1862.

THE QUEEN

against

PARKER, M. R. Taking the connection in which the word is used, that is, with the lading and unlading of vessels, I think it does not authorise the imposition of tolls. WILMOT, J. I think the authority given to regulate DowLING. "anchorage," means only the power of making rules to regulate the mode of the anchoring of vessels.

RITCHIE, J. The power to impose a tax which may affect the shipping of a great river, should be given in clear and unambiguous language; and not by mere implication. I think the words of the Act will not bear the construction contended for.

Conviction quashed.

THIS

JOHNSTON against McDONALD.

notice of trial,

agreed to set

and a release was given,

tiff, without

notice to the

his attorney,

absence, tried

obtained a

HIS was an application on behalf of the defendant, to Where, after set aside the verdict, and that the plaintiff be ordered the parties to discontinue the action; on the ground that the verdict the the suit, was obtained by fraud, and contrary to good faith. It appeared by the defendant's affidavit, that an action but the plainof assumpsit had been commenced by the plaintiff, against any further the defendant, to recover for the board and lodging of a defendant or minor called James Coughlin, or James McDonald; that and in their the defendant appeared and pleaded in the suit, and notice the cause, and of trial was given; that the defendant had a good defence verdict, the upon the merits, yet, for the purpose of avoiding expensive Court refused litigation, he, at the request of the plaintiff, agreed to the verdict settle the case, and pay the plaintiff £10 in full satisfaction discontinuand discharge of the action; that he did pay the amount, and proper remedy being to the plaintiff received it in satisfaction and discharge, and move for a executed a release under seal. That the legal effect of the ground of the release was fully explained to the plaintiff by the surprise, and person who witnessed the execution of it; and that the the release plaintiff appeared fully to understand the nature of it. continuance. That believing the cause was ended, the defendant in

structed

to set aside

and enter a

ance,- the

new trial on

then to plead

puis darr.

1862.

JOHNSTON against

structed his attorney of the circumstances, and directed him not to take any further steps in the action. That notwithstanding the agreement, the plaintiff, without MCDONALD. any subsequent notice to the defendant or his attorney, and in their absence, had the cause tried as undefended, and obtained a verdict for £52. There were other affidavits corroborating the material statements of the defendant.

S. R. Thomson in support of the motion, contended, that the plaintiff having gone to trial contrary to good faith, and obtained the verdict by a fraud on the defendant, it should be set aside, and the plaintiff ordered to discontinue. [PARKER, J. Should you not have pleaded the release puis darrein continuance?] Suppose, the day before the trial, the parties settle, and the defendant sends away his witnesses, and does not attend the Court at all, how could he plead the release puis darrein continuance? [CARTER, C. J. You might apply for a new trial, and get leave to plead the release puis darrein continuance. PARKER, J. The plaintiff has a right to contest that release: you seek to deprive him of that right, and bring him before the summary jurisdiction of the Court. Why do you not move to set aside the verdict, in the ordinary way, on the ground of surprise, and then obtain leave to plead the release puis darrein continuance?] The defendant does not want a new trial; he asks that the plaintiff be compelled to discontinue. [PARKER, J. The plaintiff has a right to say "I do not want my case tried by affidavits."] If no notice of trial is given, and the cause is tried as undefended, the defendant may apply to set aside the verdict, without moving for a new trial; and this case is, in principle, the same.

Cur. adv. vult.

CARTER, C. J., now said that the defendant should have moved for a new trial on the ground of surprise, and then pleaded the release puis darrein continuance.

Rule refused.

1862.

Doe on the demise of MCCULLOGH against DOWD.

dower, under the Act 21 Vict. c. 25.

because the

counsel ob

the Judge thought it could not be

HIS was an action for Dower, brought under the Act An action for 21 Vict. c. 25. Fraser moved for judgment as in case of a nonsuit, the was not tried, plaintiff not having proceeded to trial pursuant to notice. defendant's A. L. Palmer opposed the motion, on affidavits stating jected, and that when the cause was called on for trial, the defendant's counsel objected to its being tried by the common jury, tried until an and the Judge decided that it could not be tried until a order had Judge's order had been obtained, directing a view to had, as directed by the second section of the Act. He con- tion for judgment quasi tended that the Act did not provide sufficient machinery nonsuit for to work out its provisions, and that, as it was not the ing to trial, plaintiff's fault that the case was not tried, judgment as in without costs. cause of a nonsuit should not be granted.

Fraser, contra.

been made

be for a jury of

Per Curiam. It was not the plaintiff's fault that the cause was not tried; therefore, it is not a case for judgment as in case of a nousuit. The Act seems to require amendment (a).

Motion refused without costs.

(a) See Doe dem Johnston v. Jardine, 1 Pugs. 170, where the Court said there was no insuperable difficulty in carrying out the provisions of the Act.

view: A mo

not proceed

was refused

N'

EX PARTE MULLIGAN.

tion tried

Mayor of

EEDHAM shewed cause against a rule nisi for a In a prosecucertiorari to remove a conviction had before him before the as Mayor of the City of Fredericton, for violating a bye- Fredericton, law of the Corporation; on the ground that the bye-law bye-law of was not proved. He contended that it was not necessary tion, the byein every case in the Mayor's Court, to prove the bye-laws law must be

of

for violating a

the Corpora

1862.

Ex Parte

MULLIGAN.

of the Corporation. If it was necessary to prove the bye-law ordinarily, it was not so in this case, because the defendant had waived the proof, by not objecting that the bye-law was not proved, until after he had gone into his defence. [RITCHIE, J. If the infringement of one of the bye-laws was a misdemeanour, and the party was indicted for violation of it, would you not be bound to prove the bye-law? If so, would it not be as necessary to prove it in your own Court? You, as Mayor, may be very familiar with the bye-laws, but it might be the case of an ancient Corporation, and the Mayor lately come into office. WILMOT, J. Did the defendant use the bye-law on the trial.?] Yes: and for that reason, he cannot now object that it was not proved. In another Court, no doubt it would be necessary to prove it, but it is not so in the Mayor's Court. [PARKER, J. The Mayor's Court must be governed by the same rules as other Courts. N. PARKER, M. R. What do you rely on as a waiver of the proof of the bye-law?] The defendant's using it on the trial, in his defence. [RITCHIE, J. No doubt your word may be very good as between man and man; but the defendant was not bound, on the trial, to take your word as to what the bye-law was under which you were proceeding against him.]

Per Curiam.

Conviction quashed.

A promissory note dated

24th August, 1857, payable

TH

CALHOUN against COLPITTS.

HIS was an action on a promissory note for £37. 10s. dated 24th August, 1857, payable on or before with interest the 1st day of May, 1861, with interest" from first August "August last" last." Judgment was signed by default, and in assessfrom 1st Aug-ing the damages, the interest was calculated from 1st

"from first

bears interest

ust, 1856.

August, 1856.

Steadman moved on behalf of the defendant, to

amend

amend the assessment, contending that by the terms of the note, interest was payable only from 1st August, 1857. A. L. Palmer opposed the motion, on affidavits of the plaintiff and his attorney, to the effect that it was the intention when the note was made, that it should bear interest from 1st August, 1856. The Court said the question must depend upon the meaning of the language used in the note; and not upon the statements in affidavits. Cur, adv. vult.

CARTER, C. J., now said. This was an application to amend an assessment made by Wilmot, J., on interlocutory judgment, on a promissory note dated 24th August, 1857, for £37. 118. payable on or before the 1st day of May, 1861, with interest "from first August last." In assessing, the interest was calculated from 1st August, 1856, and it is now contended the interest should only be calculated from 1st August, 1857. Several long affidavits were read on both sides, having little or no bearing on the point for our decision. All we have to do is to consider what is the meaning of the language of the note, as regards interest. We think the obvious meaning of "August last” is the previous August, viz. August 1856, and that the assessment was properly made.

The motion will be dismissed, but without costs.

1862.

CALHOUN

against COLPITTS.

R

DAVIS against CUSHING.

purchased

EPLEVIN for a quantity of pine logs. Pleas: 1st. Defendant Property in the defendant. 2d. Property in Ru- lumber from fus Demons.

D, who claimed to be the owner.

In replevin by the plaintiff, who owned the lumber, the defendant cannot set up as a deence, that D. had authority from the plaintiff to sell the lumber for a certain price; the defendant in purchasing having dealt with D. as the owner of the lumber, and not as the plaintiff's agent.

In replevin for timber, the plaintiff cannot recover as part of his damages, an amount paid as counsel fees on the trial of a claim of property put in by the defendant, under i Rev. Stat. c. 126, § 12; nor a sum paid for boomage, while the timber was in charge of a Boom Company, where it was placed for survey and safe keeping.

At