1878 ST. PARISH The argument against the award as to the Glebe and Church Lands is: suppose she were hereafter sued by GEORGE'S the Plaintiffs for a claim against her in her representative character, for monies received by her husband in his lifetime, or by her as Executrix, could this award be set up as a defence to the action? v. KING. It seems to me, the cases to which I have referred are authority that it could; and the observations of Willes, J., in the case of The Duke of Beaufort and The Swansea Harbour Trustees, already cited, that the Defendant might in such a case aver it was a matter in difference; and then the finding of the arbitrators that she pay the Plaintiffs one dollar in respect of the same, may, I think, under the authorities, be considered a finding as against her in her individual capacity for that sum, and as to the claims of the Plaintiffs against her for money received by her husband, or by her as Executrix, as a finding against the Plaintiffs on their claim; and if she had any set off as to such claim the finding is against such set off or counter claim. As to that part of the award which directs the Defendant to pay the costs of the reference and award, it was admitted on the argument that it was bad, and there is no doubt the Plaintiffs may abandon it, as they offer to do, and they can be restrained from enforcing that part of it if they attempt to do so. The other award, as to the school lands, seems to me still less liable to objection, for the award is against the Defendant in her representative capacity, and cannot be considered against her personally, and, of course, negatives any claim of that kind. As to the suggested difficulty as to her not having assets, the award against her as Executrix and that she do pay the said sum, and that judgment be ruled against her for that amount, is an adjudication against her that she had assets. The case of Worthington v. Barlow (1) established that doctrine, and I am not aware that it has ever been questioned. In the affidavit filed it is not suggested that Defendant has not assets, or that there is any fair objection to the award, or that the arbitrators did not really decide on all the matters referred to them. The objec tion taken is a mere technical one, and it seems strange if there were any merits in the application or any real apprehension of difficulty from any omissions in the award, that the facts shewing such difficulty were not brought to the notice of the Court, that the matters might be referred back to the arbitrators under the Statute permitting a reference of the award to the arbitrators to amend it. Since that power has been given to the Courts in England, they seem less inclined to allow mere technical objections to prevail; and when there is any serious objection to the form of the award and even the substance from some omission of the arbitrator, it is referred back to be put right. The appeal will be allowed with costs and the rule nisi in the Court below to set aside the awards will be discharged with costs. Appeal allowed with costs. Solicitor for Appellants: C. J. Townshend. Solicitors for Respondent: McDonald & Rigby. 1878 ST. GEORGE'S PARISH v. KING. (1) 7 T. R. 453. 1877 ~ *June 11, 12. 1878. Jan'y 29. DAVID C. LANDERS et al..................APPELLANTS; AND DOUGLAS B. WOODWORTH.............RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Nova Scotia, Legislative Assembly of Power of punishing for contempt Removal of a Member from his seat by Sergeantat-Arms-Action of trespass for assault against Speaker and Members-Damages. W., a member of the House of Assembly of the Province of Nova Scotia, on the 16th of April, 1874, charged the then Provincial Secretary-without being called to order for doing so with having falsified a record. The charge was subsequently investigated by a Committee of the House, who reported that it was unfounded. Two days after the House resolved, that, in preferring the charge without sufficient evidence to sustain it, W. was guilty of a breach of privilege. On the 30th April, W. was ordered to make an apology dictated by the House, and, having refused to do so, was declared, by another resolution, guilty of a contempt of the House, and requested forthwith to withdraw until such apology should be made. W. declined to withdraw, and thereupon another resolution was passed ordering the removal of the said W. from the House by the Sergeant-at-Arms, who, with his Assistant, enforced such order and removed W. W. brought an action of trespass for assault against the Speaker and certain Members of the House, and obtained a verdict of $500 damages. Held, on appeal, affirming the judgment of the Supreme Court of Nova Scotia, that the Legislative Assembly of the Province of Nova Scotia has, in the absence of express grant, no power to remove one of its members for contempt, unless he is actually obstructing the business of the House; and W. having been removed from his seat, not because he was obstructing the PRESENT:-Sir William Buell Richards, Knight, C.J., and Ritchie, Strong, Taschereau, and Fournier, J.J. business of the House, but because he would not repeat the Kielley v. Carson (1) and Doyle v. Falconer (2) commented on APPEAL from a judgment of the Supreme Court of Nova Scotia, discharging a rule nisi to set aside verdict and for a new trial. This was an action brought by the Respondent, a member of the House of Assembly of the Province of Nova Scotia, to recover $10,000 damages against the Appellants. The Plaintiff, by his declaration, alleged: 1. "That the said Defendants, on the 30th day of April, 1874, assaulted and beat the Plaintiff, and with force and violence ejected and expelled the Plaintiff from the Legislative Assembly of Nova Scotia, and from his seat in the said Assembly." 2. "That the Plaintiff was and is a Member of the Legislative Assembly of Nova Scotia, and being lawfully in his seat in the said House of Assembly where the said Legislative Assembly meets for the transaction of business, the said Defendant assaulted and beat the Plaintiff, and with force and violence illegally ejected and expelled the said Plaintiff from the said Legislative Assembly, and from his seat therein." 3. "That being a Member of the said Assembly, as in the second count mentioned, and being in his place in said Assembly, the said Defendants, on the day and year in the second count mentioned, and on divers other days and times between that day and the commencement of this suit, assaulted and beat the Plaintiff, and caused him to be seized and illegally and wrongfully ejected and expelled from the said Assembly, and from his seat therein, and caused the said Plaintiff to be kept so ejected and expelled from thence hitherto." (1) 4 Moore P. C. C. 63. (2) L. R. 1 P. C. App. 328. 1878 LANDERS WOODWORTH. WOOD WORTH. 1878 4. "That the Defendants on the day andyear aforesaid, LANDERS and on divers other days and times between that day and the commencement of this suit, assaulted and beat the Plaintiff, and ejected and expelled him from the Legislative Assembly of Nova Scotia, of which he is and was a Member, and from his seat therein, and have kept and continued to keep the said Plaintiff ejected and expelled from the said Assembly, and have thereby prevented and hindered the Plaintiff from enjoying his rights and privileges as such Member and discharging his duty as such Member." 5th. "That the Defendants assaulted and beat the Plaintiff, and he claims $10,000 damages." The Defendants pleaded ten pleas : The 1, 2, 3, 4 and 5 pleas traverse each count severally. The 6th plea traverses the severally counts generally, suggesting that they are for the same cause of action. The 7th plea is a special plea to the whole declaration, denying the committal of the alleged trespasses, and stating “that Plaintiff, being in his seat illegally and against the lawful resolution of said Assembly, and in contempt thereof, and hindering, obstructing and delaying the business thereof, and creating a disturbance, and using violent, abusive, disorderly and unbecoming language in said Assembly on said days and divers other days, one Angus M. Gidney, the Sergeant-at-Arms of said Assembly, for the preservation of the order of said Assembly, requested said Plaintiff to depart from said Assembly, whereupon said Plaintiff departed voluntary from said Assembly." The 8th plea discloses the grounds of defence, setting out the facts and circumstances under which the alleged ejection and expulsion occurred, (and which are also set out in the other pleas hereafter given), and the Defendants justification therefor. |