J., referred to the Act 3 Vict. c. 81, to shew that wharf property differed from other property; that the owner could not do as he pleased with it; but that a certain portion of it must always be left open as a landing slip.] The Act does not take away any common-law right which the owner of the wharf had to recover for the use of it. The jurisdiction of this Court can only be taken away by express words. The remedy for the recovery of wharfage before a Justice of the Peace, given by the seventh section of the Act, was cumulative. The right to sue for and recover wharfage was clearly in the plaintiffs, where the amount was within the jurisdiction of the Court. 2. The consignee of the goods was the owner pro hac vice. If he took the goods, the Act made him liable. It must be the owner of the goods, and not the owner of the vessel, who is liable. Like the assignee of a bill of lading, he need not take the goods, but if he does take them, he is liable for wharfage. It was shewn that the wharf was in good order. This was sufficient, the defendant not having asked to have the question submitted to the jury, whether the wharf was properly planked. A. R. Wetmore, contra. The wharf was a nuisance at common law. Without the Act, the plaintiffs had no right to build the wharf into the harbor at all; therefore they must resort to the Act to enable them to recover. The sixth section does not say who is to recover; and if the seventh section has to be resorted to, to discover that, the remedy given by that section must be adopted. The Act requires the wharf to be properly planked or timbered, before plaintiffs can recover: it is only the owners of such wharves, "and none other," that can recover; therefore the plaintiffs were bound to prove clearly that the wharf was planked according to the requirements of the Act. The action being based on the Act of Assembly, the plaintiffs have no common-law right whatever. They had no right to build the wharf. [RITCHIE, J. The wharf was the property of the plaintiffs, and they have a right to recover for the use of it.] The use of the wharf was like the 1861. MCLEOD against YEATES. 1861. MCLEOD against YEATES. the use of a highway, which every one has a right to use. Cur. adv. vult. CARTER, C. J., now delivered the judgment of the Court. This action was brought to recover an amount said to be due as top wharfage for a quantity of iron landed for the defendant, on a wharf of the plaintiffs in St. John. The case comes before us, on a motion to enter a nonsuit on several points reserved at the trial. Some of these were disposed of at the argument; but there were two which we thought required consideration. First, whether, supposing the plaintiffs as owners of the wharf are entitled to the rates of wharfage given by the Act of Assembly 5 Vict. c. 39, they can recover such rates in any other manner than that prescribed by section 7 of that Act, viz. in the same manner as is prescribed by section 3, for the recovery of penalties for refusing to remove a ship or vessel. It is quite clear that the plaintiffs as owners of the wharf, could have no right to recover in any way, the specific rate of 1s. 3d. per ton for iron landed on the wharf (which is what they have been sued for, and for which the verdict has been given), except by virtue of the Act of Assembly. Had the same section which created this new liability, given a particular mode of enforcing that liability, we should have thought that that mode, and no other, could have been adopted. That is, however, not so in the present instance. The sixth section enacts" that it shall and may be lawful for the owner "or owners of any wharf or wharves properly planked or "timbered on the surface, and none other, or the lessee or "lessees of any such wharf or wharves, in the city or "parish aforesaid, or his or their agents, to ask, demand, "sue for, recover, and receive as wharfage, or top wharf"age (so called), for all articles landed on or shipped from "their respective wharves, at and after the following rates "and charges, &c." Here, clearly, a general right is given, which, as no particular mode of enforcement is prescribed, could be enforced by the ordinary mode in the ordinary tri bunals. 66 bunals. But it is urged that the section 6 does not say who is to be liable to the wharf-owner, for such rates of top wharfage; that that is only to be discovered by the section 7, which latter section prescribes a special mode of recovering. Now apart from the consideration that section 7 does point out the parties who are liable; supposing the section 6 stood alone, it could hardly be doubted that the liability thereby created must attach to the general or special owner of the goods, as the only parties who would derive benefit from the use of the wharf, for landing or shipping the goods. But looking at the section 7, it is apparent that that section does not create the liability of "the owner, consignee, or agent of the articles," but treats them as the parties in whom that liability has been created by the section 6; for it says, "If the owner, &c. shall refuse "to pay the wharfage." Now the Legislature could not very well have given a summary remedy for a refusal to do something, unless by the common or statute law the party were bound to do it. The obligation to pay a particular rate of top wharfage is unknown to either, but for section 6, whence it is evident that the owner, &c., of the articles is the party against whom the general right to sue is, by the section 6, intended to be given to the owner of the wharf; and if this be so, the remedy given by the section 7 is only cumulative. This view is strengthened by the consideration that the right given by section 6 is to "sue for," which indicates a proceeding in personam, and is hardly applicable to the proceeding prescribed by section 3, by warrant of distress for the recovery of a penalty. The other point on which we felt some difficulty, is, whether there was any evidence that the plaintiffs' wharf was "properly planked or timbered on the surface." The only evidence given was that one of the witnesses said the wharf was in good order. The Legislature, in creating this new liability, seem to have taken especial care that it should only attach to those who should be secured in having a fair equivalent for the new tax imposed on them, by the convenience of a safe and suitable wharf for the landing or shipment of goods, and did, by very plain and 1861. MCLEOD against YEATES. 1861. MCLEOD against and emphatie words, limit the right to levy this new tax, to the owners of such wharves as would afford that sufficient equivalent, and none other. In order to bring themYEATES. selves within the provisions of this Act, the plaintiffs thought it necessary (as undoubtedly it was) to aver that their wharf was properly planked or timbered on the surface, which averment they were bound to prove affirmatively; and it was a matter most easy of proof, if the fact was so. We cannot think that the mere proof, that in the opinion of the plaintiffs' clerk the wharf was in good order, can be sufficient evidence that it was in that order which the Legislature has prescribed, viz. that it was properly planked or timbered on the surface. On this point only, we think the rule for entering a nonsuit should be made absolute. This is the opinion of N. PARKER, M. R., WILMOT, J., and myself. PARKER and RITCHIE, JJ., would have inclined to order a new trial on payment of costs. Rule absolute. END OF EASTER TERM. CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF NEW BRUNSWICK IN TRINITY TERM, IN THE TWENTY-FOURTH YEAR OF THE REIGN OF VICTORIA. 1861. FEARON against MURRAY. 11th June. succeeds on substantial entitled the witnesses HIS was an action of replevin, in which a verdict was Where, in replevin, the entered for the defendant, on the plea of property, defendant and for the plaintiff, on several other issues. [See ante, p. the plea of 11.] The Clerk, on the taxation of costs, allowed the property, the defendant the fees of certain witnesses (one of whom, Neil muted to t Campbell, attended the trial on behalf of the plaintiff, but costs of the was called by the defendant only), on an affidavit, which called to prove stated that their evidence was material on the plea of though their property; but did not shew that they were called exclu- not have been exclusively sively on that plea. In Easter term last, H. B. Robin- applicable son, on behalf of the plaintiff, obtained a rule nisi for a review of the taxation. Fraser now shewed cause. It is not necessary that the witnesses should be called, exclusively to support the issue, on which the party succeeds. Chit. Arch. 1381; Richards v. Cohen (a); Lardner v. Dick (b); Crowther v. Elwell (c); Holderness v. McKendrick (d). Who such plea, evidence may thereto. |