendant agreed to give £30 for the rent of a house (under certain contingencies which happened) ; he proves that £15 have leen paid, and he sues for the balance. The defendant contends that the house was only taken for half a year, and the amount paid was not a pari payment of £30 but in full of all that was due, and that as the plaintiflf has to shew an original demand exceeding £20, fais action should have been brought on the Record side, and he therefore pleads in abatement to the jurisdiction. The Act for the trial of causes in a Summary way 24 Geo. 3 Cap. 13 sec. 1, provides "that in all actions of debt case &c., where the sum or damages demanded shall not exceed £20, the plaintiff may proceed in a summary way. Numerous cases were cited at the bar which have been decided on the JEnglish Court of Request Acts, some of which turn on the particular provisions of acts dissimilar from this, and have no application to this case ; but others, on acts very similar to that on which this question is raised. Several cases were adverted to, where the debt was reduced by set off, and which were held not te be within the Acts, because, as the plaintiff could not compel the defendant to put in his set off, the plaintiff could not know whether the set off would be brought forward or not ; but those cases do not apply here, because, if the debt in this case is considered as reduced at all, it is re- duced by payment. And where a debt is so reduced the general tenor of the authorities is, that as the plaintiff kpew that he had received payment, he might give credit for it, and sue for the balance. The act authorizes the action on the .Summary side where the damages demanded do not exceed 5 34 PIDWELL V. McDONALD. £20. According to Shaddiek v. Bennet 4, B. & C 769 and Drew V. Goles 1 D. P. C. 680, (the first decided on the London Court of Requests Act, and the other on the Bedford Court of Requests Act, the sections of which are in e^ct, similar to the Island Act); the amount recovered, (unless re- duced by a set off), is the criterion of the amount demanded. In the present case, all the plaintiff ought to recover after giving credit for the payment was the balance under £20. The debt demanded is, therefore, under £20,' and so within the words of the Act. But it was contended by the plaintifTs Counsel, that in this case as the plaintiff had to establish his right at one time to a sum of £30 which is disputed, and, as the jury would have to decide that before his right to a verdict for anything could be established, therefore, the class of cases to which Coles v Drew and Shaddiek v. Bennet belong, do not apply ; and at the trial it appeared to me that this view of the case was correct but on close examination I think this view erroneous. In all cases where the debt has been reduced by payment, evidence of the larger amount must be given before it can be shewn to be reduced by payment. In Horn v. Hughes 8 East 346 the plaintiff's witness proved a debt of £6 9s Od, and then proved £2 paid and it was held to be within the London Court of Request Act, the wording of the 12th section of which Act is not essentially different from the 1st section of our Summary Act. The cases which appear contrary to this doctrine are decided on statutes containing a special clause restraining the jurisdiction to causes where the original demand did not exceed £5. It is further urged by tlis defendant's Counsel that if the plaintiff satisfies himself with proof of the last half year's rent, then they have a right to put the judgment against it, and then there is nothing due, and the dicta of the Judges in Woodham v, Newmans 13 Jur. 456 is cited in support of this view of the case. But in that case the debt was reduced by set off; the judges in giving judgment put the case of a party having a large demand, weaving part so as to sue in the cheaper Court, in which case, as you cannot compel a man to set off his account, the defendant might bring his set off and defeat the suit or sue for it again, though in reality paid in the amount waived by the plaintiff before be sued ; but in this case the plaintiff does not waive any part of his demand he McDONALU V. LiUJNUWUKTH. 35 says " I had a demand against you for a year's rent, you paid me half a year's rent, contending that you owed no more. I have sued you for the other half and if you were ever liable for that you owe it still." It is true the party who makes pay. ment may appropriate it to any account he likes, but when he once does so he cannot afterwards change it. Here the defendant himself appropriated it at the time of payment to the first half year, den^^ing that he owed the second, be cannot now therefore say, I will appropriate the payment to the last half year for ^ich you sue. The question as to the eflfect of the plaintiff receiving the money which was offered in full cannot arise in this stage of the cause in which issue is taken on a plea to the jurisdiction. And as the plaintiff demands a sum not exceeding £20 he has a right to sue on the Summary side, The rule must be absolute. M'DONALD V. LONGWORTH. Hilary Term. 1&52. Absent Debtor — Debtor summoned under Trustee Process not liable to assignee of absent debtor without notice — reason- able time before Assignment — Assignment of chose in action to Trustee without assent of Cfeditors void against attaching Creditors. In this case the defendant is sued under the Trustee Pro- cess by Gushing 4* Glapp, as a debtor to Augustine McDon- ald (an absent debtor), the plaintiff in the present suit. It appears that on the 11th of Sep. 1849, Cushing Sf Glapp, conmieneed their action by attachment against plaintiff under the Absent Debtor Act. On the 11th of December, 1849, they caused the summons to be served tfn the defendant. On the 12th of December the Defendant made a written deposition admitting himself indebted to the plaintiff, Augus- tine McDonald, in the sum of £16 lis Od. which was put in at Hilary Term 1850. It further appears that in July 1848. the plaintiff, McDotuM, executed an assignment of all his effects and credits to John McDoneU, as trustee for certain creditors therein named,according to the priorities therein men- tioned,after liquidating whose demands, the trustee was to have the residue of the proceeds to pay an unascertained amount 36 Mcdonald v. longworth. stated to be due to him. The assignment is by Deed Poll executed only by the assignor, neither the trustee nor any of the creditors are parties or privy to it. On the 11th of DeC' ember 1849, this action is commenced in plaintifFs name (by the trustee) to recover the debt, for which the defendant is also sued under the Ti-mtee Process by G'lshing 8f Glapp . Judgment has been recovered by Gushing Sf Glapp in the absent debtor suit against the pre-ietrt; plaintiff, Augustine McDonald, and the Defendant has paid over the amount by his deposition admitted to be due to the absent debtor, Me- Donald, to the Sheriff, on an Execution issued under the judgrapnt obtained by Gushing if Glapp against the plaintiff" McDonald. ' It is contended. First, that Longworth, the Defend in t, had not suiBcient notice of the assignment, and that having admitted asset, he was bound to pay the amount to the Sheriffs under Gushing 3f Glapp's Execution against the plaintiff, and that he is, therefore, discharged from liability to the plain- tiff's trustee, John McDdnell. Secondly, That the creditors have not assented to the assignment, and that it is, therefore, void as against Gushing' Sf Glapp. As to the first point, it is positively sworn by the defend- ant, in his affidavit, that at the time he made his deposition, viz, the 12th December, he had no notice of the assignment, but it. appears that at Hilary Term 1850, when the deposition was filed, and at which Term the defendant should have appeared to submit to examination, he was absent in England, and his deposition admitting assets was the only examination taken. The affidavit of Mr. Palmer, the plaintiff's attorney, states, that in Hilary Terra 1851, when the defendant's depo- sition was put in and read, he, the said 0. Palmer, produced the assignment and duly notified the Court and defendant thereof. But it appears that with respect to notifying the defendant Mr. Palmer, must be mistaken, as the defendant was then absent, and that the notification, he alludes to must have been given to the defendant's attorney. The defendant should have been there to be examined, or should have applied to have the time for his appearance extended, and, therefore, we think the notice then given must be looked at in the same light as if the defendant had been there and received it himself, The question is, would this be a sufficient notice of the assign- McDONLALD v. LONGWORTH. 37 ment ? If it would, then the defendant was bound to state it in his examination, and not having done so, though he made himself liable by admitting assets, to pay Oushing ^ Clapp as attaching creditors, he must still (if the assignment be good) pay the amount over again to the trustee in this suit. At Common Law a debtor is only liable to be sued by his creditor with whom he contracted, The Absent Debt6r Act extends this Common Law liability and subjects hira, under certain circumstances, to be sued by a third person, between whom and himself no privity of contract exists. If the debtor's creditor assigns the debt to a trustee, the trustee has only an equitable right to the debt assigned ; all that is necessary to protect the debtor from injury is notice from the trustee of the assignment, and then he is in Equity liable to pay to the trustee, and, as at common Law, 'he can only be sued in the name of his creditor, he is in no danger of being compelled to a double payment of his debt, but where the Common Law liability is statutably extended and he is subjected to an action not only by his creditor, but, also, by a third person with whom he never contracted, the trustee, to whom the debt is assigned, must, necessarily, do something more to protect him than merely give him notice of the assignment. He must, also, furnish him with the means of making a good defence to the action brought by such third person against him, and as the time for making that defence under the Trustee Process, is the time at which the debtor, served with such Process, comes in to be examined, it follows that the means of making such defence must be furnished him by the trustee in sufficient time to enable him to set it up, for if this is not done the per- son suing under the Trustee Process must recover against him. And this appears to be the doctrine of the Courts in the United States in acts, though more particular in their provi- sions, yet similar in principle to our own. Mr. Angdl, in his book on Trustee Process, says, "A mere notification by the assignee that the debt is assigned to him is, doubtless, sufficient to protect his rights against a mere voluntary payment by a debtor." " But such notification will not relieve the assignee frota his obligation to furnish the debtor with the means of a defence against the assignee's creditor, it he neglect to do so, and in consequence of such neglect, the debtor be adjudged the trustee of the assignor, the assignee will lose his right to 38 Mcdonald v. longworth. recover the debt, even though his failure to furnish the debtor with the means of defending himself against the Trustee Process, be, in consequence of his ignorance of its existence, and even though the debtor have previous notice of the assignment, and neglect to inform the trustee of the service of the writ upon him." Now taking the offer made by Mr. Palmer when the defendant's deposition was read, as notice of the assignment? would that be furnishing the defendant with legal and suffi- cient evidence of the assignment in lime to enable him to set it up as his defence ? We think not. The mere production of a deed is no evidence of its authenticity. The defendant must have a right to have the assignment given to him in such reasonable time before bis examination as will enable him to ascertain that it is authentic, but he can have no means of making the inquiry if the first notice he has of it be, placing it in his hand when on the stand undergoing exami- nation. Again, as laid down in Wood v. Partridge, 11 Mass. Rep. 488, the debtor sued under the Trustee Process may, if he please, take the responsibility on himself of determining upon the validity of the assignment, and may refuse to state it in his answer, and then he will be charged as trustee of the assignor under the Trustee Process, and will ^Iso be liable to pay the debt to the assignee if the assignment prove valid. But in the majority of cases the defendant would not be able to form any correct conclusion as to the validity of an assign- ment placed in his hands while under examination.. If he has the right of determining its validity he must be entitled to have the document, or an authentic copy of it, furnished to him in such time before his examination, as will afford him a reasonable opportunity of perusing the document and ascer- taining whether it be valid or not. What is a reasonable time must depend on the particular circumstances of each case, but we are clearly of opinion that in the present case evidence of the assignment was not furnished the defendant m sufficient time. The conclusion we have arrived at on this point renders a decision of the other unnecessary, but as cases ot this kind are becoming more frequent it is as well to consider it also. In all cases of voluntary assignments to trustees for the benefit of creditors, until the creditors have assented, the McDonald v. longworth. 39 assignment is looked upon, both at Law and in Equity, as a mere power given by a debtor to his trustee to apply the property in payment of his debts, and is, therefore, revocable by the debtor. Thus in Gerrard v. Lord Lauderdale, 2 Buss, and Myl. 451, property was conveyed to trustees to sell, and afler satisfying certain specified claims, to divide the residue among scheduled creditors, none of whom were parties or privies to the execution of the deed. The trustees after parti- ally executing the trusts, concurred with the assignor in doing acts inconsistent with the subsequent trusts. It was held that a scheduled creditor could not enforce the execution of the trusts against the trustee, the conveyance being in the nature of a private arrangement for the personal convenience of the assignor and vesting no right in the creditors. And the same doctrine is laid down in Wayhn v. Ckmtts 3 Merrio. 717, and Acton V, Woodgate 2 M. and B. 492. The Absent Debtor Act 22 Geo. 3 Cap. 9, provides that « all the goods, effects, credits, and estate of any kind whatso- ever, of such absent or absconding debtor in the hands of his attorney, factor, agent or trustee, or under his care, or manage- ment, at the time of his being served with tbe summons " shall be liable to the execution granted in the judgment against the absent debtor in the attachment suit. Now if a voluntary assignment to a trustee be a mere direction of the mode in which the trustee is to apply the proceeds, and be revocable, the absent debtor may remove the property assigned at any moment, and it is, in fact, as much under his control as if no assignment had been made. And it is difficult to see how an assignment operating only in that manner, can inter- fere with the right of attachment given by the Statute '* against all the goods, effects, and credits, of any kind whatsoever " of the absent debtor in the hands, or under the management of his "agent or trustee," unless a mere power of attorney given by an absent debtor would have the same effect, which, it is quite clear, it would not. It is true Mr. Justice Story, in his book on Equity 302, lays it down that the assent of credi- tors will be presumed until the contrary appears, and that an assignment bona fide made by a debtor and assented to by the assignee, will be a valid conveyance and good against creditors proceeding adversely by attachment or seizure in execution for the property thereby conveyed, at least, unless all the creditors for whose benefit the assignment is made repudiate it. 40 Mcdonald v. longworth. The only English cases cited by Judge Story, for this proposi- sition, are Small r. Marwood, 9 B. & C. 300, and Picistock V. Lyster, 3 M. & S. 371. But Small v. Marwood only decided that the deed was not void, and as it contained a release, that a trustee who was also a creditor, had by, execut- ing it, extinguished his debt. And in Pieksteck v. lyster it was held that a voluntary assignment, though not executed by the creditors, was not void under the Statute of Mizabetk, and as 4he legal title to the property thereby conveyed vested in the trustees it was not liable to be seized under an execution -against tlje assignor. But though an assignment which is not void under the Statute vests the legal title to the property in the trustee, and is sufficient to defeat an execution which can only operate on property, the legal title to which remains in the debtor, it does not necessarily follow that it must defeat an attachment under this Act. ' The object and policy of the Absent Debtor Act seems to be, to furnish a loc?,! remedy against the property of a debtor, who, by withdrawing himself from the jurisdiction of ordinary process, depriveg bis creditors of the usual means of enforcing payment of their debts. For this purpose, it not only allp.ws a creditor to attach the property of his debtor before any debt is adjudged to be d,ue, but it also permits the debtor, by the Trustee 'Process, to attach debts and credits which an execu- tion could not touch. Now if a deed which (fpr want of the assent of creditors) is revocable by the debtor, can prevent an attachment, it appears to us that the object and policy of the Act may be entirely defeated,, in as much as the debtor would then have power to suspend the right of attachment, by a deed depending for its validity on an assent which might never be given, and which, by exercising his power of revocation, he himself may prevent from being given. Again, the object of the Act ^^^^s to be, to afibrd a local remedy to creditprs. But an absent debtor may assign to a trustee who is also beyond the jurisdiction ; if the assent of creditors is to be presumed, the assignment must operate from the moment of its execution. Thep, if the trustee be absent, the local remedy of creditors is gone. The body of the debtor is beyond their reach, and during the interval, before they can notify their assent to the trustee so as to bind him to hold the property assigned, the debtor may have revoked the deed and Mcdonald v. longworth. 4i resumed possession. Such a doctrine would open a wide door to frauds on creditors ; a friendly trustee might withdraw large assets from the jurisdiction of the attachment law, and hand them over to the debtor in- a foreign country, and which, but for the deed by the debtor's own <»ct made void, might have been secured for them by attachment. But there is another reason particularly applicable to this case, where the subject matter in dispute is a mere chose in action. This cannot be assigned at law. The legal title to it still remains in the absent debtor. ■ "When, on examination, a trustee sets out an assignment, it is in the nature of a plea in bar to the Trustee Process. What would be the substance ot a plea disclosing these facts ? It would be this, that the legal title to the chose in action still remained in the absent debtor, who, then, and still has full power to apply the proceeds in any manner he may see fit. We think such a plea Bnder both the words and policy of the Act would be bad, and if so, any assignment so long as it remains revocable by the assignor cannot defeat a creditor proceeding under a Trustee Process. And this seems in accordance with the doctrine held by the Courts of Massaehusetts and Maine on similar Acts. Mr. Angell in his Treatise on Assignments 173 says,''' The Courts ot Massachusetts have considered, that the establishment of a trust estate for the benefit of creditors, not expressly assenting thereto, is contrary to their local policy. It is viewed as a naked trust, which, however good at law has been deemed from the defect of a Court invested with Chancery powers, and from the nature of the attachment .laws of that State utterly void as regards attaching creditors." la a late case in Maine the Court says, that by the decisions of Massachusetts prior to ' the sep^ation, and the practice of both Slates since, so far as they were informed the rights of an attaching creditor have been preferred to those creditors who had not actually assented prior to the attachment. In Quincyv. Hallf TPich, 357, it was held, that an assign- ment by bill of sale, where the trustee merely gave his promissory note to the debtor without any indorser or other security, or any agreement to perform the trust, and some of the creditors assented to' the assignment verbally, ^and others not at all, was void against an attaching creditor. In this case the affidavit states that' the creditors assented with the exception o( Oushinff' S^ Glapp, but it does not 42 McKINNON r. McKINNON. appear that they assented before the attachment, or in what manner the attachment was made, not that we mi^an to hold that the assent must be in writing, but the acts which are supposed to constitute the assent should be -stated that the Court may judge of their effect. Whether such express assent of the creditors is necessary to defeat an attachment when the subject matter assigned is a chattel, or other thing, the legal title to which, by the deed or delivery vests in the trustee, we are not now called on to decide. But on both grounds we think the present Rule must be discharged. M'KINNON V. M'KINNON. Hilary Term, *. 1852. Ejectment — Estoppel by acts and conduct. The only point in this case not disposed of during the argu- ment was, whether the plaintiff by his acts was estopped from treating the defendant as a trespasser. It appeared that the locus in quo had been granted to the plaintiff while young, and when he resided with his father, who had occupied the lot. Indeed, from the evidence it would appear that the grant had been taken out by the father in the plaintiff's name, to avoid some oflScial regulations which- prevented more than a certain quantity of land being granted to one individual. But plaintiff had, at several times, exercised acts of ownership sufficient to prevent the Statute of Limita- tions operating against him ; there would, therefore, be no doubt of his right to recover in this action if he is not estopped by his subsequent acts. It appeared from the evidence that Hugh McKinnon de- ceased, (plaintiff's father) in making a disposition of his property amongst his children, had agreed with plaintiff to give him a deed of a piece of land called the Sherman place, on which plaintiff resided, but the title to which still remained in the father, provided he would make over his right to the locus in quo to plaintiff's sister (the defendant's wife). It further appeared that the father, to secure performance of the plaintiff's promise to make over the hem in quo to his sister. McKINNON V. McKINNON. 43 some short time before his death delivered the conveyance of the Sherman place to his wife (plaintiff 's mother) as an escrow to be delivered to the plaintiff on his making over the locus in quo to his sister. The testimony of Angus MeKinnon on this point was as follows ; — " I occupied the lot in question with the rest of the cultivated land for twenty-two years after my father's death, I thought it was my sister's, (defendant's wife) because one day I was present when my father spoke to the plaintiff about making the swap for Sherman's place, Malcolm said he would do it. My father said, didn't I tell you so," (it appeared that some of the family had expressed a doubt to the old man whether the plaintiff would perform his promise to exchange after he got the deed.) " Father then said, well, when you sign the deed of the lot, here is the deed of Sherman's place, and he then gave the deed to his wife (plaintiff's mother) and told her not to give it to the plaintiff till he signed the other, as the Sherman place was. as good to her as the lot,'' and this testimony was confirmed by other evidence. The plaintiff, afier the father's death, being about to sell the Sher- man place, required the deed. It appeared that a deed of the locus in quo, from plaintiff to his father, had been prepared during his life, but not executed, and now, (after the father's death) plaintiff executed the deed, but the description of the grantee was not altered so as to apply to Hugh MeKinnon the defendant, so that the deed on its face purported to be a deed to Hugh MeKinnon deceased, and he delivered this deed to his mother as a transfer of his right to the locus in quo. I told the Jury that the deed of 1820 being made to a per- son then dead passed nothing, but that if they found plaintiff and his father had agreed to the exchange, and that the father had given the deed to plaintiff's mother to hold till he made over his right to the locus in quo to his sister, as stated, and that the plaintiff had afterwards, on delivering the deed of 1820 to his mother, obtained the deed of the Sherman place from his mother, on the understanding that he, thereby re- signed his title to the locus in quo to his sister, (the defendant's wife) in pursuance of the agreement made with his father he was now estopped from treating the defendant as a trespasser. It is unnecessary to notice all the authorities cited on the argument. The principle laid down in Pickard v. Sears 6 A. & Ell. 474, and confirmed by Freeman v. Gooke, 2 W. H. & Gordon 660 is, that where one by his conduct wilfully causes 44 McKINNON v. McKINNON. another to believe in the existence of a certain state of things^ and induces him to act on that belief, so as to alter his own previous position, the former is estopped from averring against the latter a different state of things ; here the plaintiff leads his mother to believe that he relinquishes his right to the bcus in quo to his sister in pursuance of the agreement made with his father, and in that belief she gives up to him the deed of the Sherman place, which plaintiff's father has directed her to hold until the plaintiff made over his right to the locus in quo to his sister. He therefore clearly induces his mother to act so as to alter the position of his sister, (the defendant's wife) by entirely destroying the interest she as one of the heirs had in the Sherman place. The deed, though it passes no title, is good evidence of the plaintiff's professed intention at the time to divest himself of his right to the Zocm« in quo, and coupled with the other evidence shews, that he induced his mother to act on the belief that he then and there made over his right to his sister. We think after this he is estopped from treating the defendant as a trespasser. At the time of executing the deed something was said as to whethfer it made any difference that the Hugh McKinnon named in the deed, was the father, and not Hugh McKinnon the defendant, and plaintiff replied, " if it made any difference he had a Hugh McKinnon himself, his own son." Much argument was raised on this, to shew that the plaintiff by this expression evinced that he did not intend to divest himself of his interest, and undoubtedly if he had shown that, he would not be estopped, because then, the mother could not be considered as acting in the belief that his title to the hcus in quo was relinquished j whether this expression manifested any such intention was left to the jury, and they must have found that it did not shew that the plaintiff then considered, or wished others to consider, the transfer void, and we think they have drawn a correct conclusion. The expression makes against this idea instead of supporting it, for it shows that the plaintiff must have thought the deed suflScient to pass his interest, else how could it confer it on his son, and if it was considered sufficient to transfer the title to his^on Hugh, why should he or others think it insufficient to pass the title to Hugh the defendant, who, under the agreement with plaintiff's father was the person entitled to it. It was also urged that the transaction took place with the MITCHELL V. HARVIE. 45 mother, that defendant's wife was not a party but is a stranger to it, and that as estoppgls only bind parties and privies, tlie plaintiff is not estopped as ai^ainst the defendant. The position that estoppels only bind parties and privies is no doubt correct But here Mrs. McKinnon the mother held the deed of the Sherman place as an escrow. She was the agent of the plaintiff and his sister. She was from her position the person to determine when the plaintiff fulfilled the condition entitling him to receive the deed of the Sherman place, and the transaction, between her and the plaintiff with respect to it, appears to us as strong as if the sister had been present and assented to the giving it up on receiving the defective conveyance of thefocJM in qua. To hold otherwise would be to defeat jdstice, by setting up one of the technical doctrines of estoppel, which the Courts at the present day as stated by Mr. Smith in his Leading Cases 459 incline against. He says, ' the truth is that the Courts have been, for some time favorable to the utility of the doctrine of estoppel, hostile to its techni- cality. Perceiving how essential it is to the quick and easy transaction of business, that one man should be able to pat faith in the conduct and representations of his fellow^ they have inclined to hold such conduct and such representations binding in cases where a mischief or injustice would be caused by treating their effect as revocable. Atthe same time, they have been unwilling to allow men to be entrapped by foiunal statements and admissions, which were perhaps looked upon as unimportant when made, and by which no one ever was deceived or intended to alter his position. Such estoppels are still, as formerly, considered odious." Rule discharged. MITCHELL V. HARVIE. Easter Term,. 1852. Lieut- Governor may pardon prisoner before or after trial, but cannot, without pardon, order him to be discharged before trial — In action for escape, plaintiff must prove some damage. This was a summary action on the case against the defen- ant as keeper of Queen's County Jail for an escape. From the facts admitted by the Counsel on both sides, it 46 MITCHELL «. HARVIE. appeared that one Alexander White, a private in the 38th Regiment, was charged by the plaintiff with stealing his watch, that ha was taken before a magistfete, examined, and duly committed for trial on the twelfth June, 1851, that before the sitting of the Court at which he could have been indicted, the defendant discharged the prisoner under the following order from the Lieut. Governor : Govt. House, P. E. I., 19th June, 1851. To THE Sheriff, for Queen's County. Sib ; — You are hereby authorized to deliver over to his commanding officer, Capt. Leckie, ot Her Majesty's 38th Regt, Alexander White, a private in that corps, who is pres-^ ently confined in the Jail of Charlottetown, on a charge of theft, and also of an assault. A. Bannekman, Lieut. Governor. The prisoner left the Island before the Trinity Term, so that the plaintiff could not prosecute him. At the Trinity Term the Grand Jury rtiade the following presentment : " That on the 10th day of June, instant, one Alexander White, a soldier of the 38th Regiment, in Oharloitetown, entered the house of Gerald Mitchell, of Charlottetown Com- mon, and did steal and carry away a silver watch, valued at £6, currency, the property of the said Gerald Mitchell, and the jurors further present that the said Alexander White was committed to Jail by Theophilus Desbrisay, John JHbrris, and John B, Gox, three of Her Majesty's Justices of the Peace for Queen's County, in order that the said Alexander White should be tried for the said offence at the Supreme Court to be held on the last Tuesday in June, aforesaid, and further, the jurors present that the Jailor of the said County in whose custody the said Alexander White was placed by virtue of the commitment from the three Justices aforesaid, did discharge and liberate the said Alexander White, and that he cannot now be found to answer the charge preferred against him." The plaintiff had lost the watch, but it was not found on the prisoner, nor has the defendaht ever had it in his posses- sion or seen it. The value of the watch was found to be about £6. With the exception of the commitment hy the magistrates no evidence was given to shew that the prisoner had taken the watch. MITCHELL V. HAEVIE. 47 Three questions were raised on the argument : First — Whether the order of the Lieut. Governor justified the defendant in discharging the prisoner ? Secondly — Even if it did not, the committal being for a criminal ofifence, whether an action will lie against the Jailor at the suit of a private person for an escape ? Thirdly — That supposing the action will lie, whether the plaintiff must prove that the watch was taken by the prisoner before he can recover ? As to the first point, it was argued by the Attorney General, that the Governor has power to pardon and might therefore legally discharge the prisoner. There is no doubt that the Governor may pardon and the pardon may be before as well as after conviction. Thus-in 5 Gom. Dig. 172 it is laid down, " The King may pardon any crime or offense before attainder or conviction,'' and this he may do though the prosecution be carried on by a private person, unless the prosecutor has an interest in the judgment. HaWs case 5 Rep. 5, " Alice Gooke libeled Hall in the Spiritual Court for calling her a whore and had judgment, from which the defendant appealed^ and then obtained ithe King's pardon, and it was resolved, 1st, that all cases depending in the Spiritual Court between party and party where the suit is only pro salute animo vel refor- matione morum, as for defamation or laying violent hands on a clerk, or the like, there the King's pardon is a bar of the suit, for the suit is not w recover any damages or any other thing, but only to inflict punishment on the offender pro salute animo, which punishment the King may pardon as well before as after the suit began, for, in truth, such suits are only for the King, al- though they be prosecuted by the party, and like suits in the Star Chamber preferred by one subject against another,the King may pardon them, for, although a subject prosecutes them, yet the suits are for the King and to onnish the defendants for their offences and misdemeanors by fine and imprisonment &c, to the King. But if one libels for tithes,' or a contract of matrimony, or for a legacy, or the like, where the plaintiff hath an interest and property in the thing in demand and sentence shall be given for him for the thing which he libels for, there the King cannot pardon it, neither before nor after the suit begun." But the order in this case is not and does not purport to be a pardon. A pardon must be under the great seal. If pleaded. 48 MITCHELL v. HARVIE, this document would be no defence to an Indictment for the offence mentioned in it. The question is, therefore, whether the Lieut. Governor has power to order the discharge of un- pardoned criminals from prison before trial. And in consider- ing this question, he may be assumed to possess the same power as the Sovereign in this respect. In 1 Bac. Abr. 615, it is laid down, "A person legally com- mitted for a crime certainly appearing to have been done by some one or other, cannot be lawfully discharged hy any other hut the King till he be acquitted on his trial, or ah ignoramus found by the Grand Jury, or none to prosecute him on procla- mation for that purpose by the Justices of Gaol delivery." But though it is said a person committed may ' be discharged by the King, it does not follow that an order for his discharge under the King's signature would be sufficient. Although justice is administered in the name of the Sovereign it. is beneath. his dignity. to attend to the details of its administra- tion. Many acts done in the King's name, and by his authority, can only legally be done by those to whom their execution is entrusted, and who are themselves liable for abuse of their powers. In the King v. Brown, 2 Show. Eep. 484, cited in the preface to Foster's Rep. 12 and 2 Bac Abr. 23, the defend- ant was brought up on Habeas Corpus" It appeared the King had requested some of his ministry to commit the defendant to ^Gaol, but they not having evidence of the defendant's guilt refused to grant any warrant ; upon which His Majesty, thinking the defendant guilty, called for a war- , rant which he signed with his own hand, by which the defend- ant was committed to the custody of the messenger, and the warrant being taken notice of by the Court of £. B , and the whole matter being considered the Court gave their opinion that the defendant should be discharged, because the warrant was under the King's own handr and not under the hand of way secretary or officer of state or justice of the peace. And the reason given for this hath been that the King having given all his executive powers to his Judges and Justices ol the Peace, there is none left in. him, the executive power being too mean and troublesome for His Majesty, and if the King erred ever so much there is no remedy against him, but there is a remedy at law against any subject whatsoever." Here though the party might legally be committed in the name, and by the authority of the King, yet, the warrant for MITCHELL V. HARVIE. 49 his committal signed by the King was held void. But the precise point now before the Court is noticed in 1 Bums Jus. 519, where after citing the authority already quoted from Bae. Abr., that a person legally committed for a crime cannot (until acquittal or biH ignored) be legally discharged by any other than the King. He adds in a note, " that is hy some one of the King's Courts, or hy some Magistrate duly authorized." If the prisoner in this case was improperly committed he might have caused himself to be brought before a Judge on Habeas Corpus. The prosecutor and committing Magistrate would then (according to the practice) both have had notice so that they might appear and resist" his discharge, and the Judge, after due inquiry into the circumstances, and hearing both sides, if satisfied that there was no reasonable pretence for imputing to the prisoner the offence, would have discharged him, or admitted him to bail. It appears to me, therefore, that the Lieut. Governor had no power to discharge the prisoner, and that the order does not justify the defendant in having permitted him to escape. As to the second question. The rule ot law, founded on a , statutory principle of public policy and designed to stimulate the prosecution of offences is, that where a criminal offence has been committed which is also the subject of a civil action, the party injured shall not be allowed to sue tor the civil injury until he has jSrst prosecuted the offender by indictment for the criminal offence. The law on this subject was very " fully laid down in the late case of White vi Spettigue, 13 M. & W. 605. The party injured being thus compelled to postpone his action to recover the value of the property taken from him, until he has prosecuted for the criminal offence, any omis- sion or neglect of duty by those who are bound to assist the prosecutor in carrying on the prosecution, which impedes it and thereby necessarily delays him in bringing his civil action is an injury to him, for which an action on the case lies against •the party guilty of such neglect of duty. In BuUer N. P. 64, it is laid down, " If my servant be robbed and he go to a Justice of the Peace and pray to be examined touching the robbery, and the Justice refuse to examine him, so that I am thereby damnified and cannot proceed against the Hundred, I may have an action against the Justice." The same principle seems applicable to the case of a gaoler, who, by allowing a prisoner to escape, hinders the prosecutor from proceeding 7 50 MITCHELL v. HARVIE. wit^ the criminal charge, and thereby prevents his bringing a civil action against him. ^he last question then arises, viz., whether the plaintiff must prove the iaking oif the watch by tie prisoner, before he can maintain this action. This was prpfierly likened in some respects, on the argument, to escape on Mesne Process, where, if the prisoner escape at any time after the return of the writ, the Sheriff is liable, but he is only liable for such damage as the plaintiff hag actiiaUy sustained ; and, if in consequence q(' such escape, the plaintiff be delayed for the shortest time in the prosecution of bis suit, it is a damage in law suiBcient to sustain the action. Tiius in WiUiams v. Mi «, 4 M. & W. 1,52, relied on in the argument, where the party arrested on Mesne Process escaped after the return of the writ, the plain- tiff h^d sustained no actual damage, nor been delayed in his suit, iand it was held the action would not lie. Parke B. says, " there would, we tljinfe", be no doubt that if the pl^inti^ had sued out his writ of Habeas Corpus during the dpfendant's absence from prison, and been prevented from executing it, or had offered to deliver a copy of the declaration during such ai)sence, and tad been prevented by the absence from doing so, he would have peen delayed^ and delay of suit never so short is necessarily a damage. L agree to the distinction taken by the plaintiffs Counsel between that case and the present. That in 'WiUiams v. Mostyn, the plaintiff only had a riight to have his debibr in custody ' wTjenever he chose to remove or declare against him, and, if when he did so, he was in custody he could not be delayed; but, that in this case the plaintiff by the escape has an actual impediment thrown in his Way which prevents his suing at' all until the criminal case is first disposed, of. But this would only shew that in this case it was not necessary for the plaintiff to issue a writ against the prisoner, before bringing the action for the escape, the argument does not bes^r on the real question raised and now under considera- tion, which is not whether the plaintiff has been delayed in cornmencing his suit against the prisoner (which appears plain enough), but whether admitting that to.be the case it was not necessary to prove that he had a good cause of actioa against him, wl^ich in this case could only have existed by its appear- ing that he was the taker of the watch. In all actions for escape on Mesne !Process it must he stated in the declaration and proved that the plaintiiff had a cause of MITCHELL V. HARVIE. 51 action against the party arrested. In Alexander v. Macnulay, 4 T. Bep. 611, the declaration stated that the plaintiff had a good cause of action against his creditor, that he arrested him and that defendant suffered him to escape. At the trial the plaintiff was nonsuited,, because he could not prove any debt against the prisoner teho had escaped. In this case the plain- tiff must have been iaelayed in his suit, becaiise his creditor having escaped entirely, he coiild hot have liim to declare agaihst at the return of the writ, but as liis being unable to prove any iiebt agamst the prisoner stewed that tte action against hiiri, if he had not escaped*, would have Failed, he could mot therefoire be damnified by the escapej and, consequently, ihad no cause of action against the gaoler. And in the note 'to Benson v. Welhy, 2 Sand. Rep. 15 1, citing the same case, it is said, "It is necessary in this action to aver and prove that the plaintiff had a cause of action against ^he person who esdaped. If it be not averred, the dectaratioh is bad oh Illegitimate children— Action by mother of— The 15 Vic c. 23, only applies to women who have a parent, guardian, or mas- ter, who might maintain the action. This was an action brought under the Act 15 Vic. c. 23, for seducing the plaintiff and getting her with child. ' The plaintiff gave evidence that she had a child by the defendant, but no evidence was offered to shew that at the time the connection took place, she had any " parent, guardian, or master," who might have maintained an action, and the question now raised is, whether such evidence was necessary. By the 1 Sec, it is provided that the female may bring an action in her own name (if she so elect), and that, notwith- DOE DEM COLVILLE & OTHERS v. MARTIN. 73 standing, she shall be the plaintiff in the cause, shall be admitted as an evidence therein for all such purposes as she could have been before the passing of the Act in ease the action had been brought "per quod servitium amisit," by her parent, guardian, or master. The words ot this section appear clearly to comprehend only those cases where the parent guardian, or master might have sued at Common Law. If it had been intended to give a right of action to every woman against the father of her illegitimate child, the Legislature would not have used the words, (" if she shall so elect,") as in that case many actions might be maintained where no one could sue at Common Law, and where, therefore, the woman could exercise no election in the matter. Again, the last part of the section expressly makes her a witness only in cases where before the passing of the Act an action might have been brought in the name of her parent, guardian, or master. It was urged by the defendant's Counsel that the second section providing that it shall not be necessary to prove any pecuniary loss or damage, and that " the evidence of the plaintiff shall not be deemed to give her a right to any certain amount of damages," shews the intention to include every case where women hiive had illegitimate children. But I think no such intention can be inferred from that section. It is not very easy to understand what is meant by the words " Pro- vided always, that the evidence of the said plaintiff so to be admitted in such cause shall not be deemed or construed to give her a right to any certain amount of damages whatsoever." If they mean anything it is merely that the Jury need not give credit to her unless they see fit. But it goes on to say that the " amount of damages shall be wholly, as heretofore, in the discretion of the Jury." And the substance of the second section is merely that the Jury, in assessing damages, shall be guided by the same principles as before the passing of the Act. But whatever intention may be ingeniously inferred from the language of the second section, it is the duty of the Court to collect the intention of the Legislature by construing the words it has used according to reason and the ordinary rules of grammatical construction, and where the words of one section are plain, we cannot wander over other sections to spell out an intentioD, either limiting or excluding their meaning. I think this Rule should, therefore be made absolute, 10 74 ROBINSON, APPLT. v. McQUAID & OTHERS. ROBINSON, APPLT. v. M'QUAID & OTHERS. Hilary Term, ? 1854. > Board of Education— order locating schooi-house under 15 Vic. Cap. 13, valid until quashed though house within three miles of aoother— Requisition must be in writing and addres- sed to Board established under the Act. This was an appeal from a conviction of a Justice of the Peace for a school rate, under the 15 Vic. c. 13, and several important questions on the construction of the Act are raised. First, it is contended that the scbaol-house for which the rate was made, being within the distance of three miles of another registered school, the JBoard of Education had no power to establish it, and that, consequently, the rate is void. As to this point, there can be no doubt, that under the pro- visions of the 25th section, the Board of Education cannot legally locate a school-house within three miles of one already established under the Act. But it is contended by the respondent's Counsel that the decision of the Board of Education on this point (until reversed on certiorari) is final and conclusive, and that no evidence can be heard to contradict it, by shewing that the school-house is within three miles of another established school. It is a well established principle of law, that where a tribunal having power to adjudicate on a particular subject matter does adjudicate thereon, evidence is inadmissable in any collateral proceeding, to shew that the adjudication is erroneous ; but where there is a total want of jurisdiction, evidence is there admissable, to shew that the tribunal had no power to adjudi- cate on the subject matter. Thus, " if one be rated to the poor who is neither an inhabitant nor occupier of land within the parish, and his goods b e distrained for the rate, he may maintain an action against the person levying." See Fawcett V. Fowlis, 7 B. & C. 394; and Weaver v. Price, 3 B. & Ad. 409. On the argument, the present case seemed to me to fall within the principle of the latter class of cases, but on a care- ful consideration of the duties of the Board of Education, under the Act, it seems impossible to distinguish it from those cases in which the adjudication has been held incontrovertible. In Britlain v. Kinnaird, B. & B. 432, in trespass for distraining a vessel, it was held that a conviction under the Bomb-boat Act was conclusive evidence that the vessel was a boat within the meaning of the Act, and properly condemned. ROBINSON, APPLT. r McQUAID & OTHERS. 75 and evidence to shew that she was not a boat was rejected, and on the Counsel suggesting that on the same principle the Magistrattt might condemn a " seventy-four " and call it a boat, the Court said, even in that case, until the conviction was quashed, it would be conclusive. So in Gray v. Cookson, 16 East, 13, a Magistrate having made an order as against an apprentice, it was held that evidence of a previous dissolution of the apprenticeship (which if admitted, would have shewn a want of jurisdiction in the Magistrate,) was rightly rejected. The principle on which these cases and numerous others of a similar class were decided, was, that the Magistrate had a general jurisdiction over the- subject matter in dispute, and had, therefore, to enter on the inquiry, as to the particular fact attempted to be controverted, (viz, in the first case, whether the vessel seized was a boat, and in the second, whether the party was still an apprentice,) and that it was for him to decide as to the truth of thege facts, and, however erroneous the conclusion he found on those facts might be, until quashed on appeal, or certiorari, it was conclusive. The fifteenth section of the Act confers a general power on the Board of Education to choose and define school districts, and to determine the sites of school-houses ; but by the twenty fifth section it is restricted from locating a school-house within three miles of one previously established under the Act. In order to perform the general duty imposed on it, the Board must, amongst other inquiries, ascertain the fact, whether the proposed site of a new school-house is within three miles of another, and having (as in this case), determined that it is not, however erroneous and contrary to the truth that decision may be, on the principle of the cases I have already alluded to, it is conclusive in collateral proceedings such as this, and we cannot receive evidence to contradict it. Thirdly, it is objected that the proceeding of the Board is void on its face. By the fifteenth section it is provided " that as often as the inhabitants of any settlement shall desire the erection of a new school district, five of such inhabitants shall make request la writing, notifying such their desire to the said Board of Edu- cation," then " the Board shall proceed as pointed out in th^ Act." Unless such requisition be made to the Board it has no power to act at all. It was, therefore, necessary for the 76 ROBINSON, APPLT. v. McQUAID & OTHERS. raspondent to pfove a requisition. Now the requisition proved in this case is dated January 1853, vvhereas the Act did not come into operation until April, following, and it is contended that this can be no requisition to the Board consti- tuted under this Act ; that it is, in fact, addressed to the old Board ot Education, an entirely different body, who had no such powers as those possessed by the present Board. To this it is answered that the requisition was, evidently, intended for this present Board, and that it has been recognized by some of the parties to it since it came into the possession of the new Board. Prom the evidence of Mr. Oundall, it appears that he was Secretary to the old Board, and that he also fills the same office to the new one, and the requisition was handed over to the new Board, or rather, remained in his possession with the other papers. Now the Act requires a request 1o the Board appointed under it. That this requisition was not addressed to that Board is certain, because, at the time of its being made and delivered to the Body to whom it was ad- dressed by the requisitionists, the present Board was not in existence. Suppose, instead ot being addressed to the Board of Education, it had been addressed to the Governor in Council, or to some individual, and that it afterwards found its way into the hands of the present Board of Education, would that have been a requisition on which valid proceedings could have been founded by the Board? I thint not, because it would not be in the terms of the Act, " a request in writing notifying their desire to the scad Board of Education," — that is, the Board mentioned in the Act. There is no magic in the term Board of Education, though the body to whom this requisition is addressed happen to be so designated, that cannot make these proceedings valid, unless a requisition addressed to the Grover- nor in Council, or an individual who had no authority in the •matter, being handed to the Board, would have done so. As to the argument, that the requisitionists had acquiesced, or assented to the new Board treating this requisition as addressed to it, it is not necessary to decide whether it could (have been rendered valid by such means, because there is no evidence to shew that all the five parties to it did acquiesce, -or assent to it, and even if they had, that acquiesence or assent consisted of conduct, demeanour, and oral applications to, or conversations with the Board, or its Secretary. If these were admitted to support the requisition, it seems to me it would DOE DEM TULLIDGE v. ORR. 77 not then be a requisitioa "in -writing," which die Act «xpre8S. ly requires. And wbere an Act requires a proceeding to. be in writing, we have no power to allow an oral one to be substituted for it. In all proceeding of this kind, the particu- lar mode of proceedifflg pointed out by the Act, must be followed; if we once depart from it, it would be difficult to know where to draw the line. I think, therefore, Hiat fche requisition in this case was not such a requisition to the Board of Education as the Aet requires, and consequently, that all the prooefidings of the Boatd founded on it are void. The deeimon on this point renders it mnneesBary to decade whether the ^tctioa should hrtve been brought b^ors the Com- missioners Court. But on reading the whole of the 32nd Section it is evidently the intention to giv.e Justices of the Peace a concurrent jurisdiction with the ComnsisBionere Court. The Judgment below must be reversedi DOE DEM TULLIDGE V. ORR. Hilary Term, 1855. Statute of Limitations — ^^of poaseasion-^death abroad after many years absence without receipt of any rents and profits not necessarily a discontinuance of possession — the return of owner who was under disability at passing of Act and who has sold while under such disability- -does not determine the disability. In this case it appeared that Oapt. Wm. Winter was pos- sessed in fee of the hcus in quo, called the Retreat farm, on Lot 23, and on which he resided from 1792 until the Autumn of 1805 when he left the Island, leaving his wife and Robert Winter thrir son (through whom the lessor of the plaintiff claims) in possession. The wife lefit the Iskmd about two years afterwards, Robert Winter continuing in possession ; Capt. Winter never returned to' the Island. By Indentures dated 14th July 1792, Capt Winter had mortgaged Lot 23' including the Retreat farm, to William and Jacob 'Kirkmaw residents of England, and by Deed dated 3rd May 1606, he released the Equity of Redemption to the Mcartgageea, who, by Indentures dated 5th July 1810, conveyed the premises to Da^id Rennie, who died in January 1823, never having been on the Island, whereupon the Township descended to his sons Robert Benn,ie and David S. Rennie. In 1840, or 1841, the 78 DOE DEM TULLIDGE v. ORR. Township was divided and the Retreat farm fell to the share ot David S. Rennie. David S. Rennie first came to the Island in 1839. In 1842 David S. Rennie conveyed the locus in quo to the defendant. It appeared that for some time pre- vious to 1842 Robert Winter bad been weak in bis intellect, and made little use of the cleared land on the farm, and that defendant, on getting his deed, entered into possession and cultivated the largest part of the cleared land. EobertWinter, however, continued to reside in the house until about 4 months before his death, when he removed to a neighbor's house, where he died in March 1847, and the defendant has ever since been in possession of the whole farm. The lessor of the plaintiff is the sister of Robert, and now seeks to recover the premises on the ground that Robert Winter acquired a Statutable title by possession previous to his death. The iirst question to be decided is, at what time the Statute began to run. The third section of the Statute 7 Wm. 4 Cap. 9, which fixes the period at which the right " to make an entry or bring an action shall be considered as first accruing," provides that " when the person claimin g such land, or some person through whom he claims, shall, in respect of the estate or interest claimed, have been in possession, or in receipt of the profits of such land, and shall, while entitled thereto,have been dispossessed,or have discontinued such posses- sion, or receipt, then such right shall be deemed to have first accrued at the time of such dispossession, or discontinuance of possession." There is no evidence to shew that the son or wife, on Capt. Winter^ s leaving the Island, held adversely to him. Capt. Winter was not, therefore, dispossessed. Did he discontinue the possession ? The facts are that he left the Island in 1805 leaving his son and wife in possession. Was that act a discontinuance of possession ? If so, then every one who leaves the Island tor a few months, leaving his family in his house, must, under this Act, be considered as having dis- continued his possession. But no such legal consequence follows. In such case the possession of the wife, or son, or other person left in charge is the possession of the owner. The fact of Capt. Winter's leaving the Island in 1805 leaving his wife and son iu possession is no evidence ot a discontinu- ance of possession on his part Undoubtedly the subsequent conduct of the owner, such as declarations of his intention in leaving, long continued neglect of the property, as in Corbyn; DOE DEM TULLIDGE «. ORR. 79 V. Bramston; or other circumstances might afibrd evidence to shew an intention of abandonment or discontinuance of posses- sion at a period when, but for such declarations or conduct, the owner'jS relations, with the person left in charge, would rebut the presumption of any such intention. But no such evidence appears in this case, on the contrary, in July 1806, about 7 or 8 months after leaving the Island, he conveys th« property to his creditor, to whom it had been previously mortgaged, I think, therefore, that up to July 1806, Capt. Winter must be considered in possession, and that the Statute had not, up to that period, commenced to run. The third section also provides that " when the persoB claiming such land shall claim in respect of an estate, or interest in possession granted or assumed by any instrument (other than a will) to him, or some person through whom he claims, by a person being, in respect of the same estate, or interest, in the possession or receipt of the profits of the land, and no person entitled under such instrument shall have been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which such person, claiming as aforesaid, or the person through whom he claims, became entitled to such possession, or receipt, by virtue of such instrument." On the 3rd of May, 1806, William and Jacob Kirkman became entitled by the deed from Capt. Wil- liam Winter, to the possession, and at that time, therefore, under the express words of the third section the Statute began to run. It was urged on the argument that there was no evidence to shew that Kirhmans continued under the disability of absence to the expiration of the forty years, or I presume, to within ten years prior to that period. The thirteenth Section provides that a person under disabi- lity of absence shall have ten years to bring his action after the disability ceases. The Statute, evidently, intends that the removal of the disability shall be by such persons returning and barring (in the words of the second section) the right to make an entry or bring an action, but, if during that absence he has parted with his estate, his return cannot, it appears to me, remove the disability, because he does not come clothed with the power contemplated by the Statute, viz: the right of entering or bringing an action. It is quite true that the disability is personal, that is, that a party against whom it has 80 DOE DEM TULLIDGE ». ORE. 'began to run cannot by subaequent conveyance transfer tbe disability so as to make its continuance depend on the acts of other parties. This was decided in StaekpoU v. Stackpole, 3 Warren & Druty 320. But if by conveying his estate it has become in^ossible to return clothed with the right to make an entry or bring^ action, the disabiliiy ia not transferred to others, bat is nffiwly,, by the circumstances which have happened, prevented from being removed by the party's return, and must continue ontil the other event pointed out by the Statute for determining it, viz: the death of the person to whom the disa- bility of absence first attached happens. And there being no evidence to shew that Kirkmans are dead the presumption of law is, that they are still alive. But it is unnecessary to decide thia point as I think there was sufficient prima facie evidence to shew that the Kirkmans continued absent. The degree of evidence necessary to shew that the person continued absent must depend on circumstances. If a person be a resi- dent of this country, the shewing him absent at a particular time would be no evidence that he continued absent, because the natural presumption is, that he would return to his home, but where, as in this case, it appears that the party is a resident in another country, the presumption (in the absence of any eyidence to the contrary) is^ that he remained at home, and had the case been put to the Jury, on that point,, they would, no doubt, have found for the defendant. Sir E. Sugden, in his treatise of Ileal Property Statutes page 35, says, " Although when the time ha? once begun to run the party to be. affected cannot by any settlement cre&te new rights, yet, persons so claiming under him will have the same time to bring an Ejectment as he. himself would have had if he had continued <»live and remained owner of the estate." The Statute in the present case began to run against the Kirkmans in May 1806, and as they continued absent, and must be presumed alive, they, or those claiming under them, would not be barred until the expiration of forty years viz^in May 184&, and until that period the persons in adverse possession could acquire no title. But in this case the defend- ant claiming under Kirkmans enters into possession in 1842. Robert Wittier, therefore, never acquired any Statutable tide^ and, consequently, had no Estate which could descend to the lessor of the plaintiff. It is true there was evidence to shew that Robert Winter occupied the old house up to 1847, but McKINNON V. McKlNLEY . 81 whatever effect that might have as to the house itself, or the spot on which it was situate, cannot defeat the right of the defendant who claims under a good documentary title to the rest of the farm of which he had possession in May 1846. The Rule for a New Trial must be absolute. M'KINNON V. M'KINLEY. Hilary Term, ? 1856. S Distress — Bailiff may use force necessary to ascertain if door is fastened. The distress was made in a barn. The door was fastened inside with tsvo pins. Defendant put his hand against it to try if it vras fast, and it fell in. The ordinary way of opening it- was by going on the inside and taking out the pin and lifting the door out. The Chief Justice told the Jury (in an action of Trespass against defendant) that if the door fell in by defend- ant's pressure, however slight, it was a trespass. Held wrong. That direction should have been, that if defendant used no more force than was necessary to try if the door was fastened, and in consequence of that, from its insecure fastening, it fell in, it was no trespass. New Trial granted. THE ATTORNEY GENERAL »• WESTAWAY. Hilary Term, > 1856. I Road Compensation— On information against owner of land for preventing opening of new road laid out by Commissioners under 14 Vic. Cap. 1, sec. 14, being opened, it must be alleged that it ran through defendant's land. This was an information by the Atty. General against the defendant for preventing the opening of a road directed to be laid out by the Governor and Council under the 14 Vic. Cap. 1, sec. 11. To which there is a general demurrer. The information alleges that the Governor did order the opening of a certain line of road, leading from the Main Road at Aitken's Township 59,to the road leading from St. Andrew's Foint toward Murray Harbor. It then sets out the appoint- 11 82 THE ATTORNEY GENERAL v. WESTAWAT. ment of Cbmmigsioners as directed by the Act, to appraise the damage to the persons through whose land the road runs, and the return of the Commissioners awarding £15 to the *fend- ant. But there is no allegation in the information that the road directed by the Governor to be laid out, and which the Commissioners were appointed to examine ran through the defendant's land, and I think the want of such allegation is false to the information. It is true the return of the Commis- woners states thatt thiey have examined the advantage or disadvantage to owners over whose land the road r»ns, but this part of the information is a mere recital of their return, necessary only as shewing that the directions of the Statute, as to appraisement, have been complied with. The defendant might have traversed the return, but by the rales of pleading no issue can be taken on a mere recital, or statement contained in a document recited, and therefore the retarn or any state- ment in it cannot supply the place of a material and necessary allegation, and even if issue could be taken upon it, it is not an allegation that the road directed to be laid out by the Governor was the road the Commissioners examined, because the order of the Governor, as set out iu the previous part of the information, only directs a road to be laid out from one existing road to another, without saying at what precise point of the existing road it is to start, or the course or courses it is to run until it reaches its termini at the other road. There is, therefore, nothing to direct the Commissioners to the precise line of road intended to be laid out, and non constat botoi any- thing that appears in this information they may have examined quite a different line of ro<»d from that the Governor intended to be laid out. I do not mean to say that it was necessary to set out the starting point and the courses of the road. Such particularity is not necessary in pleading. The allegation in the information, that a certain road, in such a parish, leading from one existing road to another, is sufi&ciently certain in that respect. But there must, also, be a substantial allegation that such road ran over the defendant's land. The defendant could then traverses the fact that the road ran over his land, and evidence of the place of commencement, and the course of the road would enable a Jury to determine the issue. But if this information were held good, the Commissioners might examnie a different line of road from what the Governor intended, and D OE DEM YEO v. BETTS. 83 the defendant could take no traverse which would raise an issue as to the fact. There must, therefore, be Judgment for the defendants DOE DEM YEO "• BETTS. Easter Term, 1856. liasd Tax Sale under 11 Vic. Cap. 7,— Want of Notice of «ale cured by the 22 Sec— Sheriff's deed void if lands not described by metes aad bounds at time of sale. This was an action of Ejectment brought to recover lands 86ld by the Sheriff under 11 Vic. Cap 7, for non-payment of land tax, and two questions were raised. First, it is contended that the plaintiff was bound to prove that the Notices of Sale required by the Act had been duly given by the Sheriff. Second, that it appeared that the land was not described at the sale by metes and bounds as directed by the 7 sec. of .the Act. For the plaintiff it was contended that the provision respect- ing notice is merely directory, and that, if not, the want of notice is cured by the 22 sec, and that even if it were not, in the absence of any evidence to the contrary, it will be presumed that the Sheriff acted rightly and gave due notice. In Rex V. LnnsdcHe, 1 Burr. 448, Lord Mansfield says, " there is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and chances nrerely directory. The precise time in many cases is not of the essence, while no one ever thought that the number of overseers was directory." In Doe d. Phillips v. Evans, 1 C. & M. 456, the Insol- vent Act, 1 Geo. 4, Cap. 117, sec 7, directed that the general assignee should sell any real estate of the Insolvent within two months after the assignment by public auction, in such manner, and at such place, as the major part of the creditors of the Insolvent who should assemble together on any notice in writing, published in the London Gazette, should under his, her, or their hands approve. In Ejectment on a convey- ance from an Assignee made two years after the assignment, and no proof of a compliance with the provisions of the Act the notice and meeting of creditors &c, 30 days before the sale 84 WE DEM YEO v. BETTS. the provisions were held merely directory, and the plaintiff recovered. In that case the essence of the thing to be done was the sale and conveyance of the property, the preliminary notices and meetings were only collateral matters. It mast, however, be remarked that the legal estate in that case was vested in the Assignee by virtue of the assignmont from the Insolvent, and the assignee did not, therefore, convey under a statutable power. In Perry v. Bowes, Ventris 360, and Elliot v. Danhy, 12 Nod. Rep. 3, a lease from Commissioners of a Bankrupt was held not to pass the estate until the enrolment required by the Statute, because the Commissioners had not the legal estate, but only executed a power given them by the Statute, and must, therefore, execute it with all the circumstances required; and this distinction is alluded to in Doe d. Phillips v. Evans, where, on the Counsel observing that the enrolment in those cases did not go to the essence of the thing, Bailey B. observed, " that was a Statutable conveyance not allowed by the common law. The whole estate is here vested in the assignee, he is not a mere conduit pipe," and again, " this is not the mere exercise of a power. The exercise of a power is where I have a right to appoint over your property. If I have the legal estate I do not exercise a power." In Rex V. Haslingjield, 2 M. & S. 55, and Doe d. Nanney v. Gore, 2 M. & W. 32, which arose under English inclosure Acts, the Commissioners acted under a Statutable power, and the provisions of the Act with respect to notices was held imperative. In the case of sales of land by a Sheriff, Chancellor Kent says, " the deed connected with the sale operates by way of execution of a Statutable power," 4 Kent Com. 431. And the same doctrine viz,, that a Sheriff has no estate, but acts under a power (though not Statutable) prevails in England on sales of leasehold interests in land under a Fi. Fa,, Doe d. Hughes V. Jones, 6 Jur. 302, By analogy to the rule which prevails in the execution of powers contained in Indentures, it would seem that where a Statute, giving a power to sell and convey land, requires notice, it must always be held imperative. In Sugden on Powers 267, it is laid down, " if notice is required to be given the execution of the power will he void if notice be not givenji DOE BUM YEO v. BETTS. 85 accordingly. So in every case that the sagacity of man can devise the terms of the power must be complied with." In Rex V. Croke, Gowper 26, where a Statute empowered Commissioners to take land for a road, and it was, amongst other things, objected that the required preliminary notices had not been given, Lord Mansfield says, " this is a special authority delegated by Act of Parliament to narticular persons to take away a man's estate against his will, therefore, it must be strictly pursued." The impression has, I believe, been, that the provisions respecting notices in Statutes empowering Sheriffs to sell lands, are not directory, but imperative, and which seems recognized by the Legislature, as by 7 Wm. 4, Cap. 4, the onus of proving want of notice is thrown on the party impeaching the Sheriff's deed, and that the same strictness of proof was deemed necessary under similar Acts in New Srunswich appears from the Judgment of Parker J. in Linton v. Wilsoni 1 Kerr's Rep. 243, who in speaking of an Act similar to our own Act of 7 Wm. 4, Cap. 4, says, " The necessity of proving certain acts which the law made requisite to a Sheriff's sale was a mischief to be remedied." And what did this arise from ? The difiBcuIty of procuring viva voce testimony of the person who did the acts. Still it may be doubtful whether the rule laid down by Lord Mansfield in Rex v. Lonsdale, viz., that unless the thing to be done is of the essence the provision is directory, is not equally applicable to all conveyances made under the directions of Statutes, whether the party making them has (as in the case of Insolvent assignees) the legal estate or acts simply as the donee of a Statutable power. In Pearse v. Morrice, 2 A. & Ell. 96 Taunton, says " the distinc- tion between directory and imperative Statutes has been long known. An early instance in which it was taken was Rex v. Sparroio, 2 Strange, I understand the distinction to be, that a clause is directory where the provisions pontain mere matter of direction and nothing more ; but not so where thfey are followed by such words as are used here, viz., that anything done contrary to such provisions shall be null and void to all intents." The legal estate in this was in the trustees, but the language of the Judge seems to apply to all cases where negative words are not used. And Dwarris, in his treatise on Statutes, seems to put both classes of cases on the same footing. And in Doe d. Roberts v, Moyston, 11 Com. Law Rep. 505 86 DOE DEM YEO c. BETTS. (17 Jur. Dig. 39) where an inclosure act directed that the award should be made within six years, an award made after that time was held good. Greswell J. says, " this Statute is not like the case of an ordinary submission to arbitration, with a proviso that the award shall be made within a certain time- The Act directs certain lands to be inclosed, and certain per- sons are to be appointed Commissioners to make allotments. When the clause follows enacting that an award shall be made within a certain time, I think this clause is directory only." It is not, however, necessary to decide the point in the present case, as we think the want of notice is cured by the 22 sec. which enacts, "that no omission of any direction contained in this Act, relative to notices or forms of proceeding previous to any sale, shall extend to render such sale invalid, but the person guilty of such .omission or neglect shall be liable to punishment therefor, and shall answer the party injured &c.'' It was urged by defendant's Counsel that this does not extend to a case where no notice of sale had been given, but only to cases of defective notice, but it is impossible so to narrow the plain words of the Act. A notice of 20 days previous to the sale would be defective. If the section would cure such a notice, so it would a notice of one day, and if so, why not entire want of notice ? As to the second point, the 7 Sec. enacts, *' that the Sheriff, or Coroner before proceeding to sell such lands shall ascertain, and at the sale publicly declare the metes and bounds thereof, as particularly as the same can, or may be described, and shall make and execute to such purchaser a conveyance thereof." It was urged that this provision was directory also, but this describing at the sale the land he is selling is clearly of the essence of the thing the Sheriff is directed to do, viz., to sell the land, and it is the deed as connected with the sale which operates to pass the title to the purchaser ; without such sale, therefore, no title passes by the Sheriff's deed, and if the land sold was, when the hammer fell, uncertain, how is it possible to say that the land described in the deed, afterwards given, was the identical piece of land sold, and if it was not, then the land described in the deed never having been sold, cannot pass by the deed. The provisions of the 11 sec. (which were not adverted to on the argument) also show that this provision was intended to be imperative. By that section the Sheriff in selecting the quantity of the defaulter's land to be sold, is DOE DEM YEO v. BETTS. 87 required to have regard to the buildings and improvements of such defaulter, which he is not to sell if there is sufficient land remaining to realize the levy and expenses. Now if the precise lands are not known and pointed out at the sale, how could the owner, if present, or any bidder know whether the buildings and improvements were selling or not ? The former under the impression that his buildings and improvements were safe, might allow the land to be knocked down at a small sum, and, afterwards (if the description given at the sale could at all be departed from) a slight variation in the deed of a course or distance might include buildings and improve- ments worth hvmdreds of pounds, and which is in fact argued to have been the case in the present instance, the plaintiff having bought the land for £4, Is. Od., and now claiming the defendant's mill and improvements which must be worth a very much larger sum. It is further argued that even if the section is imperative the maxim " omnia rite esse acta" applies, and that it must be pre- sumed that the sale was properly conducted. In Williams v. The East India Company, 3 East 199, Lord ^/Zeniorou^^ says, " That the rule of law is, that where any act is required to be done on the one part, so that the party neglecting it would be guilty of a criminal neglect of duty in not having done it, the law presumes the affirmative and throws the burden of proving the contrary, that is, in such case, of prov- ing a negative on the other side." In Doe dem Nanney v. Gore 2 M. & W. 32, the notices under the Insolvent Act were presumed. So in Doe d. Milium v. Edgar, 3 B. & C. 393 the notices under the Insolvent Act were presumed. So in Manning v. Eastern Counties Railway Co., 12 M. & W. 237, (8 Jur. Dig. 45,) where an inclosure Act authorized the Commissioners to stop up a road with a proviso that no road should be stopped without the order of two Justices of the Peace, it was held that the award and the recital of the order was sufficient prima fade evidence that the road was stopped by ofder of the Justices. Mr. Starkie, page 635, lays down the rule, " that upon proof of title everything which is colla- teral to the title will be intended, without proof, for, although the law requires exactness in the derivation of a title, yet when that has once been proved, all collateral circumstances will be presumed in form of the right." In Fenvnck v. Floyd cited Ungl. Adams, Ejectment 301 88 DOE DEM YEO v. BETTS. (N. 1) it is said, " in an action of Ejectment by a purchaser under a Sheriff's sale against a debtor who refuses to give up the possession of the land, it is incumbent on the plaintiff to produce the Judgment and the Fi, Fa., and to prove the sale, which may be done either by the deed from the Sheriff or a return of the Fi, Fa , they are sufficient to entitle him to re- cover." it would be attended with the greatest inconvenience, if it were necessary in order to make out a title to lands under a Sheriffs deed, to prove that all collateral matters required by the Act respecting the sale had been complied with. Such a title would not only be always doubtful, but would become insecure as it grew older, since, though it might not be difficult to prove what the Sheriff declared, or did at a sale twelve months ago, it might be very difficult to prove what was de- clared or done at a sale which had taken place 18 or- 20 years ago. It appears to ns that in all cases depending on titles of this kind, where the action is brought recently after the sale, or where the purchaser is in possession, and there are no circumstances to rebut the presumption, the maxim ^^cmnia rite esse acta" applies. In the present case the plaintiff's title was derived from the Judgment Fi, Fa., and sale, which last being proved by the .deed, the mode of con- ducting it, and the particular circumstances attending it (however necessary to its validity) were merely collateral matters, which under the authorities referred to would be presumed to have been rightly done. But this is merely a presumption, and where, as in this case the matter is essential, negative evidence may contradict it by showing positively that the thing presumed was not done, or circumstances may raise a contrary presumption and thereby throw the onus of proving that it was rightly done back on the party in whose favor the presumption would otherwise have been made. Thus in Eex v. Haslingfield, 2 M. & S. 558, where an in- closure Act gave Commissioners power to set out boundaries of parishes and ascertain the parochial locality of roads giving certain preliminary notices to the parishes interested. It being shown that the Parish of Haslingfidd had continued to repair for 16 or 17 years was held to do away with the pre- sumption that all had been rightly performed, and to raise a presumption that the notices had not been given according to DOE- DEM YEO v. BETTS. 89 the Act, because if that were so, Haslingfield ought not to have, continued to repair. So in The King v. Inhabitants of Washbrook, 4 B. & C. 735> the description of the boundaries inserted by Inclosure Com- missioners in the newspapers differing from the description in the award, pfoved that they had not followed the requisites of the Act, and, therefore, had not pursued their power, and consequently, the award was held void. In the present case the plaifatiflF called the Deputy Sheriff to prove that he sold the land conveyed by the deed. In one part of his testimony he states that he sold the identical piece of land mentioned inthe deed, but in another part he says the locality was pointed out, and it is quite plain from the whole of his evidence that he did not declare the precise metes and bounds of the land he was selling, or give such a certain or particular description of it as would enable it to be distinguished from other lands by which it was surrounded. We do not mean to say that it is necessary that the precise courses and distances should be declared. That would be one proper way of doing it, but if the Sheriff declared that the land was bounded by certain known bounds, such, for iiistance, as bounded by. such a road or river on the front, on one side by the land of A, and on the other by the land of B, and in the rear, by some other known ; and established boundary, we think that would be sufficient, even, perhaps, though the exact quantity was not known, but where he merely declares the locality, or that it is part of such a piece or tract of land, with- out particularly describing what part, (which appears to have been what was really done here) that is clearly insufficient both under this section of the Act, and also, we think under the law as it stood before, ot which this section seems to us only an affirmance. Thus in Fenny ex d. Masters v. Durrani, 1 B. & Aid. 40, where the Sheriff's return to an Elegit stated that he had delivered an equal moiety of a house, the return was held void for not setting out the moiety by metes and bounds. In a note to Til. Adams, on Ejectment 301, it is said " a Sheriff's return to a Fu Fh., which states a levy on part of a tract called &c, is void, for uncertainty cannot be set up by matter dehors the return, and a sale under it passes no title. But a levy on a tract called &c, under a Pi. Fa., against a per- son who was seized of a part of such tract and a sale under it 11 90 BOURKE V. MURPHY. will pass his interest to the purchaser." It was urged by the defendant's Counsel that this defect was also cured by the 22 section, but that section only applies to proceedings previous to the sale, and can have no effect on what should be done at the sale. If it did, it wou'd enable the Sheriff" to evade the requisites of the 7th section and open a door to all the evil and unjust practices which existed under the old mode of selling and which the 7th section was intended to prevent. We have considered this matter at greater length than was necessary for the decision of the case ; but from the frequency of these sales and the increasing number of titles depending upon them, it seemed to us expedient that the construction of the Act, the duty of the Sheriff" in conducting them, and the general principles of the law of evidence applicable to them should be considered somewhat at large. The Rule must be absolute. BOURKE «. MURPHY. Trinity Term, 1856. Public Wharf— power of Governor and Council to make regulations under 15 Vic. Cap. 34 — cannot impose excessive rates on some boats or head money on passengers going by them — the term vessel does not comprehend boats. This case comes up by Certiorari from the Mayor'ii Court, and is brought to test the validity of the seventh clause of ail order of the Governor and Council, made on the 15th May, 1856, under the authority of the Act of 15 Vic. Cap. 34, respecting the wharf at MincMn's Point on the Hillsborough River. By the twelfth section of the Act it is provided that " the Public wharf at Minchin's Point opposite Gharlottetoum, on the South side of the Hillshorough River shall be under the management and control of the Lieutenant Governor and Council, who shall have power to establish (he rates of wharf- age to be paid by vessels using the same, and to make such other rules and regulations for the management of the said wharf as he may think fit from time to time." The seventh clause of the order provides that " any boat or BOURKE V. MURPHY. 91 vessel employed or used by any person or persons except Henry Pope WeUh, the present licensed ferryman, or licensee of Hillsborough ferry opposite Gharlottetown, or his successors therein, in systematically ferrying for, or without hire, pas- sengers &c, over the said ferry, and landing or taking off the same from the said wharf, to pay the rate of one shilling for each and every passenger landed on or taken off the said wharf, and also, the rate of two shillings and sixpence tor every time such boat or vessel shall touch at or land passengers on the said wharf, to be paid by the parties owning or employed in working such boat or vessel " It appears that on the sixteenth of May a boat owned by the defendant, and used in ferrying passengers without hire, touched several times at the wharf, and that on the same day 60 passengers embarked fro,m the wharf on board the boat. The defendant's Counsel contends : — First, that under this Act the Governor and Council are only empowered to impose rates on vessels usifig the wharf and that a boat cannot come under that description of craft, and that, therefore, the order is, in this respect, void. Secondly, that the Act gives no power to impose a charge of head-money on the owner of a boat in respect of persons embarking from the wharf into such boat. It was strongly contended by the Attorney General that on the purview of the whole of this Act, it must be considered the Legislature intended to establish this as a ferry wharf. The rule laid down by Dwarris page 581, is, "that in construing the words of an Act, and collecting from them the intentions' of the Legislature the terms are always to be understood as having regard to the subject matter, for that, it is to be remem- bered, will dlways be in the eye of the framer of the law and all his expressions directed to that end." Now I agree with the Attorney General so far, that if this wharf, or any part of it was either by the Act, or otherwise, shewn to be held peculiarly for the purpose of the ferry, then the Act authorizing the Governor and Council to let and deal with the ferry, and also, to make rules and regulations for the manage- dient of the wharf so in whole or in part devoted to its use, must be considered to refer to rulep and regulations applicable to a wharf used for that peculiar purpose, and would, therefore, empower the Goverjor and Council to make rules directly prohibiting any boats, or class of boats, from touching at the 92 BOURKE v. MURPHY. wharf, or the part of it devoted to that purpose, or to make any other rules and regulations necessary to prevent the licensee of the ferry being interfered with. But with the exception of the title (which it is expressly laid down forms no part ot an^ Act, and is without any legislative import, and to which, therefore, the Judges in construing an Act can pay no regard) there is nothing in the evidence, or in the Act to shew that this wharf, or any part of it is, or ever was devoted to this purpose. The preamble of the Act in speaking ot the ferry, merely calls it " the ferry over the Hilisborough River opposite Ckarlottetown comm«nly called the Charlottetown ferry," but there is not one word from the beginning to the end of the Act to shew that the ferry should terminate at this particular wharf, or which could prevent the licensee of the ferry from selecting any other place opposite Ghnrlottetown as the landing place, or to shew that the Legislature intended to devote it to the use of the ferry if the license chose to use it. The only thing from which it is argued such an intention can be presumed is, that the same Act which authorizes the Governor and Council to let the ferry and which points out the manner in which it shall be conducted, also places the management of this wharf under the control of the Governor and Council, but in doing so the Act expressly ' names it as ** Ae Public wharf at Minchin's Point," and even if it were not so named, it would be going beyond all precedent to presume such an intention merely because provisions relating to subject matters having no necessary connexion with each other, are contained in the same Act. In determining this question, therefore, we must look on this wharf in the same light as any other public wharf in the Island. Now where a wharf is erected as a public wharf, or is declared by Statute to be so, I understand it to become one of those public things the property of which belongs to the whole country, and the use of which is allowed to all the inhabitanta of the country, in the way in which such things are ordinarily used, subject, of course, to such rules and regulations as are necessary to secure to all the enjoyment of that which is intended for the benefit of all, and that the persons or authori- ties intrusted with its general management and control have no power either directly by positive prohibition, or indirectly by the imposition of rates or burdens, to restrain any indivi- dual, or class of individuals from using it in the same way as BOURKE V. MURPHY. 93 the public generally are permitted to do. Such abridgment of the subject's right or charge on him for exercising it mus* be illegal, unless the intention of the Legislature to authorize the imposing it be distinctly and expressly shewn. For in the language of Bayley J. in Denn d. v. Diammd, 4 B. & C. 245, and WaUrhouse v. Keen, 4 B. & C. 209, " It is a well settled rule of law that every charge upon the subject must be impsoed by clear and unambiguous language, and that wher^ there is any ambiguity in the language used the construction must be in favor of the public right." The language of this Act is, that the Governor and Council shafl have power " to estabiLh the rates of wharfage to be paid by vessels using the same, and to make such other rules and regulations for the management of the "wharf as he may think fit from time to time." This is mere general language quite sufficient to empower the Governor and Council to levy equal rates and to make rules and regulations necessary for maintaining the wharf and reserving the proper and convenient use of it to all, but wholly insufficient (according to any authorities with which I am acquainted) to authorize an abridgment of any individual's right to use it, either by express prohibition, or by establishing exceptional rates against him. It is, however, unnecessary to rest the decision in the pre- sent case on such general prihdples. '' It is a rule in the construction of Std^tutes that " one law shall be compared with other laws made by the same Legislature upon the same subject, or relating expressly to the same point, enjoined far the same reason, and attended viith the Wee advataages^' Dwarris 509. Now by referring to other Acts relating toother public wharfs in this Island, it will be seen that they all contemplate their being used by the public generally. Thus the 12 Vic. cap. 13, relating to the wharves in Oharhttetown, after fixing the rates and duties payable for their support &c, contains such rules and regulations for their managelment as will secure the convenient use of them to the public generally withotit excep- tion ; and the 7 Vic. Ciap. 15, i'elating to the Giorgetovm and other public wharves, contains provisions having a similar object. Now where an Act is passed relating to another public wharf, placing it under the control of any public body with power to make rules and regu'ktions for its management; it must be inferred that the L'egi&Iiiiur6 intended those rUlcs should be 6f a dhal'acter to secure its liSe and convenience to 1)4 BOUKKE V. MURPHY. every member of the public without exception of individuals or classes, because such is the object which all other Statutes on similar subjects, evidently have in view. Local circum- stances may render it necessary that the regulations should vary in their details from those generally adopted, but in making them the common object of permitting every member of the public to use it must be kept in view, and where that is departed from, the power is exceeded. More stringent and particular regulations (and those frequently varied) may be necessary to provide for the public enjoyment of a wharf in or near a City than in a less populous district. It may be found convenient that a ferry boat should land its passengers on it, or that a packet boat should have a berth always ready to receive her ; and a regulation directing a certain part of the wharf to be kept clear for the useoi such ferry boat, or packet, though different from any contained in Acts on similar subjects would be perfectly legal, its object being public convenience and the restriction in the use of a particular part applying to all for the benefit of all. But a regulation that a particular packet or any vessel employed in carrying passengers as a packet should not come to the wharf at all, or if it did, that it should be subject to an excessive rate beyond other vessels of a similar description would evidently be one of a very different kind. It is impossible to hold that this order is not one of this objectionable character. The charge on the owner of the boat touching at the wharf is a restriction on his right to use it, not applicable to the owners of other boats, and professedly imposed on him for ferrying passengers without hire, which, as the law stands, it is lawful to do. And the payment of head money, though imposed on the owner of the boat, would if enforced, prevent boats to which it applies touching at the wharf at all and thereby compel persons wishing to embark in them to resort to some other place of embarkation, though they have a right to use the wharf for embarking in any boat they please. It would, therefore, be as complete an infringment on their right, with respect to those boats, as if it were imposed on the individuals themselves. Again confining our attention to the 15 Yic. cap. 34, alone, without referring to the objncl; of other Acts on similar subjects, does it authorize a rate on boats ? The maxim " expressio unius est exclusio alteriws," or as Lord Bacon expresses it, " as exception strengthens the force of a law in cases not excepted. BOURKE V. MURPHY. 95 So remuneration weakens it in cases not enumerated," must apply. Broom, in his Legal Maxims 516, puts as an example of this rule that " where certain specific things are taxed or euhjected to any charge, it seems probable that it was intended to exclude everything else of a similar nature." And in Dew- hurst V. Felden, 8 Scott N. R. 1013, where by Statute 5 Wm. 4, cap. 45, sec. 27, the right of voting in boroughs is given to every person who occupies either as owner or tenant " any house, warehouse, counting-house, shop, or other building, either separately or jointly with any land, within such city or borough occupied therewith by him under the same landlord, ■of the clear yearly value of not less than £10; it was held that under this section two distinct buildings cannot be joined together in order to constitute a borough qualification. "The rule expressio unius est exclusio alterius," observed Tindal C. J., "is, I think applicaUe here. I cannot see why the Legisla- ture should have provided for the joint occupation of a building and land, and not for that of two different buildings, if it were intended that the latter should confer the franchise." The twelfth section of this Act gives the Governor and Coun- cil power to establish rates to be paid by vessels. According to this rule though all cratt coming within the meoning ot the term vessd were intended to be free of wharfage rate, it cannot be held and was scarcely contended that a boat comes within the meaning of the term vessel. Indeed the general wharfage Act, 7 Vic. cap 13, which, prior to this Act of 15 Vic. applied to this wharf, and also the Oharlottetown wharf Act only imposes rates on vessels over ten tons burden, and as the Legislature must have been aware of this when in 15 Vic. a rate is authorized to be put on vessels, we must presume vessels of the same description are meant, besides the 17 section of this Act of 15 Vic. directs the Oharlottetown Wharfinger to remove vessels and hoots which obstruct the approach of the ferry boat. This plainly shews boats were not intended to be comprehended in the 12 section, because when they are to be dealt with they are specifically warned. Under these words, therefore, a boat is free, and the general power contained in the subsequent part of the section to make other rules and regula- tions for the management of the wharf cannot authorize a rate on craft which by the words immediately preceding are «xempt. Secondly, Can the head money in respect of passenger* 96 BOURKE v. MURPHY. imposed in this order be recovered from the owner of the boat ? I have already stated why the general words of this Act are not, in my •pinion, sufficient to authorize the re'^triction of the right of every one to use the wharf. But this charge of head money is in reality a rate imposed on the boat because she is there for a particular, but lawful purpose, viz., to carry passengers, and seems, therefore, as unauthorized as the direct charge of two shillings and sixpence for touching at the wharf. Indeed, if the words of the order were even inserted in the Act, it would seem difficult to hold the owner of the boat liable for the head money. Acts (says Mr. Dwarris) " which impose a duty on the public, will be critically construed with reference to the particular language in which they are expressed." The words of the order are " boat used in ferrying for or without hire passengers, &c, over the said ferry and landing or taking off" the same/rom the saidteharf." Now when a boat is lying at a wharf and persons of their own accord go on board, can it be said that the boat takes theni off the wharf ? The expres- sion might, perhaps, apply to goods taken by the owner or crew from off the wharf and placed in her ; but I cannot see how (without drawing very largely on popular meaning) it can be said she takes off persons who come on board o( their own accord. And if it be said to mean (which, I think, is its correct meaning) the departing, or going off with them from the wharf after they are on board, there is, evidently, no power to impose such a tax, unless it could be imposed in respect of persons who had embarked in her without using the whar^ for instance, by eptering frpffli another boat. To sum up what I have sa-d. If the wharf be looked at as a public right, the words of the Act are not sufficiently clear and unE^Dfibiguous to authorize the diarge for u^ing it. If we look for the intention of the Legislature by comparing this with other Acts in pari materia, it ^ intend to authorize it? imposition, and if we confine ourselves to Xhp words of the Act alone, it is,equwledge of those individuals to that of the plaintiff, because it is quite possible that political controversy may lead him to attribute more violent feelings to his opponents than they deserve, and under these circumstances had the defendant put in an affidavit even generally denying the material charges alluded to, we should have experienced little difficulty in making up our minds to refuse his application. But no affidavit was produced in shew- ing caupe, and the question, therefore, is, whether the plaintiff's affidavit alone and the mode of allegation adopted in stating 102 McLEAN v. WHELAN. the facts is sufRcIent. The affidavit states, positively, that from his own knowledge, and as he is advised and believe.', 43 or 44i of the panel are violent partizans and holding extreme views &c. The certainty and directness with which facts should be deposed to in an affidavit, must very much depend on the particular circumstances of the case and the nature of the facts. In ArchhoHs Practice^ 1445, it is «aid " the only general rale which can be laid down is, that the affidavit should set forth all the facts expressly and with certainty, and that where deponent swears to any fact as within his own knowledge, he must swear distinctly and positively. Where the fact ia not within the deponent's knowledge so much precision b not necessary. Where a deponent states a &ct from information, he should, in general, add that he verily believes it to be true. An affidavit that deponent ^verily believes ' is entitled to some credit in the aSsence of a contrary affidavit. Now lodging at the nature of the facts deposed to in this case, they appear to be stated with as much precision and certainty as cou'ld be expected. I have already said that we think the plaintiff's statements to some of the facts should bave been supported by other affidavits of disinterested persons. But evidence given, either orally or by affidavit, though at first only of that slight or prima facie character which raises a degree of probability in its favor, may become quite strong and satisfactory in consequence ot not being rebutted by other evidence, especially where the party against whom it is adduced, has the means of refuting it in his power if it be untrue. Thus in 1 Slarkie on Evid., 545,it is laid down " that it very frequently happens that evidence which in itself is but inconclusive, derives a conclusive quality from mere defect of proof on the part of the adversary. Where a party bfting. apprised of the evidence to be adduced against him has the means of explanation, or refutation in his power, if the charge or claim against him be unfounded, and does not explain or refute that evidence, the strongest presumption arises that the charge is true. It would be contrary to all experience of human nature and conduct to come to any other conclusion." It is impossible to look at the charges stated as evidence of the under Sherift's partiality in this case, without seeing that the defendant had the means of refutation in his own power. One of those charges is, that the plaintiff has good reason to believe that the defendant, or some one on his behalf, has had some McLEAN V. WHELAN. 103 act or part in the selection of the Jurors named. Now this is matter particularly within the defendant's own knowledge alleged in such a manner as according to the case of Maton V. Mnyter cited by Avckbold, called for an answer, and which, if untrue, he, could very easily have controverted. Again, the charge that so large a proportion of the panel is composed of partizans and violent political lexers, was a matter which the defendant could have no difficulty in rehutting, if their pplitjcal , character was not correctly described. The under Sheriff* himself, for 'his own reputation, would have been willing tp .contradict lit, if it were untrue, or offer suQh exphipation as would shew .that he was unaware of their violent political prejudices and, therefore, was actuated by no improper.motlvQ. Ch. Justice Abbott in the case of The King v. Ednumds expressly alludes to the duty of the Sheriff to answer such a .charge when he says, " the Skenff or Corpner are bound to attend the Gomi and are, therefore, there to answer or explain any charge of partiality or misconduct in selecting the pafiel." Indeed we can find no case where such ^ course as thfs has been pursued in resisting a motion made un^cr similar cjrcpm- , stances. In The King v. Sidmonds the grounds of cpmplaint against the master of the .Cn>wn office were of a n>,ueb Ies9 suspicious character than in the precept inst^nc^. That office in England is always filled by a person of the highest char«cti9r for learning and integrity, ^d yet aa th^t occasion we fyiA he makes an affidavit partipula^y explaipjng every charge fro^ which partiality in him was attempted to be ioferr^. Under these circumstances in the ctbseneppjanyfij^^davitto.eontra^t the charges, we are bound to believe that (ihe statements in the pUtintiiTs affidavit are not x^p^ble of being controverted- Then what is the substance of thosie statements? It is this: that the parties :are, respectively. Editors of political papers opposed to each other— the action, fpr lib^l, in ^hich t^ sympathies and feelings of politipal parties arestromgly enUated ->— that the defendant has obtained ap ord^r for #, Sp^c^^l ?^tj ^that 43 or 44 (a number very difficult to heUieye the r^q|t of accident) out of 48 pei^sons named ip the panel are par^zf^ns or violent political leaders, on the same side as the defend^t —that t;he under Sheriff who seleeted the panel is, hiipself, a violent politj/isal partizanon the same side. That the defendant himself or some person on his behalf has had some part in selecting some of the ftersons named on the panel it is im- 104 McLEAN v. WHELAN. possible to believe, as (under the authorities) ia the absence of anj affidavit ta the contrary, we are bound to believe their statements to be true and allow this panel to stand. It was urged by the defendant's Counsel that the objection to individuals might have been taken as a ahallenge to the polls. Undoubtedly some of the complaints made against individual Jurors, such, for instance, as that he had expressed an (Opinion beforehand, or a desire to be put on the panel, might have been so taken, and, therefore, in consideriag the question we have abstained from adverting to them at all. There is, however, a T*ery strong and positive allegation • respecting Nos. 10 and 42, viz., that they are quite unfit fol: any Jury by reason of their deep prejudices and low standard of morals which, it is positively stated, is open and notorious. Now though this may be good challenge to the polls, yet, if they are openly ami, notoriously what they are described, the under SherifiF must have been aware of it, and it is very extra- ordinary to see them returned on a Special Jury, and, therefore, this fact, taken in connection with the other circumstances, tends to strengthen the suspicions against his impartiality. In all cases of this kind the Court has power to mould the rule in such way, or to give such special directions as it thinks most likely to secure an impartial selection. Thus in some cases a particular class of individuals, such as shareholders in a certain Bank, or Company, or inhabitants of a certain di«- trict, are ordered to be excluded. In one case it was ordered that no persons residing within 8 miles of a certain town should be selected. In a small community, where we know p*ty feeling runs high, it may not be easy for any one to select a panel with which pn» party or other may not be dissatisfied. Aocidental circumstances seem to present the means in the present case of avoiding even this. It appears that three Special Juries have been returned by the same under Sheriff, in three other cases, of whose respectability and fitness for the duty, the Court has tad some means of judging from having Juries drawn from them empanelled before it at *his term. The order will, therefore, be, that this panel be se' aside and a new one returned by the Coroner, D. Hodgson, Esq., and that in forming such panel he shall place the names of the persons on the Special Jury panels in the several cases of McQiU V. McLean; Kavanagh v. Lydiard ; and Reddin v. Dingwell, respectively, on separate pieces sf paper in a box' PLEADWELL u. BRENAN. 105 and shall draw 48 names from the same, which shall form the panel, and that the Attorneys on both sides shall have notice to attend if they see fit, and the Jury be afterward^ struck before the Prothonotary in the usual manner. PLEADWELL »• BRENAN, Hilary Term, 18S7. Surveyor of City of Charlottetown has no power to remove an erection which he thinks encroaches on the Street, but which has not been used as a Street — City Bye Law giving him such power ultra vires and void. This was an appeal from the Mayor's Court and is brought to ascertain the construction, and test the validity of the 3 & 4 Sections, Cap. 23, of the City Bye Laws. The 4 sec. on which the argument chiefly arises enacts "that until there shall be a survey and plan of the streets of the City established by law, it shall be the duty of the City Surveyor, before granting the certificate mentioned in sec. 3, to be guided by the following regulations, via., he shall not allow or grant permissioB for the erection of any house, porch, fence, wall, steps or other erections facing upon the Streets of the City, to project outside of the line of houses already built, or outside of the nearest houses adjoining right and left, as the case may be, or in and upon what has been, heretofore, considered and used as the Street, Iff' the Surveyor sheUl be in douM as to the true line of the Street he shall he guided ly the plan of the Streets made by the late Surveyor General, George Wright and kept in the Office of the Keeper of Plans, tehich plan shall be considered as giving the correct line for all City purposes luntil the same shall be altered and a new otu substituted." In the year 1833, a survey and plan of the city, alluded to in this section, was made by Mr. Wright. The defendant's febce, which is complained of as an encroachment, is on that plan represented as encroaching 14 feet on Sydney Street. The old fence has been recently removed and the present one erected on the same site. It is not disputed that the 14 feet sow claimed as part of Sidney Street before and ever sbce Mr. Wrighfs survey has been fenced in and held by the defendant or those through whom he claims as their own. It is admitted dut the fence agrees with the line of houses in the street on 14 106 PLEADWELL v. BRENAN. the West, but projects outside the line of houses on the East. There is no evidence to shew that Wright was guided by any original plan in making his survey, or that any old or estab- lished boundaries or points of commencement were pointed out to, or used by him as the base of his operation. Nor is there anything to shew that the piece of ground in question was ever used by the publip as a Street, or acknowledged by the owners of the Lot to be so. The evidence of Mr. Smith, the City Surveyor, merely goes to shew that assuming Wright's plan to be a eoirect representation of the City and its Streets, the fence is as represented an encroachment of 14 feet on Sydney Street. The only evidence, therefore, of its being an encroachment is that it is represented on the pUn to bs such. The 50 sec. of 18 Vic. Cap. 34, which incorporates the Qity enacts " that the City Council shall have exclusive pqwer to open, lay out, regulate, repair, amend and clean t^ Streets and Alleys of the City and to prevent the encumbering of the same in apy manner, anfd to protect the same from encro^chmisnt and injury by such Bye Laws and ordinances as they may from time tp time pass." Apd at th^ end of the section the;-e is a pimvisp " that nothing therein cpntoined shall be construed to extei|4 to authorize the opening of any roads or highways thrpugh the private property of any person or persons without complying witfi ^be provisions of any Act: or Acts then in force prpviding for f^i^arding of dapiages to any person or persons whp nj^y l?e ijynred thereby^" It was argue4 by tbs Recorder tba,t by t;l;is section a supreme power is Tested in tl^e City Council wl^never they see ^t tp ^idep the present streets or tp ppen new streets, and to remove any buildjngs, fences or erections nepessary for that purpps^. But if is quite clear the Act gives the City Cpuncil np such power. The firsf part of the section authorizes thepi tp open, lay out, regulate &c, the Streets and AUejs pi the pity. These words can only apply to the Streets exiting at the passing of the Act, or which by de^icafion, user or those Ipgal means may afterwards become streets. But they do npt authorize the widening of the present streets, or laying out n^w Streets, or any interference with the private property of thp citizens. But it was urged that the proviso at (he end of (he section that the Act should not pxtend to authorize the opening new roads without complying with the proyisions of the PLEADWELL v. BRENAN. 107 Acts for compensating parties injured, contains, to use the Ee- corder's expres8ion,"a negative pregnant," or in other words, im- plies authority to open them if compensation is made. There is no rnlein the construction of Statutes better understood or more uniformly acted on than this, that a power to impose a public burden or interfere with private rights can only be given by plain and positive words and cannot be conferred by implica tion or inference. But even if it could there is here no ground for the argument. The first part of the section can by no construction give such power. The proviso (which appears merely introduced by the framer of the Act ex abundalia canteia) says new Streets shall not be opened without comply- ing with the provisions of the Act in force for awarding compensation to parties injured. What are the provisions of those Acts ? They all vest the power of opening new roads in the Governor and Council. To comply, therefore, with the provisions of the Acts in force for awarding damages referred to in the proviso, the City Council, if they desired to widen a Street or open a new one, must, like any other parties, apply to the Governor and Council for authority to do so, before whom, the parties to be injured (if they objected) might be heard, and who alone have power to decide whether a proposed Street is so necessary for public convenience as to jiistify the invasion of private rights. Secondly, it was urged that by the 4 sec. of the Bye Laws Mr. WrigMs plan is established as conclusive evidence of the position of the Streets and, therefore, anything represented on that plan as an encroachment, must be held to be so. I do not think the Bye Law bears any such construction. It seenas simply intended as an instruction for the guidance of the City Surveyor, leaving him (where parties really claim a right) to maintain, by the ordinary mode of proof, that any erection he may deem a nuisance really is one If it can be construed as going further than this, and enacting, as the iZecor^er contends that WrigMi plan shall be conclusive evidence in all such cases, I have no difficulty in saying that, in this respect, the Bye-Law is ultra vires and void. A power of making Bye- Laws for the government of the City is, by several sections of the Act of Incorporation, given to the City Council. But those laws must Q«t be repugnant to the Common Law, nor to any acts of the Legislature- Now, suppose the defendant had been indicted for a nuisance 108 PLEADWELL p. BRENAN. in maintaining this fence, or suppose, on the other hand, the City Surveyor, under the orders rfthe Mayor, had removed this fence and the defendant had brought an Action of Trespass against the Mayor ao3 Surveyor for doing so, by what evidence must the prosecution have been supported in the one QEse, or the defence maintained in the other ? By giving in evidence the original plan and survey of the Town, or by shewing that the part alleged to be encroached on had been used as the Street. This would furnish prima facie evidence of its being so. But it would be open to the individual claim- ing the land to shew that it had not been used as the Street, or in answer to the evidence of She old plan, to shew that the original plan of the Town had either intentionally or by mistake, been departed from, and, for that purpose, it would be open to him to adduce evidence that the general line of the houses or fences on the street differed from such old plan, or any other kind of evidence tending to shew that the old survey by which the inhabitants had been guided in making their nnprovements had, either by the authority of the GoverRsoe&t of the day, or through the mistake of the person executing it departed from, the plan, and it would then be An- a Jury, looking at all the evidence, to> say whether the ground in dispute was street or not. It was also urged that the Lot^ of wlucfa tKe defendant eontends the ground in question forms part^ exceeds the quan- tity which, according to the grant, it ought to contain. But an excess of land beyond the quantity named fn a deed or grant, is a very common occurrence, attributabTe, as all experr- enced in Iitigatic«i respecting lands in lliis Isfand are aware to inaccuracies ia< the original surveys, and usually raising a very slight presumption against the occupier. The true inquiry in all disputes respecting (M boundaries being: not so much what would be the- precise- metes and bounds of the premises according to the description contained in the deed or grant, as -what were the bounds actually laid down by the Surveyor acting either for the Crown or an individual grantor in laying off the land. And where a grantee takes possession under such a survey, and holds and improves for a length of time to the bounds so laid down his title to the premises comprised within them cannot be disputed, although the whole may no correspond with the description,, or exceed the quantity mentioned m his deed or grant. If an error in boundarie» so PLEADWELL r. BKENAN. 109 established were allowed to be rectified long after the party had taken possession and improved on the faith of thelt correct- ness, the most valuable improvements might be lost and ruinoDS consequences result to hidividaals. This principle is well illustrated in the case of Doe dent Carr v. McGtUlougk decided in the Supreme Court of New Brunswick and reported in 1 Kbit's Rep. 464. In that case 100 acres were conveyed and the description Was as follows " Beginning at the South West corner of the said Lot No. 10 and running in a Northerly direction upon the (fividing line between vacant land and the Lot No. 10, forty rods thence iii an Easterly directiop, preserving the same front to the rear of t?ie said Lot." In 1820 the division line was, by consent of the grantee of this lot and the afjoining owner, run by one Fisher, a deputy Surveyor, the parties intending that it should be run according to this description, and for many years the parties uniformly acquiesced in and acted upon the line so run by Fisher. In 1840 the lessor of the plaintiflT caused a new survey to be made when it was found that the defendant's Lot was much wider in the rear than in front, being at one place 58 rods and in the extreme rear 61^ rods wide instead of 40 rodb as expressed in the deed, and it seemed that Fisher had diverted from the true course after passing a pond which lay in the range of the line. The Judge told the Jury that if, on the evidence, they were of opinion that lasher's survey was made by the authority of the plaintiff and had been acted on for a number of years he would be bound by it, and if they were not satisfied of this, then, according to the terms of the deed, the plaintiff was entitled to a verdict for the 50 acres, being the quantity of overplus held by the ddfend&nt. The verdict was for the defendant, and on a motion for a New Trial the direc- tion was held right. Chief Justice CMpman, in his Judgment says " the principle involved in this instruction of the learned Judge to the Jury has always been hitherto acted upon in this Province, in cases of this sort, and I would be very unwilling to depart from it. It, undoubtedly, operates as a species of estoppel in pons and is, I conceive, founded on the strongest considerations of public convenience, and good policy in the loose and uncertain condition of boundaries which prevails throughout the Province. There was express authority to run the liae by Fisher and the lessor of the plaintiff has adhered to it for a period of nearly, it not quite 20 years. On 110 PLEADWELL r. BBENAN. the faith of this conduct of the lessor of the plaintiff, the other parties aeted in holding possessiop and making improvements up to the line on their side. To disturb their present enjoy- ment of the land would, I think, be doing injustice to them and be attended with very injurious ooasequences as a prece- dent." And Justice Garter, before wliom the case was tried, says, " I have seen no ground for changing the opinion I expressed at ^e trial of this cause. I have always considered . the principle which t then laid down to the Jury, as one long settled in this Province, originally founded on the circumstances and almost the necessities of tlte countryj and now so repeat- edly sanctioned as almost to become part of the Common Law of the country. The great amount of difference in this case between the two lines appears to me the only new feature in it. But once admit the principle and it must Equally avail whether the difference be 2 rods or 60. That the general effect of this principal is good and beneficial, no one who has had mUob experience in the litigation of boundaries can, I think, deny, and if we once give up this rule there are few boundaries which the ingenuity or ignorance of Surveyors might not throw into doubt or dispute. And all such questions would, probably^ be tried by the] comparative multitude of Surveyors which either party could procure to favQF his interests." If this principle applies to the boundaries of wilderness land^ how much stronger is the reason for applying it to Towns and Cities where an error of a few feet may oiten interfere with property of great value. It is true in the case cited the principle was applied to a line run between two individuals, but I see no reason why k is not equally appli- cable in a dispute respecting the boundary of a Street. In laying off a Town, the side of each Street forms the boundary between it and the lots fronting on it. The Surveyor executing the original survey acts on behalf of the Crown, and if he through mistak« lays out a Street narrower than was intended, or departs from the straight line or precise course he should have run, and the individuals settling on the lots hold obA improve either by building or fencing up to the line so erroneously laid out, the injury is the same whether an occupier loses his improvements in front under a claim of Street, or on the side, under the claim of his neighbor. The reason for the application of the principle is the same in both PLEADWELL v. BRENAN. Ill cases and must, I think, operate with equal force to stop both the Crown and the public from afterwards rectifying the error, even though the description in (he grant should shew that there was one. The case is an importjiRt .one in consequence of the multiplicity of interests involved in the questions which have been raised during its discussion, and it has been forcibly argued by the learqed Recorder in the only way it could be put ; but for the reasons I have stated I cannot concur in the arguments he has adduced. The consequences which wpuld result from their adoption never could have been intended. It is a principle of British Law that no vat^a shall be depriyed of his possession except by the verdict of a Jury. To adopt the arguments of the Recorder I must suppose the Legislature intended to give the City Council power to deprive the citizens of this privilege in questions of this sort. Because if Wright's plan is to be taken as conclusive evidence everything represent- ed on it as an encroachment must be held to be such, and it would then be useless for an occupier to appeal to a Jury who would be bound to return a verdict in accordance with the plan. Thus a person might be dispossessed of land he had occupied for ^50 or 60 years, or, indeed, any length of time, merely because this modern plan represents it as part of the Street. It is unnepessary to advent to the ^rgameat, jth^t und^r the ByerLaw the p^rty might kieep up a fence or other erectiQO made before Wrights survey, and \s only prol)ibited from erecting another when that is removed, b^causgif |)ie occupie;>'s title to the land is valid the City Council could not prevent his erecting a house, fence, ca anything he pleased upon it. And if it was not he could not maintain them though previ- ously erected. The Act gives the City Council ample power to prevent nuisances on what has been heretofore used as a Street, and for that purpose WrigMs [^an (if properly authenticated) might be valuable evidence and the 23 Cap. of the Bye-Lavs looked at as a code of instructions tor the guidance of the City Surveyor is, probably, as judicious as, under the circumstances, could have been framed. But the Act of Incorporation gives he City Council no such power, as from the construction 112 BRENAN i>. McISAAa attempted to be given to the Bye-Laws, they would appear to claim. The Jadgraeat of the Mayor's Court must be reversed. BRENAN «'. M'ISAAC. HilaryTerm, 1857. ApArson employed as a shopman and who lives in employer's tioase liable to conviction under the Servants' Act 3, Wm. 4, Cap. 26. Appeal from a conviction agaiast defendant under the Ser- vants' Act 3 Wm. i Cap. 26, for hiring plaintiff's servant. The servant was a person employed by plaintifi (who is a merchant) as a shopman and lives in plaintiff's house. Held that he was a menial servant and therefore within the Act and conviction affirmed. Quaere. Are other servants not coming within definition of menial or domestic servants within the Act ? Authorities cited Toml. Law Diet. " Servants " persons employed by men of trade and profession under them to ascist them in their particular callings, or such persons as others retain to perform the work and business of their families. And servants are menial if not so — menial being domestic or living within the walls of the home. Hmdan v. Abbott 2 C. M. & B. 57. The Gardinei't case. HOWATT V. LAIRD. 113 IN CHANCUEY. HOWATT V. LAIRD. Injunction -Equity will restrain owner of Mills on Stream from penning back water to injury of plaintiff below so far as such detention is really nrejudi,ci?il, but ,no further— ,Grene;'iU principles ou which Equity exercises its power in such cai^ess— Where from circumstances it appeared that isenning back the water between 10 o'clock at night and six in the morning, would not really injure plaintiff, Cou.r^t refused ,(io restrain hiru between those hours. The Injunction which jhas beep granted in tijis c?ise is an Injunction to restrain the defendant ^rom penning back thfl water, or interrupting the flow of the stream bjetween the hours of 4 o'clock in the morning and 11 at nigh^t of efich day. The plaintiff is the pw,ner of certain Mills on the lower part of the stream, and the defendant, of other Mills higher iip, and the plaintiff complains that in consequence of the water heiiig penned back by the defendant, for the use of the upper mill, its i^gular flow to his Mill is interrupted. That he brought an Action in the Supreme Court against the defendant and one Benjamin Crew and recovered a verdict for nominal damages of Is, on which verdict Judgment was, after argument, given for the plaintiff, on the ground that it was an injury to his right. The Bill further states that, since such Judgment, the defendants have been in the habit of penning back the water so as to impede the working of the plaintiff's Mill and thereby damaging his business. Numerous witnesses have been examined on both sides, but as the material facts elicited are substantially the same as were stated in the afi^davits, used on the motion to dissolve the Injunction in 1651, and to which, in the .decision then given, I adverted at some length, I 4© not think it necessary particularly, to refer to them on the present occa.3ion any further than to gay that a^er a careful perusal of all the evidence now adduced, I come to the same conclu^iop I did then, viz., that the defendants were in the habit, and claimed a right of interrupting the natural flow of the stream for considerable periods of time, at such tjmes as suited their (^nvenience for the purpose of raising ,a head of water for their Mill. Neither shall I now «nter into an examinati5>n of authorities which, on the argument in the Sppreme Covert, as well as on the occasion alluded to, 1 reviewed at considerable length. The principal authorities then ^verted to were 3 Ke;nt Com. 419,GVee«srfaZec. Halliday, 15 114 HO WATT V. LAIRD. 6 Bing. 381, Greaves v. Bushey, Tyler v. Wilkinson, 4 Mass. Eep. 401, Sackrider v. Beers, 10 Johns Rep. 241, Shears v. Wood, 7 Moore 543, Howard v. Wright, 1 Sim. & Str. 190, Bealy v. Shaw, 6 East 214, Masson v. Hill, 3 B. & Add. 304 and 5 Adol. & Ell. 18 Wood v. Waugh, 13 Jur. 472, Williams V. Moreland, 2 B. & C. 910, Hanson v. Gardiner, 15 Ves. 136 Coward v. Tinkler, 19 Ves. 619, Atty. Genl. v. HaUelt, 16 Mees. & W. 568, Ooulson v. White, 3 Aitkens 21, Atty. Genl. V. Nichol, 16 Ves. 342, Winstanley v. Lee, 2 Swans Rep. 333, Atty. Genl. v. Eastern Railway Company, 7 Jur, 806, Thomas V. Oaldey 18 Ves. 185, Wehh v. Portland Ganal Company, appendix to Angell on Watercourses. Smith V. Clay 3 B. & C. 640. The cases of Dickieson v. The Grand Junction Canal Company, 9 Eng. L. & Eq. Rep. 520 Embry v. Owen 4 Eng. L. & Eq. 476 and Wood v. Sut- cliffe, have occurred since the previous occasion on which I had to consider this case. The general law on this subject is stated in Embry v. Owen to be correctly laid down in the following passage from Kent Com. — " Every proprietor of lands on the banks ot a river has naturally an equal right to the use of the water which flows ip the stream adjacent to his lands as it was wont to run (currere selebat) without diminution or alteration. No proprie- tor has a right to use the water to the prejudice of other proprietors above or below him unless he has a prior right to divert it, or to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along ' Agiia Currit et debet currere ' is the language of the law. Though he raay use the water while it runs over his land, he . cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when it leaves his Estate. Without the consent of the adjoining proprietors he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back on the proprietors above without a grant or an uninterrupted enjoyment of twenty years which is evidence of it. This is the clear and settled general doctrine on the sub- ject, and all the difficulty that arises consists in the application. The owner must so use and apply the water as to work no material injury or annoyance to his neighbor below him who has an equal right to the subsequent use of the same water» Streams of water are intended for the.use and comfort •£ man. MUWAii y. JLiAlKU. 115 and it would be unreasonable and contrary to the universal sense of mankind to debar every riparian proprietor from the application of the water to domestic, agricultural, and manu- facturing purposes, provided the use of it be made under the limitations which have been mentioned, and there will, no doubt, inevitably be in the exercise of a perfect right to the use of the water some evaporation and decrease of it, and some variation in the weight and velocity of the current. But de minimis non curat lex and a right of action by a proprietor below would not, necessarily, flow from such consequences, but would depend on the nature and extent of the complaint or injury, and the manner of using the water. All that the law requires of a party, by, or over whose land a stream passes, is that he should use the water in a reasonable manner and so as not to destroy, or render useless, or materially diminish, or affect the application of the water by the proprietors below on the stream. He must not shut the gates of his dam and detain the water unreasonably, or let it off in unusual quantities to the annoyance of his neighbor. Pothier lays down the law very strictly that the owner of the upper stream must not raise the water by dams so as to make it fall with more abun- dance and rapidity than it would naturally do, aad injure the proprietor below. But this rule must not be construed literally, for that would be to deny all valuable use of the water to the riparian proprietor. It must be subjected to the qualifications which have been mentioned, otherwise rivers and streams of water would become utterly useless either for manufacturing or agricultural purposes. The just and equit- able principle is given in the Roman law, ' Hie enim debere quern meliorum agrum suum facere nevinci deteriorem faciat.' As observed by the learned Judge, in Embry v. Owen, it is very difficult, perhaps impossible, to define precisely the limits which separate the reasonable and permitted use of a stream from its wrongful application ; but there is often no difficulty in deciding whether a particular case falls within the permitted limits or not Now it appears to me that where (as in this case) the owner of an upper Mill on a stream, the natural momentum of which is not sufficient to work it, pens back the water, not at any, particular time, but just as suits his own con- venience, it cannot but be more or less prejudicial to the Mill lower down,as it must render the owner of the lower Mill uncer- tain at what time he may have water ,to drive his Mill. It is true, 116 HOWATT V. LAIRD. I find in a case of Hetriek v. DeacMer, decided in Pennsylvania, and cited in Angell, page 122, where the plaintiff gave in evidence, " that the defendant withheld the water 3, 4 and 5 days, and at one time 13 days, and that at times he discharged the water in such quantities as to flood the plaintiff's Mill. The defendant, on the other hand, gave evidence to show that when he detained the water the stream was low and the season very dry, and that without the detention he could not saw at his Mill — that he only used the water for his saw Mill and for the purpose of watering his meadow — that the water was turned into its natural course before it left his premises — that the stream was a small one and insufficient for both Mills." The Jiidge left it to the Jury to say whether a detention at times of 3 days, at other times of 5 days, and one time of 1 3 days, in ttie defendant's dain, to the injury of the plaintiffs Mill, was longer than was necessary for the defendant's proper enjoyment of the waier at his Mill as it passed through his land, and if they txjl.ieved that it was longer than necessary, to find for the plaintiff, arid if not, to find for the defendant. I am unable to reconcile this decision with the principliB laid down in all the English cases and with the tests as to the reason- ableness of tue detention laid down by Judge Story in the much quoted case of Tyler v. Wilkiiison. He says, " there may be, and there must be allowed, of that which is common to all, a reasonable use. The trite test of the principle and extent of the iise is, whether ii is to the injury of the other proprietors or not. There may be a diminution in quantity, or a retardation, or acceleration of the natural current indis- pensible for the general and valuable use of the water perfectly consifitent with the use of the common right. The diminution retardatioB, or acceleration not positively and sensibly injurions, by diminishing the value of the common right is an implied element in the right of using the stream at all." Now can it be said that an entire cutting off oiT the natural flow of the stream, and detaining the water for three .days or one day is not a retardation positively and sensibly injurions to the com- mon right ? That common right is the use of the momentum or power of the stream for the various purposes to which it is applicable, some of which require a constant application of its power. Is it possible that a total interruptio* of its llow for 3 days, or one day would not be injurious to persons so using it ? Is the Carding Mill, the Fulling Mill, or the Turning HO W ATT «. LAIRD. 117 Lathe to stand idle because the Saw Mill higher up requires 3 days', or one day's accumulation of water to drive it at all ? In Shears v. Wood, 7 Moore) 534, the upper prbprietor erected a dam ani detained the water from the plaintiff's copper Mills, and it being proved that copper Mil'.s require a constant mppltf, the action was held to lie. And if an action Would lie by the owner of workg requiring such conistatit supplj^, it might likewise be maintained by one who had not, as yet, applied the water to any particular use, to preserve his right to do so. This is clearly laid down in Wood v. Waugh and AngeU p. 466, after citing Parker v. Griswdd where, in an a(ition for diverting a watercourse^ it was held that a sufficient cause of action was shewn, although the declaration did not aver the existence of any Mill, or other works of the plaintiff on his land, for the operation of which the water so diverted was needed, says, " it may, in short, be said to be an elementary principle of law, that wherever there is a wrong there is a remedy, and that every injury imports damage in the nature of it — and that if no' other damage be established the party injured is entitleifl to nominal damages. This principal applies more strongly •virihepe there is not only a violation of the plaintiff's right, but the defendant's act, if continued, may become the foundation, by lapse of time, of an adverse right, and hence actual perceptible damage is not indispensible as the foundation of an action. An with regard to the rights of riparian proprietors on a watercourse, it is abundantly well established that the law tolerates no further injury than whether there has been a violation of right. If that appears the party is entitled to nominal damages at least." On powerful streams disputes are not likely to arise as the detention of the water must be so temporary as not sensibly to interfere with the right of others to use it for any permitted use they may choose. But if a riparian owner can erect and use works so disproportioned to the power of the stream as to require a total penning back of the water for 3 days, or 2 days, or one day to enable him to drive his works for another, those lower down would have the user of the water, liot as a common right, but in submission to him Above, and must always be restricted in their enjoyment of it, in proportion as the upper owner might require a greater or less quantity to derive the gretest profit from his works, and the owner of machinery requiring less water and, therefore, better adapted to the power of the stream would be sensibly injured as the 118 HOW ATT V. LAIRD. stoppage must prevent his working so continuously as he otherwise might have done. That machinery must be adapted and the user of the water proportioned to the power of the stream, appears to me a principle deducible from all the cases, and particularly illustrated in the decision of Emhry v. Owen, where the defendant was allowed to use the water to irrigate his land because the irrigation was not continuous, but only at intermittent periods when the river was so fvtt that the diminution of the water was not perceptible to the eye and no damage was thereby done to the working of the defendant's Mill. Had the irrigation taken place at times when the river was not full, and when it would have caused a perceptible diminution of the volume of the stream, no doubt, the plaintiff would have recovered. From all the evidence in this case it is clear that the defendants were in the habit of penning back the water at such times as their own convenience, or the necessities of their Mill required them to do so. It is true the interruptions were chiefly during the night, but there is ample evidence to satisfy me that they sometimes occurred during the day. Now although the interruptions took place chiefly at night yet the occasionally penning back the water in the day under an asser- tion of right to do so (which was evidently the case here) would, after 20 years, ripen into a right to pen it back by day or night as they chose, and as the acquirement of such a right must be injurious to the right of those below, the plaintiff was, no doubt, entitled to nominal damages. It was urged by the defendant's counsel that the injuries here could be compensated in damages, and that, therefore, the plaintiff should be left to bring actions at law for the infricge- ment of his right. But the principle on which Courts of Equity act in cases of this kind is, that if the injury caused by the diversion or interruption is frequently recurring or the right to continue it, is set up and persisted in by the defendant, in a Bill for an Injunction the Court will interfere effectually to protect the complainant. In Angell, in sec. 449, the equitable doctrine on this point is so perspicuously stated that it may be well to cite it at length. He says, " We have seen that an action on the case may be maintained for the diversion of a watercourse, or for making back water, even although no actual damage is thereby occasioned on the ground of the injury done to the right of the ripartan proprietors affected HO WATT i*. LAIRD. 119 and the acquisition of an adverse right by the uninterrupted enjoyment ot the diversion &c, for 20 years. On the same ground a Bill in Equity may be maintained in such CHses for an Injunction, though ^there are some few cases in which it seems to have been considered, that as against a riparian owner seeking to erect an improvement on his own land, the complainant is bound to shew that his superior rights will be, not ■prohdbly, but really and sensibly affected. The weight of authorities is, however, decidedly different. In a Bill in Equity for an Injunction by the plaintiff to prevent the defendant from diverting a watercourse from the plaintiff's Mill, the general doctrine is thus stated by Judge Story. If no action were maintainable at law without proof of actiia,! damage, that would furnish no ground why a Court of Equity should not interfere and protect such a right from violation and invasion ; for, in a great variety of cases the very ground of the interpo- sition of a Court of Eqaity is, that the right can only be permanently preserved or perpetuated by the powers of a Court of Equity. And one of the most ordinary processes to accomplish this end is, by a writ of Injunction, the nature and eflScacy of wMch, for such purpose, I need not state, as the elementary treatises fully expound them. If then the diversion of the water complairned of, in the present case, is a violation of the right of the plaintiffs and very permanently injure that right -and become, by lapse of time, the foundation of an adverse right in the defendant, I know of no more fit case for the interposition of a Court of Equity, by way of Injunction, to restrain the defendants from such an injurious act. If there be a remedy for the plaintiffs at law for damages, still that remedy is inadequate e the .case. Since 1855 to I860, a period of 5 years has elapsed 136 CRESWELL v. HUNT. a time, one would suppose, sufficient to find a deed if it could be found. And as to Cambridge, if he was too ill to attend, his evidence might have been taken de bene esse. It is impossible not to see that great delay (whether from neglect or intention) has taken place, and I, therefore, think this rule should be absolute. Rule absolute. CRESWELL V. HUNT. Hilary Term } 1862. 5 Sheriff's ftes— Sheriff levying on land under Execution not entitled to poundage if debt paid to plaintiff before day of sale — Quaere if entitled to poundage where land levied on in any case unless he receives and pays the money. This was an appeal case. The plaintiff", Eeputy Sheriff of Prince County, had an execution at the defendant's suit under which he levied on goods which produced on sale f 27. But on the fees respecting them no question arises. The •plaintiff also extended the execution on some land, the defendant settled the debt, the land was not sold, the plaintiff brought his action in the Commissioners Ceart for his expenses and •poundage. The Commissioners gave judgment for the expenses, viz., travelling and advertizing, but refused to allow the poundage, and from this judgment the plaintiff appeals. It is, by the English practice, well established that when on a Fi. Fa. the Sheriff levies, and the parties compromise before he sells, he is, notwithstanding, entitled to poundage. But the English cases arose on the 29 Eliz. cap. 4, which provided that for executing any extent on the body, goods or lands, the Sheriff shall have so much for every 100 ha shall so levy, or extend and deliver in execution. The moment the lev^ on goods is made the Sheriff^s right to the poundage, by the express words of the Statute, attaches. Here the Sheriff's right to poundage rests on the Island Act 16 Geo. 3, cap. 1, which provides thai "for levying, paying and receiving all monies upon execution," he is entitled .to poundage* Now under this Act it might be doubtful whethe^the Sheriff, in any case, would be entitled to poundage flintil he had not only levied, but paid over the money. Bat CRESWELL V. HUNT. 137 the practice has, with respect to goods levied on, been otherwise ani in such case as the Sheriff must take possession of the goods and thereby incur trouble, risk and responsibility for which, except from the poundage, he would have no remunera- tion, the authority of Alchtn v. Wells, 5 T. B. 470, might be held to apply. But the right to take lands in execution for debt is given by 26 Geo. 3 c. 9, which provides " that when there is not sufficient personal estate whereon to levy, the Sheriff shall extend the execution on the real estate of the debtor," and, after taking certain steps, " shall sell so much of it as will discharge the execution with costs and charges." Nothing is said about poundage only the costs and charges, which can only mean the fees for travelling, posting notices, and other incidental ■expesses. Again, where the Sheriff levies on goods, he has not only a right, but it is his duty to take them into his possession, and to sell them, by which risk and trouble is incurred. But when he merely extends an execution on land he takes no possession ; for by the 4 sec. it is provided " that the Sheriff or his Deputy shall on no account disturb any person or persons in possession of lands, or tenements, at the time he shall levy execution thereon, but shall leave each person or persons in the peace- able possession thereof until final sale shall be made as aforesaid." Neither does the levy give him any immediate right to sell. He must advertize it for two years, during which time the defendant remains in possession, and before the expiration of which he may pay the debt. The case is somewhat analogous to Crrakam v. Grill, 2 M. & S. 296, where under a levy on a capias utlagatum where no venditioni exponas had been issued, a claim for poundage was made. Lord BUenborough says, " but is there not this difficulty here that there has been no levy of the money, and, therefore, supposing a capias utlagatum to comje within the words, extent or execution, on the Statute of Elizabeth, must not the money be levied in order to entitle the Sheriff? The right of the Sheriff to poundage is a right merely positwi juris and, unless especially conferred by Act of Pariiament, he cannot dauB it. The eapias ■Utlagatum, la its original form i«, for the punish- ment of the party'fl contumacy, and not for payment of tba debt." So here the extending executioo ob die Ifuid does nat ■empower the Sheriff to eell «r in any way to meddle with 18 138 BLACK V. SHAW. the land, but merely to take certain preparatory steps which will authorize a sale at a future period, Substantially the whole proceedings of the Sheriff seem to amount to nothing more than a Notice by a Mortgagee under a power of sale that the land will be sold on a certain day unless the debt and expenses be sooner paid. Looking at the whole of the 26 Geo. 3, I am of opinion that under its provisions the Sheriff is not entitled to poundage even where he sells, and that before he can claim under 16 Geo. 3, cap. 1, he must receive and pay over, or (at least by the arrival of the period of sale) be in a position to do so which was not the case here. The consequence of holding the mere extending the execo. tion on land to vest a right to poundage, would be most serious against debtors, and such as, I think, the Legislature never contemplated. An execution for £5000, money lent and secured on land on a Judgment (a very common occurr- ence) might issue, and the debtor a month after, may raise the money to pay off the security. All that the Sherift had done would have been to travel a few miles and post some adver^' tisements, for which specific services he is paid, yet if his right to poundage attaches on the levy, the debtor would have to pay many pounds to the Sheriff besides the debt, costs ai)d expenses. The appeal must be dismissed with costs, BLACK V. SHAW. Hilary Term 1862. Absent Debtor Act — Summons to Trustee or Garnishee must be served by Sheriff— none but defendant in the suit can take advantage of a mere irregularity — but a stranger may object to irregularity which renders proceedings void. In this case an attachment at the suit of Vaux having issued against the defendan*, an absent debtor, no goods being found to attach, a summons was issued against McNutt as trustee or garnishee, which was served by the clerk of the plaintiff's Attorney. A summons was, subsequently, served on McNutt by the plaintiff. Black, also an attaching creditor, by whom motion is now made to quash the summons, on the ground that it could only be legally served by the Sheriff, Black v. shaw. isg It is contended in reply, First. That the clause in the Act 20th Geo. 3, cap. 9, is only directory, and that the service by the clerk is good. Secondly. That supposing it bad, the objection can only be taken by the defendant, Sharlo, and not Jby another attaching creditor who is no party to the proceedings objected to. The 2 sec. of the Act provides that vyhere there are no goods to attach, the plaintiff may " file a declaration against such absent or absconding person and also cause the trustee of such absent person to be served with a summons out of the clerk's office, being annexed to the declaration 14 days previ- ous to the sitting of the Court, which, being dul^ served, and return being duly made thereof, under the hand of the Sheriff, or Ms deputy, &ka]\. be sufficient in law to bring forward a trial without any other or further summons.'' The Act, in very clear language, requires two things to be done to bring forward a trial. First, service of summons and declaration, and secondly, due return of service under the hand of the Sheriff. The last requisite is here wholly wanting, and we are, therefore, clearly of opinion that there is nothing on which the proceedings by Vauz against the trustee, McNvit, can be maintained. The other point, that the objection cannot be taken by another attaching creditor, raises a question of considerable importance on the practice under this Act. Oa this point much reliance was placed by Counsel in opposing the motion on American authorities. In Drake, on Attachments, 772, it is laid down that '' what- ever irregularities may exist in the proceedings of an attaching creditor it is a well settled rule that other attaching creditors cannot make themselves parties to these proceedings for the purpose of defeating them on that account." Cambeford v. Hall 3 McCord 345, decided in South Carolina (where under a Statute which declared that every attachment issued without Bond is void, it was held that the garnishee could not take advantage of the insufficiency of the Bond) was cited from a written copy of the Report. But on turning to Drake 716, where this case is cited at length, I find other decisions under the same circumstances to the contrary. Thus in Ford v. Woodward, decided in Mississippi under a Statute which declared that every attachment issued without bond and affidavit taken and returned is illegal and void, and 140 BLACK V. SHAW. shall be dismissed ; it was held on a' Writ of Error sued out by the garnishee, that a judgment against the garnishee where such bond and affidavit had not been taken and returned was erroneous because the proceedings against the defendant were illegal and void. In Louisiana, Missouri and Alabama the decisions seem to concur with Camheford v. Hall. But in a subsequent case, Bank of Mobile v. Andrews, an attachment for want of an affidavit and bond was quashed at the instance of the garnishee. From this review of the American decisions there appears as many authorities in favor of the application as against it. Creighton v. Daniels decided in Nova Scotia, James Repr 347, where it was decided that a defect in the return day of the writ could not be set aside, except at the instance of the defendant, appears from the language of Judge Eliss to have turned on the particular words of the Colonial Statute which differ from ours. He says, " two cases are specified by the Statute in which a subsequent attacher, or other person interested may apply to set aside the proceedings, and they are the two strongest cases that can be imagined, and in which' if in any case, no enactment would be required. We may> therefore, reasonably infer that the Statute did not intend that any other objection should be taken. I quite concur in the general position laid down by Drake that irregularities can only be taken advantage of by parties to the suit. The same doctrine is laid down by Archibald and other English books of practice. In general it is only the opposite party, or his representatives, or those claiming under him, that can take advantage of the irregularity, and strangers to the proceedings cannot do so. The reason for this rule is first, that a mere stranger having no interest would not be heard in any case. But even a stranger who has an interest cannot do so, because the defendant may waive the irregvlarityi and, therefore, a stranger cannot interfere to compkuB of that to which the defendant may elect to submit, and by doing so cure the defect. Bat there is a great difference where the proceeding is that pointed out by the Practice of the Court and the error is merely in the manner of taking it, and where the proceeding is altogether wanting, or different from that which is required. In the first case it is merely an irregularity which the opposite party may waive. In the other it is a auUity which no act or consent of the opposite party can cure BLACK V. SHAW. 141 Now the objection here 4s, that the Sherift's return of the service of the summons and declaration, which is matter of record on which the subsequent proceedings are founded, is wholly wanting. This, therefore, is an error which the defend- ant himself could not waive, and without it all the subsequent proceedings are void. It was argued that the garnishee did not object to the informal notice, but he could no more waive the error so as to cure the nullity than the defendant could. With respect to the garnishee's right to object to irregulari- ties, Drake, 741, says, " the decision of this point depends mainly on whether the defect or irregulaiity be such as would prevent the garnishee from pleading the judgment against him in bar of a subsequent action by the defendant for the debt in respect of which the garnishee was held liable. There couM be no prrpriety in rendering a judgment against a garnishee which would not protect him from a second payment of his debt to the defendant, while there could be still less in per- naitting him to defeat the plaintiff's action by assuming a ground which the defendant either did not consider available to him- self or chose to waive." Now, in this case a judgment against the garnishee must ■hew the Sherifi's return, and a pl«a founded on a judgment which did not would be bad, and so, according to the principles laid down by the American Commentators, this motion, if made by the garnishee, might be maintainedL There seems the strongest reason for the Court's' interference at the instance of a subsequent attaching creditor who, as in this case, has obtained judgment in the attachment suit. Such judgment gives him a lien upon the funds in the hands of the Court or gamLshee for distribution. The principle drawn by Nesbit in Smith V. Gettinger, cited in Drake 775, after a review oS the American decisions, as established, is that the attachment and also the judgment, may be vacated at the instance of other creditors for fraud, or for anything that amounts to fraud upon the rights of other creditors. And at page 780, " according to the course of decisions in some of the Mew England States, there are other cases in which attachments will be held to be dissolved as to subsequent attaching creditors by the action of the plaintiff. Each attacher has a right to the surplus of the defendant's property after satisfying the previous attachments? and any act of an attaching creditor which increases the- 142 BLACK V. SHAW. demand upon which he attached as it is, in effect, a fraud Upon the subsequent attachers, is in those States regarded as dissolv- ing his attachment as to them. Thus the filing a new Count to the declaration which does not appear by the record to be for the same cause of action as that originally sued on will produce this result." Now whether the funds for distribution are sought to be claimed throusjh any collusion with the defendant, or under the pretence of a, jud,;ment or proceeding which the Court see is void, and which, therefore, confers no right on the party claiming to participate in the distribution of the funds makesi I think, no difference, the one being as invalid and injurious as the other on the rights of other creditors whose proceedings are valid ; and it the mere addition of a new count to the declaration ia held in effect to be a fraud on subsequent attachers, it is difficult to perceive why an attempt to claim the fund under a void proceeding should not be equally so. The true rule in these cases appears to me to be that where mere irregularity exists which may be waived by the defendant, other attachers cannot move to quash the proceedings. Bu' where the error renders the proceedings a nullity and void and cannot, therefore, he waived by the defendant, there a subsequent attacher who has obtained judgment jooaj move to quash the proceedings. Another ground on which we think this motion may be maintained is, that the judgment againut the defendant in the principal suit gives the attacher a lien on the funds in the garni-hee's hands and, therefore, quo ad the amount of his cliiim, places him in the defendant's shoes with respect to those funds. He is, therefore, a privy in interest, and as such authorized to point out defects in proceedings which affect those funds. This Rule must be absolute WOOD V. GAY. 143 WOOD V. GAY. Hilary Term, 1862. Absent Debtor Aet 20 Geo. 3 c. 9 — In suit commenced by attachment against absent debtor plaintiff must bring cause to trial at third term, or obtain leave to continue it — otherwise suit discontinued. In this case the question is, first, whether an attachment under 20 Geo., cap. 9, and all subsequent proceedings is not dissolved by the plaintiflF neglecting to bring the cause to trial at the third term without having obtained leave to continue it another. And secondly, whether a motion to set aside such proceedings can be made by a subsequent attacher who tried his cause and obtained judgment at the third term. The Statute, after providing that the agent may be admitted to'defend, provides " that at the third term, without special matter alleged and allowed in bar, abatement or further con- tinuance, the cause shall peremptorily come to trial." This language, that the cause shall peremptorily come to trial at the third time, unless in consequence of special matter alleged a continuance be allowed, seems to shew an intention that with- out such special matter alleged and allowed no continuance shall be granted. Before the Statute of jeofails any lapse or want of continuance was a discontmuance of the suit, put the parties out of Court and compelled the plaintiff to begin de novo, Tidd's Pra, 733. A mere continuance by imparlance vicecemes non misit breve or curia advisare vult is, however, laid down to be a mere matter of form, and may be entered at any time, and it is scid may be made by the Attornies in their chambers, Tidd's Pra. 161, and the want of such a formal continuance is cured after veriict or judgment by the Staute of Jeofails. But is the continuance menlioned in this Acta mere form such as those the Statute of Jeofails was intended to cure ? It seems something of a very different nature. It cannot be made by the Attorney at his chambers, nor in the Court unless with express leave of the, Court granted on express application. How could Haszord make up his judg- ment without the Record shewing a continuance at the third term, and how can the officer insert this in the Roll when none was granted ? In Rex V. Ponsonby, 1 Wils. 303,, in Error. In making up "" j;he Roll the entry of a continuance by curia adviiart vult, 144 WOOD V. GAY. and day given by Court in Easttr Term following, skipped over two terms, viz., Michaelmas and Hilary, and entered judgment 'of Easter. This was held a discontinuance until amended, and as there was nothing in the Court of Error to amend by, the Court could not insert it. Benniion, Justice says this discontinuance is fatal on demurrer, and there is no Statute of Jeofails that will help it. For ought we know there may be a Record in Ireland that will make it complete, and, therefore, we can grant a certix>rari to inform the consci- ence of the Court before we give judgment, but after a Record is sent hither this Court cannot amend it without something to amend by. Now suppose Haszard moved for leave to amend his erroneous judgment, what would there be for the Court to amend by ? Where it was a mere form the Court could (if it were necessary) grant leave to amend the Roll by entering a continuance. But how could the Court entertain a motion on the ground required by the Statute of special matter alleged at the third term, when its records shew that no such special matter was alleged, and no motion to continue the cause made ? The practice has always been where a plaintiff was not ready to try at the third term, to move for leave to continue. The Statute gives extraordinary power by authorizing a plaintiff to deprive the defendant of the control of his property before the legality of his claim has been established by judg- ment, and also postpone the claims of subsequent attachers until the first is disposed of. The tardy prosecution of his suit by a prior attacher, may be injurious, not only to the defendant, but may delay others in obtaining satisfaction of their judg- ments. The policy of the framers of such an Act must be to enforce speedy and effectual prosecution of his suit by a party seeking to avail himself of its extraordinary power. In similar Acts in the Lnited States this is sought to be obtained by requiring a bond with security from the plaintiff, for the prompt and effectual prosecution of his suit before tbe attach- ment issues. No such security is provided by our Act, but the Leaislature seems to have intended to provide one by conpuiling the plaintiff to have the validity ot his claim determined at the third teim unless he shews special circum- stances to induce the Court to grant him further time for doing so. And, we think, that in this case, Haszard having failed to .do either, his suit is discontinued and his attachment dissolved^ Am to the Moond point, ou the prindple we have just laid McKEAN & SUTHERLAND v. McKKJNZllE. 145 vlown in the previous ca-^e of Black v. Shaw, as the defect here renders the whole proceedings void it is clear the subsequent attacher, Wood, ioaay make the application. The Rule will therefore, be, tiiat the attachment and all subsequent proceediugs at the suit of Haszard against the defendant, so far as the same relate to, or in anywise aifect the attachment and proceedings of the plaintiff, Wood, be set aside. M'KEAN & SUTHERLAND «• M'KENZIE. Hilary Terui, 1862. Absent Debtor Act^A non-resident who comes for a tempor- ary purpose to this island, and while here conceals himself to avoid arrest at suit of a plaintiff resident in Nova Scotia — is au absconding debtor within 20 Geo. 3, cap. 9^-^and such plain- tiff ma^ proceed against him by attachment. In this case a motion is made by the defendant to quash an attachment issued against his property under the Absent Debtor Act. From the affidavits it appears that both the plaintiffs and defendant are residents of Nova Scotia, and tiiat the note of baud on which the action is brought was given in that Province. It also appears that the defendant owned a schooner, and was in the habit of trading to this Island, and* in November last, while here with his vessel, a Bailable Writ Vvas issued against him at the instance of James iV. Harris, the plaintiffs Agent in this Islandt to recover the amount of the note. It is sworn by McQuaid, a person in the employ of Harris, who was sent with the Sheriff to point out the defend- ant, that he could not then be found, and that he again accompanied Collins, an officer for a similar purpose, aud that deponent believes that the defendant concealed himself many days to avoid aiTest ; and there appears little doubt, from the affidavit of this deponent, and also from an affidavit of the plaintiff's Attorney, that the defendant, when applied to for the payment of the note, led Harrii to believe that he would pay it out of the proceeds of his vessel, but that having sold her to Yates (who is also summoned as garnishee) he secreted himself to evade arrest. The Sheriff having returned the writ non est inventusjon the 25th of March,the plaintiffs issued an attachment and summoned Yates as garnishee. There is no affidavit of the 19 146 McKEAN &^lfTIIERLAT!f D p. McKENZIE, defendant denying concealment to evade arrest. The motion is made on the ground that both plaintifis and defendant being non-residents, and the debt contracted abroad, they are not within the provisions of the Absent' Debtor 'Act. Two ques- tions are thus raised wliich require to he separately coWdered, First. Whether a person, not a resident' of the Island, can proceed by attachment for a debt not con ti-aicted here. Second' Whether the defendant, also a non-resident, but here for a temporary purpose, is, under the circumstances of this case, liable to be proceeded against. Numerou'idecisioiis on this, and various other points, may be found in the United States Reports. But although each State has its Absent Debtor Act, scarcely any two of them are exactly similar ; while in most, specific provisions for particular' cases leave less room for the application of general principles in their construction than is necessary in the mbre brief and general enactments of our Statute. Thus in Virginia, attachooent is held to lie where both plainti£F and defendant reside out of the Commonwealth. In Ohio, it lies for any creditor whether he'be a resident or not, 2 Kent 203. Reli- ance on such depisions would be more apt to lead to error than to assist, and I think on such points, at least, the safer course ^, is to apply the ordinary rules of construction to our own Statute, and by that means endeavcr to ascertain its intention. The Act provides that any person entitled to asy action (meanibg'of course a right to maintain an action in the Courts of this Island) for any debt, or demand against any absent or absconding person, may cause his goods and estate to be attached- Now the payee of a Note made abroad is as much entitled to maintain an action against the maker, iflie happens to find him here, as if the Note were made to a resident payee, and, therefore, if the conduct of the debtor has been such that a resident creditor could attach, it appears to me clear that a noi^-resideat, even if he has never been in the Island, may do so also. In such cases the residence, or non-residence of the plaintiffs, as well as the locality of the debt are, it seems to me^ wholly immaterial. The only question being, covld the 'plainti'ff' maintain an action against the defendant in this Court if he found him here ? Ani if he <30uld, has the defendant's conduct brought him within the provisions of the Act ? To hold non-residents in such a case to be uiider a disability, which did not attach toresidentB, would "be open to McKEAJ^& SUTOERLANP»,,McKENZlE. 147 tbia monstrous consequenc^, tbaj, if. goods were supplied in Mova Scotia aod the debtor brougbt them hpre and then ust'.taker redeenaingrgo-, by w,ithout:a teijder 91; ofter to redeem^ this. Court would hay.e jo;risdictiQn, m£|.y be. a qiie84yion> In.such. case. the. plaintiff's ijight of action qi; a0, would rest 0Qftiaiud'va.^et' than on, the Act, and a resqrt % El^uity mt^^'then' be necessanyi.but- we expresa no. opinion, oi\ this point. Another questioo isi raised on a charge &r. improvem^Dts. The land appears, ia a wildeFqesSi st^te.. The purchaser,^ in his affidiaivit^ states that he loade ipiproyemeots to the yalue of 40s in cutting away Spruce bti^. «>p th,e land. This sam^ question was decided in the o?L3,e of Qo;^p0n, v. Popa, a,ndj as after fblly coosidiefiag' the arguments and ^u,^tiori ties offered at the bar, w« ae» no veason to dpiibt ^e> correctness of th^t decision, it is unnecessary to enter now at length into, reasons which were then stated. The, constru^tiQ? cont^^^c^ for would permit kho; perpetration of great wrong, I^pWi though where the meaning is pitain, 'amatt/Jti^noe^ tvre (iQit to be regar^^d in the construction of Statutes,, yet i^ is I^id, down by B^m,, iitle, Stat. 9, that wfaer« the maanit^ \si doubtful the (:qn^W- SULLIVAN «. RAMSAY. 151 enees are to be considered in the construction. Tke reason for this rule is obvious. The Court are bound to follow the tnten^eon of the Legisilature. Where the language of an Act ia Capable of but one meaning there is no difficulty>in ascer- taining it, but to do so where general wbtds' are i(s6d, it ^is necessary to consider whether a particular construction may lead to absurd, unjust, or inconvenient consequences, otherwise a mischievous operation might be given to' an Act' which the Legislature never intended it to' have. To give the w«»rd " improvements " the comprehensive meanihg' contended' forj would enable the purchaser to' tteat the land as if he had>an indefeasible estate therein. ' He' might cut' timber "to ''any amount, might clear' land which the owner ' might not' wish cleared, erect buildings, arid Clahn payment for ' doitig't so. Indeed it is' difficult to forsee'the mischievous consequences which might flow from kdo^tihg the construction 'contended for. Under it, a persoti acquiring such temporary possession' might cut down ornanltental groves or trees,' and, ' thereby, cause great loss or irijiiry'to'the' dwner,' he'tAightj'in 'short, ' commit ■ waste to almost any extent,' or erect buildings, or make other alterations in the state of the propertyj and' claim compensation for them. No Legislature could 'b^ve intended the Act to have such an operation. The form of the deed is given in the Schedule to the' Act, and the proviso giving the " Equity of Redemption " must be considered as if inserted in every deed, and it, thereby, places the purchaser in the situation of a Mortgagee in possession. This construction, while it confines the purchaser's use of the property within those well defined rules, which prevent un- necessary injury to the owner, fully answers the object of the Legislature by enfordng payment < of the small tax the owner omitted to pay. We think a purchaser during the period allowed for redemp- tion can neither commit waste nor claim remuneration for improvements which a Mortgagee in possession could not claim, and therefore, this claim of 40s for cutting trees must be disallowed. In' addition to this, the purchaser, Ramsay, Attaches in his affidavit the following account : Ptirchase money 4l8;, attending sale, tOs, ^ £2 11 - Deed lOs,,' Registrycertifioate'2s 6d. 0^12 - & Registry deed lOa., tax for two years ISs 5d, l" 3 5 1 2 1 7 4 12 £9 6 3 1S2 SULLIVAN V. RAMSAY. Travelling to pay tax twice 20s, do to Town to register deed 40g, Surveyor 1 day 12s 4d, 3 men with Surveyor 1 day each 15s, Interest to date 12s, The affidavit merely states that he furnished the owner's agent with this account. It contains no allegation that he did travel to GharlottetovM for the particular purpose of registering the deed, or that when he did come here with it (if he did) he did not come on other business. Neither does it contain any allegation that he employed or paid a Surveyor. If positive and distinct allegations to this efiect had been made, those charges might have been admissablet but from the extremely vagus and uncertain manner in which the affidavit in this respect is framed, no regard can be paid by the Court to any items in that account, except those which we see must, necessarily, have been paid or incurred. These are as follows ■ Purchase 4l8, deed 10s, £2 110 Registrar's certificate Registering deed Tax for 2 years Interest Tax sworn to be paid since service of the Rule 4 15 7 The charges for attending the sale and to pay the land tax we think wholly inadmissable. As the plaintiff in this case tendered to the defendant a larger amount than he was entitled to, which he refused to accept, he is entitled to the costs of this application. The order will, therefore, be. That the said Lawrence Sullivan do pay to the said Arch'd Ramsay the sum of £4 15s 7d, within six weeks from the date of this order, and that, thereupon, the said Arch'd Ramsay do recover and surrender the lands mentioned in the affidavits in this cause to have- been conveyed to him by the Sherift as therein .stated, to the said Lawrence Sullivan, and that the said Archibald Ramsay do also pay to the said Lawrence SuUiean&e costs of this Rule to be taxed — the said Lawrence Sullivan being at liberty to retain such costs out of the amount so ordered to be paid by him as aforesaid. But in default of the 2 6 (1 10 13 5 4 5 SULLIVAN V. RAMSAY. 153 said Lawrence Sullivan paying unto the said Archibald Ramsay what shall remain due to him as aforesaid after deducting such costs as aforesaid, within the time aforesaid, it is ordered that the Rule in this case be discharged, with costs to be taxed against the said Lawrence Sullivan, and that he be debarred from the benefit of redemption of and in the said lands. SULLIVAN V. RAMSAY. JSaster Term, 1862. Land Tax Act 11 Vic. c. 7, s. 12— If offer to redeem be made in two years from sale sufficient— Rule to redeem maybe taken out after expiration of tiie two years — where there are no cir- cumstances to excuse a tender, owner must make a legal tender in money — if dispute as to amount of redemption, either party may apply to Court. This case involved the same points as the last to which it is not necessary to advert. But two other questions were raised. The land was sold on the 30th September, 1859, conse- quently, the period for redemption expired on the 30th Sep- tember 1861. The affidavit ofCameron states that on the 24th May 1861, he, on behalf of the plaintiff, tendered defendant £7 10s as redemption money. The Rule was taken out in Michaelmas Term 1861. It is contended that as the plaintiff did not take out his rule until after the expiration of the two years allowed for redemp- tion he is too late. It was urged that the two years allowed for redemption were analogous to a Statute of Limitations and therefore, not only muit the owner tender repayment to the . purchaser, but must also make his application to the Court within that time. But there is no analogy between this and the Statute of Limitations. The Statute of Limitations never begins to run until the time for payment has expired. Here the Statute allows two years from the day of sale to repay the purchase money. If the owner tenders a sufficient sum on the last day, or hour of that day, he has a right to have back his land. If the purchaser refuses to give it back, then, and not till then, does the right to Institute proceedings to compel him to do so, arise. If the application must be made to the Court before the expiration of the two years, the time allowed for redemption might often be materially abridged. 20 154 SULLIVAN v. RAMSAY. For instance, if payment were tendered the day after Michael- mas Term, where the two years would expire on the last day of December, he could not make the application until Hilary Term, and, therefore, according to this argument, he would lose his land, though he had really offered repayment two months before the two years had expired. Again, an owner might not know of the sale, or possess means to redeem until the last day of the two years. Is he therefore to be deprived of the privilege of redemption by the express words of the Act giving '^during the space of two years from the day of sale" because he could not repay the amount, or was ignorant of the claim to be redeemed until just before the expiration of the time allowed for doing it ? It was urged that if the application to the Court could be made after the expiration of the two years an owner who had made a tender might lay by for 10 years before making his application. It is unnecessary now to consider how soon after the expiration of the two years the application to the Court; in such cases must be made, as we thiuk in this case it was made within a reasoiiable time. Unreasonable delay might» perhaps, in this case, as in many other cases, be held a groaod for refusing it. But no such inconvenience as urged really exists. The Act provides that an " Equity of Eedemption " shall be open to the owner for two years to repay the purchase money and expenses &c, " the same in ease of dispute to be settled by the Supreme Court." There is nothing in the Act which restricts the jurisdiction of the Court to an application at the instance of the owner only. When a dispute has arisen the owner may obtain a Rule calling on the purchaser to recover on payment of the amount to be fixed. Or the purchaser mny obtain a Rule calling on the owner to pay the amount or be debarred from redeeming. The Act never could have intended to create a jurisdiction for determining disputes between two parties to which both should not have an equal right to resort for settling a controversy whick both were equally interested in determining. It is next objected that no legal tender was made. The affidavit ol Cameron states that he tendered the defend- ant, Ramsay, £7 10 in gold as repayment for the purchase money. Though this, if uncontradicted, might have been a sufficient allegation, it would have been more correct had the affidavit stated in what manner he offered the money, leaving HEARD V. PHILLIPS. 155 tbe Court to judge of the validity of the tender. But the affidavit of the defendant, and also of OampbeU, who wa^ present at the time of the alleged tender, clearly shew that whatever Cameron's intention might have been he never produced any money or made any offer which could amount to a legal tender oiany amount. We do not mean to hold that an actual tender is in all cases necessary. If a purchaser (for instance) refused to furnish an account of his demand the owner would not know what was due.. In such case an offer and readiness to pay what the purchaser might be legally entitled to, would be sufficient. Nor do we wish to be under- stood as holding that the right of redemption would, in all cases, be barred in consequence of a tender being something less than the amount afterwards allowed by the Court, if satisfied that the tender had been made with the honajide inten- tion of paying the amount really believed to be due, though on the question of costs it would, as in other actions, be decisive. But we think that where no refusal of an account, or otfaer circumstances which might excuse a tender, appear, the owner is bound to make a legal tender of the amount which he must, or might know could legally be claimed. A purchaser might reasonably decline agreeing to an amount which the owner might exercise the option of paying or not which if offered in money he would have accepted. And we are, there- fore, of opinion that the Rule in this case must be discharged. The order, therefore, is that the Rule in this case be dis- charged with costs, and that the plaintiff, Lawrence Sullivan, be debarred from any Equity of Redemption in the lands in the affidavit in this cause, mentioned to have been conveyed by the Sheriff of Prince County to the defendant, Arthur Ramsay, as therein stated. HEARD V. PHILLIPS. SUMMONED AS UABNISHEE OF BEADLT, AK ABSENT BEBTOE Easter Term, ? 1862. 5 Absent Debtor Act — a person in possession of choaes in actioa of absent debtor, not chargeable as garnishee. In this case it is unnecessary to consider many points raised on the argument, as from the defendant's ezaminatiou it 156 THE QUEEN v. WHELAN. appears that the assets assigned to him consisted of Goods and Chattels to the value of £914, and debts due from third per- sons amounting to £607 (a very small part of which has been collected.) The amount due for the payment of which the assignment was made, (not including £497 which the garnishee states he has had to pay to previous incumbrances to preserve his Bill of Sale) is about £1300. It is clearly laid down by both Guthing and Drake that a person having in his possession choses in action cannot, in respect thereof, be charged as garnishee, Drake 425. In this cas», therefore, the defendant was not liable to be oroceeded against in respect of the £607 of debts, and deducting that amount there would clearly be no balance Jeft to which the absent debtor, Bradly, could have a claim, and for which his creditors could garnish the defendant. The Rule for a non-suit must, therefore, be made absolute- THE QUEEN «• WHELAN. Trinity Term, ? 1862. S Libel — criminal information — where libel charges applicant for Eule with having by previous article provoked it--the charge must be answered by affidavit on which Rule moved. This was a Rule calling on the defendant to shew cause why a criminal information should not issue against him for a libel on Wm. Pope, published in the " Examiner " Newspaper, of which the defendant is proprietor. The explanation given by the defendant of his meaning of the word " arraigned," on which the criminal character of the charge made against Mr. Pope, in the article complained of chiefly depends, raised some doubt in our minds on the argu- ment, but we are satisfied that that explanation would not be a sufficient answer to the application. The libellous article, however, clearly charges Mr. Pope with being the author of a previous article in the Islander to which the article complained of is evidently a reply. The defendant also swears that it was published in reply to that article which he then, and yet, believes to have beea written by Mr. Pope. The principle which governs the Court in applicBtions ot this nature appears to be that the party applying for a, THE QUEEN v. WHELAN 157 criminal information must come into Court with clean hands. He must not only shew himself innocent of the charge made against him, (that is most fully and satisfactorily done here) but he must not appear to have done anything to provoke the attack of which he complains, In the case of Sex v. Taylor 1 Jur. 53, where a Rule was obtained against the defendant who was Proprietor of the " Manchester Guardian" for a libel on Mr. Royas. The alleged libel insinuated that certain articles in the " Manches- ter Chronicle " emanated from Mr. Royas. The defendant does not appear to have used any affidavit in reply. Toilet, in shewing cause, submitted that as there appeared to be a controversy between the two Newspapers, there should have been a more explicit denial by Mr. Royas that he had any knowledge of the articles in the " Manchester Chronicle " before they appeared. And on that ground, viz., that the applicant's affidavit did not deny knowledge of those articles, the Court discharged the Rule. Mr. Fope in his affidavit makes no denial of his authorship lof the article in the '' Islander " attributed to him in the libel. And we think this case of Sex v. Taylor is, therefore, conclu- sive against the Rule. One difficulty suggested itself to our minds in applying the principle broadly laid down in this case to all cases. And it was this, viz., that the article alluded to in the libel, as provok- ing it, might really be a severe, but merited and justifiable criticism on an improper publication. And although the doctrine of Rex v. Taylor appeared to us conclusive against the application, we delayed giving a decision at the last term that we might have an opportunity of looking further into the authorities than the short period between the argument and the rising of the Court permitted. But further investigation has only confirmed the opinion we then formed. The doctrine appears to be that where the libel, either directly or by insinuation, charges the applicant for the Rule with having, by a previous writing, provoked it, he is bound in his affidavit, on which the Rule is moved, to answer it. This he may do by denying that he is the author, or by .admitting it, and then setting oat the article in his affidavit, flr in some other way shewing the Court that it was a proper ^nd justifiable criticism or communication, and not of a natura :that could reasonably provoike such a severe retort. 158 THE QUEEN v. WHELAN. Neither of these courses has been adopted here, and we, therefore, think the affidavits are insufficient, and that this Eule must be discharged, but under the circumstances, with- out costs, and that Mr. Pope shall be at liberty to proceed either by Indictment or action if be shall see fit. THE QUEEN >'. WHELAN. Hilary Term, 1863. Libel— criminal information— a party seeking a criminal information against another must himself be free from blame. This was a Rule to shew cause why a criminal information should not be granted against the defendant, the Proprietor and Editor of the " Examine/' for a libel on Wm. Pope. The defendant, in his affidavit, in answer states that the plaintiff is well known to be the Editor of the "Islander'' Newspaper, wherein attacks of a very gross, malicious and libellous nature are, from time to time, made on the character of the defendant in his private as well as public capacity, one of which, was published in the " Islander " of the 30th, signed " Eesponsis". He sets out in his affidavit and alleges that he Jbelieves that it was published with the knowledge and concur- rence of the prosecutor. The defendant in the close of his affidavit also alleges that the prosecutor is in the frequent habit of libelling him. From the affidavits it appears that the prosecutor and defendant are the editors of two rival News- papers, and are in the habit of writing with much acrimony against each other. The article signed " Responsis " set out as in the " Islander " of the 3rd October, contains a charge against the defendant of a nature similar to that with which the prosecutor complains the defendant has charged him. It was urged that there was no proof that Pope was the author of the article signed " Responsis,'' or concurred in it, and that as it appeared as an anonymous communication and not as an editorial, it should not be presumed that he wrote or concurred in it. In the nature of the thing such proof by the defendant was next to impossible ; but the defendant swears he believes it was published with his concurrence and know, ledge. On an application of this kind the Court is bound to weigh the probabilities, and looking at the circumstances that THE QUEEN v. WHELAN. 159 it is evidently a reply to the libel now complained of, and published in the paper of which the prosecutor is editor, we think we may reasonably presume that he was at least, not ignorant of it. In the Queen v. Lawswi, 1 A. & Ell., N. S., 486, where on an application for a criminal information for a libel by the foreman and several of his fellow jurors, it appeared that the- foreman had published a letter commenting in strong term^ on the publishers of the libel, though, a< it appeared, withovt the request, knowledge, or concurrence of the other jurors who did' not see the letter, and were not aware that any such letter had been sent till after he had sent it. The Court believing from the circumstances that the other jurors knew (in suffi' cient time to have interfered) of the foreman's intention to publish the letter on behalf of himself and fellows, discharged the Rule. In the present ease (even if the article signed " Responsis " was not written by or with the concurrence of Mr. Pope) we cannot doubt that being an answer to an attack upon himself he must, as editor of the paper, have been informed of it in time to have prevented its publication, and he, therefore, must be affected by it in the same manner as the jurors were affected by the unauthorized publication of their foreman. The defendant's affidavit also contains another distinct allegation that the prosecutor is in the frequent habit of libelling him. Under these circumstances the prosecutor, in our opinion, comes clearly within the Rule adverted to by the Court on a similar application recently determined between the same parties, viz., that the party seeking a criminal information against another must himself be free from blame. We think he is not so here, and, therefore, the Rule must be discharged. It was urged that the prosecutor had no opportunity of answering the defendant's affidavit, but this is always the case with respect to affidavits used in shewing cause against Rules Nisi. And in the Queen v. Grigor 8 A. & Ell., 909, on appli- cation for 3 criminal information we find Lord Denam giving credence to affidavits to which a similar objection was urged. The Rule must, therefore, be discharged, but without costs, and that the prosecutor be at liberty to proceed either by Indictment or action, as he shall see fit. 160 SULLIVAN v. CAER and H. & J. RAMSAY. SULLIVAN V. CARR and H. & J. RAMSAY. Hilary Term, 1863. Laud Tax Act— Redemption — where purchaser of land under Act transfers his right to another before time for redemp- tion expired, tender to purchaser is sufficient — where purchaser must be aware that person tendering does so as agent of otrner, sufficient though owner not expressly named by agent. This was an application to redeem land sold for non-pay- ment of tax under 11 Vic. cap. 7. From the affidavits it appeared that Hugh Carr became the purchaser at the sale of 236 acres of land (which is now sought to be redeemed) for the sum of £2 10s. The plaintiff's agent, in his affidavit, swears that on the 2l8t day of May, 1861 he, in the name and on the behalf of the plaintiff tendered £9 to defendant, Hugh Carr, as the redemption money which he refused to accept On this affidavit a Rule Nisi was granted against Hugh Carr, buc on shewing cause he deposed that before the tender he had sold and conveyed the land to Hugh and John Ramsay, whereupon the Rule was enlarged and amended by making them parties. And cause was shewn at the last term on behalf of all the defendants. The 8th sec. of the Act provides that no conveyance made under the Act shall be valid unless registered within 12 months of the day of sale, a provision absolutely necessary to enable the owner to find out to whom he is to tender repay- ment of the purchase money. If the purchaser were allowed after registering his deed, by thereby conveying the land to another to divest himself of that character and thereby prevent the tender of repayment being made to himself, the intention of the Act evidently might be defeated. Because if the purchaser's assignee did not record his deed and gave no notice of it to the former owner, as appears to have been the case here, the former owner might not, until after the neriod for redemption had expired, be enabled to ascertain to whom he should tender repayment. It is clear, therefore, that in this case the tender of repayment to Carr was sufficient to prevent the title of either himself or Ramsay becoming absolute. Indeed this point was scarcely insisted on at the bar. The point chiefly insisted on was this. Hugh Garr and his brother, Donald Garr, in his affidavit, states that when BeBlois, the plaintiff's agent, made his tender he did not SULLTVAN V. CARE and H. & J. RAMSAY. 161 express that he made it in the name and on the behalf, or as the agent of the plaintiff, and that when he exhibited the money to the defendant he did so without naming or referring to any person as owner or proprietor of the land. And for this reason it was insisted that the tender was bad. But the affidavit of DeJBlois and also of Cameron, who was present 'State that it was made in the name and on the behalf of the plaintiff. No particular form of words is necessary in making « tender. It is enough if the fxirty understand on whose behalf it is made. And if he had intended to rely on that as a defence he should have distinctly sworn that he was ignorant > and really did not understand on whose behalf DeBlois acted in making the tender. If evidence on this point was necessary the affidavit of Gariferon would be conclusive. From it, it appears that the principal part of the land in question is a farm called Rose Hill. That one John Ramsay the father of the defendants, Hugh and John Ramsay, (who has been long since dead) was, in his lifetime, tenant thereof to the plaintift. That ever since his death they have continued to reside with their mother, Martha Ramsay, and that df fendant, Hugh Carr, is married to their sister, and that Martha Ramsay, since her husband's death, hath been and still is tenant to the plaintiff. Here then we have the son-in-law buying in his mother-in- law's farm for 50s, for the non-paynient of a tax which she, as the tenant and occupier should have paid, and then conveying it to her sons who have always resided with her on the farm. Under these circumstances it is absurd to suppose. /Tu^A Carr could have been ignorant of the plaintiffs claim to the land The plaintiff is, therefore entitled to redeem, and as the defendants have furnished no account of their claim, but have resisted the application on general grounds, the amount tendered must be deemed sufficient, and the Rule must be absolute with costs. The order will, therefore, be that the said Lawrence Sullivan •do, within 2 calendar months after the date of this order, pay to the said Hugh Ramsay and John Ramsay the sum of nine pounds, or as much thereof (if any) as shall remain due after deducting costs hereinafter mentioned ; and that thereupon the said Hugh Carr, Hugh Ramsay and John Ramsay do recover the lands mentioned in this cause to have been con- veyed to the defendant, Hugh Carr, by Sheriff's deed, and by him the said Hugh Carr, sold and conveyed to the said John 21 162 THE QUEEN v. THOMPSON & WALSH. and Hugh Ramsay, as therein stated to the said Lawrence Sullivan. And it is further ordered that in such conveyance a proviso be introduced that such conveyance shall not preju- dice, affect, or make void any right or claim which the said John and Hugh Ramsay, or either of them, now or hereafter may have to the said premises, or any part thereof, under or by virtue of any lease thereof granted by the said Lawrence Sullivan, or any person or persons through whom he claims. And that the said Hugh Carr, John Ramsay and Hugh Ramsay do also pay to the said Lawrence Sullivan the costs of this Rule to be taxed. The said Lawrence Sullivan being at liberty to retain such costs out of the amount so ordered to be paid by him as aforesaid. But in default of the said Law- rence Sullivan paying unto the said Hugh Ramsay and John Ramsay what (if anything) shall remain due to them as afore- said after deducting such costs as aforesaid within the time aforesaid, it is ordered that the Eule in this case be discharged with costs to be taxed against the said Lawrence Sullivan, and that he be from thenceforth debarred from the benefit of Redemption in the said lands. Dated this 26th day of Janu- ary, 1863. THE QUEEN v. THOMPSON & WALSH. Hilary Term 1863. Jury de m.ediatate linguae — If right to ever existed in Prince Edward Island is abolished by Island Jury Act. In the case of the Queen v. Williams we held that an alien was not entitled to a Jury de medialate linguce because our Jury Act expressly provides that the Jury for the trial of all civil and criminal cases shall be liege subjects, and also adopts an entirely new system of choosing jurors, and having made no exception in favor of an alien's right to a jury de medialate lingua, that right (if it ever existed ia this Colony) is abolished. The same effect appears as (Bl. Com. thinks unadvisedly) to have been produced by 25 Geo. 3, c. 25, on the aliens right to such a jury in civil suits. By the 28 £Idw. 3, c. 13, aliens in civil as well as criminal trials were entitled to a jury de REDDiN V. Jenkins: les mediatate lingua. But the 25 Geo. 2, c. 25, having made hew provisions for the empanelling of jurors in civil cases without any saving clause respecting an alien's right, was held to repeal that part of the 28 Edw. 3, relating to civil suits. And in the English Statute 6 Geo. 4» c. 50 which makes new provisions for empanelling jurors in both civil and crimi- nal caies is preserved by express provision. It is also observable that the 1st Ph. & M. c. 10 which was held to deprive aliens of the right in cases of Treason, only contains general words, that persons accused of Treason shall be tried according to the course of the Common Law. The Attorney General in this case offered to waive any objection to the motion and to allow the defendant to. have a jury de mediatate lingum. But it is laid down 2 Com. Dig. 183, " and a trial per mediatatem Ungues where it ought not to be is not good though by consent for that shall not alter the Law." Sherley's case 2 Dyer 144, 2 Hawks 590. REDDIN V. JENKINS. Hilary Term, 1863. Registry Ait — Judgments binding land — where L con- veyed to I, and subsequently to the conveyance, but before its registry judgments were entered up against L — held such judgments did not bind the land conveyed. From the facts stated in the special case, submitted in this cause, it appears that one Wm. Lohban, by deed executed on the 3rd of May, 1854. but not registered until April 1860 conveyed certain lands therein described to Jenkins. Thot in 1859 the defendant exchanged these lands with the plaintiff for certain other lands owned by him. That by the agreement the title to the defendant's lands was to be clear and market- able. That the plaintiff has conveyed his land to the defendant, and that the defendant has tendered a conveyance of the land mentioned in the deed of May 1856 to the plaintiff, which he refuses to accept in consequence of their being certain judgments entered up in the Supreme Court against Lobhan subsequently to the execution of the deed of the 3rd of May 1859, but 164 REDDIN v. JENKINS. previous to its registry. That no memorial of these judgments- is registered in the Registry OflSce. The question raised, therefore, is, whether a judgment (no memorial of which has been recorded in the Registry Office) binds lands previously conveyed to a bona fide purchaser who has ne'glected to register his conveyance until after the judg- ment has been entered up. The question, as affecting real estate, is an important one. The 10 sec. of 3 Wm. 4, cap. 10, which provides that no unregistered deed shall defeat any deed of the same lands duly registered, contains a proviso that the Act shall not affect judgments, although no Memorial thereof be recorded in the Registry, " but such judgments shall have the same effect as if this Act had not been made." On the execution of a deed (and without Registry) the estate in the land passes to the grantee. As the Act leaves judgments in the same plight as if the Act had not been made, and as at Common Law the judgment only binds lands to which the defendant, at the time of its entry, was entitled, it is clear that a judgment against the grantor cannot bind lands which he has previously conveyed, because at the time of this judgment being entered up the estate in the land so conveyed was vested in another. The effect of the proviso Is merely to protect judgments entered previous to the execution of the conveyance, and which, therefore, bound the defendant's land from being subse- quently defeated on its registration by the operation of the Statute. But the 23 Vic. cap. 27, enacts " that judgments already entered up, or hereafter to be entered up against any person in the Supreme Court, shall operate as a charge upon all lands, and of, or to which such person was, or shall be at the time of entering up such judgment, or was, or shall be at any time afterwards seized or entitled for any estate whether in rever- sion, remainder, or expectancy, or over, which such person at the time of entering up such judgment, or at any time after- wards had. or shall have any disposing; power which he might, without the assent of any other person, exercise for his own benefit." It was urged that if Lobhan, at the time the judgment was entered, had executed a deed to another who had registered it, it would convey the estate, notwithstanding the previous DOE DEM STEWART v. McPHEE. 165 conveyance to Jenkins, and that, therefore, vZo4 Jaw must be considered at that time to have had a disposing power. But the deed would, in that case, have operated, not by virtue of any seizure passing from Lobban,(for that had already passed from him to Jenkins by the deed of May 1856) but by virtue of the Act of 3 Wm. 4 cap. 10. The disposing power mentioned in the Act must mean a disposing power which may be exercised lawfully and without fraud which the Act could never have intended to riender it legal to commit, though from policy it protects the innocent vendee whose deed is registered from being affected by it. The finder of a bag of money with the owner's address on it, acquires, by such accidental possession, power to pass it away, and so may be said to have a disposing power over it. Yet in doing so he would be guilty of Larceny. Besides the disposing power mentioned in the Act must be one which a person may exercise in any manner he pleases for his own benefit. Suppose Lohban after the conveyance to Jenkins had executed a deed of the land to trustees for his own benefit which they record, could it be argued that it would defeat the previous unregistered deed ? We think the judgmente mentioned in the ease do not bind the lands conveyed by the deed of May 1856 to the defendant and, therefore, judgment must be for the defendant. (Note). — Vide Wickam v. the New Brunswick and Canada Railway Company 1 P. C. L. Rep. 65. DOE DEM STEWART V. M'PHEE. Easter Term, 1863. Ejectment for want of property to distrain — where bailiff in searching for property to distrain on — in passing hovel asked tenant if it contained property and he answered, no— held tenant was not estopped on trial from shewing that it contained property. This was an action of Ejectment on a condition of re-entry under the Statute for want of property whereon to distrain. From the evidence of the Bailiff it appeared that he was sent to search the premises, and also with a declaration in Ejectment to serve in case no property was found. That in 166 DOE DEM STEWART v. McPHEE. going to the premises he met the defendant and informed him of his intention. He proceeded to search the premises and found nothing. That while engaged in tFfe search on passing a hovel he asked the defendant if tliere was any property in it, to which he replied that there was not, and the Bailiff passed on without searching it, and then served the Ejectment. The defendant did not dispute his having given the answer, hut proved that there was, at the time, on the land, property sufB- cient to satisfy half a year's rent. The plaintiff was not prepared to contradict this statement, but contended the defendant was estopped from controverting tiie truth of his statement to the Bailiff. The Judge was of opinion that he was not estopped and expressed a strong opinion on the case agrtinst the plaintiff. He submitted to a nonsuit. A Rule was granted, to shew cause why the nonsuit should not be set aside and a new trial granted, and we are indebted to the Counsel on both sides for a careful and elaborate research into the authorities, as well as for the acute and lucid manner in which they have been commented on, and by which we have found ourselves materially assisted in considering the question. The coiiclusion we have arrived at i=, that under the circnm- stances of this case, the defendant was not estopped from shewing that there was property in the hovel which might have been distrained. It is a maxim of law that no man shall take advantage of his own wrong. And there can be no doubt of the soundness of the principle founded on that maxim, that he who wilfully by his words or conduct prevents a thing being done, shall not either as plaintiffor defendant avail himselfof the non-perform- ance he has occasioned. But the question here is, whether the representation was such as under the circumstances a Bailiff would naturally rely upon, if it was not, the defendant can scarcely be said to have occasioned the non-performance of the act. Now what are the facts ? In searching for property to distrain the Bailiff passes a hovel (not appearing to be a place where anything could be found.) He asks the defendant if there is anything in it, and the defendant replies there is not. The defendant does not appear to have used any artifice <"■ other means to induce him to abstain from searching the hovel. No authorities with which we are acquainted go the length DOE DEM STEWART v. McPHEE. 167 of holding that a mere untrue answer to a question which a party has no right to put, shall prevent the party answering from afterwards shewing the truth in his defence. Here the defendant was under no legal obligation to assist the Bailiff, and he was under a pressure when men are naturally disposed to shield their property if they can. From the question asked he might naturally infer that the Bailiff did not think the hovel worth searching, and would likely pass it by. He was not bound to answer. But it is argued that if he did, he must answer truly. In some cases such an obligation may indeed exist, but in many cases so strict an adherence to sound morals is not required. Thus is Yemon v. Keys 12 East 637, Lord EUenhorough says " this appears to be a false representation in a matter gratis dictum by the bidder in respect to which the bidder was under no legal pledge or obligation to the seller for the precise accuracy and correct- ness of his statements, and upon which, therefore, it was the sellers own indiscretion to rely." Besides, here the question placed the defendant in this dilemma. If he answered in the affirmative, he, in reality, assisted the Bailiff by leading him to the property. If he was silent, his reluctance to answer might raise a suspicion in the Bailiff that would lead fo a similar result, and, therefore, to prevent himself from being, by his words or conduct, made instrumental in altering the Bailiffs intention of passing the hovel without search, he might feel it necessary to answer as he did. The soundness of C. B. PollocMs dictum in Bowes v. Foster Hurlstone & Norman's Rep. " that a man who under the pressure of distress and misfortune, makes a misrepresentation is not in the same delictum as the man who does so without such motive," may, as a rule for general application, be o pen to question ; but there can be no doubt of its appositeness to a a case where, by the words or conduct of one party, another, to aVoid compromising himself, is reduced to the necessity of making a false statement which it is aftewards sought to estop him from contradicting. The Rule as laid down by Lord Denman in PicJcard v. Sears 6 A. & Ell. 474, requires that the statement must be made under such circumstances as would naturally induce the party acting on it to believe its truth. Now, no reasonable man really anxious to find property to distrain would give much credence to a tenant's statements made un^er the circumstances 168 D0E DEM STEWART v.McPHEE in which the defendant waa placed. Although if his real object were to lay the foundation for an Ejectment it would further his purpose to act on the assumption of its truth, tA aveid the discovery of property small, compared to the rent due, yet sufficient to destroy the foundation of the coutemplated action. The American case Presbyterian congregatio7i v. William G. Wendell was much relied on for the plaintiflf. There the defendant in an action of Ejectment brought in a condition of re-entry for nonpayment of rent without sufficient distress on the premises, had declared at the time of the distress made that the property on the premises did not belong to him, and it was held that he was estopped from shewing at the trial that it didt But in that case the false statement arose in the wilful and voluntary conception of the defendant, made for the fraudulent purpo'se of inducing the plaintiff to give up goods then in hia possession, which he had a legal right to retain, and was not elicited by a previous question. The plaintiff, under the cir- cumstances would, naturally, believe the statement to be true, and could have no present means of ascertaining it to be false* Here the statement is elicited by an unauthorized question put to one in whom the questioner hadno right to repose confidence! and whose position must tempt him to answer untruly, and respecting a subject matter then present, the examination of which would have tested its correctness. If in such a case a party neglects the higher evidence of ocular demonstration and trusting to the answer, omits the performance of a necessary act, he seems prevented from performing it rather through his own indiscretion than by any wilful misrepresentation of the defendant. Such a case comes clearly within the rule laid down by Story (1 Equity 208) " that it is not every wilful misrepresentation even of a fact which will avoid a contract upon the ground of fraud if it be of such a nature that the other party had no right to place reliance on it. And it was his own folly to give credence to it, for Courts of Equity, like Court of Law, do not aid parties who will not use their own sense and discretion upon matters of this sort." A case was put by Mr. C. Palmer of a tenant telling a Eailifi that he did not wish him to enter a private room, and that there was nothing in it. It was asked, might he not in such case rely on the statement and omit the search ? Un- questionably he might. That would be like the case of tht StFLLTVAN ». CARR and H. & J, Ra .uoa i . 169 drawer of a foreign Bill (to save expenses) requesting the liol'der not to present it, who is afterwards prevefited' from •ohjecting to the want of prdtest in an action on the Bill. So in the -case put, the tenant would not be allowed to insist on the nonperft>rmance of an act omitted to' be done for hiS benefit and at his request, nor lo contradict the truth of tfbe statement by which he induced the nonperformance; In such cases there is an implied agreement' that if the one party will omit to do the act the other wfll^ not object to ita •omission. It is unnecessary to refer particular^' to all the eases ciCedf -at the bar where admissions' or representations have beea held binding on the parties maldng them. In all the relative position of the partiesi with respect t& the transaction' of subject matter, was such as entitled the party deceived tw -expect correct infcH-matibn 4mm: the party making the misre- presentation, or there was a suppression ot factsi wfaach, under, the circumstances, the party was> bound- in oonscieaoe and. duty, to' diseldse, or he was silent when- he was bound to speak andi igive notice of his claim.; We tihink, how-ever, that the nonsuit was incorirect, the •defendiemt having given evidsenee to co»tiradict hiS' fovtnier statement, the plamtiSThad a right toi have: the credilxlityof his ttiStitaiony submitted' ton the Jury. The Rulei must, tberefore, be absolute for a new trial, but the costs to abide the- event This course cannot ppejudicei the defendaaty fbrj, if on th« second trial the ^ary believe' bte, he will have » verdict aind the costs of this Rule will be taxe^tofhita, and if they dosbelievs bim' he cannot complain t&at he kas- J^eB' preventeid feont profiting by hiB own' fakebciodL Rule absdbte^— costls to^ abide ev«tit. SULLIVAN «^. CARR an* H. & J. MMSAY. Hilary Term, ? Ig6'4. i Land tax deed — IJecfemptibn— Atiaohijient' granted against defendants, pur^frasers; for natexectflitog' deed' ef'reeonveyanoei -aeoof ding t& order' of CSwirt, The order to execute the reetinveyaticB- was madte iit Miarf Term^ 186S, 6ut the .pifafnlSff'* Attorney, fij consegueBcef take them by surprise. But we think the order of Hilary Term is the foundation of the whole proceeding It was that order which directed the defendants to convey, but no place for execution of the deed being named in it, it became necessary for the plaintiffs Attorney to seek out the defendants and tender it to them for execution. The order of Easter Term is merely supplementary, for in fixing a particular place where the deed should be lefl for execution by the defendants, leaves the original order still in force "which bound them to reconvey. But it is further urged that the Rule Nisi is drawn up in reading "iZwfe and affidavit," and that this must be held to refer to the Rule n^entioned in the body of the order, viz., the Rule of Hilary. But on looking at the papers it appears clear that such could not have been the case as there never was any Rule served but that of Easter, with which the defendants find their Attorney were served, and on the reading of which Rule and affidavit this Rule Nisi was granted. Under these circumstances it is absurd to suppose that the defendants ai)d their Attorney could be taken by surprise, or could suppose that they were not called on to excuse them-: THE QUEteN j>. CHAS., WM. & A. tORD. 171 selves for not executing the deed deposited with their Attorney. The Rule must, therefore, be made absolute. But as the wording of the Rule Nisi afforded some ground fdr doubt on which the defendahts' Counsel seem to have resisted the Rule, the order will be that no attachment do issue thereon until after the first day of March next, and then that such attach- ment do issue only against such of the defendants as shall not, on or before that time, have executed the deed of reconveyance now deposited with Mr. E; Palmer, their Attorney. THE QUEEN «. CHAS., WM. & ARTEMAS LORD. East«r Term, 1864. Sea Shore— right of Public to have way over shore when tide out — right of riparian owner to make erections on shore — riparian owner has the right to sBa-Wefed deposited between high and low wAter mark. This was an Indictment for a nuisance. The defbndants had erected a wier on the sea shore in front of their farm for the purpose of collecting seaweed. At the trial certain questions were by consent left to the Jury, and answered as follows : 1. Whether the site of the wier, erected by the Traversers* on the shore of Gumherland Gove, is between ordinary high and low water mark ? Ans. The greater part of it is. 2. How long, and for what period, and for what purposes, and by whom the said space between ordinary high and low water mark has been used ? Ans. Fifteen years, for hauling seaweed, stone and shell-fish by the neighbors. 3. Whether the site on which the wier is erected from end to end in every part of it was, at any former period, sand hill land, or marsh land, and belonged to the farm occupied by Charlei Lord, one of the Traversers, although now washed away and covered by water at ordinary high tides ? Ans. It was sand hill, and belonged to the farm occupied by Charles Lord one of the Traversers. 4. Whether a suiBcient Highway for horses, carts and carriages does, or does not exist between the head or commence- ment of tha wier erected by the TrgverserS) and the front or 172 THE QUEEN v. CHAS,, WM. & A. lORD. ma,rsh ot Charles Lord's farm on Cumberland River} Ans^ There -does exist a suflScient flighway. ,15. Whether a Highway sufficient for horsey, carts and carri- ages idoes oridoes not exist, at 'the outer end. of the wier erected by.the Tiaversers on Cwnberland Cove? Ans. There does not exist a sufficient Highway. 6. Whether ibj the erection of the wier by the Traversers in Cumberland Cove, the Public, generally, 'are impeded j» travelling, hauling, or in any way however, in getting ' sea weed, stone, shell-flsh, or any other thing to which the Public at large have a right on tke shore at Cumberland Cove ? Ans. Thby are not imjjeded The question bow js, whether the facts so found amount to a verdict of guilty. It was contended by the defendant's Counsel that the shore on which the wier was erected 'bavingr been once comprised in the defendant's farm there was nothing in -the finding to shew that the encroachment of the sea had been of that gradual kind which would deprive the owner of his right to the soil now overflowed. But without deciding this .point we think it more advisable that our decision should be ,^iven|on the general and more important question raised by the Attctmey General, viz,, whether the owner of land can place such an erection on the shore in front of his land, bglow ordinary high water mark, for the purpose of collecting sea- weed floating on the water, or securing it when relicled, without being guilty of a nuisance for obstructing a "high way ? The Attorney General contends that the sea shore between high and low water mark during the reflux of tlie tide, is a common Public Highway and that the Public liave a rig"ht toftravel over every partof it, and therefore an erection which obstructs the way, or any par-t of ,it, is a nuisance in (he same way as if it was a highway on land. For the defendant, it is contended that he has the right to collect sea-weed floating on the sea, or lyiijg on the shore between high and low water mark, and, therefore, he has the right of using such ,nieans as he thinks fit for collecting or securing it, .provided a sufficient wajjr is left so that the Public are not, really injured. Assuming the Public to have a right.of way on the shore between ,high and low water mark when the .tide is out, it will be convQnient,iin,the first ,place,,to examine whether there is a complete analogy between it and a highway by land. In the THiE qjUiEEN V. CH-AS., WM. & A. liORD. IZS case of a ibighway by land, wfhether 'created was aniiisanoe." -A verdict in «uoh 'case finding the 'obstruction, ibutfthat it wa8?no nuisancejwoifld amonnt'to aAConviction. ^^e.Rtgmato. OhanUton 22 L. & E., IJep.-240. Btrt the 'public right in^ithe use of navigable waters is not .C(W/&»e«Z to the Mght of nanrigatingior passing along them. That is indeed the 'primary anght,tbat there are other rights, such as the 'right of fPishery, wihicb, though subservient, is equally well recogtiizeid lin Jaw. iNow admitting the existence Of a 'right Of "way on 'Jhe -shore 'when the tide 'is out, it must -certainly be snbjeot'to the same kind 'Of interferenae from -other conflicting 'rights, Us 'it was -when covered with water. Does it follow then that levery serection on any part 'Of the shore, when ileft dry, is a nuisance 'as obstructing the right of way ? The right of' navigation is the paramouilt right, and"'^er »e " gives 'every one airight toisail his craft in any -direction he pleases, 'but in as ^nuch las tin ihe exercise of the opposing light of fishery, various contiivauces all for a "time requiring possession 'of 'parts 'of the water .are necessary, that lo^a certdin extent, linlits or interferes withitbe-j'j exercise df the paramount right. Thus, suppose 1lheiieitb|i. ' danger from shodls nor press -df 'wind renders 'it 'neces^r^'W 174 THE QUEEN in ChAS., WM. & A. LORD. do 80? Angell, 81, treating of this subject^ says " that where a net waa run through in the Passaic river, the decision was that tbe right of fishing must jield to the right of navigation where the two rights come in conflict and that Where one right only can he enjoyed that of navigation must be the one. At the tame time it does not swallow up and obliterate the right of fishing, and where hoth rights can at the same time he enjoyed freely and fairly, that of navigation has rlo authority to trespass upon and incommode the other. The right of navigation, though superior, does not take aWay the right of fishery, but only limits it and limits it only so far as it interferes with its oum fair, useful and legitimate exercise. If the master of a vessel) under the pretence of exercising his right, should wantonly turn out of his regular course to run upon a net, or lie in wait till the net be spread, and then crowd sail to reach it, or if he should unnecessarily and wantonly anchor on fishing ground in those and in like cases, he is answerable in damages." Now, what are the rights of riparian ownerS) with respect to seaweed . In an Irish case, Howe v. Stawell, Alcock & Nap. Bep. 351, where 'it was held that the public had no common law right to enter and take seaweed from tbe shore between high and low water mark. It was asserted by Counsel and not denied that the public had a right to take it in boats while floating in the sea. And it is expressly laid down by Angell, 261, " that the right to take sea weed helow low water mark is in the public and not exclusively in the riparian owner." But it is an anc ent and well established rule of law, that alluvion, or whatever may aid in the formation of land deposited gradually, or by little and little, belongs to the owner of the adjoining land, and, therefore, a stranger has no right to remove sand or other marine substances as they are from time to time washed up and deposited on the shore, or else their accumula- tion, which might in time form land, or raise the beach which protects it, might be prevented. And it has also been decided that artificial means may be brought to aid natural causes in producing it. See Adam^ v. Forthingham cited Angell 251- Angell, after treating of the nature of alluvion, p. 259, says " it is consistent with the explanation which has been given of the legal meaning of imperceptible increase that seaweed deposited Upon the shore by natural means helow the ordinary high water mark should belong to the riparian proprietor bounding opposite. And it has so been held. In Emans v. Tumbull in THE QUEEN v. CHAS., WM. & A. LORD. 173 New York, the question, who had the right to seaweed, came directly before the Court, when the opinion of the Court was given by Kent, C. J., as follows : — Seaweed thrown up by the sea may be considered as one of those marine increases arising by slow degrees, and according to the rule of the Common Law, belongs to the owner of the soil. The rule is, if the increase be by small and almost imperceptible degrees it goes to the owner of the land, but if it be sudden and considerable, it belongs to the Sovereign. Seaweed is supposed to have accU' mulated gradually. The slow increase, and its usefulness as a manure and as a protection to the bank will, upon every just and equitable principle, vest the property of the weed in the owner of the land. It forms a reasonable compensation to him for the gradual encroachments of the sea to which othcF parts of his estate may be exposed. This is the sound reason for vesting the marine increments in the proprietor of the adjoining land. The Jus dlluvionis in this respect ought to receive a liberal encouragement in favor of private right. As the principles on which the above case was determined appear so obviously rational, and at the same time so perfectly con.. formable to the rules and analogies of the law, and as the question in controversy was decided by a Court of such great authority and by one of the most eminently legal men of the age, the decision will, no doubt, be received as fully establishing the law in this country with regard to the right to seaweed." From these authorities it appears that the riparian owner has a right, in common with the public at large, to take seaweed while floating in the sea, and that he has the exclusive right to it when deposited on the shore. Now if such be the nature of the riparian owner's right, with respect to seaweed, may he not, like the fisherman, use such contrivances as his own skill* or the peculiar circumstances of different localities may suggest for catching it while floating in the sea, or securing it against being drifted away after it has become his property by being deposited on the shore. Admitting, for the present, that the public have a right of way over the shore, still, like the owner of the vessel whose right of sailing in any direction is, to a certain extent, interfered with by the fisherman's nets, so the public right of passing along the shore may, to a certain extent, be interfered with by the contrivances of the agriculturists jased tc catch or secure seaweed. Again, if he can lawfully jVS.e artificial means to promote or induce alluvial deposits, an4 176 tlffi'«iIfEffi]Sf v: CHASi, WM. & A. LORD, ifseawe^be a subjpciti fo^ foimiog-, sucb deposits, is, not that dei3isiy« a< wharf is erected there cam be DO' baianciag of nuisance^ ob I'atiiei! the^ convenience, of one elfiss aigamst the inoonveniencei sustained bjjF- another (the case of Bex V, Eaessel 6 B<. 4" €• &€.6,i where hisi doetrine- seems toi faav« been held was disaipproved. of by the, Gouet' of 2 B. ia Eeffina v., Belts 22 L. <& 'E^ Bepk 2^7, and subsequently ovemilted' in' Rem' v.- Waa>a 4 ad. & Ell 4<)6)i because tbepublitr and eveiy daiSs- of i* hav-C' a rigbt to an* tmHwieedt navigatiem of the watef and' wharvies', thougft^ necessaity for unloading, of vessels^ are" not erections made under authority, or in the exercise of anj* prfii^ilege wbidh the pevson making tiemf Itae- a right to efijoyi They are in llaw purpdestuiies' mhiob,, wheAtr a nui'sande ot rail', may at any titofe be- abated by thei Sovereiga as owner of the shore or soil in- whieb they stand (which, of course, is- never done by the Sbviereign' unless the public good requires' his i'nterventitott.) But if they really d© obstruct the navigation so that any class of the public are inoonveniencedi they are also a nuisance; AngeU 98. Eex' «. Russ^l, W Jur. IGSa". Yet, even- then the defendant may shew that the injuiy to all is absorbed^ in thegreateV Benefit conferred om all by th» erection. 'EM, when- the act cOm^laiined' ol is due In the exercise of a legali right, as that of fishery, or coUectiBg- sea- weed the law regards' the rights' of both'. This distiisctioai is alluded to by Lard DenirtaH', in Bex ». Ward he' says, "• Sat the learned Goutisel contend that they ffid' not want the amtbo- rity of Eex v. Russel, and coiild' establish their right to a, verdict of not guilty on the finding of *I»e' Jury from » eoasid- THE QUEEN v. CHAS., WM, & A. LORD. a77 eration of the nature of the place where the nuisance is charged- They say the river Medina, as described in the indictment, is not merely a navigable river, but a port Gowes Harbor, and they rely on the various rights that may exist together'in such a place and their unavoidable inconsistency at particular times. The same remark may, however, be true with respect to a highway where right of common and right turbary may exist art the same time. It is still more strikingly true in respect «f navigable rivers from which it seems impossible to distin- guish the case of ports in principle, though the degree may perhaps be different. When such rights happen to clash in questions brought before the Courts the valuable maxim ' «c niere tuo ut alienum non Cedat ' will generally serve as a clue to the labyrinth." " But the possible jarring of pre-existing rights can furnish no warrant for an innovation which seeks to create a new risht to the prejudice of an old one." Is not the real effect of the finding in this case that the defendants have exercised their own right so as not to injure the right of othei's ? In considering the case, I have so far assumed that the public have the same general right of passage over the shore between high and low ^ater mark with carriages when the tiSe is out that it has over it in boats when covered with water, and even en that assumption this finding is an acquittal. 'But the truth is, that it has not, in law even that general ■right, bat that any right it has is one of a much more limited or rather of a different description. The property in the soil 'between high and low water mark is in the Sovereign, yet it is'Baid to be also at common right public. But this public fright appears from Lord Hale to be the public right of naviga- tion for the purpose of trade and intercourse, and also, the liberty of fishery. But that is a very different thing from the general right of way set up here, and which muit exist before (on this finding) judgment can be given against the defendants. ,It may be that the public, as incident to their right of navigation and fishery, have a right of way across the shore for purposes connected with those privileges,but that right must be exercised with due regard to other equally well recognized rights. It does not follow that because a man has a right to land his fish on the shore between high and low water mark or to draw his boat up on it, or.beeause he has a right to collect seaweed 23 178 THE QUEEN v. CFIAS., WM. & A. LORD. floating in the sea cr growing below low water mark, that he must also have a right to drive his wagons for 50 miles along the shore. The right of way claimed here is not confined to any particular place. If it exists at all it must (as urged by the Attorney Generid) exist over every part of the sea shore, and it must, therefore, swallow up every other right which in the least degree interferes with its unlimited and capricious exercise. The same principle which would compel the Court to decide for sweeping away this erection, though found by the Jury to cause no public injury, might be used to sweep away every building, wharf and erection upon the shore of all the bays and rivers of the Island. If there be this same general right of way over the space between high and low water mark when the tide is out as there is along a highway on land, how can stakes, nets or other fishing fixtures be placed there? How can those stages of wooi, or ways of stone and brush we so often see ou the shores, and which are, in some situations, so necessary for unloading fishing boats at low water be main- tained ? To be useful, they must extend below ordinary high water mark and, therefore, must obstruct or interfere with that universal right of way which, as claimed, extends itself over every part of the shore between high and low water mark. If I sink a post in the street to tie my horse to, it would be a nuisance. But would any one imagine that the man who keeps a stake in the shore to fasten his boat to, is guilty of an indictable ofFenee ? These reasons are not new, they are the same as those used by Holroyd, Bailey and Abbott, in the elaborate judgments , delivered, by them in MundtU v. Oatteral 5 B. & A'd. 91. In that case the right of soil in the lan4 between high and low water mark had passed from the Crown to the plaintiff. But as the King though he may part with the soil of the sea shore, . cannot by so doing abridge the public rights in the sea or its shores, and as the defendants failed in establishing a prescripr tive right, then circumstances made no difference further than in enabling the plaintiff to maintain trespass qvMere clausum /regit provided the defendants would not, against the King, have had the right of way contended for. The defendants there claimed a common law right of bathing in the sea and, as incident thereto, a right to pass along the shore with carri- ages, &c. Holroyd in his judgment says, " by the Common Law all the King's subjects havei Jn general, a right of passage TtiE QUEEN V. CHAS.i WM. & A.LORD. 179 over the sea with their ships, boats, and other vessels for the purpose of navigation, commerce, &c. These rights are noticed by Lord Hale. But whatever further rights (if any) they may have in the S'-a, it is a different question whether they have or how far they have, independently of necessity Or usage, public rights upon the shore (that is to say between high and low water mark,) when it is not sea, or covered with water, and especially when it has from time immemorial been, or since become private property. And after a long examina- tion of the authorities he says this " shews that by the Common Law the King's subjects have not a general right to use the sea shore as they please even when the soil remains in the King clothed with the jus publicum.'' Bayley, J., after arguing in a similar manner on the authorities, says, " the right, as claimed, is not confined to any particular place if it exists at all, but it must exist upon every part of the sea shore. Every private building then erected upon the sea shore and even wharves and quays would be an obstruction to that right and, of consequence, abatable or indictable. And yet in how many instances are such buildings, wharves and quays erected ? Every embankment by which land is redeemed from the sea would obstruct the exercise of this right and be a nuisance, and so would the erection of stakes for holding nets. And yet how frequently are such embankments made and stakes set up?" And Abbot, J., says, " there being no authority in favor of the aflSrmative of the question in the terms in which it is proposed it has been ploced in argument at the bar on a broader ground. And as the waters of the sea are open to the rfse of all persons for all lawful purposes it has been contended as a general proposition that there must be an equally universal right of access to them for all such purposes over land like the present. If this could be established the defendant must, undoubtedly, prevail, because bathing in the sea is, generally speaking, a lawful purpose. But, in my opinion, there is no sufficient ground, either in authority or reason, to support this general proposition." The authority of this decision has been questioned by two text writers, but it is cited with approbation by Chief Justice Kent 416, and by him considered as pverruling Bagot v. Orr 2 B. & P. 478, and must be considered good law. It may be asked if the public have no right of way along the shore between high and low water mark ? Are they 180 THE QUEEN v. CHAS., WM. & A. LOED. altogether deBarred from n^ing it ? Certainly not. The right of property in the sea and the soil at the bottom and, also, of the land, between high and low water mark, is in the Sovereignr but, though the King has the property, the people have the necessary use. But these rights of use are only the right of piscary and navigation, and these are called public rights and are denominatedyura puUtca or jura communa to contradis- tinguish them from fura corona or the private rights of the Crown. These public rights are said to exist of common rightr which is only another epithet for CoramcD Law. With respect to these public rights (viz., navigation and fishery) the King is, in fact, nothing more than a trustee of the public, and has ne authority to obstruct, or grant to others any right to obstruct, or abridge the public in the free enjoyment of them. But subjeet to those public rights the King may graut the soil of the shore and all the prfvate rights of the Crown with it. ITet, until he does fo, he- Iwlds tbc soil clothed with the jut publtcwn, and while the seil thus remains the King's no un- necessary or injurious restrafnt upon the public, in the use of the shore, would be fraposed by the King the parens patricp And'htr does in fact, and tacitly permits all his subjects to use the shore betweem high and low water mart, as when and how . they please, so as, in doing so, one class do net attempt to> monopolize it to the injury or exclusion of another. And it is by virtue of this acquiescence of the Crown that the public in- general exercise the right of passing along the shore betweetv high and low water mark during the refliix of the tide. But this permissive use, though allowing all the enjoyment and exercise of a public way, which can be- reasonably desired, is- very different in its legal effect or operation on the rights of others from that absolute common Faw right of way attempted to be' established here, and which is paramount to, and destruc- tive of every riglit (no matter how important) which clashes with it, and which could, therefbre, compel every part of the- shore to be kept free from obstructions of any description. Science and the ingenuity of man are constantly offering' new inventions for the benefit of trade, manufactures, agricul- ure and commerce. Many of these can only become practically useful when located on the sea shore. Our newspapers are- now urging the introduction of one of the most useful of these modern inventions into this Island',, but if the use of the shore by tlie (jublic, as a way. Be not iiterely permissive, b»t of com- THE QUEEN v. CHAS., WM. & A. LORD. 181 mon right, by what authority could a Marine Railway, which must extend below low water mark and, therefore, leave no Passage, be erected or maintained ? The Jury would be com- pelled to find that it obstructed the way, and it must be adjudged a nuisance. But, further, as every man may justify the removal of a common nuisance, every individual might cut it down with impunity. But the right exercised under the permissive use justifies no such outrage, tolerates no sucb monopoly, but adjusts itself to suit the peculiar circumstances of difierent localities, and the ever varying requirements of public convenience. As observed by Bayley, J,, in Elundell V. Catteral, " the shore cannot be necessary for the exercise of this supposed right, and that it may be desirable to apply parts of the sea shor^ to other purposes. The King, for the public welfare, may sufier such a right to be exercised in those parts of the shore which remain in his hands, to any extent which the convenience of the pablic may require, but he may not, al^o, allow other rights to be exercised on other parts." One topic urged at the bar against this erection, was the inconvenience and contention it might lead to, as every one might make a similar erection in front oi another's land. But .a little examination of the law respecting the rights of riparian owners, will shew that no such inconvenience can arise. No one but the owner of the adjoining lasd has a right to place any erection in front of it, because his right of wa:-, in a direct Irne from every foot of his bank to the water, cannot be, in any degree, abridged, and because he has other rights of a private nature connected with the water which are paramount to all others and cannot be lawfully interfered with. Every man may build a wharf in front of his own land if k does not interfere with the navigation. But the King, though owner of the soil of the shore, cannot license a man to build in front of his neighbor. Angen,\Tp. 161, after shewingthat lands between high and low water mark may be reclaimed by embankment, anticipates and answers this very objection. He says, " it may also be urged that if the right of embanking in and upon the sea is founded dn the principle of prior occupation, it is then not confined to the owner of the upland, to the exclusion of any other person who may first commence an embankment. The answer to this- objection is as follows: — should an individual, who has no- interest in the upland, embank upon the shore between high 182 THE QUEEN v. CHAS , WM. & A. LORD. and low water mark, he would, obviously, interfere with rights of a private nature, as he would, by such intervention, shut out the owner of the upland from the water to which the latter, as riparian proprietor, is most unquestionably entitled." And in the case oi Bowman v. Watham, cited Angell last Ed. 171) in the Circuit Court of the United States, McLean, J., in respect to the Ohio River, (which he puts upon the same foot- ing as navigable tide waters) says, " it is enough to know that the riparian right on the Ohio River extends to the water, and that no supervening right, over any part ot this space, can be exercised or maintained without the consent of the proprie- tor. He has the right of fishery, of ferry, and of every other right which is properly appendant to the owner of the soil, and be holds every one of these rights by as sacred a tenure as he holds the land from which they emanate. The State cannot, either directly or indirectly, divest him of any one of these rights, except by the constitutional exercise of the power to appropriate private property for public purposes. And any act of the State, short of such an appropriation, which attempts to transfer any of these rights to another without the consent of the proprietor, is imperative and void, and can afford no justification to the grantee against an action." We might have disposed of this case on narrower and more technical grounds, but the Attorney General, on the argument, pressed us for a decision on the points expressly raised to determine a question of much public importance. The case was argued at great length and -with great research on both sides. Every authority bearing on the question was brought forward and very ably discussed. "We have, during the recessj given it the careful consideration which its importance demand- ed. In stating the reasons for our decision the examination of the authorities has led us to a length which may be consid- ered prolix, but it is diflScuU, very briefly to explain distinctions respecting rights of this nature, without leaving one's meaning open to doubt (at least to question) which, as this decision will probably, settle a question, heretofore, prolific of disputes, is* if possible to be avoided. The Judgment must be entered for the defendants. CAPELL V. CAPELL. 183 CAPELL V. CAPELL. Chambers. \ Aug. 21st 1865. S Judge at Chambers will not discharge a prisoner committed by Court of Governor and Council for contempt in not paying alimony pursuant to decree. This Ls an application on Habeas Corpus to discharge a prisoner committed by the Court of Divorce (for refusal to pay alimony decreed to be paid by him) on the ground that the Court has not the power to enforce its decree by attachment. I incline to think that the 5 Wm. 4 c.'lO, which constitutes the Governor and Council " a Court of Judication in the matters and premises aforesaid with full power and jurisdiction in the same," intended to give this power to enforce its decree. It is, no doubt, true that where a Statute creates -a tribunal to put in force laws of the mother country, which were previ- ously dormant for want of a Court to administer them, the new tribunal must follow the principles and, as far as possible, the forms of procedure usual in Courts having cognizance of such matters in England. But in this country one (sjnd indeed the most effective) mode of enforcing a decree used in England ,(viz., excommunication) cannot be employed,, as we can hardly presume the Legislature intended to give that power to the Governor and Council. And, therefore, it would seem reason- able to suppose that while the Legislature intended the new tribunal to adhere to the principles followed in administering that branch of law in England, it did not intend to restrict it in every particular to the English practice, but left it to adopt one more fitted to the circumstances of the country in which its functions were to be exercised. But T pronounce no decided opinion on this point. If it were necessary to 'do so, I should require to give a more careful examination to the authorities than I have done. The ground on which I feel myself bound to discharge this application is, that ihe party is committed by a Court having power to adjudicate on the subject matter, viz., divorce and alimony, and, therefore, I think a Judge at Chambers has no power to discharge him where the complaint is merely that the mode adopted to enforce obedience to a Jegal decree is irregular. If such is the case he must resort to his action at |law for redress. J jnust^ therefore, discharge this application with costs. 184 THE QUEEN v. GORBET & ORS. THE QUEEN «• GORBET & ORS. Hilary Term, 1866. -Criuiinal law — IndictmeDt qaashed because agent of prosecu- tor on Grand Jury who found Bill. Thi8 ie a motion to quash an Indictment found against the defendants for conspiracy, riot, and unlawful assembly. The oibject of the alleged conspiracy, stated in the Indictment, being to binder and obstruct Col. Cumberland in the recovery of his rents and, for that purpose, to hinder and obstruct the Sheriff and his officers in serving writs on his tenants. The Indict- fnent also contains counts for assault on the deputy Sheriff and his bailiff's while attempting to make such services. It appears by the affidavits one of the Grand Jury, Mr. Charles Wright, who sat on the finding of the Bill, was the agent of Col. Qumherland, for the collection of the rents and the general management of his Estate, and, as such, directed the issuing of the writs, in attempting to serve which the deputy Sheriff and his bailiffs were so obstructed and assaulted The motion is made on two grounds. Firit. That Mr. Wright's position was such as would, natu- rally, cause him to have an undue influence, or prejudice against the accused. Second. That as the assault and obstruction was against the deputy Sheriff and bailiffs the High Sheriff must, therefore, be presumed partial and, therefore, the whole panel is open to objection. A finding of twenty-four impartial jurors is required by oar law to convict one accused of a criminal offence. If a petit JHcor IS of kin interested, or not indifferent, there is no doubt he may be challenged as he comes to be sworn. It is laid down, with respect to Grand Jurors, in ch. co. Law 309, that if a man who is disqualified be returned, he may be challenged by the person before the bill is presented ; or, if it be discovered after the finding, the prisoner may plead in avoidance and answer over to the felony on producing the record of outlawry attainder,or conviction on which the incompetency of the jury- man rests. This necessity for the Grand Inquest to consist of men free from all objection existed at Common Law, and was affirmed by the Statute 11, Hen. 4, c. 9, which enacts thajt any Indictment taken by a Jury, one of whom is unqualified, shall THE QUEEN e. GORBET & ORS. 185 be altogether void, and of none effect whatsoever. So if a man be outlawed apon such a finding he may, on evidence that one of the Jury was incompetent, procure the outlawry against him to be reversed. It is clear that a defendant before issue joined may plead the objection in avoidance, but if he take no such exception before his trial it seems doubtful how far he can afterwards take advantage of it, except jt be verified by the records of the Court in which the Indictment is depending, in which case any one as amicus cttriae may inform the Court of the objection. But it is urged by the Attorney General and the Counsel for the crown, that though interest or relationship may be objected against a Grand Juror, mere circumstances which shew only ground to suspect undue influence or prejudice, and which might form ground of challenge to a Petit Juror, are not a sufficient objection to a Grand Juror's duties to enquire after all offences, and the ex parte nature and inconclusive effects of their decisions are urged as a reason for this distinc- tion. But there seems no sound reason for this distinction. If a man cannot be convicted without the voice of 24 Jurors, is it not against all reason to say that though 12 of them must be ' impartial, the other 12 need not ? If impartiality is required in one body, why not in the other also ? Instead of a protec- tion the body not required to be impartial might, in many cases, only create undue suspicion against the accused. The more general nature of their duties can afford no compensation to an accused who has suffered from partiality of all, or any of those by whom he has been condemned. The great object of the institution 'of the Grand Jury is to prevent persons being even called on to answer for alleged crimes without reasonable groun^t for accusation. It has been described by great jurists as the grand bulwark of civil liberty — their proceedings are conducted in secret, so that an accused or suspected person may not, without reasonable proof of guilt, suffer the mortification of a public trial. If individuals, who were actors on either side in transactions which form any material part of the subject matter of an accusation, could sit as Jurors in deciding whether an accused should be subjected to a public trial or not, the principal object of the institution might, in many cases, be defeated. But we are not without express authority on this point. In 24 186 THE QUEEN ». CORBET & ORS. a note to Chttty's Criminal Law 309, it ia said, " there exist^' the same rights for challeDging for favor the grand jury as the- petit jury, Burr's Trial, 38." The authority cited, it is true, is an American, decision, buC the general principles of law applicable to such cases are the- same in the United States as here, and that decision only follows what has been already decided in the Queen's Bench in Ireland in the King v. Kirwan, 31 State Trials 543. Lord Chief Justice Downs says, '* it would be monstrous to say that «n illegal Grand Juror should find an Indictment, and that the- man accused should have no mode to avoid it." This brings us to consider whether the circumstances stated in the affidavits respecting Mr. Wright support the objection.- Chitty, in his Criminal Law, 543, lays it down that " the third description of challenges are those which arise proper affectum, or on the ground of some presumed or actuiil partiality in the juryman who is made the subject of objection^ for the writ requiring that the Jury should be free from all exception, and of no affinity to either party, must, evidently, include both these grounds of challenging ; thus, if a juryman be nndcF the power of either party, or in his employment, or if he is to receive part of a fine upon conviction, or if he has been chosen arbitrator, in case of a personal ii^ury, for one of the parties, or has eaten or drunk at his expense, he may be challenged by the other ; so if there are actions depending between the jury- man and one of the parties, which imply hostility, that will be good ground of principal challenge." Could Col. Cumberland, whose rights it was the alleged object of the conspiracy to obstruct, have been considered free from such reasonable suspicion of undue prejudice as -alluded to by Ghkty and, therefore, not liable to challenge if called as a Petit juror. The Counsel for the Crown at first contended that he would, but on examining the Indictment they, very properly, abandoned that idea, but then the;!r contend that though Col. Cumberland might be challenged, his agent was not, necessarily, open to the same objection. But we think it impossible, under the circumstances of this case, to hold that an objection, good as to the principal, is not equally good jigainst the agent. Mr. Wright was the agent for the collec- tion of these very rents which it was the object •f the alleged conspiracy to prevent being recovered ; he, in fact, instituted the legal proceedings against the tenantB from whom they were BBECKEN & UXOR v. WRIGHT. 187 >dae;; and, though he might have no pecuniary interest in their recovery, yet he might, very eeasonably, be presumed to labor under what was aptly described by Mr. McLeod&s that ruffling and irritation of the mind, naturally felt by one who has been engaged in conflict with those suspected of a combination ^againsthim, or who have by predetermined violence or intimi- .dation prevented, or attempted to obstruct the due course of ^proceedings which he (though on another's behalf) may have instituted against them. The motion is, in substance, a plea that Mr. Wright was incompetent; and, as the facta, in our opinion, sustain the 'Objection, the Rule for gua«hing the Indictment mast be made 4ibsolute. BRECKEN & UXOR v. l(V|lfGHT. JK CHANOBRY, ) Dec. 16th, ;867. ) Construction of Will — acquiescence. In this case the plaintiffs filed their Bill to compel payment of an annuity charged by the Will of Geerge Wright, the father of the complainant, 'Phoebe Breafcen, and the defendant en lands devised to the defendant- On the 11th December, iSil, the testator made his will devising certain freehold •property to his wife, Phoebe Wright, for life, and after her decease, to the defendant, and, by a sabsequent clause, directed that the lands so devised " should be subject and chargeable with the support and maintenance of his said daughter Phoebe in a manner suitable to her station in life. And iq «ase any -dispute should arise with respect to the ::inadequacy -or insuffi- yciency of such maintenance, ^hen that -the sum of £30 per :annum should be paid to the said plaintiff, Phoebe, is lieu thereof." By a codicil dated 11th December, 1841, the «testator directed that, in case any dispute should thereafter arise, touching the maintenance of his said daughter Phof.be, as mentioned in his said last will, then ho directed ttiat ^he should receive, annually, out of the rents of the said property, referred to in hfs said will, the sum of £40 instead of £30 rs herein mentioned. The testator died in March, 1842. The plaintiff, Phoebe .^Cii:«», contiaued to reside in the bomeslcad 188 BRECKEN & UXOR v. WRIGHT. with her mother and the defendant up to May, 1844, when she married the plaintiff, Ralph Breckerii and ehe and her husband continued to reside with her mother and defendant for 18 months after the marriage, when they removed to his house. Phoebe Wright, the mother, died on the 20th Decem- ber, 1851 and from that period up to the 12th November, 1860. the defendant duly paid the annuity of £40 to the plaintifis, when he discontinued the payment and has since paid nothing., A large part of the answer, the evidence and the arguments are pointed to the circumstances of the testator and his family for the purpose of indicating his intention and,, thereby, to: influence the construction of the words used in the will. But there is no latent ambiguity, or, as Lord Bacon calls it, equivocation here, and I can only look at the words within the four corners of the will, and must refuse to consider any extraneous facts or circumstances. Tie testator, in very explicit language, gives his daughter maintenance, and in case of any dispute as to its inadequacy, or insufficiency, fixes it at £40 a year. The defendant con- tends that there is no dispute as to its adequacy or sufficiency and, therefore, he is not liable to pay the £40 in money. The testator evidently contemplated that a maintenance supplied in some other way than by a money payment might, in the then circumstances ot his daughter, be most convenient, for all parties ; but to secure her against annoyance and the devisees against excessive expenditure on her account, he provides that in case of any dispute respecting the inadequacy of the maintenance, she is to have an annuity of £40. Now it seems to me — having regard to the testator's objeet-r-the words " any dispute respecting the inadequacy,'' must be con-, strued to mpke her the sole judge whether the kind of main- tenance provided is adequate or not, and that she was,therefore not bound to assign any reason for objecting to it, but could,, at any time, insist on payment of the £40 in money, and that the demand of that sum on her part, and a neglect or refusal to pay it by the defendant, constituted such a dispute as was. contemplated by the testator. But suppose such a dispute as is contended for was a necessary preliminary to her right to. insist on payment of the £40 in money. The meaning of the word " dispute," as defined by Webster, is, to argue, to reason, to discuss. The defendant in his dsposition states " that after the death of bis mother. BREGKEN & UXOR v. WRIGHT. 189 Phoebe Wright, he, on being strongly urged so to do by the complainant, Ralph Brecken, and because the defendant did not wish that any disturbance should arise between partie3 so nearly connected, paid I he money." Now, it is impossible to read this admission without coming to the conclusion that there must have been reasoning, arguing, or discussion respect- ing the demand for a money payment of the annuity, and that of a character to convince the defendant that a refusal to comply with the demand would be followed by an attempt to enfgrce it, or he would not have feared that a noncompliance would create disturbarfce between them. There was, therefore, a " dispute." The meaning of the word inadecfuacy is " the quality of being insufficient for a purpose." The purpose to which the word here refers is the maintenance of this lady in a manner suitable to her station in. life. Now, though board and lodging provided for a young lady in her mother's house might he very convenient and suitable to her station in life and> therefore, a very adequate maintenance for her while single' it would be a very inadequate maintenance for her when she became a married woman, because that mode of providing it would not be convenient for her, and not suitable to her then station in life, and, therefore, I think the fact of the marriage and removal to her husband's house is sufficient evidence, and was notice to the defendant that the maintenance, as previously fiirnished, was not, and had ceased to be considered adequate for her in her then station of life,|and coupled with the demand for payment in money and neglect or refusal ot the defendant to pay clearly constituted (in the words of the will) a dispute respecting the inadequacy of the maintenance. It any evidence were wanting, the defendant's letter to the plaintiffs' Solicitor of the 3nd June, 1864, supplies it. June 2, 1864. Gentlemen, I received your note of the 28th of May, requesting payment of £140. I have not been able to understand what right Mr. Breehen has to demand £40 a year of me in cash. If he cannot sup- port hit wifi I am agreeable to do so from this 2nd day of June, 1864. He can let me know on cea month, or oftener, what he requires, and I will furnish every thing requisite necessary for her support. If he wanted the annuity paid (about which he harrassed the last years qf vnj mother'n life and gave ber to understand that 19(? BRECKEN & UXOR e. WRIGHT. if she wanted law she should have it) he shonld h^ve demi^iidei} it in items that he required for the support of my sister &c. Benj. Wkight. After paying nothing for 4 years he expresses his surprise that money is^ demanded, but promises, if the plaintiff, Ralph Brecken, it not able to support his w^«, he will furnish such things as plaintiff may demand, monthly, iois the future. Now, if an argument could be raised as to a dispute abotit adequacy^ surely tho paying nothing for 4 years and denial of legal liability to pay anything for the future, would be an EinBwer to i|t, as nothing at all would be an inadequate maintenance indeed. It is unnecessary to consider whether the paying for 9 year* in money is an acquiescence which would now preclude the defendant from objecting to that arrangeo^nt. But I think that the defendant beinff clearly, chargeable with th/s maintenance^ and having OB his sister's marriage, and at her request, substir tuted a money payment in lieu of that previously adopted, could not, after acting for 9 years on the new arrangement, repudiate it and go back to the first without his sister's ^consent merely because sovabfo:rmal dispute had not taken place befoia the last arrangement was adopted, his right to insist on such ^ formal dispute (if it had existed) would he waived by hi| subsequent condueU In every way in which this case can be looked at, I find the defendant is wrong, and the plaintiffs are entitled to the relief prayed. Let it be referred to Master Lontfworth to take an accouqt of what is due to the camplaioants for the .arrears of the annuity of £40 annually given to the plaintiff, Phoebe Breckfin, by the will and codicil thereto of her father, Qeo- Wright, in the Bill of Complaint in this cause mentioned, and which have accrued due since the 12th day of November, 1860, and to tax the plaintiffs their costs of this suit. And it is ordered that the amount found to be due from the defendant for such arrears, together with the costs to be taxed, be paid by the d^^ndant to tl|es plaintfgs. j^nd that any of the parties shfiU be at llbe^ tgjipply ta the Copt lu Qccafiqp (bal) require. «. J. HODOSON *. THOMAS DAWSON. m E. J. KODGS0N t;. THOMAS DAWSON. 'Chambers, ) Dec. 24tb, 1867. $ Applioktiofa for tim6 to plead— on what termi order grantisd. I should have hesitated to grant the order in this case if the plaintiff had sued the defendant simplj as endorser of the Botes. But one special count alleges the money to have been advanced to W. B. Dawson as defendant's agent, and at defendant's request, and for his own use, and that the notct were deposited with plaintiff as a collateral security for the benefit of both plaintflf and defendant. The defendant swears that it is necessary to obtain inforihation from W, B. Bawton relative to his dealings with plaintifi to enable him to plead, and with respect to this special count this may be the case. But the defendant does not state in what part of the tfnited States XV. B, Dawson is, though from his affidavit I must pre- sume he could and would have done so had he been very distant, tinder the circumstances t think 4 months would be an un- reasonable delay to impose on the plaintiff. As suggested by the plaintiff's Attorney, it would likely throw the trial over the next Trinity Term, and I think that 2 months is sufficient if the defendant Use diligence, and the order will he for two month's time to plead on the usulaw, though not nominally, (as a shareholder) was, in reality, a defendant in the suit, and therefore, the Judge could not try from his affinity ta the party ; and another in which the late Chief Justice Parker refused to try an action abont a boundary line because the prolongation of the same line wonU tiso form the boundary of his land situate at a considerable distance. But if, as it seems to me, the verdict in the case could not bind his right with the highest respect for the opinion of that eminent and very learned Judge, I think on that occasion he was in error. The authorities, and the best consideration I can give it, lead me to the conclusion that the objections urged are not such as do disqualify a Judge, but, notwithstanding, if there were any other Judge, by whom the case could be tried, I should hare gladly left it to him. But the Ckief Jttstice and myself being the only Judges^he being the plaintifiTs uncle, cannot try it, and my declining would prevent the case being tried at all, at least during the present term, I should, there- fore, have felt myself bound to proceed with the trial, but having consulted the Chief Justice on this question and finding that lie differs from me in opinioit I must dediae to do so. SWABEY V. PALMER. Hilary Term \ 1869. $ Trespass for shooting dog — master liable for acts of servant done in oonrse of eraploymenV — if from facts master's conour- renoe can be presumed trespass lies — in absence of such pre- sumption case against master proper remedy. This was an action of trespass against defendapt for the shooting of plaintiS's dog by defendant's servant. It appeared that many of the defendant's sheep had been killed and worried fcy dogs. Fitzpatrich, the servant, who shot the dog, in his' evidence stated that defendant told him to destroy all dog» that came on the premises without owners. The plaintiff also' SWABEY V. PALMER. 203 put in a letter from defeadant to plaintiff. The defendant .called no evidence. There was nothing to shew that the dog wat after sheep at the time, or was in the habit of worrying flbeep. The defendant's counsel contended that Filzpairiek had said that the or,ders w€re to destroy all dogs that came on the premises without owners to protect defendant's property. I told the Jury that the dog not being in the act of worrying sheep, and not shewn to be in the habit of doing ed, the shoot- ing him was unjustifiable, and that w*bether the orders were simply to kill all dogs coming on the premises, or to kill them to protect defendant's property, as the result of the servant's obedience to the order, led to the destruction of the dog, and therefore, the defendant was liable. A Kule Nisi is moved for on the ground of misdirection. It was urged that the servant was only ordered to destroy all dogs that came on the premises to protect defendsint's .sheep, and as there was no necessity to destroy this dog for that purpose, the servant acted beyond his authority., and, therefore, the defendant was not liable. The general rule is, that the master is liable for all acts of the servant done in the ordinary course of his employment, however wrong fcey may be, and however contrary to the intention or orders of his employer. The cases of Simpson v. London General Omnibus Company, %2 L.J. 34 cited in PouUon V. London Eailway Company 12 B. L. Rep. 537, and the Qnem v. Stephens 12 B. L. Rep. 702, aflfbrd strong illustra- , tions of the inflexibilitj^with whichj the rule is applied. la the first, the act for which the master was held liable was in direct violation of his orders, but was done in the course of the servant's employment. And in the*second, the master was held liable to be indicted for a public nuisance caused by acts of his workmen in carrying on his works, though done by them without his knowledge, and contrary to his general orders. But the master's liability in an action of trespass does not rest on the relationship of master and servant, but on the fact that the act complained of was done by his command, which may be establi^d by proof of a command to do the particular thing, or by a command toTjdo something of a more general nature which comprises the trespass, or which, necessarily, eads to the act complained of, or by shewing that the act was lone in the usual course of the servant's employment, where, rom the nature of the employment, the command may he 204 SWABEY v. PALMER. implied. Thus in Martin v. Lyons 8 Ad. & Ell. 512, Mr, Smith 1 46 remarks, that if the servant who had been used to distrain had merely distrained the cattle damage feasant the master would have been liable in trespass, but when he drove the cattle off the highway on to defendant's land, and then distrained, there could be no presumption of the meter's con. currence. And in Poulton v. London and Western Railway Company, the company would have been liable in trespass for the act of the station master in arresting plaintifi if he had giv^n him into custody for an act which the Company were authorized to arrest for, because however erroneously he acted, he would have acted in the course of his usual employment. The order was to destroy " all dogs coming on the premises without owners." This certainly would include any dog, and> consequently, this dog, when he came without an owner. But add the words, to protect bis master's property, and construe them as confining the meaning of the order to such dogs aa the servant should think it necessary to destroy to protect the sheep. This would amount to a general command to kill dogs coming without owners, with a delegated discretion as to the occasions on which he should act on it, and, therefore, in which ever way we take the order, the killing 'of this dog i would be within it, in the first case directly, in the second, by the servant exercising the discretion conferred on him. For the evidence ot Fitzpatrick was clear that he coiisidered himself acting in obedience to his orders, nor did 'anything appear from which it could be inferred that he did it for any purpose of his own so as to bring the ease within the rule of McManus v. Cricket 1 East 106. On this part of the case there is, therefore, no ground for a Rule. But the plaintiff by putting in the defendant's letter made it evidence in the case, and the defendant has the same right to rely on anything favorable to himself contained in it as if it; had been evidence proceeding from a mere witness in the case. It states that the orders to the servant were " to shoot every dog that came to the barns, unattended by any person, at night or early morning." Now taking the oi'der as so stated, I think the defendant would be liable. The business entrusted to the servant was to protect the sheep by killing dogs coming on the premiscss, .an4 though, through carelessness, imprudence, or excess of zeal he killed them at an hour of the day the defendant did not intend, Mcpherson «. eamsay. 205 and which might not be within the strict meaning of hia orders, yet he was, evidently, acting in pursuit of the business entrusted to him. Suppose a master orders his servant to drive stray cattle off his land, and in doing so he maims or injures them with a pitchfork, or other improper instrument,Jit is laid down the master would he liabl*. :,Jteeves Domestic Relations 517. Yet there the master never ordered or intended, the servant to use improper instruments, or to injure theteattle. That is a stronger case than this. But the dog was shot between 11 aud 12 A. M. Then if the orders accorded with the letter, was the dog shot within the prescribed time ? And if not, then a question (scarcely dwelt on at the trial) would arise, viz., whether the case does not fall within the rule laid down in Mrrleyv. Gainsford 2 IJ. Bl. 442, cited Smith Na. & S. 149. McManus v. Cricket 1 East 106, Shanodv. London North Western Railway Gowpavy, 4 Excb. 580, and that class of cases where a servant acting in the business entrusted to him, and iotending to obey orders, conducts himself so negligently, or indiscreetly as to cause injury to another, which, with ordinary pr,udence, or by strict conformance to orders, would not have occurred. The master [(though liable) from the absence of anything implying his concurrence in the injurious act] is liable ordy in an action on the case. If it does, then I should have directed the Jury that if they adopted the orders as stated in the letter and disbelieved iiizpdtricKs statement, that trespass would not lie, and to find for the defendant. On this point, therefore, I think the defendant is entitled to a Rule. M'PHERSON ". RAMSAY. January, \ 25th 1869 S Description of Boundaries— words necessary to ascertain the premises cannot be rejedted. ' ■ The deed descHbes the boundary of the premises, as " com- mencing at a stake on the G'Leary Road about th^ distance ot So chains from Moresid^s North East Angle of land." The evidence Shewed that thefocMi!i» qw> was not (at the nearest point) within 90' chains* of iVZor«8»We's;N. Er Anglo. The question is, can the words " from Moreside's N. E. Angle be 206 Mcpherson ». eamsay. rejected as a false demonstratio. Secondly, can the site bf land be entirely shifted from the locality described in a deed executed by the Sheriff under the authority of the land assesa- raest Act. The following autborities seem to me very conclu- sive on the point. 1 GreenleafEv.S. 301 Doe dem Hubbard 14 Jur. 1112. There must be a good and certain description left, after shutting out the false demonstratio. In Goodtitk v. Southern 1 M. & S. 297, the question was as to parcel or no parcel, the site was not moved, and the description was com- plete, after rejecting the words which were inconsistent with the general description. Doe d. Purdy v. Holton 4 Ad. & Ell. 78, the Court held, that,by the true construction of all the words of the description, the cottages passed, and that evidence to shew that the testator did not intend they should, was inadmissable. Doe d Morton v. Webster 12 Ad & Ell 442. Evidence to shew that the ground had been occupied with the house conveyed, and, therefore, in law passeS under the word appurtenances, was admitted. But the conditions of sale and tLe declarationa of the grantee were held inadmissable to shew that it was excepted, because that would contradict the deed. In 1 Green- leaf Ev. it is laid down, " evidence necessary to ascertain the premises must be retained, but words not necessary may be rejected, if inconsistent mth ethers." Smith V. Galloway 5 B, & Ad. 48, had the words been "all that part now in the occupation of Smellbones and lying on N. W. side of the line," the occupation would have been a material part of the description, and the occupation cou'd not have been rejected as a false demonstratio, per Parke (B.) In this case the point of commencement mentioned in the description is a stake,thirty chains from Moreside's North East Angle of land. Is not that angle then a material part of the descriptioB ? Reject it, and where are you to find a point of canmencement for your lines ? Miller v. Travis 8 Bing. 244. In Hvichins v. Scott 2 M. & W. 814, the point decided was, that an altered agreement might be given in evidence in an action for excessive distress, to shew the terms of the holding'. It is true,Lord AUnger says " if 35 was the house intended I am clearly of opinion, parol evidence was admissable to shew that 38 was a mistake. But this a mere obiter dictum, n«t necessary to decide the case in hand, and it must be remembered that the ^lefendant had only one house in Brgad St. and, therefore, the THE QUEEN v. DOWEY. 207 description « his house in Broad Street (No. 38) after 38 was ttruck ml, wonld describe the only house he had in the Street with certainty. And Lord Abinger adds, " if there were any suggestion that the defendant had any other house the cast might be different. This is a land tax deed where the Sheriff selects any land on which the tax is not paid, or any part of a tract, where an owner of a large tract has left the tax on any part thereof unpaid. And it is, therefore, the same as if made by a man who had a dozen houses in one street. See also Gascoine v. Barker 3 Aik. 8, 3 Eq. C. L. 714, Purdtf v. Dodds 1 Eq. C. L. Rep. 824. Although the case seems Tery clear it is a very important one. And if, after examining the authorities, to which I have referred, the Counsel thinks there is any ground tor the Kule he can take it But I entertain no doubt on the question. At a subsequent day Mr. Palmer declined to take the Rule. THE QUEEN «• DOWEY. Hilary Term, 1869. Grand Jury — no objection to Grand Juror that he was fore- man of Cororner's Jury which returned rerdict of murder against prisoner. Op Saturday the prisoner's Counsel moved for a new trial, or to arrest the Judgment on the same ground taken before the Jury were sworn, viz., that Mr. Weeks, one of the Grand Jury who found the Bill, had, previously, acted as foreman of the Coroner's Jury which returned a verdict of murder against prisoner, the prisoner had objected to the indictment some time before the first application. But it was asserted and admitted by the Attorney General that the prisoner. was not aware of the fact until after he had pleaded. It is urged that Weeks having, by his verdict, expressed his opinion of the truth of the charge against the prisoner became incapacitated trom atterwards acting as a Grand Juror on the Indictment founded on the same charge. It is urged that he stands in the same position as a Petit Juror who, having given a verdict on one trial, is challenseable if called as a Juror on 208 THE QUEEN v. DOWEY. a second trial of the sartiB cause, and of a Grand Juror who i8 incapacitated from serving as a Petit Juror on the trial of an Indictment found by the Jury of which he was a member. It is unnecessary to refer to the numerous authorities cited to prove that a Petit Juror may b^ challenged for such causesj there being no doubt that he may. But the duties pertaining to the Grand and Petit Jury are materially diflferent. The latter hears both sides, try, and finally decide on the guilt or innocence of the accused. The former only inquire whether the circumstances raise such a probability of the charge being true as ought to place the accused on his trial. The 'coroner's' inquisition was in effect an Indictment against the prisoner on which he could have been arraigned, tried, atid convicted without any other Indictment being found • But the fear of its not )being so correct in form as to sustain a conviction, the same charge under the name of an Indictment is preferred before the Griir. MclSAAC. 237 Mn McDinald. In 1810> the testator made his *ill, (which though a very prolix docUmeut) in effect devises the Estate of Donaldston of which the locus in ipio is part to William and AUxander McDonald (perso&s resident in Seodand,) and their heirs and assigns in trust to permit his daughter, Flora Mo- Donald — the lessor of the plaintiflTs mother— to enter into possession and have the exclusive and sole management of th« property and thenceforth during her life to receive and take the rents and profits for her separate use free from the control of any husband she might marry, and after her death, that the said trustees should permit and suffer the rents and profits flf Estate of Donaldslon, and every part thereof to be employtd and laid out by the guardians appointed by her (or failing of such being appointed by her) by her brothers Or the majority of them, in case of difference, residing on this Island, in bringing up and placing out to employment the eldest and the younger children of his said daughter, of her first marriage,;ev«ti though she should have been oftener married, and that uhtil the eldest son of her first marriage should have arrived at the age of 30 years, complete, and then when the eldest or the next surviving eldest son of her first marriage shall have arrived at the age of 30 years in' trnst, .that the said William and Alexander McDonald and their heirs shall convey in fee, by a Valid deed, the said Estate of Donaldston to such eldest will, under the Statute of uses, vest the legal Estate in B, but if any agency or control is to be exercised, or duty performed by A, as to apply the rents to a person's maintenance, or in making repairs, or to hold for the separate use of a feme covert or to permit a feme covert to receive the rents for her separate use, A will take the legal Estate, Whar. L. Lex. Tit. " Trust.'' There can be no doubt that under the trusts of this Will a freehold Estate vested in the trustees and that (if the trust in favor of the eldest son is valid) the fee simple vested in and must remain in them until the conveyance to him was executed, as they could not convey unless they had it. But the trust in favor of the eldest son is clearly void as it postpones the vest- ing of his Estate for an absolute period of mors than 21 years ^ter a life in being. DOE DEM McDONELL v. MclSAAC. M» The doctrine (always so difficult to apply) of determinable fees, or rather that no greater quantity of legal Estate should be taken by trustees under an indefinite devise than is suflBcient for the purposes of the trust, has been abolished by the 30 and 31 sections of the English Act 1 Vic.,c. 26, which has been re-enacted here, bat as this Will was made before the Act came into operation the next question which presents itself must be governed by the old law. That question is whether (the devise in favor of the eldest son being void) the Estate of the trustees did not determine, on the death of Flora McDonald, the plaintifi's mother ? or at most, at the period of the lessor of the plaintiff attaining 30 years when the trusts for maintenance of the children ceased ? In Doe dem Player V. Nicholls 1 B. & C. 342, Bailey, J,, says " it may be laid down as a general rule that when an Estate is devised to trustees for a particular purpose, the legal estate is v«sted in them as long as the execution oi the trusts requires it, and do longer, and, therefore, as soon as the trusts are satisfied it will vest in the persons beneficially en tilled to it." The rule, as thus laid down, would seem to include al' cases where it had become impossible to do the act the trust was raised to perform) whether fhe impossibility arose from collateral events, or from causes appearing in or from defects inherent in the Will itself. But in Doe dem Shelley v. Eldin, 4 Ad. & Ell. 589, the rule was qualified so as to confine it to cases where, from the words of the instrument, or the apparent intention of the testator, the trustees originally took only such quantity of interest as the purposes of the trust required, and denying changing its application to a case of a fee simple once effectually raised . Lord Denman, in giving Judgment after quoting the rule as laid down by Bailey and Holroyd in Doe dem Shelley v. Eldin says, " if the rule above mentioned, as laid down by these Judges, be confined so as to say that the trustees originally take only that quantity of interest which the purposes of the trust require, so far as is expressed by the words of the instrument itself, or by the apparent intention of the maker of the instru- ment, consistent with the language of it, then I admit the rule to be correct ; but if it is meant to apply to all cases in general, where the trusts are no longer capable of being carried into effect, but, yet, the instrument, by the legal construction of it already gave an Estate which might continue far a longer period than that during which the objects of the trust had aa UO DOE DEM McDONELL v. McISAAC. actual existence, then that, in my mwd, will admit of a difierent consideration. I admit that for a great number of years past« the Courts have held that trustees take that quantity of interest which the purposes ot the trust require, and the question is, not whether the maker of the instrum*!nt has used words of limitation, or expressions adequate to convey th? Estate of inheritance, but whether the exigencies of the trust require a fee, or can be satisfied by a less Estate." In Doe d«m Codogan v. Ewart 7 Ad. & Ell. 667, the same Court adhere to the rule thus laid down. Now what are the trusts here? The first is to prrtect the daughter's separate Estate daring coverture. That would give the trustees a freehold during her life. The next is, to permit the guardians, after her decease, to receive the rents and profits for the maintenance and education of che children, until the eldest son attaining the age of 30 ytars. That would giv» the trustees an Estate for years determinable on the eldest son attaining that age. The remaining trust is to convey to the eldest son. In Doe dem Shelley v. Eldin, above referred to, the devise was to a trustee in fee, in trust to receive and apply the proceeds to the use of S for her life, and after her decease to convey, as she should by deed or will, appoint. There was no devise over, S died intestate, during the life of the testator without having made an appointment. It was held that the devise being legal did not lapse by the death of S.but, notwithstanding, it had thus become impossible to carry the trust into effect, that the legal estate continued in the trustee. This decision might at first sight appear to govern this case, biJt it ]s clearly distinguishable. There the fee simple was required to perform a trust legally raised by the Will, and the fee simple once having a valid subject matter to operate on, necessarily at first vested in the trustees. Here the intended trust from an inherent vice never attained a legal existence and, therefore, a fee simple in the trustees was not required, there never being, for one instant, a subject matter on which it could operate, and, consequently, it never could h^v? vested in them 9A aU. Besides, the testator's plain deula- r^ton is, that he gives the Estate to the trustees to prevent the trusts thereinafter limited from being defeated. Now, whatever he might have intended to do, or thought he had dqnp, a tru?t never really created could be in no danger of being defeated, and no estate in a trustee cQuld ,be ntsee^^Qiry DOE DEM McDONELL e. McISAAC. 241 to preserve it. The two first trusts to protect which (aa already observed) the trustees originally took only determin- able estates, commensurate to the duration of the trusts having been long since executed and no further trust having ever existed. I think the case falls within the rules as explained in Doe dem Shelley v%^dlin, that the object ceasing, the estate of the trustees ceases also, and the lessor of the plaintiff being one of the heirs of the testator, has a right to recover in this action. On another ground, the lessor of the plaintiff was entitled to recover, where prior possession is sufficient to maintain ejectment against a wrong doer. Here Donald Mclsaac, the defendant's brother was in possession, and paid rent to the lessor of the plainiifi^s mother and to him after her death, thus making himself his tenant ; then he abandoned it, whereupon the land in contemplation of law continued in the possession of the plaintiff, when the defendant entered. What right had he to take possession? Who authorized him to go there? He does not say he came in under his brother Donald (that would have been an acknowledgment of the plaintiff's right to turn him out) He is a mere wrong doer showing no title good or colorable, and that being the case, be cannot as ho' attempts to do, set up the old 100 years outstanding lease to third persons against the prior possession of the plaintiff. To entitle him to do so, he was bound to show some title in himself under the lessees of the 100 years term, or some bona Me colorable title under which he took possession. But he did nothin" of the kind, nor did he offer to call himself to prove by his own evidence how he came there. There is yet another ground on which I am inclined to think the lessor of the plaintiff is entitled to recover, which is, that the cypre's doctrine is probably applicable to the construc- tion of this Will, and if so the lessor of the plaintiff's mother would take an equitable estate bail and he would become legal tenant in bail on her decease subject to the charge for maintenance of children. But the will is a most extraordinary document. It appears as if it had originally been drafted by a not unskilful hand and that the testator after each clause had interpolated his own ideas to explain or enforce what had been before correctly expressed to effectuate his intentions, and the consequence is that very often he destroys provisions which he fancied l» was making more binding. But Xh» 31 242 EX PARTE ALEXANDEK STEWART] labour of analyzing 15 or 16 closely written pages, one half of which is mere verbose nonsense, but which nevertheless may exercise some controlling, power over more intelligible provisions, is a task which I have declined to undertake, the points on which I have already expressed an opinion being sufficient to decide the case, and the others under the events which have happened not being of much importance to any one. J think the rule for a nonsuit must be discharged. EX PARTE ALEXANDER STEWART. Easter TermJ, 1871. Absent debtor suit made a remanet at third term — same effect as if special leave to stand over were granted. This was an application to set aside a judgment obtained by /. K. Bourhe against John Holman, an absent debtor. It appears that at the third term the caasc stood over as a remanet for want of time to try it in fts regular order as it stood on the list, but no leave of the Court- was obtained ta V permit it to stand over. Holman became insolvent. Stewart purchased land of Holman's attached in the absent debtor suit and its liabilityjto the lienacquiredby the attachment depends on whether the suit abated for want of special leave to continueiit. It was urged that the|2 sec, 20 Geo. 3, C 9, is imperative that the trial shall come on at the term unless allowed ta stand over by leave,'of the Court. It is argued that the provision that the cause shall peremptorily come to trial at the third term is for the benefit of the plainliflP to prevent his being delayed, and that|Ae is not bound to bring it to trial till he pleases. In practice it has always been considered peremptory with respect to both parties, and I think the practice accords with^the intention of the Act. The attachment is a lien on^thejland from the time any part of iue defendant's property is attached, and if the plaintiff after attaching could delay indefinitely to prosecute his suit, an absent person's property might continue for a'long time unsaleable in consequence of a mere] claim which on trial might prove enLtirely unfounded. But \ think as it was made a remanet EX PARTE ALEXANDER STEWART. 243 for want of time to try it, it must be considered aa ordered to stand over, and that a special application to have it postponed was unnecessary. Tlie purchaser could have searched the Prothonotary's office and found that it was made a remanet. If, therefore, he has neglected to do so before buying, the rule jcaveat emptor applies. I think the Rule should be discharged. DUNCAN, HODGSON, & ROBERTSON w. THE MONTREAL ASSURANCE COMPANY. Michaelmas Term ) 1871. I Policy partly printed and partly written — Insurance — Warranty — time of sailing — Where ship insured in time,policy coveting date of sailing from Liverpool — with liberty to sail from Charlottetown not later than the 15th of December, sailed from Charlottetown on the 17th of December — held underwriters not liable — policy partly printed and partly written, all must be .construed together if possible, if not the writing prevails. The facts set forth in this special case are as follows : ■by a policy partly printed and partly written dated the 4th of April 1870, the defendant insured the plaintiflp's ship, the " New Dominion." The adventui er to begin at and from "Liverpool G. B.for the space of ten Calendar months from the date of sailing with liberty to sail from Charlottetown not later than the loth of December." The last clause of the printed portion of the policy is as follows: ''not allowed under this policy to enter the Gulf of • St. Lawrence before the 15th of April, or to be in the said Gulf after the loth day of November, nor to proceed to Newfoundland after 1st of December, or before the 15th of March without payment of additional premium and leave first obtained, war risks and sealing voyages excepted. N. B — The Gulf of St. Lawrence to include also the Straits of North- umberland, shall be defined to be inwards from a line drawn from Cape North to Cape Race, and a line drawn from Sand Point at the Strait of Canso to Cape North." P.E. Island lies within the Gulf of St. Lawrence. The ship did not sail from Charlottetown until the 17th of December, passed safely o^tt 244 DUNCAN, HODGSON, & ROBEETSON v. THE of the Gulf of St. Lawrence, and was subsequently lost while proceeding on her voyage from Charlottetown, on the coast of Great Britain. • For the defence, it is contended that the written clause to sail from Charlottetown not later than the 15th of December constituted a condition or warranty not to sail after that date, which being broken, the plaintiff cannot recover. For the plaintiff, it is urged that this being a time policy, the printed clause "nrt to be in the Gulf after the 15th of November," was not a warranty, but only an exception which would suspend the risk during any period she might be in the Gulf of St. Lawrence after that date, leaving it to attach again, as soon as she got safely out of it, and that the writing was only intended (in the event of the vessel being in Charlottetown) to exclude the time fixed by the printed clause to the 15th of December with an addition of such time as according to the ordinary course of Navigation would be necessary to get out of the Gulf after leaving Charlottetown A good deal of argument also took place as to whether the the printed clause or the writing was to have the greater effect. The general rule is that if the whole contract can be construed together so that the written words and the printed make an intelligible contract, this construction should be adopted, but if what is written conflicts with what is printed, the writinglcontrols what is printed ; it being (as Mr. Greenleaf observes) the immediate language and terms selected by the parties themselves for the expression of their meaning, while the printed formula is more general in its nature, applying equally to their case and that of all other contracting parties on similar subjects. It is evident that to adopt the plainti&'s construction great liberty must be taken with the language of the contract ; not only must the time be extended, but a new clause must be added, i. e. " the addition of sueh reasonable time after the Ibtk of December as according to the usual course ofnatigation would be necessary to get out of the Gulf." But there seems to me no occasion for giving more effect to the written than to the printed clause, nor for attempting to add or to alter the language of either, as full effect may with perfect consistency be given to each. The printed form contains the conditions and regulations adapted to general cases, applying to ports high up the Gulf of St. Lawrence where after thq MONTREAL ASSURANCE COMPANY. 245 15th of November the dangers of navigation are great, as well as to those lower down, where until a later period, they are less. Looking at this, and contemplating the {possibility of the vessel being in Charlottetown, the written stipulation «ngraftb on the contract as primed, a special provision, applicable to the risk from this particular port, via, for the benefit of the assured, & privilege, .or liberty, which the general terms of the printed policy would not give, but expressly excluded, of sailing from Charlottetown in and through the Oulf of St. Lawrence not later than the 15th of December ; thus simply — in this one event — excepting the vessel from the operation taf the subsequent general, printed clause, which prevents her entering the Gulf af St. Lawrence before the 15th of April, or being in it after the 15th of November, bu* leaving her in all other respects subject to its operatioa* This construction gives eirery clause of ihe policy an intelligible meaning, as the ship might then leave Charlotte- town on the r5th of December, the sea risk attaching the moment she got out of the harbor, and the printed clause continuing in full force, would prevent her sailing from any other port in the~ Gulf so as to be in it after the 15th of November, or from entering it again before the termination «t the policy, whilst if she remained to winter in Charlottetown, fihe would be ordered by the policy agaiast the harbor risks until its termination in February. The liberty to leare Charlottetown not later than ike 15th of December is given in the most clear and unmistakable language, and as she could not leave it without passing through the Gulf, it aeems evident that the intention .of the parties mast have been ia accordance with this construction, i. e., that in- this one contingency, of the vessel happening to be in Charlottetown the printed clause was not to apply to her at all, pfovided she sailed Jfrom thence by the l6th of December! but with respect to all other ports, and in all other events, it •should continue binding. The policy then construed is what is called a mixed policy, partaking of the nature of both, a time and a voyage policy, of the nature of a time policy in its general scope and effect, that is after sailing frmn Liverpool she does not enter the Oulf before the 15th of April, or be in it afler the 15th of November &c., it continues strictly a time policy of the nature of a voyage policy, particularly in iteference to this ease, when the ship is at Charlottetown in a 246 DUNCAN, HODGSON, & EOBERTSON v. THE position to enable the insured to avail himself of the liberty granted of sailing from thence, and he desires to do »o because it then becomes essentially connected with the commencement of that voyage, and must therefore, as regards such voyage from Charlottetown, be governed by the established principles of law applicable to voyage policies, and subject therefore to all the consequences attendant on a non separature under a voyage policy within the time limited by the policy. Then do the words of the written liberty in this policy constitute a condition or warranty ? I am clearly of opinion that they do. In Pettigrew v. Pringle 3 B & Ad. 514, the rule to which the policy referred, provided that the vessel should not sail after the 1st of September for certain ports in British North Ameriea; there were two termini to the voyage, but a very wide range of ports at both ends ; it was a time policy from the 20th of February 1828 to the 20th of February 1829; the vessel might have run under it as a pure time policy for 6 months, when on the 29lh of August an intention to sail for British North America calls the rule as to the period of departure for British North- America into operation, and converted it quo ad the intended voyage into a voyage policy. It was not disputed that the provision not to sail after the 1st of September was a warranty. GoUiclge V. Hartz 6 Exch. Rep. W. H. & G. 207, was a time policy for a year among several stipulations as to time of sailing, one was not to sail for any port in the Baltic between certain dates in December and February, there was no terminus a quo but only ad quen, respecting this particular prohibition. The vessel had run under the policy for nearly a year ; w hen, sailing for a Baltic port, at the prohibited time, she was lost, the plea did not aver that the loss was within the prohibited period. It was held a warranty and not an exception, and therefore, such averment was unnecessary. The vessel might have been in any part of the world, but if she sailed for the prohibited Belts the warranty would have been broken. That case was the converse of the present, in this, that here, the prohibition is from a certain port, but where is the difference in principle ? Besides, the 9th rule also contained a prohibition as to sailing from the Bal- tic port between certain periods, but fixing no termini ad quern Had she violated the rule by sailing after the prohibited date MONTREAL ASSURANCE COMPANY'. 247 from this place in the Baltic it would equally have vitiated the policy. Now this is exactly the case here, a time policy, but not to sail from Charlottetown after the 15th of December. Many of the cases decided on charter parties where the contention was whether the lime of sailing formed a condition precedent or not are applicable to the present case. In OUive V. Booker 1 Exch. Rep. 416, an action for not loading a vessel in pursuance of the term of a charter party by which it was agreed between plaintift " original charterer of the good ship Dove now at sea having sailed thre* weeks ago,'' and defendant. It was held that the time at which the vessel sailed was material, and that the statement in the charter party amounted to a warranty. Parke B. savs " in the construction of agreemeflts as in the case of contracts under seal we should endeavor to discover the intention of the parties. Here it is stated that the vessel was now at sea having sailed three weeks ; and if time is the essence of the contract, no doubt it is a warranty and not a representation. Such also is the case of policies of insurance. It appears to me that it is a warranty and not a representation, that the vessel had sailed three weeks. It is, therefore, a condition precedent. This leaving a condition precedent, and not per- formed, the defendant was not bound to load the vessel. I entirely agree with the reasoning of the Chief Justice in Glaholm V. llays" Glaholm V. Hays was assumpsit on a charter. The words of the charter were the vessel to sail from England on or before the 4th of July then next. It was held that the sailing on or before the 4th of July was a condition precedent. Per Tindal C. J. "the very words 'to sail on or before a given day,' do, by common usage import the same as the words ' conditioned to sail,' or ' warranted to sail on or before such a day' ; and undoubtedly, if in the wording of a common bought and sold note, for a cargo of corn, or any other goods, were found the words ' to be delivered on or before such a day' they would be held to amount to a condition ; and the purchaser would not be bound to accept the cargo, if not ready for delivery by the day appointed. And looking at the subject matter of the contract, without regarding the precise woidsj^we think that construing the words as a condition precedent, will carry into eflfect the intention of the parties, with more certainty than holding them to be mere matter of 248 DUNCAN, HODGSON, & EOBEKTSO]!? v. THE contract only, and merely the ground of an action for damages." And again "upon the whole, therefore, we think the intention of the parties to this eontract suflBciently appears to have been to insure the ship's sailing at latest by the 4th of July, and that the only mode of effecting this is by holding the clause in question to form a condition precedent ; which we consider it to bave been." In Croockemt v, Fletcher, 1 H. & N. 912, the words were to Bail from Liverpool on or before the iSth of March next, the exception was as foUows, " restrictions of princes and dangers of wreck, act of God &c., throughout this charter-party always excepted." It was beld that notwithstanding the words " throughout this ehartef'party" the sailing of the ship on the 15th ot'Maich was a condition precedent to the obligation of the defendant to load the ship. In giving Judgment the Court says, " If the word ' throughout' had not been in the charter-party, the case of Glakolm v. Hays is a direct authority expressly in point, that the stipulation for the sailing on the 15tb of March was a condition precedent, and this case has been acted upon in two cases in this Court. Ollive v. Booker, and Oliver v. Fletcher. If we bad thought this decision not correct, we should nevertheless have considered ourselves bound by it ; but we entirely concur in it, and are of opinion that it was rightly decided, and that any other construction of the charter-party would lead to most mischievous consequences. All mercantile contracts ought to be continued according ta their plain meaning to men of sense and understanding, and not according to forced and refined construction which are intelligible only to lawyers, and scarcely to them." The reasoning of the Judges in those and many other cases applies with equal force to similar cases on policies of insurance. Every mercantile man understands the words •"to sail by a certain day" or " not later than a certain day'' to be an express agreement that such stipulation shall be performed, and to throw doubt on a rule so well understood, would be attended with most mischievous consequences, as it ' would render the exact limits of an underwriter's liability as well as the assured's rights in many cases doubtful, and thus introduce uncertainty on a point of mercantile law where it is moat important that none should exist. By the written provision here (as in the case of Baines v. Hoiltmd 10 H. & G. 80&) the sailing from Charlottetown i» MONTREAL ASSURANCE COMPANY. 2"49 made as it werfeanSflr starting point for the further continuance of the risk and must necessarily be governed by the same rule that would have prevailed supposing the policy instead of providing fbr the beginning of the adventure "at and from Liverpool G. B. for the space of 10 calendar months from the date of sailing" had these words added, " warranted to sail," or, " provided she sailed," or, " the vessel to sail before the 10th day of April," or any other date, or, if the words we are now considering had been added and the policy had read thus "for ten calendar months from the date of sailing with liberty to sail from Liverpool not later than the 15th of April" and she had sailed after the day named is, it not quite clear that in any such case the policy would not have attached ? For the simple reason that by sailing after the time limited the risk was altered from that which was intended by all the parties when the policy was effected. So in this case, the sailing from Charlottetown not later than the 15th of December isjthe basis of this part of the contract, and time is of the essence of the contract. By sailing after the 15th of December the assured substituted an ther risk for the only one which, if the vessel wag at Charlottetown after the time limited in the printed clause and sailed therefrom, was insured. It is quite obvious that had {he vessel not sailed under the liberty granted, or in defiance of it, she must have remained at Charlottetown until long after the risk expired by effluxion' of time and so the insurers would practically have been liable only for harbor risks. But the iticrease or diminution of the risk is wholly immaterial, the time question is, has the risk been varied, has the condition been strictly and literally performed ? " The warranty (says Mr. Arnold 553) in a contract of insurance,is a condition or a contingenoy,and unless that is performed, there is no contract. Inquiry into the materiality or immateriality to the risk of the thing warranted is entirely precluded, and so are all questions as to substantial compliance. By a breach of warranty, therefore, although the ■ loss may not have been in the remotest degree connected with it the underwriter, is none the less discharged on that account from all liability. A ship warranted to sail with convoy had ia fact sailed without it and went down in a storm, the under- writer was nevertheless held not liable for the loss." A ship was insured on a slaving voyage at and from Africa to her port or ports of discharge in the West Indies, and si 32 250 DUNCAN, HODGSON & ROBERTSON v. THE memorandum waa inserted in the margin of the policy that the ship had " sailed from Idverpool with 14 six pounders swivels, small arms, and fifty hands or upwards, copper sheatt- ed," the ship had actually sailed from Idverpool with only forty six men, but within twelve hours afterwards she had taken on board at Beaumaris, six additional bands. The Court unanimously held that it was a breach of an express warranty for the ship to sail from Liverpool with only forty six men/ and the policy was, therefore, void. Here the contract was to insure the vessel on condition that she sailed from Charlottetown not later that the 15th of December, that condition was not performed, and, therefore, the plaintiff can have no right to recover against' the de- fendants on a risk against which they did not undertake to in- demnify. On the argument it seemed to be assumed that had thef printed clause, prohibiting the vessel " from entering the Gulf of St. Lawrence before the 16th of April, or being in it after the 15th of November, stood alone, it would have been an exception and not a condition, the breach of which would only suspend, not terminate the risk In one sense it is quite true , as was argued, that there can be no deviation on a time policy because there is no prohibited track to deviate from, but Mr. Parsons observes " that although ' deviation ' in the law of insurance originaUy meant only a departure from the course of the voyage, it is now always understood in the sense of a material departure from, or change in the risks insured against without just cause. There may be a deviation while the ship is in port, or where the insurance is on time no voyage being- indicated." Now looking, as I must do, at the peculiar kind of danger ( viz., from ice) likely to be encountered by vessels navigating many parts of the Gulf of St. Lawrence between the 15th of November and the 15th of April, and considering the difficult questions which often arise where a vessel receives Ijer death wound, or is seriously injured before- the expiration a time policy, but is actually lost after it expires and that injuries from ice might often give rise to similar questions from their being ot a kind that would render it very difficult to decide on, for such injuries might have contributed to her ultimate loss. It might at least be open to contend that the Underwriters never could have intended to subject themselves to risks so uncertain, or to liabilities so difficult to be ascer- MONTREAL ASSURANCE COMPANY. 251 jtained. And also particularly lookiug at the language of the latter part of this printed clause, " not to enter the Gulf &c> without payment of additional premium and leave first obtained^ words very much stronger than those which in Graham v. Barras, 5 B. & Ad. 1012, were held to render the previous assent 0^ the underwriters to accept the additional premium necessary to an extension of the time for sailing. It seems to me by no means clear that this printed clause is not in itself a warranty. But I express no <^iqion on this point, and I have only alluded to it to guard against being understood, by the many persons who, I presume, are now insuring under similar policies, that stipulations such as this can be violated without danger of discharging the underwriters from all subsequent Jiability. The Judgment must he for the defendants.. -252 HALL & HEARD v. PRINCE EDWARD HALL &.HEARD vs. PRINCE EDWARD ISLAND MARINE INSURANCE COMPANY. Michaelmas Terjp 1871. ' ■ Insurancp— Construction total loss-cargo damaged, landed, and gold, but no evidence given to show that it could not have been forwarded, or that if forwarded its value at the point of destination would not exceed the salvage and other expenses — held plaiatiflfs could not recover for a total loss. This wa.s an action on a policy of insurance. The vessel was bound for the West Indies with a cargo of Fish and valued at £1000, and having received damage by stranding in getting out of Charlottetown Harbor was caught in the Ice pack in Northumberland Straits, where she remained drifting about all v?inter whereby the cargo was damaged ; and got into Halifax in May. The owners gave the under writers notice of abandonment, and the captajn with the consent of Heard, one of the owners of the cargo and also the owner of the vessel, sold the cargo at Halifax for the benefit of all concerned, and now claim for a constructive total loss. The rule as laid down in Rosetto v. Gurney 11 C. B. 176, and which'is confirmed by Farnworth v. Hyde, 2 L. Rep. C. B. 217, is that where goods are damaged the question for the Jury to determine is " was it practicable to send the whole or any part of the cargo to its place of destination in a marketable giate" and that to determine that question the Jury must ascertain the cost of unshipping the cargo, the cost of drying and warehousing it, the cost of transporting it in a new bottom (when necessary) and the cost of the difterence of transits, if it can be effected at a higher than the original rate of freight, add to those items the salvage allowed in proportion to the value of the cargo saved and the loss will be total, if the aggregate exceed the value of the cargo when delivered at the port of discharge, but if the aggregate do not so exceed the value of the cargo or of the part of it saved, the loss will be partial only. Now, in this case, the plaintiflPs' evidence was defective in two most most material points. First, as to the state of the ISLAND MARINE INSURANCE COMPANY. 253 -fish and the extent of the damage it had sustained, as the testimony of their witneses shewed that they had formed their opinions as to its state without opening the packages or talking proper means to ascertain their real condition. Again, the plaintiffs' evidenne to show that there were no facilities for drying the fish in Halifax, was of the most flimsy description, .consisting of the opinions of persons here who cjuld not state what the extent of the facilities really was. Secondly, no evidence was given of what the probable value of the fish, when dried and repacked, would have been at the port of destination. And this was opposed by the testimony of others, particularly West and Cronan, two merchants of Halifax, who bought a very large portion of the cargp at prices lower, but not so very much lower, than the invoiced value, who had it redried and repacked and shipped it to the West Indies, and who slate that tie packages of fish (with a few exceptions) though discolored on the outside, were not jgauch injured, and that they only required a day or two airing and drying before repacking. I think it clear that there was no evidence justifying the Jury in finding a total loss. There is no doubt there was a partial loss. The defendants have paid £100 into Court, but there is no evidence vi^hatever of what the salvage expenses on a partial loss, viz., for drying, r,epacking, &c, would have been and, therefore, we are entirely without materials for forming a Judgment as to whether the partial loss does or does not exceed that amount. The rule for a new trial must be absolute. ■?54 IN THE MATTER OF THE PETITION OP IN THE MATTER OF THE PETITION OF JOHN HODGES WmSLOE, FOK PARTITION OF CERTAIN LANDS IN QUBBN'S COUNTY. Chambers, } Feb. 1872. S In this case, Mr. Bayjield, Attorney for the petitioner, ap» plied under 1,8 Vic, c. 18, and 27 Vic, e. 27, for an order for the c9-devisees of the petitioner to appear and answer the petition The petition states that the petitioner and his brothers and sisfpFS are (under the will of their father, Alfred Winsloe, deceased) entitled to the lands in the schedule to the petition annexed, described in fee, but not- settiqg forth the substance of the devise with any certainty of allegation or alleging tjiat the will is e?;ecuted and attested in such manner as is necessary to pass real estate. The affidavit merely alleges that the facts stated in the petition are just and true. I am of opinion that the petition and the affidavit are insufr ficient to entitle the party to the order prayed. These statutes have substituted this mode of proceeding in lieu of the tedious and expensive proceedings by writ of partition so that the Court or a Judge may at once appoint Commission? ers to make partition without resorting to the writ, declaration, and plea, and the intervention of the sheriff and jury. But the Act never could have intended to do away with the necessity of showing in the petition a title to demand a parti- tion with the sapae certainty as was necessary in a declaration in partition at Common Law. I think that such part of the will as relates to the devise, under which the petitioner claims, should be set out in the petition. So that the Court may see whether the devisees take in fee simple or otherwise, and whether as joint tenants or tenants in common, or otherwise. And, also, that there should be a distinct allegation in the petitions that the will was executed and attested in such man- ner as is necessary to pass real estate. I am also of opinion that the affidavit is insufficient. The 2 sec. of 27 Vic, c. 27, requires the petition to be verified by .^fi^davit. The verification does not mean a bold, genera} JOHN HODGES WINSLOE. ibb gtatetdettt that the allegations in a pleading are true, but a statement under oath of facts or circumstance which, taken together, prove the allegations to be true, from which the Court or Judge may be satisfied that the party applying has a prima facie case for the defendants to answer. For these reasons I decline to grant the ofder, but the petitioner may amend his petition and affidavit and apply again. llIE Mti