1863 DAVIS against CUSHING, has necessarily incurred in a legal proceeding arising out of the action, which proceeding was instituted by the defendant, and which it was necessary for the plaintiff in the assertion of his rights, to resist; the further question arises, whether counsel fees, claimed in the declaration eo nomine, both by averment and proof, can be considered a part of such necessarily incurred costs. This is not a case where a plaintiff seeks remuneration by damages, for an injury of which the result to him cannot be exactly measured, as, for an injury to his character, or his person or his property; but it is in the nature of an indemnity for a definite pecuniary loss. In such a case, the amount of indemnity which he can claim from the opposite party, must be limited to what he was legally liable to pay, and cannot include what he may have chosen to pay voluntarily without any legal obligation so to do. In all cases, the party to a suit may for his own advantage employ counsel, and pay such counsel large fees, but in no case can he, if he succeed in the suit, recover from his opponent, any amount, qua counsel fees, beyond the amount taxed by the Court, whien cannot exceed five guineas, whatever may be the length or importance of the case. In the proceedings before the Sheriff under a writ de proprietate probanda, the law provides for no fee to counsel. There was therefore no legal liability on the plaintiff to pay the amount of £44, as counsel fees; and therefore he cannot recover that amount from the defendant, as money necessarily paid by him as counsel fees, which is the averment he has made on this matter in his declaration. If it he urged, that under 1 Revised Statutes 325, § 13, if the claimant succeed on the writ de proprietate probanda, he may recover counsel fees as part of the "actual costs "and expenses by him incurred in prosecuting his claim," and that therefore the plaintiff ought to be in the same position; it may be answered, 1st. That it is by no means clear that counsel fees would be included in the words "actual "costs and expenses ;" and 2d. That if that be so, it would only be by virtue of those words, the benefit of which the Legislature has limited to the claimant. The 1863. DAVIS against The case of Grace v. Morgan (a), goes very fully into the question of the amount of indemnity for costs incurred in a proceeding arising out of the action between parties, and reviews all previous cases. By that case, it would appear CUSHING. that where there has been a taxation of costs, that amount is the limit of the indemnity, and extra costs for which the plaintiff would be legally liable to his own attorney cannot be included; and even admitting, that where there has been no taxation, the plaintiff may recover full costs, still those full costs would not include anything which he was not bound himself to pay. Inasmuch therefore, as this payment of £44 for counsel fees by the plaintiff, was voluntary, and an amount which he was not liable to pay; as the averment in the declaration is specifically for the payment of counsel fees, and the proof corresponds with the averment; this is an expense incurred by the plaintiff, for which he cannot claim indemnity in the shape of damages from the defendant. The rule for a new trial must be made absolute, unless the plaintiff consents that the verdict be reduced to £14 158. (a) 2 Bing. N. C. 534, A. THE QUEEN against JARDINE. A school as J. SMITH shewed cause against a rule nisi, granted to quash an assessment made under the sessment unAct 21 Vict., c. 9, § 15. Fraser was heard in support of the rule. Cur. adv. vult. CARTER, C. J., now delivered the judgment of the Court. This was an application to quash a rate and subsequent der the Act 21 Vict. c. 9; is bad, if thirty days have not elapsed between the publication of the notice of the assessdelivery of the ment, and the warrant to the collector, as directed by 1 Rev. Stat. c. 53 § 12; also, if the amount ordered for assessing and collecting exceeds 15 per cent on the assessment. The provisions of the 6th sect. of 21 Vict. c. 9, that the proceedings for levying and collecting assessments shall be the same as provided for county and parish rates, apply only to the mode and forms for levying and collecting; and do not incorporate the provisions of the Rev. Stat. c. 53, § 6, requiring security for costs to be given before applying for a certior ari prceedings 1863. proceedings, under the provisions of the School Act, 21 Vict. c. 9. Several objections were made to the assessment; and as two of them seem to us clearly fatal, we shall confine ourselves to those two alone. THE QUEEN against JARDINE. 1st, That a period of thirty days was not allowed between the publication of the notice of the resolution of the rate-payers, and the delivery of the precept for collection, which is required by 1 Rev. Stat. c. 53, § 20, to enable rate-payers to furnish the Assessors with a statement on oath, of their real and personal estate and income. 20. That this assessment allows 10 per cent for assessing, and 7 per cent for collection: whereas the law, (1 Revised Statutes c. 53, § 32), allows not more than 15 per cent for both services. The facts of the case are as follows:-At a meeting of the rate payers, held August 13th, 1862, it was resolved that £35 should be assessed on the district for the purpose of paying off the debt on the school house, and further completing the same. This resolution was transmitted to the assessors, on receipt of which they posted up notices in three public places of the district, according to 1 Revised Statutes c. 53. Within thirty days after publication of this notice, Alex. Ferguson delivered to Hartl, one of the assessors, a statement of property in the district. Afterwards, the assessors met and prepared an assessment of £35, with 10 per cent for assessing, and 7 per cent for collection, being the amount ordered and allowed by the Sessions for assessing and collecting rates in the parish; and within sixty days after the receipt of the resolution for assessment, delivered the list to the collector of rates, with a precept (C), and transmitted a duplicate to the Clerk of the Peace, as directed by section 14. The warrant or precept to the collector is dated,August, 1862. 1. Supposing the resolution of the rate payers reached the assessors on the 13th August, and they posted the notices on the same day, and the precept to the collector of the blank date in August be taken as the last day (31st), THE QUEEN against JARDINE. (31st), it would not have allowed the thirty days, which by 1863 the 20th section of the chapter, is allowed to rate payers to give in to the assessors a statement on oath of property and income. Had the assessors stated in their return the day on which the precept was delivered to the collector, and that day was more than thirty days after the notices were posted, and that the date of August on the precept was a mistake, this difficulty might have been removed; but as it is, there is nothing positive in the return, but the date on the precept, and by that we must be governed. 2. The 10 per cent for assessing, and 7 per cent for collection, must vitiate this assessment. The assessors have taken upon themselves to authorize this amount; whereas it would seem that whatever amount is allowed for the services of assessors and collector, should be settled and ordered by the meeting which determines the assessment and its amount, in the same way in which such amount is allowed in the case of county rates by the Sessions under section 32, 1 Revised Statutes c. 53, under which section alone could any such allowance be warranted in the case of a school rate. This 17 per cent for assessing and collecting, was not allowed by the proper authority; and exceeds the amount which could have been allowed, which is limited to 15 per cent in the whole. We think a certiorari may properly have issued in this case, and that it is not within the operation of the 6th section of c. 53, which requires security to be given to the county Treasurer before the certiorari is granted. A similar question arose in the case Ex parte Jocelyn (a) Under the School and County Acts then in force, viz., 15 Vict. c. 40, and 13 Vict. c. 30, the respective provisions touching this question, were similar to those of the present school Act, 21 Vict. c. 9, and 1 Revised Statutes c. 53. It was decided in that case, that this Court had power to grant a certiorari to remove the proceedings of trustees of schools under 15 Vict. c. 40, and to quash them if defective. It is true, that in that case the proceedings objected to were previous to the assessment; but we do not think that 1863 THE QUEEN against JARDINE. 66 makes any difference, inasmuch as it appears to us that the provision in the 21 Vict. c. 9, § 16, " And such proceedings shall be had and taken thereon for the levying and collecting the same, as are provided in other cases of "county or parish rates," applies only to the mode and machinery and forms by which those county and parish rates are levied and collected, and not to anything besides; and would neither give an appeal to the Sessions under § 22, nor restrict the right to a certiorari under section 6. For these reasons we think this rule must be made absolute. Rule absolute. A. became tenant from year to year to B. in July R CROSKILL against WORTMAN. EPLEVIN. The defendant made cognizance as bailiff of one William L. Trueman, for three years rent 1858, at certain due to him from Thomas Trueman, as bis tenant, from 1st rent. In 1860, A. agreed to July, 1858, at £21 a year. The plaintiff pleaded non purchase the his note for the purchase money, taking from B. a bond for a deed, on payment of the note. The At the trial before Parker, J., at the last Westmorland circuit, it appeared that the property on which the goods were distrained, belonged to William L. Trueman, who on the 1st July, 1858, leased it by a verbal agreement to purchase was Thomas Trueman, who was then in occupation of it, not completed and was aban- at a yearly rent of £21. In September, 1860, Thomas Trueman agreed to purchase the property from Wm. L. note and bond Trueman, and gave his notes for the purchase money, takbeing given doned by consent of the parties, the mained in up, and A. re- ing from Wm. L. Trueman, a bond for a deed of the proBefore the notes came possession of perty when the notes were paid. the land with- due, Thomas Trueman failed in business, and the purchase was never completed. About a month before the distress, the original and before the first payment on account of the purchase out any new. agreement. Held, -that tenancy was not determi ned by the agreement to purchase, and that B. could distrain for the rent from July 1858. when 4. became tenant. became |