miles above it; that vessels and boats of a certain size had, before the erection of the dam, passed without obstruction to a point higher up the river thar the part where the dam was erected, though it did not appear to have been used to any great extent higher up the river than what was called the Head of Navigation, a point below the dam: the court held that upon such evidence the jury were warranted in finding the stream to be a public navigable water-course. (t)

It would seem that the English rule that the land covered by the waters of rivers, above the flux of the tide, belongs to the riparian proprietors does not prevail here. In our waters the grant extends to the water's edge, and the land covered with water and ungranted is the property of the Crown, (u) subject to the right of the public to pass over the water in boats, and to fish and bathe therein. (v)

In an action for obstructing a river by erecting a mill-dam, it is not a proper question for the jury whether the benefit derived by the public from the mill is sufficient to outweigh the inconvenience occasioned by the dam. (w) The provisions of Magna Charta and other early statutes which prohibited weirs apply only to navigable rivers. (a) Weirs in such rivers. are illegal, unless they existed before the time of Ed. I. (y) The 5 & 6 Wm. IV., c. 50, s. 72, which imposes a penalty on any person riding or driving by the side of any road, only applies to footpaths by the side of roads, and not to footpaths in general. (2)

Under 27 & 28 Vic., c. 101, s. 25, the owner is liable to a penalty if cattle, sheep, etc., are found straying along any highway, notwithstanding they are under the control of a keeper at the time. (a)

(t) Reg. v. Meyers, 3 U. C. C. P. 305.

(u) Parker v. Elliott, 1 U. C. C. P. 489, per Sullivan, J.

(v) Attorney General v. Perry, 15 U. C. C. P. 329; see, however, Fournier and Olivia, S. L. C. A. 427.

(w) Rowe v. Titus, 1 Allen, 326.

(x) Leconfield v. Lonsdale, L. R. 5 C. P. 657.

(y) Rolle and Whyte, L. R. 3 Q. B. 64.

(z) Reg. v. Pratt, L. R. 3 Q. B. 64.

(a) Lawrence and King, L. R. 3 Q. B. 345.

Three magistrates forming a part of the Court of Sessions, by whom the return of a precept issued under c. 62 of the revised statutes (N. B.) for laying out a road is to be decided, are not the three disinterested freeholders contemplated by that Act. (b)

The laying out of a public highway by commissioners of highways under the Act 5 Wm. IV., c. 2, does not become invalid by reason of the neglect of the commissioners to deliver a return of such laying out within three months to the clerk of the peace, as directed by the 15th section, this being only a directory provision. (c)

A municipality prosecuting an indictment for obstructing a highway is "the party aggrieved" within the 5 & 6 Wm. IV., c. 11, s. 3. (d)

On an indictment for nuisance to a highway, if the facts show it to be a proceeding substantially for the trial of a civil right, the defendants may consent that the prosecutor select three or four of them, and proceed only against the latter, the other defendants entering into a rule to plead guilty if those on trial are convicted. This course may be adopted to prevent the charges of putting them all to plead. (dd)

The Provincial Attorney-General is the proper person to file an information in respect of a nuisance caused by interference with a railway. (e)

A party cannot justify as agent of another for maintaining a public nuisance. (f) But an agent merely to let or receive rents of premises is not liable for nuisance upon the same. The case, may, however, be different where the agent is clothed with power to let, repair, and in all respects act as owner. (g) If the nuisance existed at the time of letting,

(b) Reg. v. Chipman, 1 Thomson, 292.

(c) Brown v. McKeel, 1 Kerr, 311.

(d) Reg. v. Cooper, 40 U. C. Q. B. 294.

(dd) Whelan v. Reg., 28 U. C. Q. B. 53, per A. Wilson, J.

(e) Attorney General v. Niagara Falls Inter. Bridge Co., 20 U. C. Chy. 34. (f) Reg. v. Brewster, 8 U. C. C. P. 208.

4g) Reg. v. Osler, 32 U. C. Q. B. 324.

both tenant and owner are liable; if after the tenancy, only the tenant. (h)

An indictment will lie against the corporation of a rural muncipality for non-repair of a highway, although it is a front road, of which each proprietor is bound to repair his frontage. But in such case, where the corporation, after conviction, causes the road to be repaired, a merely nominal fine will be imposed, and costs will not be awarded in favor of the prosecutor. (2)

Where a corporation is bound by public law to repair a highway, it is sufficient in an indictment for not repairing to allege that the defendants "ought of right" to repair, etc., without setting out the particular ground of liability. (j)

An indictment which alleged that "the defendants or some or one of them" had put up, etc., was held bad for uncertainty. (k) And an allegation that a nuisance was near a certain lot, when the evidence showed it to be on it, was held a fatal variance. (1) This could now probably be amended under the 32 & 33 Vic., c. 29, s. 71.

Although a proceeding by indictment for a nuisance is criminal in form, the same evidence that would support a civil action for an injury arising from the nuisance will support the indictment. (m)

In Reg. v. Rose (n) it was held that the minutes of the boundary line commissioners produced in the case could not be considered a judgment within the meaning of 3 Vic., c. 11, and that the defendant should therefore have been permitted to give evidence contradicting such minutes. The second section of this Act, which provides that every such judgment shall be filed, is directory only, and the omission to file will not affect the validity of the judgment. In New Brunswick, under the 5 Wm. IV., c. 2, the return of the

(h) Reg. v. Osler, 32 U. C. Q. B. 324.

(i) Reg. v. Corporation of St. Saviour, 3 Q. L. R. 283.

(j) Reg. v. Mayor of St. John, Stev. Dig. 398.

(k) Attorney General v. Boulton, 20 U. Č. Chy. 402.

(Reg. v. Meyers, 3 U. C. C. P. 305.

(m) Reg. v. Stephens, 2 U. C. L. J. N. S. 223 ; 14 W. R. 859. (≈) 1 U. C. L. J. 145.

commissioners of highways properly made and filed is evidence of the laying out of the street. (o)

A conviction for nuisance to a highway is conclusive against the defendant as to the existence of such highway, and he cannot again raise the question on an indictment for obstructing another part of the same highway. (p)

It was doubtful whether, after an indictment for nuisance to a highway had been removed by certiorari, and tried at the assizes upon a nisi prius record, and the defendants found guilty, on a motion afterwards made in term for judgment upon the conviction, the court could, under the 19 Vic., c. 43, s. 316, give judgment out of term. (q)

After a verdict of acquittal on an indictment for nuisance in obstructing a highway, tried at a Court of Oyer and Terminer, the court will refuse a certiorari to remove the indictment, with a view of applying for a new trial, or to stay the entry of judgment so that a new indictment may be prepared and tried without prejudice, and this though the motion is made on the part of the Crown with the assent of the Attorney General. (r) But the court will arrest the judgment on an indictment for nuisance, so that a new indictment may be preferred. (s)

After a verdict of acquittal on an indictment for nuisance tried at the assizes, a motion was made with the concurrence of the Attorney General, for a certiorari to remove the indictment, with a view to obtain a new trial, but no ground was shown by affidavit, and the new trial was moved for on the same day, being the fourth day of term; it was held that there was nothing to warrant the ordering of a certiorari, and that the motion for a new trial could not be entertained until the court were in possession of the record. (t) When the

(0) Reg. v. McGowan, 1 Pugsley & B. 191.

(p) Reg. v. Jackson, 40 U. Č. Q. B. 290.

(q) Reg. v. G. T. R. Co., 17 U. C. Q. B. 165, per Robinson, C. J.; see also 29 & 30 Vic., c. 40, s. 4, et seq.

(r) Reg. v. Whittier, 12 U. C. Q. B. 214.

(8) Reg. v. Rose, 1 U. C. L. J. 145; Reg. v. Spence, 11 U. C. Q. B. 31. (t) Reg. v. Growski, 14 U. C. Q. B. 591.

case is tried at the assizes, the motion for a new trial need not be made within the first four days of the ensuing term, for the rule of practice requiring a party to move for a new trial within the first four days of a term only applies when the trial has been on record emanating from this court. (u)

Obstructing the execution of public justice.-A person who resists, assaults, or otherwise obstructs a constable or other peace officer in the execution of his duty, is liable to an indictment. (v) And the fact that the defendant did not know that the person assaulted was a peace officer, or that he was acting in the execution of his duty, furnishes no defence. (w) It is sufficient that the constable was actually in the execution of his duty at the time of the assault. ()

Refusing to aid and assist a constable in the execution of his duty, in order to preserve the peace, is an indictable misdemeanor at common law. In order to support such indictment it must be proved that the constable saw a breach of the peace committed; that there was a reasonable necessity for calling on the defendant for his assistance; and that, when duly called on to do so, the defendant, without any physical impossibility or lawful excuse, refused to do so. It is no defence that the single aid of the defendant could have been of no avail. (y)

But an indictment for refusing such aid, and to prevent an assault made upon him by persons in his custody, with intent to resist their lawful apprehension, need not show that the apprehension was lawful, nor aver that the refusal was on the same day and year as the assault, or that the assault which the defendant refused to prevent was the same as that which the prisoner made upon the constable; neither is it any objection that the assault is alleged to have been made

(y) Reg. v. Brown, C. & Mar. 314; Arch. Cr. Pldg. 684-5.