Judgment of the Court
J.-The contention was put forward by the appellants at the hearing of this appeal that as by the deed of ownership of the property in question filed at the trial by the respondent as his title thereto, the sale thereof appears to have been made not to him alone but to him and one Beaufort jointly, he, the respondent, could not alone bring this action as he has done.
To meet this objection, the respondent thereupon tendered a deed of alssignment by Beaufort to him of all his rights in the property.
We could not, however, allow the production of this document, as it has been the constant jurisprudence of this court not to receive here any new evidence whatever.
Exchange But the appellants cannot now avail themselves of an objection of this nature that was not taken at the triql, where, upon the necessary amendment of the declaration, the evidence to meet such objection could have been brought. They, by their pleas, acknowledge the respondent's title to the property by offering to return it to him. And for them at this stage of the case to turn round and ask, for the first time, thie dismissal of his action on the ground that he has not proved his title is what cannot be allowed.
Now as to the merits of the appeal.
That the respondent has been illegally dispossessed of this property and that he is entitled to revendicate it cannot now be controverted by the appellants. A municipal corporation, it is needless to say, has no right to acquire real property except in the cases and in the manner provided by the statute from which it derives it powers.
Tae allegations and conclusions the declaration, as it reads now, are undoubtedly deficient, but we order such amendments to be made thereto " as are necessary " (to use the express words of sec. 63 of the Supreme Court Act) " for the purpose of determining the real controversy between the parties as disclosed by the pleadings and evidence."
Piche v. City of Queb-c ; Ferrier v. Tripannier ; Gorman v. Dixon ; Williams v. Leonard
Sons (5); Lumbers v. Gold 1Medal Furniture Manufacturing Co.
And upon such amendments being now considered as having been made, we order judgment to be entered declaring the respondent proprietor of the property in question, and ordering the appellants to put him, the respondent, in due possession thereof in the same state as it was when they took possession of it, within fifteen days after the signification of this judgment. This aforesaid part of the judgment may be unnecessary, as it appears that since the ctise was heard the appellants, upon the suggestion of the majority of the court, have, on tbe 21st day of September last, put the respondent in possession. However, there can be no objection to its being entered.
There remains the question of the amount which the respondent is entitled to as compensation for the illegal detention of his property.
Upon the amendment made and on the evidence of record, we think that interest on the uncontradicted value of the property, $3,436, from the time the appellants illegally entered into possession thereof, 1st September, 1894, to the 21st September last, if they then did give it up to the respondent, or to the date when they will give it up, if that has not yet been done, is, under the circumstances, the proper measure of damages, as representing the fruits etrevenus thereof, the appellants having detained it in bad faith, with interest on the amount of the aforesaid interest now accrued from this date till payment.
As to costs, considering the tyrannical conduct of the appellants and the flagrant illegality of their doings in the matter, we order that all the costs in all the courts be paid by them to the said respondent. Judgment reformed, with costs against appellants. THE was prevented by illness from taking part in the judgment.
Appeal allowed in part with costs.