It is a fatal objection to a rule nisi for a quo warranto that no grounds

Plaintiff's property, with that of many others, was taken for railway
purposes, and an appraisement was made under chapter 41 of the Acts
of 1877. The defendant, who was Custos of the County, and two other
Justices, were appointed by the Sessions a committee to carry out the
provisions of the Act, chapter 42, of 1877, for the borrowing of money
to pay the land damages. They arranged with the Union Bank for the
money at the rate of interest limited in the Act, but some delay occur-
ring before the awards were filed, the rate of interest rose, so that they
were obliged to submit to a discount of two-and-a-half per cent. on the
County debentures, at which rate they took the money, which was
placed to the joint credit of the Custos and Treasurer. For convenience
in paying it out it was drawn by a joint check and placed to the credit
of the defendant, the Custos, who proceeded to pay the amounts awarded,
deducting the two-and-a-half per cent. A balance remained after pay-
ing off all the claimants, which the defendant paid over to the County
before this action was brought in the Magistrates' Court to recover
from defendant the two-and-a-half per cent. The County Court Judge,
on appeal, held that there was no privity of contract between defendant
and plaintiff, and non-suited the plaintiff but granted an appeal under
section 14 of chapter 9, Acts of 1878.

The COURT held that the Judge had power to grant the appeal, but
dismissed it on the merits.

Thomas v. Ray......

135

PROBATE COURT, APPEAL FROM.

The Judge of Probate refused to grant an appeal from his decision,
on the ground that the bond, although in the form given in the statute,
did not state what cause was pending. The appeal was then granted
by a Judge of the Supreme Court at Chambers.

Held, that the bond was in the proper form.

In re Bath Estate ...

182

PROMISSORY NOTE, INDORSEMENT OF.

See INDORSEMENT, Irregular.

EQUITABLE DEFENCE.

To an action on a promissory note brought by the indorsee, defend-
ant pleaded on equitable grounds, that the note bad been made merely
to enable the payee, who had indorsed it to plaintiff, to raise money on
it, and the plea set out other circumstances connected with the note by
way of equitable defence, alleging that plaintiff had knowledge. Plain-
tiff in his affidavit to set aside the plea denied knowledge of the facts
relied on, and defendant, in reply, asserted his belief that plaintiff had
knowledge, and that plaintiff and said payee had been very much mixed
up with each other, and "he considered it almost impossible but that
plaintiff should have known the true history of the note."

Held, that the plea must be set aside, the essential allegation of
scienter being denied by plaintiff, and that denial not controverted by
the defendant.

"PROVABLE," DEFINITION OF TERM IN INSOLVENT ACT.
See INSOLVENT ACT OF 1875. 2.

367

PUBLICATION.

The defendant company was incorporated by statute for the purpose
of printing and publishing the "Morning Herald" newspaper, and was
charged by plaintiff with having published of and concerning him that
he had absconded, meaning that he was insolvent. A letter was put in
evidence from plaintiff's solicitors to Cahill, the business manager of the
company, referring to the statement as false, and demanding repara-
tion, to which the following letter was received, in the handwriting of
the business manager, who had shown the letter to the editor: "The
editor of the Herald.' referring to Messrs. McCoy & Longley's letter,
requests that they state what reference they wish to make to the matter
in the Herald. If the statement as published is now denied by Mr.
Wright, the editor is willing to accord to him the benefit of such
denial." The business manager, who had been a practical printer, testi-
fied that he had knowledge of the make-up of the paper, and that there
were advertisements in the paper tendered that were charged for by the
defendants, but on the following day he gave evidence somewhat con-
flicting with that of the previous day in reference to his knowledge of
the make-up of the paper. The Judge on the first day declined to
receive a question as to Cahill's belief that the paper tendered was one
issued by defendants. In his report the Judge said; "1 refused to
receive the newspaper as proven, and, the plaintiff having become non-
suit, I offered to give him a rule nisi.

Held, that this was not such a voluntary non-suit that the plaintiff
could not move to set it aside, and that the evidence of Cahill as to the
make-up of the paper should have gone to the jury. (Q., as to
RITCHIE, E. J.'s concurrence in this ruling.) (Per MCDONALD, J.,
that on the evidence of the letters the question of publication was one
of fact for the jury.)

Wright v. Morning Herald Co.

398

See also LIBEL. 1.

QUO WARRANTO.

See PRACTICE.

RAILWAY DAMAGES.

The act incorporating the company for the construction of the Nic-
tax and Atlantic Railway provided that the land required for the road,
&c., should be furnished gratis to the company, who were authorized to
exercise all the powers necessary for locating and completing the rail-
way; and the company was empowered to build the road "under the
powers, authorities and provisions of this act" (the act of incorpora-
tion) "and also of chapter 70 R. S., 3rd Series, of Provincial Govern-
ment Railways, so far as the same shall be applicable to such railway."

Held, that, although sections 44 to 59 of chapter 70, providing for
appraisement of the lands taken and assessment of the county were not
expressly embodied in the act of incorporation, they were available for
the purpose of making the appraisement and assessment.

Held, further, that the objection that the application for a jury was
made to and the order granted by the Court on circuit instead of a
Judge of the Court, and the objection that the venire was not filed
within thirty days were obviated by section 52 of chapter 70 providing
that proceedings should not be set aside upon any mere technicality.

Held, further, that the objection that plans and specifications were
not on file as required by section 47 of chapter 70 when the order
passed, even if it could be raised by the parties whose lands had been
seized, could not be taken by the county authorities at whose instance
the proceedings had been taken, and that the same principle applied to
the contention that the act contemplated only one appraisement and
that all the plans and specifications for the whole line must be filed
before the order.

In re Nictaux and Atlantic Railway

RECORDER OF HALIFAX, RIGHT TO TAX COSTS.

REGISTRY ACT.

See COSTS. 2.

Plaintiff purchased in 1872 a property adjoining defendant's property,
and to the north of it. In 1859 Caldwell, who then owned the northern
property, granted by deed to defendant the privilege of piercing the
south wall of his building, carrying his stove-pipes into the flues, and
erecting a wall above the south wall of the building, to form at that
height the north wall of defendant's building, which was higher than
plaintiff's. This deed was not recorded until 1871, and plaintiff's
solicitor in searching did not search under Caldwell's name after the reg-
istry of the deed by which the property passed out of Caldwell's posses-
sion in 1862, and did not, therefore, observe the deed creating the ease-
ment in favor of defendant. Defendant's northern window was so close
to plaintiff's wall, that it was plain to one narrowly observing it that
defendant had no separate northern wall, and the defendant's northern
wall above plaintif's building, resting upon plaintiff's southern wall,
was obvious to any one looking from the opposite side of the street.

Held, that the deed creating the easement came within the Registry
Act as "affecting lands," that plaintiff, however, was not bound by the
registry of it in 1871, although previous to his purchase, the title having
passed out of Caldwell in 1862, but that plaintiff must be held to have
had notice of the casement as the encroachments were plainly visible.
Ross v. Hunter

REGULE GENERALES.

RELIEF OF INSOLVENT DEBTORS.

See INSOLVENT DEBTORS, Act for relief of.

252

44

521

REPLEVIN.

1. Plaintiff brought an action of replevin for certain goods seized under
a warrant of distress for water rates claimed by the city, and the writ
alleged an unjust detention, but contained no allegation of an unlawful
taking. Defendant denied the detention, and pleaded a second plea,
justifying under a distress for water rates, to which plaintiff replied,
disputing the liability.

Held, that as there was no complaint in the writ of an unlawful
taking, and no proof of a demand of the goods by plaintiff he could not
recover in this form of action.

Inglis v. Greenwood.......

See, however, Wallace v. Laidlaw infra 3.

2. An action of replevin was brought, with counts in trover and trespass,
for a large quantity of spruce and pine logs cut from lands in the town-
ship of Horton. Plaintiff claimed, and had actual possession of the
land under an agreement made in 1873, with a party to whom the lots
had been conveyed by deed in 1854. The defendant attempted to set
up a title under preceedings adopted at a meeting of the inhabitants in
1847, held for the purpose of making provision for the poor, by which
certain commissioners were authorized to sell vacant lands, including as
it was claimed the lands in question, but the Court held that their pro-
ceedings were entirely without legal warrant, and further, that there
was no adequate proof that the lands so sold included the lots in ques-
tion. Plaintiff cut a large number of logs from the lands in dispute,
and put them with others cut from other lots in a boom on the ice, and
defendant cut 500 trees on the disputed lot, and put them partly inside
and partly outside of the plaintiff's boom, mixing them in such a way that
they could not be distinguished. and then claimed the whole lot as his
own. Plaintiff then seized under his writ of replevin all the logs that
he could identify and enough more to make up the number cut by him-
self on the disputed land.

Held, that even if part of the logs replevied had been cut by defend-
ant on land to which the plaintiff had no claim, the common law doc
trine of mixture, differing from that of the civil law, gave the whole of
them without account to him whose property had been invaded, and
that the verdict for the plaintiff, which was taken only on the replevin
count, could not be set aside, as the possession of plaintiff was sufficient
to entitle him to recover against defendant, a wrong-doer.
Lane v. McDonald...

3. The writ alleged only an unjust detention, and no unlawful taking.
Held, that, the possession of defendant being wrongful, no demand
was requisite to sustain replevin. (See Inglis v. Greenwood, ante p. 2.)
Wallace v. Laidlaw..

RULE FOR APPEAL, CERTIFICATE.

See PRACTICE, Certificate.

37

420

SECONDARY EVIDENCE.

See LIBEL. 1.

SENTENCE OF ONE YEAR IN PENITENTIARY.
See ILLEGAL SENTENCE.

SET-OFF.

Defendant pleaded a set-off to plaintiff's claim, for goods sold and
delivered, and under that plea gave evidence of a sale of goods to plain-
tiff by the defendant and his co-partner, and an agreement made between
plaintiff, defendant, and defendant's co-partner, that plaintiff's claim
should be paid in goods from the partnership store. The County Court
Judge gave judgment for the defendant on this evidence, and the appeal
from his judgment was dismissed with costs.

Croucher v. Gunn.....

SETTING ASIDE PLEAS.

To an action on a promissory note brought by the indorsee, defend-
ant pleaded on equitable grounds, that the note had been made merely
to enable the payee, who had indorsed it to plaintiff to raise money on
it, and the plea set out other circumstances connected with the note by
way of equitable defence, alleging that plaintiff had knowledge. Plain-
tiff in his affidavit to set aside the plea denied knowledge of the facts
relied on, and defendant, in reply, asserted his belief that plaintiff had
knowledge, and that plaintiff and said payee had been very much mixed
up with each other, and "he considered it almost impossible but that
plaintiff should have known the true history of the note."

Held, that the plea must be set aside, the essential allegation of
scienter being denied by plaintiff, and that denial not controverted by
the defendant.

Kandick v. Arthur

SHIPMASTER, DISMISSAL OF.

See Guildford v. Anglo-French S. S. Co.

SPECIAL CASE, EVIDENCE SUBMITTED AS.

A rule of Court was made by consent of the parties, that the evi-
dence should form a special case to be submitted to the Court with
power to draw inferences of fact and enter judgment for either party
for such amount as the Court should determine, the right of appeal in
either to be the same as if a verdict or judgment were given by a single
Judge, &c.

Held, that under this consent the Court had no power to entertain

the case.

Per MCDONALD, J.-That the Court would not entertain the case as
there were conflicting statements on issues involving the question of
fraud.

Howard v. Lancashire Insurance Co.....

SPECIAL SESSION.

Under an order pursuant to the act of 1880, cap. 13, sec. 6, providing
that a session should be held for "calling, arguing and disposing of the
causes remaining on the docket,"

Held, that the only motion that could be entertained, except motions
relating to causes on the docket, was a motion for admission to the Bar.
In re Admission to the Bar.....

370

367

54

374

366