But held that a mandamus was not the proper way to proceed in such a case where the justice refused to issue his warrant, but that the proceeding should be by way of summary application to the Court under Con. Stat. U. C., c. 126, s. 8, to which the person might to be committed should be a party. Ib. RECENT DECISIONS IN NEW BRUNSWICK. SUPREME COURT. Easter Term, 1872. McGoldrich vs. Eastern Express Company.-Plaintiff applied to the Defendant's agent at Fredericton to forward goods to London by first steamer from Halifax, stating that he wished $600 insured on the goods. The agent said that he could not get marine insurance effected at Fredericton, but that if the Plaintiff would apply to the agent of the Company in St. John, perhaps he would get the insurance, as he had done on a previous occasion for another person. Plaintiff then sent an invoice of the goods to the Company's agent at St. John, with a letter stating that he (Plaintiff) wished the agent to insure the goods. The next day the goods were delivered to the agent at Fredericton, who signed a receipt for them, stating the conditions on which the Company forwarded goods (insurance not being mentioned). The agent at St. John, denied receiving the Plaintiff's letter, but the jury found that he had received it. The goods were forwarded by the steamer and lost. Held That the contract was contained in the receipt signed by the agent at Fredericton, and not in the letter written to the agent at St. John, and that the Defendants were not liable for the loss of the goods. Newbury vs. Young.-The registered owner of a vessel is not liable for goods lost by the fraud or negligence of the master during the voyage, unless the master is employed by or acting for him. Therefore, when Defendant made advances to A. to enable him to build a vessel, and took the registry in his own name to secure his debt, but the vessel was sailed by A. and the Defendant had no interest in her earnings, and did not employ the master. Held: That he was not liable for goods lost on a voyage of the vessel, through the negligence of the master. Morrison vs. Kyle, et al.-In an action on a joint and several promissory note, it is no legal defence, that one of the makers signed the note as a surety, and that the other maker had given the Plaintiff a Bill of Sale of property for the purpose of paying the note, which he had appropriated to the payment of another debt. Ryan vs. Lockhart, et al.—A Company incorporated for the purpose of supplying St. John with water, were authorized by statute to enter upon and take lands, and to erect dams and reservoirs, and lay down pipes, on making compensation to the owners of the land. Under this authority they took certain lands of C. and executed a deed, by which they agreed that if their works should cause the overflowage of any more of C.'s land, they would, as compensation therefor, erect a bridge across the overflowage to enable him to get from one part of his farm to the other, and keep the bridge in repair as long as the overflowage continued. The bridge was erected and kept in repair till the rights and property of the Company, subject to all their liabilities, were vested in the Defendants by statute. C. afterwards conveyed the land to the Plaintiff. The Defendants continued the overflowage, but allowed the bridge to get out of repair. Held: 1st. That the agreement to build and keep the bridge in repair was not ultra vires. 2nd. That the obligation to repair was an equity attaching to the land in the hands of the Company, and the defendants claiming under the Company, and taking the lands subject to the outstanding liabilities, were bound by the equity. 3rd. That the Plaintiff was entitled to an injunction to restrain the defendants from overflowing the land until the bridge was repaired, and while it was out of repair. Trinity Term, 1872. Doe dem. Johnston v. Jardine.-This was an action to recover dower, brought under the Act of Assembly 21 Vic. c. 25. It has been generally supposed, for some reason, that the Act was inoperative, and no action under it has been tried until this case. The Court decided that there was no insuperable objection in carrying out the Act, and therefore the action was maintainable; though a new trial was granted because the plaintiff had not followed the directions of the Act in assigning the dower. Aiton v. Demill.-This was a question about the boundary of a crown grant,-whether the lines of the grant could be extended by reference in a subsequent grant. The Court held that so far as related to third parties it could be done, and they would have no right to dispute the extension of the lines of the grant, thought the Crown might not be bound by it. Judgment for plaintiff. Doran v. Willard.—This was action, in part, to recover the value of an unfinished building which the plaintiff had built on land he had agreed to purchase, but afterwards abandoned. The defendant afterwards purchased the land. The building not being affixed to the soil, but resting on blocks, the Court held that it did not pass to the defendant by the deed of the land. The plaintiff recovered a verdict for some other property, not including the value of the building, and he moved for a new trial, which the Court granted, but recommended the plaintiff to abandon his claim to the building, which was of small value. The Queen v. Simmons.-This was a conviction by the defendant, a Justice of the Peace for Sunbury, against one McGowan for selling liquor without license. The conviction was quashed on the ground that the prosecution was carried on by a Division of the Sons of Tem perance, of which the Justice was a member, and he was therefore incompetent to try the cause. There were three convictions set aside on this ground. The Queen v. Perkins.-Application to set aside a conviction of one Birch for assault, tried before the Defendaut, a Justice of the Peace for King's County. The Court held that the warrant under which Birch was arrested was legal, but that the conviction adjudging him to be imprisoned in the gaol at Kingston was bad-the gaol of King's County at that time being either in St. John or Westmoreland, at the option of the Sheriff, by Act of Assembly, while the new gaol was building at Hampton. Doc. dem. Sullivan & wife v. Curry. The lessors of the Plaintiffs claimed the land in dispute, under the will of one H. P. of Gagetown in Queen's County. The Defendant held under a deed from H. P.'s executor, under a license from the Probate Court of Queen's County. The lessor of the Plaintiffs contended that the license was void, because H. P. had left sufficient personal property to pay his debts, and that the executor had improperly expended large sums in costs in the Probate Court, in proceedings which he had no right to take; that he had acted fraudulently towards the estate, and that the Defendant who had been his attorney in the proceedings in the Probate Court, had no right to purchase from the executor. There was a verdict for the defendant; and the Court held that though a large amount of costs appeared to have been unnecessarily incurred in the Probate Court, and the proceedings there were irregular, it did not avoid the defendant's deed; that the parties interested under the will should have appealed from the decree of the Probate Court, and could not object to the regularity of the proceedings in this action. The defendant's verdict was therefore affirmed. Falconer v. Western Ex. Railway Co.-This was an action for killing two cows on the railway track between McAdam Junction and St. Croix. The plaintiff endeavoured to make out that the Company were bound to fence the road, and that in consequence of their neglect the cows were killed; but the jury found that the road ran through wilderness land at the place where the accident happened, and therefore the Company was not bound to fence. Another alleged ground of negligence was that the train was being run with the engine behind at the time, and that this was an unsafe way of running. The defendants proved that they had a mau on the forward car to look out for obstructions on the road and to give the alarm; that they were going round a curve at the time, and running very slow; that they used every precaution to avoid the accident, and that the danger was in no way increased by the manner in which the train was run. The Court held that there was no evidence of negligence, and judgment was given against the plaintiff. Garrison v. Harding.-Action for false imprisonment. The defen dant was a Justice of the Peace for Carleton County, and issued a warrant against the plaintiff for the alleged offence of firing a pistol on the highway. The plaintiff was driving through Jacksontown, followed by his dog. A larger dog belonging to the defendant attacked the plaintiff's dog, and threw him down twice, whereupon the plaintiff fired a pistol at the defendant's dog, and wounded him. Soon after this, some person made a complaint before the defendant that the defendant that the plaintiff had fired a pistol in the highway. (This seems to be contrary to a law of the Municipality.) The complaint was made under oath, but the plaintiff's Christian name was not stated. The defendant afterwards filled in the Christian name, and issued a warrant against the plaintiff, on which he was arrested. He offered to give bail for his appearance to answer the charge, but objected to do so before the defendant, asking to be allowed to go before another Justice for that purpose. This, the plaintiff swore, the defendant refused to allow, and ordered the constable to take the plaintiff to gaol. The defendant denied this, but the Jury found that he did refuse. A verdict was given for the plaintiff, and the Court refused to set it aside, holding that the warrant was illegal for want of a proper information; that the insertion of the plaintiff's Christian name in the information, after it was sworn to, destroyed it, and did not authorize the warrant which was issued. Harris v. Roulston.-An indenture which does not contain provisions to teach an apprentice to read, write, and cipher, &c., as directed by the Act of Assembly, is void; and the apprentice cannot be imprisoned, as provided by 1 Rev. Statutes 347, for deserting his master's service. Ex parte Reynolds.-The Insolvent Act of 1869, of Canada, does not repeal the Absconding Debtor's Act, in force in New Brunswick at the time of the Union of the Provinces. Betts v. Venning. During the argument of this cause, which was an action against the Inspector of the Fisheries, for cutting down a mill dam at Shediac to make a fish way, one of the objections was that the Canadian Fishery Act of 1868 was unconstitutional. The Chief Justice said he was glad the question had been raised; that he doubted the right of the Canadian Parliament to pass laws and make regulations respecting the River Fisheries of this Province; he thought they came under the denomination of "Property and Civil Rights," which, by the union act, belong exclusively to the Local Legislature, and that the Dominion Government had no right to grant licenses to fish in our rivers, and to prohibit the owner of land fronting on a fresh water stream, from fishing in front of his own land. LA RÉDACTION. INDEX TO VOL. II. ACT of B. N. A., 355, 32.-1774, 27.-Elizabeth, 28.-Quebec, 30, ALABAMA INDIRECT CLAIMS, 185.-The Treaty of Washington, 185.- AMERICAN COMMISSIONERS, 188. ANGLICAN CHURCH in Canada, 131. APPEAL COURT. Vide Bench and Bar. Decisions in, 106, 230, 238, 470. APPEAL for Usurpation, &c., in England, 11.-None allowed to dissent- in the Colony, 12.-to Rome, 443. APPEL Comme d'Abus, 124, 37. ARRET of the 10th September, 1741. ARTICLES OF CAPITULATION, 19. ASSIGNMENT without Assets, 63. BARNARD E. The Fraser Institute Case, 249. BENCH AND BAR OF QUEBEC. The position as compared with fifty BENEFICES how granted in France, 7. BIBLIOGRAPHY, 246. BREF de PREROGATIVE, 226. BRITISH NORTH AMERICA ACT. Vide Contempts, &c. Power Conferred by, 355. VOL. II. НН No. 4. |