Province of New Brunswick. SUPREME COURT. Barker, J., FLEMING V. HARDING. Practice-Leave to file bill-Order absolute. [Dec. 21, 1897. Where bill was not filed within the time provided by 53 Vict., c. 4, s. 22, owing to a settlement of the suit pending, and defendants had not appeared, an order absolute was granted, giving leave to file the bill with direction for service of order on defendants. A. P. Barnhill, for the application. Full Court.] QUEEN v. MCGUIRE. [Feb. 22. Power of judge to summon second grand jury–Jurors serving on a previous panel-Order to one coroner. Defendant was arrested and committed for trial for theft during the sitting of the Carleton Circuit Court, and after the grand jury had been discharged the Court ordered the sheriff to summon a new grand jury, which found a true bill. It transpired that the informant and principal witness in the case was a brother of the sheriff who summoned the jury and His Honour for this reason quashed the indictment and ordered a coroner to summon a third jury. This, jury, comprising several men who had been on the sheriff's jury which found a true bill on the indictment that was quashed, also found a true bill, and the prisoner was convicted. Held, on a case reserved, that the Court had the power, inherent in itself, to order the summoning of a second grand jury. Held, also, that the fact of several of the jurors of the last panel having served on a previous grand jury in the same case would not invalidate the indictment. Held also, that the order for the coroner's jury need not go to all the coroners of the county but that it was sufficient for it to go to and for the return to be made by one coroner. A. B. Connell, Q.C., for prisoner. A. S. White, Attorney-General, for Crown. Full Court.] TROOP v. EVERETT. [Feb. 22. Suggestion of death of parties-Judge's order allowing same. This was an application to rescind an order of the Chief Justice allowing plaintiff to enter a suggestion of the death of a co-plaintiff and one of the defendants. It was contended that there was no provision in the statute authorizing a Judge to make such an order, and that consequently he had no power to do so. Held, (per TUCK, C.J., and LANDRY and MCLEOD, JJ., VANWART, J., dis senting), that even if there were no authority in the statute for the order, no injury could result to any of the parties, and therefore the order should not be set aside. VANWART, J., based his dissenting judgment on the ground that under the terms of the order, if the defendant failed in the action he would be prejudiced to the extent of the costs. C. A. Palmer, Q.C., for plaintiff. A. H. Hanington, Q.C, for defendant. Full Court.] QUEEN v. SCHOOL TRUSTEES OF CANTERBURY. Mandamus-Schools Act-Defective writ—New writ issued. [Feb. 22. The Court in Trinity Term granted a rule absolute for a mandamus to compel the defendants to admit five children of one Miller (of schoolable age) to the privileges of the district school. The mandamus was issued, and the trustees, having made a return to it in which they objected that the writ was defective in that it went to them by their individual names and not in their corporate capacity, and also that it did not set out the names and ages of the children whom they were commanded to admit, counsel for the applicant moved on the second common motion day of Michaelmas Term to set aside the answer. The Court was of opinion that the writ was defective in not setting out the names and ages of the children, and without quashing the first writ ordered a new writ to be issued. The new writ was directed to the trustees in their corporate capacity and set out the residence of the father as well as the residence, names and ages of the children, whose admission was commanded. The trustees in Hilary Term moved, pursuant to notice, to set aside the second writ on the ground that the Court had no power to direct the issue of a second writ until at least the first was quashed, and also on the ground that the second writ was bad in that it contained more than one distinct right, viz.: the right of the parent to have his children admitted to school as well as the right of each of the five children to be admitted. Held, (HANINGTON, J., dissenting, BARKER, J., in part) that the second writ was a valid writ, that it was necessary to set out the residence of the parent and the residence and ages of the children to establish the right of the parent under s. 74 of the School Act, c. 65, Con. Stat., and that therefore there was only one distinct right. F. St. J. Bliss, and H. B. Rainsford, for the trustees. J. W. McCready, and Geo. W. Allen, contra. Full Court.] FRASER V. MACPHERSON. [Feb. 22. Bill of sale-Husband to wife-After-acquired property-Consideration. Defendant took an assignment of a first bill of sale on a number of hhrses, carriages and other livery stable property of the plaintiff's husband. This bill of sale purported to convey to the mortgagee, in addition to the said property described in the schedule, "any and all the property that may hereafter during the continuance of these presents be brought to keep up the same, in lieu thereof and in addition thereto, either by exchange or purchase, which so soon as obtained and in the actual or constructive possession of the said mortgagor shall be subject to all the provisions of this indenture." Subsequently the plaintiff loaned her husband $600, and took from him for security a bill of sale, covering all the property described in the schedule of the defendant's bill of sale, and some additional horses, carriages, sleighs, etc., which he had since acquired. The schedule of the second bill of sale was as follows: "Eight horses, 8 single harnesses, 3 sets double harness, 8 pungs, 2 buggies, 3 waggons, 5 buffalo robes, 1 large sled, C.P.R, I double buss sled, 6 wraps ; also all other goods, furnishings and articles and materials, now or hereafter during the continuance of these presents used in connection with the livery stable now owned by the said J. E. F., and all property hereafter acquired therein," and the bill of sale itself contained the same provision as to after-acquired property as the first one. After this again the plaintiff's husband executed a third bill of sale to the defendant, covering all his livery stable property, and subsequently gave him a delivery order of the same. Defendant having seized all, plaintiff brought an action of trover for the conversion of the property described in the second bill of sale, or so much thereof as was not covered by defendant's first bill of sale, and also for the conversion of a phaton, which she claimed to own by reason of her having given her husband the money with which to purchase it. On the trial before McLeod, J., without a jury, plaintiff's husband testified that he gave the third bill of sale and delivery order to the defendant in consideration of the latter's undertaking to pay off his wife's claim. The Judge found a verdict for the plaintiff, assessing the damages at $480. On a motion for a reversal of the verdict or for a new trial, defendant contended that the plaintiff's bill of sale was void as being from husband to wife (the Married Woman's property Act of 1895, it was argued, not providing for such a transfer), and for insufficiency of the description of the property, and also that the provision in the first bill of sale as to after-acquired property, coupled with F.'s subsequent delivery order, subjected all the after-acquired property to the provisions of the first bill of sale. For the plaintiff it was contended that the provision in the first bill of sale as to after-acquired property was ineffectual for not indicating the same sufficiently for identification, either as to its character or its future location. Held, per TUCK, C.J., and HANINGTON, LANDRY and MCLEOD, J.J., (BARKER and VANWART, JJ., no part) that the verdict was right, and should not be disturbed. J. W. McCready and J. H. Barry, for plaintiff. G. F. Gregory, Q.C., for defendant. Tuck, C.J., } KENNEDY v. NEALIS. [Feb. 28. Execution against body – Costs payable by decree of Equity Court-Bail to the limits. Costs being payable by the defendant under decree of the Equity Court an order absolute was obtained from the Court for an execution against the body of the defendant, he was arrested. On an application for an order to the sheriff to take bail to the limits, Held, that the application should be granted, and that the case was distinguishable from Ex parte Wright, 32 N.B., in that it was not an application by habeas corpus to set aside the decree of the Equity Court. A. O. Earle, Q.C., for the prisoner. W. B. Wallace, contra. ADMIRALTY DISTRICT. McLeod, J.] LAHEY V. MAPLE LEAF. [Feb. 28. Salvage claimed under $100-Costs-Colonial Courts of Admiralty Act— Admiralty Acts 1891 (54 & 55) and Admiralty rules. Plaintiffs agreed to accept $25 for salvage services rendered to the yacht "Maple Leaf" in the harbour of St. John, and being unable to obtain a settlement with the owner, brought an action for salvage, claiming $100. The value of the yacht was $400. The defence charged the salvors with misconduct, negligence and unskilfulness, whereby the yacht had been considerably damaged, and contended that under the Wrecks and Salvage Act, c. 81, s. 44, R.S. Can., the claim should have been brought before the Receiver of Wrecks, and that costs should not be allowed to the plaintiffs, and should be certified to the defence. The plaintiffs contended (1) that the Act did not apply where negligence, etc., were charged, citing The John, Lash. 13; The Fenix, Swa. 13; The Comte Nesselrood, 31 L.J., Ad. 77; (2) That Rule 224 of the Admiralty Rules, 1891, contemplated that the action should be brought in the ViceAdmiralty Court; (3) That Rules 132, 133 by leaving costs in the discretion of the Judge had repealed the provisions of c. 81, s. 44, R.S. Can., as to costs, citing Garnett v. Bradley; (4) That c. 81, s. 4, 3 App. Cas. 944, R.S. Can., was repealed by the Colonial Courts of Admiralty Act 53, 54 Vict., c. 27, s. 2, ss. 2, citing the W. J. Aikens, 4 Exch. Rep. 7. Salvage having been awarded: Held, that plaintiffs were entitled to costs, c. 81, s. 44, did not apply where the defence disputed that salvage services had been rendered by charging negligence, and only applied where the only question of dispute was as to the amount of salvage that should be allowed. W. H. Trueman, for the plaintiffs. J. R. Dunn, for the owner. Full Court.] Province of Manitoba. QUEEN'S BENCH. KELLY v. WINNIPEG. [Feb. 10. Municipal law-Ultra vires-Wages of workmen employed by corporation. Appeal from decision of Bain, J., noted ante. p. 177, dismissed with costs. Tupper, Q.C., and Phippen, for plaintiff. Ewart, Q.C., and J. Campbell, Q.C., for defendants. Dubuc, J.] PEARSON V. CANADIAN PACIFIC R.W. Co. [Feb. 25. Workmen's Compensation for Injuries Act, 1893-Lord Campbell's Act-Death by accident-Negligence. This was a demurrer to the plaintiff's statement of claim which was issued to recover damages for the death of her husband alleged to have been caused by negligence of the defendants or their servants. Letters of administration had been taken out by a brother of the deceased, but as he was in the employ of the company he refused to sue. The demurrer was on two grounds. 1. That the statement of claim did not sufficiently show that the deceased was a workman entitled to the benefit of The Workmen's Compensation for Injuries Act," 56 Vict., c. 39. 2. That the Manitoba statute relating to compensation for death by accident governed the right of action, instead of Lord Campbell's Act, and that the widow had no right to sue notwithstanding the refusal of the administrator to do so. Held, that the Act respecting compensation to families of persons killed by accident, R.S.M. c. 26, must govern in this Province instead of Lord Campbell's Act, and must be read along with The Workmen's Compensation for Injuries Act of 1895, and that such an action as the present can only be brought by the executor or administrator of the deceased person. The demurrer was allowed without costs as the other ground alleged failed. Howell, Q.C., for plaintiff. Aikins, Q.C., and Culver, Q.C., for defendants. Province of British Columbia. SUPREME COURT. Drake, J.] DUNSMUIR v. KLONDIKE & COLUMBIAN GOLD FIELDS. [Mar. I. Replevin-Motion to set aside writ of-Sureties This was a motion to set aside a writ of replevin. The plaintiff had a time charter on the steam tug "Czar," a vessel on the British Registry, and he was in possession of her. The defendants purchased the tug from the registered owner and she was delivered to the defendant by the owner without the knowledge or consent of the plaintiff. The plaintiff replevied and the defendants moved to set aside the writ of replevin on the ground amongst others that the bond given to the sheriff was Illusory and the sureties were not worth the amount for which they had become bound. Held, that there is no language in the Replevin Act, Con. Stat. B.C. 1888, c. 101, that makes it necessary to take sureties at all, and that a bond without sureties fulfils the language of the Act. Motion dismissed with costs. C. E. Pooley, Q.C., for plaintiff. Gordon Hunter, for defendants. |