Pictou School Trustees v. Cameron

against the said J. J. A. and N. G. for injury done to the school house, the property of the section. The Defendants pleaded inter alia justification of the acts complained of, asserting that the acts were legally performed by them in their capacity of Trustees. Sub. sec. 4 of sec. 30, ch. 23, Rev. Stats., N. CAMERON. (4th series) declares that the sites for school houses shall be defined by the Trustees, subject to the sanction of three nearest Commissioners, residing out of the section. In this case the sanction of the three nearest Commissioners was not obtained. Held,-On appeal, that under ch. 23 Rev. St., N. S., (4 series), J. J. A. and N. C. were not authorized to remove the school house from its site in the manner mentioned. Defendants having subsequently abused their right to enter upon the lands of the corporation by an overt act of spoliation, the Plaintiffs, who are a corporate body and are identical with the corporation which existed at the time of the trespass, can maintain trespass against the Defendants for the injury done to the corporate property. That when an action is brought in the name of a corporation without due authority, it is not sufficient for the Defendants to plead that the Plaintiffs did not legally constitute the corporation, but in such a case Defendants ought to apply to the summary jurisdiction of the Court to stay proceedings.

APPEAL from a judgment of the Supreme Court of Nova Scotia, making absolute a rule for a new trial. This was an action brought by the Plaintiffs as Trustees of School Section No. 16, in the South District of Pictou, against the Defendants for breaking and entering their close as such trustees, and destroying the foundation walls of the school house of that section thereon erected, and removing and carrying away the same from its lawful site and converting the same to their own use.

The declaration was in the ordinary form in cases of trespass quare clausum fregit and de bonis asportatis under the Nova Scotia law and system of pleading, and the pleas are eight in number.

The Defendants, by their pleas, denied that they committed the trespass as alleged; the Plaintiff's property APRIL SESSION, 1879.

in the land and in the goods; and by their seventh plea asserted a title to the freehold of the said land, and a right of property in the said goods in the Defendants, James Cameron and John A. Cameron,as being the Trustees CAN. (with one Duncan Macdonald, who is not a party in the action) of School Section No. 16, South District of Pictou, duly elected and appointed under the Statute in that behalf, and the Defendants James Cameron and John A. Cameron justified the acts complained of by asserting that the said acts were performed by them in their said capacity of Trustees, they having lawful power so to do, and the Defendant Nathan Cameron as the servant of the said other Defendants.

By the eighth plea,the Defendants denied the character of the Plaintiffs at the time the trespasses were committed or action brought and their property in the lands and goods, and that the said James Cameron, John A. Cameron and Duncan Macdonald were at the time, &c., Trustees of the said School Section No. 16, duly elected and appointed under the Statute, a body corporate for the purpose mentioned in the Statute, &c.

The evidence showed that the Defendants James Cameron and John A. Cameron, together with the said Duncan Macdonald, had, at the annual school meeting for the said section, held in 1873, been appointed trustees for that section for the ensuing year; that they assumed the duties of that office; that a teacher was engaged by them, and an effort made to open the school. That in December, 1873, and during the currency of their term of office, the Defendants James Cameron and John A. Cameron, at an informal meeting, and without the concurrence of Duncan Macdonald, determined to remove the school house of said section to another site. That a site for the school house of that section had been chosen according to law, and the school house built, and that while James Cameron and John A. Cameron were Trustees the school house was actually removed by them, and a portion of the stone wall was destroyed. That in June, 1874, the Commissioners of Schools for South Pictou dismissed the said Trustees, and appointed the Plaintiffs in their stead. The mode of substituting Trustees and the powers and duties of the Trustees are prescribed by the following sections of chap. 23 of the Revised Statutes of Nova Scotia (4th series), secs. 20, 28, 80, 31, 32, 33, 34, which are referred to at length in the judgments of this Court.

The case was tried before Mr. Justice Macdonald with a jury, at Halifax, on the 25th October, 1875.

At the trial, he recommended a non-suit, and Plaintiffs' counsel having refused to become non-suited, the learned Judge told the jury that it was their clear duty to find a verdict in favor of the Defendants.

The Plaintiffs, being legally appointed, represent the section for which, as a corporate body, they act. Their possession is not an individual possession, but the possession of the people whom, in their corporate capacity, they represent ; the possession of their predecessors was also only a representative and not an individual possession, and, therefore, in their corporate representative capacity, the Plaintiffs, after their appointment, can maintain trespass for any wrong done to the corporate property by any individual, whether at the time of the wrong done such individual happened to be a member of the corporation or not.

Courvell v. Woodard (1); Brice on Ultra Vires (2); Waterman on Trespass (3). A corporation may sue its members.

See Field on Corporations (4).

The act complained of was not done by the Defendants as a corporate act representing the section,but done by them as individuals.

As to the second point, that the Trustees at the time of action, were not the legally appointed trustees of the section, I submit this cannot be raised by the plea fyled in this case. The Board of Commissioners, being a court of competent jurisdiction, their acts, appointments or decrees cannot be impunged except by appeal to the Council of Public Instruction.

Mr. A.

The first point to be determined is whether the acts complained of were done by the Respondents in their corporate capacity of Trustees, or as individuals. It is a fact that the removal of the school house was decided by a majority of the trustees at a meeting held by them in December, 1873.

Under the Revised Statutes Nova Scotia, 4th series, c. 1 last sub.-sec. of sec. 7, where a joint authority is given, a majority can act, and by c. 32, sec. 31, power is given to the Trustees to change the site of the school house when they deem it desirable.

The approval of their decision by the three nearest Commissioners is only necessary when the site is first chosen. These were, no doubt, the sections the Trustees had in view when they arrived at their determination. There was no necessity for them to keep a record of their proceedings; in such cases it is sufficient to prove the resolution to have been passed by a majority of the Board.

In re Bonnelli's Telegraph Co. (1); Darcy v. Tamar ' Ry. Co. (2).

There is nothing in the Nova Scotia Act which requires that a notice in writing should be sent before a meeting is held, as in the Ontario Act.

In any case the Defendants James Cameron and Tohn A. Cameron, being members of a public corporation, incorporated for public purposes, and having public duties to perform, an action of this sort will not lie against them at the suit of the corporation for acts done in their corporate capacity without proof of mala fides Harman v. Taftenden, et al (3).

The Respondent submits also that the present appeal should be dismissed, because at the time of the alleged trespasses, the Defendants James Cameron and John A. Cameron, together with the said Duncan Macdonald, were the duly elected and acting Trustees of Section No 16, South District of Pictou County, and were, as such Trustees, by law vested with the freehold in the lands and the property, in the goods in the pleadings mentioned, and in possession of the same.

THE CHIEF

By sec. 7, c. 32, Revised Statutes, N. S., 4th series, sec. 7, the Governor in Council is empowered to appoint Commissioners for each District, who shall form a Board of School Commissioners.

By sec. 22 each school section shall have a Board of three Trustees, and no section shall have more than one Board.

By section 28, the Trustees of any section shall be a body corporate for the prosecution and defence of all actions relating to the school or its affairs, and other APRIL SESSIOI , 1879.

necessary purposes, under the title of "Trustees of School Section No. - , in the District (or Districts) ," and they shall have power, when authorized by the school meeting, to borrow money for the purchase or improvement of grounds for school purposes, or for the purchase or building of school houses.

By sec. 29, Trustees are authorized to effect insurances on school houses, and sec. 30 declares the duties of the Trustees as follows. Inter alia sub-sec. 2:

the to Sub. sec. 4:

The Trustees of School Section No. 16 were possessed of the property on which this school house stood under a deed from William Thompson to James Macdonald, Donald Macdonald and Peter Ross, Trustees of School Section No. 16, dated 29th Oct., 1866, whereby Thompson, in consideration of $16, bargained and sold to said Trustees and their successors in office the lot in question, to have and to hold the same as school property to said Trustees and their successors in office.

At the time of the acts complained of, Defendants James Cameron and John A. Cameron, and one Duncan Macdonald, were the Trustees of School District Sec. 16. Macdonald says he had nothing to do with the removal of the school house; that James Cameron and John Cameron came to see him about it after night ; said they were going to remove the school house, and asked if he had any objection; he said he had; that it could not be in a better place; that he saw the Commissioners remove the school house in Dec., 1873.

P , Peter G. Campbell says :

TRUSTEES It was removed the length of itself and 3 or 4 feet more from its old foundation. It was less or more damaged; the stone wall was torn down.

Duncan Cameron says:

I said to James Cameron (the morning they commenced to remove the building) surely you are not going to remove the building; he said yes. He said, they had consulted the Board before and they would not heed him. He said they did not consult the Board about removing it ; then, I said, you should have consulted the section; he said, we are the section; he said they were about removing it to another site about a mile and a quarter off, and not approved of by the Board.

James Macdonald says:

I saw James and John A. Cameron in the act of removing the house; Nathan Cameron was present with others. The stone foundation was torn down in removing it. It was removed towards the road. I think part of it was on the road.

It was left temporarily on the runners.

*

*

* Afterwards, I had a conversation with James Cameron. He said he did not consult the Commissioners as he did so previously without good result.

* * *

The house was thrown off the level so that one corner of the window was an inch open when the other was closed.

William Thomas says:

When the school house was taken off the foundation the windows were twisted. The one end higher than the other.

weather boards and a few shingles were hurt.

Nathan Cameron was the only Defendant examined. He was called for the defence.

He says:

They asked me to go and assist them in removing the school house in Dec., 1873.

I assisted them. We were to remove it a mile and a quarter away, or less. The Defendants told me that their object was to remove the school house to the church.

There is evidence as to the deposition of the Trustees and the appointment of others in their stead after the removal; but, in the view I take of this case, all such evidence is immaterial and ought not in any way to affect the disposition of this case.

On the trial, Mr. James moved for a non-suit on the ground that " a corporation cannot sue itself; no title or possesion proved in the plantiffs; title and possession proved to have been in the Defendants, Trustees, at the time of the alleged injury." The learned Judge recommended a non-suit, and, on Plaintiffs' counsel refusing to become non-suited, the Judge instructed the jury that Defendants, having denied Plaintiffs' possession, it was incumbent on Plaintiffs to prove possession, actual or constructive; that evidence showed Defendants, James Cameron and John Cameron and Donald Macdonald, were Trustees at the time and were in the legal possession, the law vesting both the title and possession in them as such Trustees;

*

* * expressed great doubt as to the dismissal, in which case he said, by this strange action, two of them would be now Plaintiffs, as Trustees against themselves, as individuals, but that it was not necessary to trouble the jury with that question, as their legal possession at the time of the alleged trespass was sufficient defence in this action for acts done, while in such legal possession, by them and Defendant who justified under them. That, if they were guilty of a breach of trust, as such Trustees, as he thought they were, the section had a remedy for such wrong, but certainly not in this form, or style of action. That as the case turned upon a question of law, the facts upon which the legal question depended being admitted on all sides, he had nothing to submit to them, and that it was their clear duty to find a verdict in favor of the Defendants.

Notwithstanding this charge the jury found in favor of the Plaintiffs, and a rule was made absolute by the Supreme Court 6f Nova Scotia to set aside this verdict, and a new trial was granted.

No question was raised as to this being a perverse verdict, and it was not set aside upon that ground, but the judgment appears to proceed on the ground that the Defendants James Cameron and John A. Cameron were Trustees at the time of the removal, and were at the time in the lawful and exclusive possession as Trustees of School Section No. 16, which, the judgment states, at it that While admitting the Defendants may have acted indiscreetly, the judgment goes on to say :

I venture humbly to submit that this is all wrong; that the Defendants in their pleadings, their counsel on the trial, as well as the learned Judge and full Court, have entirely misapprehended this case in dealing with it as if the title and possession of this school property was in the Trustees for the time being personally and as individuals, and not as in a corporate or quasi corporate body, and in treating this action as if brought by the Trustees, or those claiming to be Trustees, in their own name as individuals, as if the fee was in the individual Trustees, and as if the action was for a wrong done to the personal title or possession of the individual Trustees, instead of treating the title and possession as being in a corporate or quasi corporate body, and the action as brought by such corporation for a wrong done to the title and possession of the corpora- TUnder the express terms of the Statute the Trustees of schools are to " take possession of and hold as a corporation all the school property of the section," and the Trustees of any section are declared to be a body corporate under the title of " Trustees of School Section No. -in the District (or Districts) of - " for the prosecution and defence of all actions relating to the school, or its affairs, and other necessary purposes. The Trustees, therefore, are created a corporation or artificial body, by virtue of which they hold the land like every other corporation.

The title being in the corporation, not in the members of the corporation, the Trustees may change, but the corporation continues, and the title and possession continues in the corporation.

The members, though constituent parts, are not in a legal sense the corporate body, but as it has been expressed, " they are only the elements which form the one artificial body," but entirely distinct from the artificial body endo wed with corporate powers; so that the rule that a person cannot bo both Plaintiff and Defendant in the same suit, which seems to have embarrassed the counsel and the Court below, has no application to corporations.

We have every day's experience of members suing corporations and of corporations suing members, and it is too well established to be now disputed that " suits may be brought for all the variety of causes and in all the various forms, and in the same manner as though the parties thereto were natural persons." The acts of the Trustees, no doubt, are the acts of the corporation, but only when within the scope of the authority conferred on them by the law establishing the corporation.

Their acts are only the acts of the corporation, so far as they have such authority to act by virtue of the powers conferred on them.

The Legislature has only granted to School Trustees in Nova Scotia special and limited powers for limited purposes, and one limitation is that they shall not fix or determine, and, a fortiori, not change, the site of a school house without the sanction of the Commissioners. If the Trustees wrongfully deal with the property confided to their care in a manner, not only not sanctioned by law, but contrary to law, as distinguished from mere error, mistake and misapprehension, or simple negligence, they cease to act as Trustees. Their act in such a case is not a corporate act. They become wrongdoers, and cannot justify as Trustees, and, as such, are liable to be sued by the corporation as any other trespasser or wrong-doer having no legal justification for his acts.

If the acts of these Defendants, then, are clearly ultra vires, their liability for such acts must be determined by the ordinary principles of law. " In all cases of tort," Mr. Brice says, "as an actual wrong-doer is always liable to the injured party, a corporate official necessarily is under personal responsibility."

I quite agree that, so far as the determination of this case is concerned, it matters not who the individual Trustees now are, or were at the commencement of this suit. If Trustees for the time being, having the right to manage school affairs to bring defend suits in the corporate name, have any reason to complain that the corporate name is being improperly used in the bringing of an action, I can see no reason why the same course would not be open to them that a private individual would have, if his name was used without his consent, viz: by applying to the Court to stay and set aside the proceedings. Be this as it may, all we have now to do is, not to enquire what individual Trustees set the law in motion, but to treat the suit as properly brought in the name of the corporation, and adjudicate on the rights of the corporation; in other words, simply to enquire whether the close of the Plaintiffs has been illegally broken and entered, and the property of the corporation, the school house, has been unlawfully injured and removed, and, if so, to ascertain whether the Defendants were guilty of such unlawful acts.

Reduced to this point, the result is self evident.

These three Defendants, without authority of law, undertook to remove this school house from its site, and did so in a most wilful manner, for it cannot be pretended that they were in ignorance of the law, or the duties and powers of Trustees, but they did it, in fact, in direct defiance of the law.

They knew no site could be fixed and determined on without the sanction of the Commissioners, and this they would not even seek to obtain, because, from a previous application, they had evidently discovered that the Commissioners would not sanction their proposed interference. Thus, these Defendants, without such sanction, without taking any action under sub. sec. 4, and without the acquiescence of the third Trustee, in fact, in opposition to him, proceed to remove the school house, drawing it from its foundation and otherwise injuring the foundations and buildings.

These three Defendants, then, were violating the law and acting outside of and beyond any power or authority given to Trustees of Schools over school property, and so abused the authority given them by law and became trespassers, and so rendered themselves liable to be sued as such by the corporate body on whose property they so trespassed, which body corporate are the Plaintiffs of record in this suit. The Plaintiffs, then, having suffered wrong at the hands of the Defendants, and the Defendants having wholly failed by plea or proof to justify their conduct, I think the charge of the learned Judge was wrong, and the judgment of the Court below confirming that ruling equally wrong, and that this appeal should be allowed with costs in all the courts.

J.:- There seems to have been a strange misconception of both the facts and law as regards the first point which is dealt with in the judgment of the Court below, that PwroU relating to the Plaintiffs' title to sue. The Plaintiffs so"ooL are a corporation aggregate incorporated under ch. 32 of the Revised Statutes of Nova Scotia (4th series), having necessarily perpetual succession, and not the individual corporators who, at the time the action was brought, happened to compose the corporation. Plaintiffs sue by their corporate title as " The Trustees of School Section No. 16, South District of Pictou County," and the names of the individual Trustees are not once mentioned in the record. It is, therefore, only calculated to confuse the case, and to introduce irrelevant matter into its decision to speak of the Trustees individually as the Plaintiffs, and to enter into an enquiry as to the legality of the dismissal of the former, Trustees and the election of those who at present claim to fill the corporate offices.

The corporation which now sues for trespass to the corporate body is identical with the corporation which was seized of that property at the time the wrong complained of was done. The eighth plea does not contain allegations showing that the corporation has ceased to exist, in which case it might have constituted a good defence, but it merely sets up that the persons now claiming to constitute the corporation, in the plea itself miscalled the Plaintiffs, had not been duly elected or appointed to fill the offices of Trustees, and that the old Trustees are still in office.

As the action is brought by the corporation, this is manifestly no defence. If the action was brought without due authority in the name of the corporation, that is not a matter which could properly be raised as a defence on the record, though it might, under proper conditions, have constituted ground for an application to the summary jurisdiction of the Court to stay proceedings. The 8th plea, which raises this objection is, therefore, irrelevant and bad in substance, and tenders an immaterial issue. It follows that, as a new trial will never be granted for the purpose of re-trying an immaterial issue, one in respect of which a verdict for the Defendant might be followed by a repleader or judgment non obstante, there was clearly no ground for a new trial as regards the issue on the 8th plea.

There remains the issue on the 7th plea, which is in substance a justification by the Defendants, James Cameron and John A. Cameron, as corporators at the time of the acts complained of, and by Nathan Cameron, the remaining Defendant, as their servant.

The evidence shows that the Defendants entered upon the school plot and removed the school house from its foundation, and destroyed part of a stone wall which formed the foundation. This was an act clearly beyond their legal powers.

The powers and duties of the Trustees are precribed by chapter 32 of the Revised Statutes of Nova Scotia (4th series), secs. 30 to 34, inclusive, and nothing can there be found authorizing them to remove the school house from its site in the manner mentioned by the witnesses for the Defendants themselves, as well as by those who gave evidence for the Plaintiffs. Upon the uncontradicted testimony it appears that the school house was actually removed from its foundation and a portion of the stone wall was destroyed, and although no question as to these facts was specifically left, by the learned Judge who tried the cause, to the jury, yet it would, of course, be idle to send the case back for a new trial in order that a jury might find upon these undisputed facts. Then, the legal consequence of the Defendants acts is that, although they SEO were members of the corporation at the time of the wrongs complained of, and had, for all legal purposes and in the due execution of their duty, a right to enter upon the lands of the corporation, and although their entry, followed by no abuse of authority, must be presumed to be legal and for the purpose of performing their corporate duties, yet, when the entry was followed by a subsequent abuse of authority, they became trespassers ab initio, their wrongful act relating back so as to make the original entry unlawful. This is very old law, for in one of the resolutions of the Six Carpenters' case (1), it is laid down that when a party enters under authority of law and is guilty of subsequent abuse, he becomes a tresspasser ab initio, though it is otherwise where the entry is by authority of the party.

The entry of the Defendants upon the lands of the corporation, therefore, constituted the trespass for which the Plaintiffs are entitled to recover, and the pulling down the wall and the removal of the school house are the acts of abuse which made the original entry unlawful, and were, also, matters of aggravation to be considered in estimating the amount of damages. The issue on the 7th plea, which justifies the acts of the Defendants as those which " they had lawful power and authority to do," was, therefore, rightly found for the Plaintiffs, inasmuch as the Defendants showed no justification in law.

The whole case may be summed up in two propositions. The first is that upon which the case of the Appellants' is rested in their factum, and which I adopt almost in the words in which it is there propounded. The Plaintiffs are a corporate body and are identical with the corporation which existed at the time of the trespass, and although the members of the corporation may have been changed, the possession is, and has always been, not that of the individual corporators, but the possession of the corporation.

The Plaintiffs (the corporation) can, therefore, maintain trespass for any wrong done to the corporate property by any individual, whether at the time of the wrong done that individual happened to be a member of the corporation or not. The other proposition, that a wrong was committed by the Defendants at a time when they were members of the corporation, is established by the principle of law already adverted to, that an entry by an individual corporator followed by an overt act of spoliation, makes him a trespasser by relation.

The case of Harman v. Taffenden cited by the Respondents, has no application here; it was not a case of trespass on the lands of the corporation.

The rule of law which I apply does not in any way depend on proof of the intention of the party, either in entering or in committing the subsequent wrongful act. principle is, that where a party, having an authority derived from the law to make an entry upon lands, commits an unlawful act upon the lands, there arises a presumption of law, one which cannot be rebutted, that he entered with unlawful intent, and that his entry was, therefore, a trespass.

In my judgment, the decision of the Court below must be reversed, and there must be substituted for the rule absolute, a rule discharging the rule nisi with costs, and the Appellants must have the costs of this appeal. L'action en.cette cause est pour voie de fait commise par les D6fendeurs sur la propri6t6 de l'Appelante, en d6plagant la maison d'6cole de la section No. 16. Lorsque ce d6placement a 6t6 fait, deux des D6fendeurs faisaient eux-m~mes partie du corps des syndics et formaient, lorsque la pr6sente action a 6t6 intent6e, la majorit6 de la Corporation qui les poursuit en cette cause.

Les Dffendeurs ont r6pondu ;! cette action par plusieurs moyens de d6fense qui peuvent en derniare analyse se r6duire aux deux suivants : lo. 1116galit6 de la destitution des Intim6s comme syndics de la dite Corporation, et cons6quemment nullit6 de la nomination de leurs remplagants;

2o. justification des faits qui leur sont imput6s comme voie de faits.

.

Par le ch. 32 des Statuts Refondus do la N. Ecosse, (46me s6rie) r6glant l'instruction publique dans cette Province, les syndics de toute section scolaire sont brig6s en Corporation sous le titre de " Trustees of School Sec. No...... in the District of ........ (or Districts La 30me see. d6finit leur pouvoir ainsi qu'il suit: to Par leur premier moyen de d6fense, les Intim6s d6mis, ill~galement d'apras les faits 6tablis sur preuve, veulent faire d&cider en cette cause la question de savoir qui d'eux, on de leurs remplagants, sont les syndics 16galement en office.

Cette question ne pouvait pas tre soulev6e d'une manibre indirecte comme on a essay6 de le faire. Elle devait faire le sujet d'une proc6dure sp~ciale.

Pour prendre avantage de ce moyen de d6fense, les Intimbs auraient se borner ; se plaindre que les syndics qui pr6tendent agir en cette cause au nom de la Corporation ne sont pas 16galement revtus de cette qualit6, en accompagnant cette all6gation d'une demande de surseoir aux proc6d6s jusqu'd ce que, sur quo warranto, cette question eiht 6t d6cid6e. Au lieu de cela, ils out jug6 A propos de plaider an m6rite. C'est une rbgle certaine en matibre de plaidoyers, aussi applicable aux Corporations qu'aux individus, que le D6fendeur qui plaide au m6rite reconnait la capacit6 de poursuivre chez son adversaire. Les Intim6s doivent en cous6quence tre consid6r6s comme ayant abandonn6 ce chef de leur d6fense et reconnu le droit d'action.

C'est i leur plaidoyer de justification qu'ils doivent maintenant s'entenir.

Ils pr6tendent se justifier en all6guant que c'est en execution d'une decision prise par eux comme syndics, de changer le site de la maison d'6cole en question, qu'ils ont agi.

I n'est pas douteux d'aprbs la preuve que les Dffendeurs ont quelque pen d6plac6 la maison d'6cole en question; et que dans cette op6ration le mur des fondations a 6t6 endommag6, ainsi que les fenetres et une partie de la couverture.

Ces faits, A moins que les Intim6s ne prouvent qu'ils 6taient 16galement autoris6s & agir comme ils l'ont fait, sont certainement suffisants pour constituer une voie de fait donnant lieu A des dommages et inthrts. Mais ils pr6tendent de plus 6tablir leur justification en all6guant qu'ils 6taient, en leur qualit6 de syndics, propriftaires et en possession 16gale de la maison d'6cole et du lot sur lequel elle est construite, et que par consequent I'action pour voie de fait ne peut exister contre eux.

Les Intim6s, en 6mettant cette pr6tention, se trompent sur l'6tendue et le caractbre du pouvoir que la loi leur attribue sur les maisons d'6cole.

ls n'en sont que les administrateurs et non pas les propriftaires. Ce ne sont pas les syndics en fonctions qui, aux yeux de la loi, sont les propriftaires et en possession de la maison d'6cole, mais ]a Corporation dont ils ne sont que les agents ou repr6sentants.

Le parag. 2 de la sec. 31, est clair sur ce point, et indique, comme l'un des devoirs des syndics, la prise de possession comme corporation des propri6t6s scolaires appartenant h la section. " To take possession of, and hold as a Corporation, all the school property of the section........."

Ainsi, ils ne sont ni propri6taires ni en possession individuellement comme syndics, mais s'est la Corporation elle-mime qui en est propriftaire et en possessions sous le titre que la loi lui a donn6.

ne peuvent pas se confondre avec la Corporation qui est un tre tout A fait distinct des personalit6s qui la composent. Pour se justifier il leur faudrait non-seulement 6tablir qu'ils agissaient en vertu d'une autorisation de celle-ci, mais aussi faire voir que la loi leur donnait sur la maison d'6cole une autorit6 qu'elle leur avait d6l6gu6e Pour cela, il aurait fallu prouver qu'une d6cision prise par les Intimbs, comme corporation, avait requ, conform6ment au paragraphe 4 de la sec. 30, la sanction des Commissaires les plus proches.

Cette preuve n'a pas 6t faite.

En agissant contrairement A la disposition de cette section, il est 6vident que les Intims out outrepass6 leurs pouvoirs et commis une voie de fait pour laquelle ils sont responsables.

De plus, il est visible par l'irr6gularit6 des proc6d6s et 1'empressement manifest6 par les Intim6s, que ceux-ci prenaient un int6rt plus qu'ordinaire dans le changement du site de l'6cole de la section.

O'est le soir, tard, sans convocation r6gulibre d'assembl6e, qu'ils font demander leur col1igue, Duncan Mac Donald, s'il concourt dans leurs vues au sujet du transfert de la maison d'6cole.

Sur sa r6ponse n6gative, les deux autres d6fendeurs persistent dans leur d6termination.

I n'en est fait aucune entr6e dans les r6gistres, ainsi que l'exige le parag. 1 de la see. 30.

Le lendemain, avec le concours d'un certain nombre d'int6ress6s, is se mettent a 'ceuvre pour transporter la maison. Cette pr6cipitation et ces irr6gularit6s dans les procd6s font voir que les Intim6s agissaient comme individus et non comme autoris6s par la Corporation.

Cette conduite d6montre aussi qu'ils avaient dans cette affaire, comme c'est assez souvent le cas dans ces questions, un int6rt qui les faisait agir plut6t comme partisans que comme syndics. O'est pr6cis6ment pour pr6venir ces inconv6nients que le parag. 4 a d6clar6 que dans des affaires de cette nature les syndics ne pourront pas agir sans l'approbation des commissaires les plus proches. Sous ces circonstances,je ne puis faire autrement que d'en venir A la conclusion que les Intim6s ont agi individuellement et non comme syndics, ni comme autoris6s par la Corporation; que d'ailleurs eussent-ils ainsi agi en vertu d'une d6cision prise r6gulibrement par eux comme Corporation, leur qualit6 de syndics n'aurait pu les prot6ger contre les cons6quences de leur action, puisque la Corporation dont ils sont membres ne pouvait pas leur communiquer un pouvoir, qu'elle n'a pas. Ce pouvoir, comme on l'a vu par le parag. 4 de la sec. 30 ne peut 8tre exerc6 sans 1'approbation des trois Commissaires les plus proches, r6sidant en dehors de la section. Pour ces raisons je concours dans le jugement qui va 8tre prononc6 par cette Cour.

J.:

This is an action of trespass quare clausumfregit et de bonis asportatis. The Plaintiffs declare against the Defendants for breaking and entering their close, destroying the foundation walls of a school house thereon erected belonging to them, and removing and carrying away the same from its site. There is some confusion in this case, or, at least, in some parts of it, arising from the fact that the Defendants seem to have forgotten who the Plaintiffs are.

By one of their pleas, they deny that the school house in question was the property and in the possession of the Plaintiffs; but, by another plea, they allege that this school house was the property and in the possession of the Trustees of School Section No. 16, South District of Pictou. Now, who are the Plaintiffs ? No one else than these Trustees in their corporate name and capacity.

The Defendants, then, as distinctly as possible, have admitted the Plaintiffs' ownership and possession of this school house, and upon this fact we have consequently nothing to determine. They want us to consider as Plaintiffs certain individuals with whom they contest the position of Trustees.

They say to them "We are the Trustees, not you."

This is an issue which cannot be determined in this cause, for the very simple reason that these individuals are not the Plaintiffs. The suit is brought by a corporation, and who are the members of that corporation we have nothing to do with here.

The only legal issue raised by the Defendants is, that they were the Trustees of the school when they removed this school house, and that, in doing so, they were acting as such Trustees ; that, it is, fact, corporation itself which acts complained of, and that they are not personally responsible.

The Defendants have, in my opinion, clearly proved that they were, at the time that the school house was removed, the Trustees of the school with one Duncan Macdonald, but they have entirely failed to prove that it was removed by the corporate body known as such Trustees, and not by them in their individual capacity.

There is no evidence of any resolution authorizing this removal, no evidence even of a lawful meeting of the Trustees. One evening, about 10 o'clock, two of the Defendants went to Macdonald, their third colleague, and told him that they were going to remove the school house, asking him if he had any objections to it. Macdonald objected, but, next morning, they set to work. That is the only evidence adduced to prove that their act was the act of the corporation. Is that the way in which a corporate body can act? Can the individual members of a corporation, even though they form a majority thereof, without notice to any one, thus start and go and demolish a house, and bind the corporation by their acts ? I do not think so. In a matter of contract, perhaps, a corporation aggregate, acting as such, may bind itself directly and without constituting an agent, but the only mode in which it can do a manual act is by an agent or servant (1).

It may by a vote authorize its servant or agent to do an act, and, if this act is a trespass, will bear the consequences thereof Certainly, that agent or servant may be taken amongst its members.

But here, this is not the point raised. The Defendants do not pretend that they, individually, have been authorized by the corporation of the Trustees of School Section, number sixteen, South District of Pictou, to remove this school house, and that they cannot be sued by the said Trustees, because it is the said Trustees themselves who ordered this removal. But they say, " we were ourselves the trustees, and it is as such Trustees and as a corporate body that we did the acts complained of."

Now, the law is that the members of a corporation aggregate cannot separately and individually give their consent in such a manner as to oblige themselves as a collective body, for in such a case, it is not the body that acts

It is only at a lawful meeting of the corporate body that the corporation can act or do anything.

Was it at a lawful meeting of the Trustees of School Section 16, that this school house was removed?

Certainly not. If a corporate body could itself commit a trespass in the manner that the act complained of here was done, it might as well be said that it can commit an assault and battery. Yet I do not think that it can be pretended that a corporation can commit an assault otherwise than by its agent or servant (2).

Again, according to the Defendaiits' contention, if the corporation removed this house, not they, it would follow that if, whilst they were doing so, they had been arrested, the corporation, not they, would have been arrested. Yet, who ever heard of a corporation aggregate being put under arrest ? A corporation is a legal person, but, as it has been said, a deaf and dumb person. I might add that it has no hands with which it can remove a house.

Upon' these principles, which rule all corporate bodies, I hold that the removal of the school house in question was the personal act of the Defendants ; that, as individuals, they never had the possession of it ; that it is and was the property and in the possession of the Plaintiffs, and that their acts were a trespass on the Plaintiffs' property.

If the Defendants had pleaded and proved that they 3; had been duly authorized by the corporation to do this Pierou act, and that, in doing it, they were the agents or servants of the corporation, I would be of opinion that the corporation, as the Plaintiffs here, would not have had the right to invoke its want of authority or power to order the act complained of. It could not say to the Defendants : " We authorized you to remove this house, but we had no authority to do so; we ordered you to do it, but we sue you for having done it."

But, as I have said it before, that is not the issue raised.

The judgment complained of by the Plaintiffs is, in my opinion, erroneous, and the appeal therefore must be allowed. Rule to be discharged.

GWYNNE, J.:- By sec. 28 of ch. 32 of the Revised Statutes of Nova Scotta, the Trustees of school sections are declared to be a body corporate for the prosecution and defence of all actions relating to the school, or its affairs, and other necessary purposes, under the title of " Trustees of School Section No. -in the District of-,"

by sub-sec. 2 of sec. 30, they are empowered to take possession of, and to hold as a corporation, all the school property of the section which may be purchased for or given to it for the use or support of common or academic schools, and by sub-sec. 4 of see. 30 they are empowered to determine the sites of school houses, subject to the sanction of the three nearest Commissioners residing out of the section, and in case these Commissioners should not agree as to the site of a school house, it was enacted that the matter should be referred to the Board of Commissioners for the District or County in which the school house is situate, whose decision should be final.

The above Plaintiffs, in their corporate name and character, have brought this action qu. cl. fr. against three persons, Defendants, and in their declaration complain that the Defendants broke and entered the Plaintiffs' close (describing it) known as the school house lot of Section No. 16, South District of Pictou County, and tore down and destroyed the foundation walls of the school house of the said section thereon erected, and removed, tore down and carried away the buildings, wood and logs of the Plaintiffs, and converted the same to their own use, and also that the Defendants removed and carried away the school house of the said section from its lawful site, and converted the same to their own use, and also broke and entered the close of the Plaintiffs (above described), and dug and cut up the soil thereof, and tore down the walls and building, and removed and injured the houses and buildings thereon, whereby the Plaintiffs were deprived of the use of the same, and were prevented from keeping a school therein, and the members of the said school were deprived of the advantage of having a school kept in the said section by reason of the said wrongful acts of the Defendants, and their children were thereby deprived of schooling for a long time.

It cannot be doubted that, if the Defendants, or any of them, committed, or caused to be committed, all or any of the acts complained of, without legal justification, they would be liable to the Plaintiffs in this action, suing as they do in their corporate capacity; and it would be quite immaterial who may have been, or be, the particular individuals comprising the corporation, who are the Plaintiffs, except in so far as the Defendants' plea of justification should occasion any enquiry upon that point.

Now, to this declaration the Defendants have pleaded eight pleas, which may be reduced to three, namely: 1st. That the Defendants did not do any of the acts complained of; 2nd. That the close, soil, school house, foundation walls and buildings were not, nor was any of them the Plaintiffs' property, as alleged; and 3rd. (which is the Defendants plea of justification set out on the 7th plea), that at the time of the alleged trespass, and until and at the time of action brought, the Defendants James Cameron and John A. Cameron, and Duncan Macdonald, were the Trustees of said School Section No. 16,.duly elected and appointed under the Statute in that behalf, and the said land was the freehold of the said James Cameron, John A. Cameron and Duncan Macdonald, as such Trustees, and the said school house and walls, buildings, wood and logs were the property of the said James Cameron, John A. Cameron and Duncan Macdonald, as such Trustees, under the Statute in that behalf, and because it was deemed desirable to change the site of the said school house, and to purchase and accept another site for the said school house, and the said James Cameron, John A. Cameron and Duncan Macdonald, deeming it advisable as aforesaid, and having purchased and accepted another site for said school house, and having lawful and proper authority in that behalf, proceeded to change the site of the said school house, and thereupon the said James Cameron and John A. Cameron, as such Trustees as aforesaid, in their own right, and the Defendant, Nathan Cameron, as their servant, and by their command, entered upon the said close, and, with teams necessary for that purpose, moved the said school house from the place it then occupied towards the site purchased and accepted as aforesaid, doing no more than was necessary for that purpose, and because the said school house was set fire to and burned by some person or persons unknown, accidentally or unlawfully, but without the knowledge of the Defendants, it was not removed to the said site so purchased and accepted as aforesaid, but the Defendants were thereby prevented from so doing, which are the alleged trespasses.

The 8th plea it is unnecessary to set out, for the issue thereby sought to be raised is wholly immaterial to the matters really in issue in this action.

The Defendants by that plea, treating the Plaintiffs, who are a corporation suing in their corporate name, as if they were individual persons, deny that such individuals, there being none named as Plaintiffs upon the Record, were ever duly appointed Trustees of the school section, or were such trustees at the time of the alleged trespasses, but that the Defendants James Cameron and John Cameron and one Duncan Macdonald were a body corporate for the purposes mentioned in the Statute, and entitled to sue under the title of Trustees of School Section No. 16, &c., &c, and that the said land was the freehold of them, the said James Cameron, John A. Cameron and Duncan Macdonald, as such Trustees.

This plea, as it appears to me, is framed upon a total misconception of the operation of the Statute and of the position, rights, and responsibilities of the particular individuals, who, for the time being, may fill the character of Trustees of the school section.

By the Statute the school property is plainly vested, not in the persons who, for the time being, may be Trustees, as pleaded in this plea, but in the corporation.

It is wholly erroneous to describe the property and to plead it as being the soil and freehold of the respective individuals for the time being filling the office of Trustees. Those persons have no estate whatever in the school property; it is vested in the corporation, whose agents the persons are. Now, that the agents of a corporation may commit a tort upon the corporate property, for which an action will lie at the suit of the corporation, there can be no doubt; a corporation known as the mayor, aldermen and commonalty of a city may sue persons filling respectively the offices of mayor and aldermen of the city for trespass, wrong and injury done to, or for S"OL the conversion of, the corporate property.

Doubtless, these agents, having, for the time being, control of the corporation, may prevent an action being brought in the corporate name against themselves, but, that action being brought and the Defendants having pleaded to issue, all that we have to do is to determine the issues raised upon the Record before us in bar of the action, which issues must be determined irrespective of any question as to who may or may not have been competent to give instructions for the use of the corporate name for the maintenance of the action.

Now the issues joined, in substance, are, as I have said:

1st. Upon the question whether or not the Defendants, or any of them, did any of the acts complained of ? As to the allegation in the declaration " that the Defendants removed and carried away the said school house from its lawful site, and converted the same to their own use," that might have been treated by the Defendants, and would have been treated, as matter of aggravation only, in view of the other matters charged, if the Defendants had not themselves, by their third plea, treated that charge as an independent substantive cause of action

It is unnecessary to enquire whether the contention of the Defendants upon this issue is or not correct, namely, that in this connection the word " site " must be construed to mean the whole lot upon a part of which the school house was erected, and not merely that part of the lot within the four walls, which were of stone, built into the ground, and which constituted the foundation of the school house, for the other acts charged, if proved and not justified, are abundantly sufficient to support the verdict rendered in favor of the Plaintiffs. Now, upon the evidence, it is clear, beyond all question, that the Defendants took the school house down from its foundation and removed it for more than the length of itself from off that foundation, and that, in so doing, they broke and tore down the stone walls constituting such foundation, and that the windows were twisted out of place, and that the weather-board and some of the shingles upon the roof of the school house were damaged, and that the building was left in a condition unfit for occupation there as a school house. That these acts constitute an actionable wrong for which damages may be recovered in this action, unless they can be justified, admits of no question.

Then, 2nd, the Defendants have pleaded in bar that the close, soil, school house, walls and buildings were not nor was any of them the property of the Plaintiffs. This plea seems to have been pleaded upon the misconception that some individuals behind the corporation putting it in motion were Plaintiffs, and not the corporation itself, for the Statute clearly vests the school property in the corporation, and that is, in effect, what the declaration alleges and the plea denies. This plea, therefore, must be found in favor of the Plaintiffs.

The only question which remains is: Have the Defendants, by their 7th plea, established a justification ? Now, the land is not the freehold of James Cameron, John A. Cameron and Duncan Macdonald, as in this plea pleaded, even though they may have then been the persons filling the office of Trustees, the freehold is in the corporation-Plaintiffs.

Moreover, assuming the last named individuals to have been the persons filling the office of Trustees, it appears by the evidence that it is not true, as alleged in the plea, that they had purchased another site for the school house, or that they had lawful power and authority to proceed to change the site of the school house, as they admit by their plea that they did proceed to change it; the plea, in short, confesses the com- P mission of all the trespasses charged in the declaration, professing to avoid them as lawful acts done by them in the discharge of the powers attached to their office; but it is clear that they had no such justification as that set up, for the 4th sub-sec. of sec. 30 of the Act required the sanction of three of the nearest commissioners residing out of the section, or. if they did not agree, then the sanction of the Board of Commissioners, whose decision should be final, before the acts which Defendants admit they committed could lawfully be done, and we find by the evidence that the Defendants James Cameron and John A. Cameron, knowing that the necessary authority had before been refused, despairing of obtaining it, did not again apply for it, but wrongfully, upon their own sole motion, did the acts complained of. It would be singular, as it appears to me, if upon a record raising these issues, all of which must be admitted to have been clearly established in favor of the corporation, a court of law should be disposed so far to countenance injustice as to render any assistance to the Defendants in their endeavor to defeat the corporation from recovering in this action for the wrong and injury done to their property, upon a suggestion that two of the Defendants and another person were, in truth, the only persons competent to set the corporation in motion by an action brought in its name.

AGENT-Goods sold as Principal petition-Jurisdiction-Preliminary judgment the April, an election petition fyled the

Prothonotary's at Murray Bay, trict of Saguenay, against the Respondent.

The latter pleaded preliminary tions that this election petition, notice its presentation and copy of the receipt the deposit had never been served upon him.

Judgment was given maintaining the preliminary objections and dismissing the petition with costs.

The petitioners, thereupon, appealed to the Supreme Court under

Held: That the said judgment was not appealable, and that under that section an appeal will lie only from the decision of Judge has tried the merits of an election petition. (Taschereau and Fournier, J.

dissenting.)

Per Strong, J., (Richards, concurring,)

That the hearing of the preliminary and the trial of the merits of the election petition are distinct acts of procedure.

2-Right in criminal matters, cap.

In Michaelmas Term, certain questions law reserved, which arose the trial of the appellants, were argued before Court of Queen's

Bench for Ontario, composed of Harrison, C.J., and Wilson, J., and on the 4th February, the said Court, composed of the judges, delivered judgment affirming the conviction the appellants for manslaughter. Held: That the conviction of the Court of Queen's although but two Judges was unanimous, and therefore not appealable.

3-Right to, Order setting aside demurrer as frivolous, not appealable

5-Court of, Right to entertain question not raised at the trial.

oN.S.- ATTACHMENT-continued.

Demurrer-Conversion Sheriff- Corporation, sale by-Justification under Order of Oourt-Seal.] One H instituted proceedings against L. Company, the of which resided in the United States, but which did business in Nova Scotia, and, the 25th caused a writ of attachment to issued out of the Supreme Court at Amherst, under the Absent and Absconding

Debtors' Act of Nova Scotia, directed to the appellant, the High Sheriff the County Curberland. Under this writ, the appellant certain chattels being the chattels of the said company.

November, an order was issued out the said Court, directing the appellant to sell, and the Appellant did sell chattels perishable nature.

discontinuance was fyled in the said cause H the 30th the respondent commenced an action against appellant the conversion of the chattels question, contending that the company, having failed its operations and being desirous winding up its affairs, and being indebted to sold and conveyed to him the said chattels a' certain memorandum of sale, dated July 5th, "signed behalf of the company," " Hawley, agent." this memorandum a seal was which not purport to the seal of the company. The appellant pleaded to the declaration, that not convert; goods not plaintiffs; possessed ; and also a special plea of justification, setting forth the proceedings H., and that had seized and sold the as the goods of the company, in obedience to the attachment and order issued said proceedings. The respondent replied, setting the discontinuance.

The appellant rejoined that the proceedings were not discontinued, and that the discontinuance was not fyled till after the sale.

and not the sale, constituted the conversion:

that there was sufficient evidence to show that the chattels in question had been transferred the company to respondent, and that under the Revised Statutes of Nova

Scotia, the sale of the chattels did not require to under the corporate seal of the company.

Per Strong, J. : The sale, and not the seizure, the conversion complained of. and to this the order of the Court was a sufficient answer.

a mere taking the goods of a third person under a attachment against a efendant to keep them in until the termination of the action not a conversion.

Per Henry, J.: The order for sale would have a justification for the original levy the goods, well as for the sale, if they had been the property of the respondent, but the evidence failed to show a sale the pany to the respondent. Such a sale would require to under the corporate seal of the company, and not within the meaning of the Revised Statutes of Nova

-Finality of-Finding specifically on matters in difference.] Plaintiffs brought ejectment to recover possession certain lands

Parish

P.

After cause was at issue, under a rule reference, all matters in difference were referred to arbitration, and the arbitrators to have power make an award cerning the Glebe and Church Lands at P., to make a separate award concerning the

School Lands at P.

The powers of the arbitrators were extend all accounts between the said parish and the late

Rector, and the defendant as executrix of

Rector, also between the said defendant individually and the varish.

The arbitrators made two awards.

First, to the School

Secondly, as to the Glebe and Church Lands, they awarded that the plaintiffs were entitled to recover the lands claimed the writ ejectment, and ordered judgment in ejectment to entered the plaintiffs with costs suit ; and, after reciting that all accounts respecting the receipt and disbursments received from the interest, rent of these lands the late Rector, or agents, or the defendant his executrix, were also referred to them, as well as all accounts and differences between the parish and the defendant individually, they further awarded that the defendant should

"pay to the plaintiffs the of $1 full the saving and excepting the matters controversy respecting the School Lands, which they had made a separate award;

AWARD-continued.

That the award, being against the defendant in her representative capacity, could not considered against her personally, and negatived any claim of that kind, and also was an adjudication against the defendant that had assets; and that the finding the second award that the defendant should pay $1 could considered a finding asagainst her in her individual capacity for that and, as to the claims of the plainagainst her for received husband, her as his executrix, as a ing against the plaintiffs on their claim. the part of the second award, directing payment of the costs of the reference and award was bad, but might abandoned. See 2.

BOND-Goods in- - --- Collateral security - Revendication.] B., trustee for H. f deposited with D. twelve bonds of the & Railway collateral security, to availed of only subsequent to the failure the Government to pay subsidy previously transferred to and obtained a receipt from D. that the subsidy being paid D. would return these bonds to The subsidy paid and B. D. to recover back the twelve bonds. H.C. # not intervene. Held,-That B., being party personally liable on the bills held which the Government subsidy of transferred was intended to pay, and having complied with all the conditions mentioned the receipt entitling him to recover the bonds, was, against the legal the bonds.

ACT-Sees. ---- CONTEMPT-Power Punishing for sued Corpora- 2-Arts.

DAMAGES-Action - 'of 2trespass'" for assault

-- --- - - - - - - fromlet an unfurnished house to one to used as a boarding-house.

Mf. applied to F. 4' for furniture, which they that it would not distrained for rent.

W.

thereupon signed the following which was delivered to F. _t Son M.: " The bearer, being about to purchase furniture from F. and rent being guaranteed, hereby agree not to take the furniture to furnished F, 4,

Son for any rent that may due."

F.

Son then delivered the furniture to M., the said furniture to be paid for monthly payments, and " to remain the property of

4' Son till paid full."

W. levied upon the furniture, P. 4' Son replevied and obtained verdict which the Court below refused to aside. Bleld,-That the signed W.

constituted binding contract or arrangement with F. 4' Son not to distrain, and that the judgment the Court below should

Appeal-Admissibility

(P.Q.)-Alultiplicily charges-Bribery

-Drinking and Polling

The petition was the usual charging bribery and corruption behalf spondent and of agents; and treating respondent's agents on the nomination polling days.

In the bill particulars, the petitioners formulated ninety-eight charges, but, in appeal, they only insisted upon seventeen charges, seven of which attached personally to the defendant, and ten to his agents.

respondent was examined on his behalf, and there were, all, witnesses heard. judgment the Superior petition all the charges, was unanimously particularly referred to; and it was Held,- That the evidence of a candidate his behalf, in the Province of is admissible.

That when multiplicity of charges corrupt practices are brought against a candidate, or his agents, each charge should treated'as separate charge, and, if proved one witness only and rebutted by another, the united weight of their testimony, without accompanying collateral circumstances to aid the Court its appreciation of the contradictory statements, cannot overcome the the evidence rebuttal, and that, such a the candidate entitled to the presumption of innocence to turn the scale in his favor. That drinking the nomination polling day not a corrupt practice to avoid an election, unless the drink is given agent account of the voter having voted or being about to vote.

compared with & Imp.)

4th. That a candidate, charged his opponent with having no influence, not guilty of a corrupt practice, states " that had had influence to procure more appointments the electors the county than any member."

The evidence the Robert charge was to the election was thought of, together with members of family (the Par family), exhibited a personal friend of Laflamme, asked him different occasions if he could procure his brother-in-law),(Ouellette) a place. time he spoke to him with reference to it was about a year previous to the election; but he did not anything to him that occasion about his father-in-law (Pard). Robert's evidence this part of the then as follows: " Q. what occasion did you speak to Laflamme) about it? It was when the question of an election arose that I spoke to about it. Last fall? What was the date at which you spoke to regarding the Pard family?

I cannot positively say, but it was four or weeks was then spoken of in the county and out the county. -Q. That was during the election ? Q. At all events, it was at the time the election was spoken What to regarding your brother-inlaw and your father-in-law? went to Laflamme different occasions, when I had accounts to give to collect, and said to him: ' It would greatly please the Part family if could procure a place brother-in-law.'

Did you say to Laflamme what way it would please the Pard family ?

said this to him : ' It might, perhaps, prevent them voting at the coming election.'

Q. When you told that Pard useful to not voting, what did Laflamme say?

simply told ' that would think of and that if a ELEOTION-continued.

vacancy occurred, would his best

Laflamme, the other hand, states:

'I (Robert) had asked not during the election, but many months before, I believe, far as memory a year before there was any talk of an election, try and secure ofice or occupation, with a slight remuneration, for his brother-in-law Ouellette). I told that would consider claims; that he was one of best supporters; and, if I any occasion where, it would possible for to support claim, I would do

The thing remained that way; and previous to the election particularly, there was never word said or breathed on that subject tween Robert and myself. I never asked to use this promise, and never intended to so; it was merely because was a personal friend of mine and a man of respectability and importance that promised to consider claim, as I was justified as the representative of the county in doing.' " Evidence was that Robert attended three or four meetings of respondent's committee, organized

Lachine; that checked lists and reported acts to of the members the committee.

the election, Robert repeated to the

Pard family what had taken place between and Laflamme. At the time of the election, Robert, while conversing with the

Pards in the family circle, was informed of them "they would vote for Girouard (the defeated candidate), but that they would make use of their influence."

He then told them " as you please ; they will your votes an objection to giving Ouellette a place." This conversation was not reported

Robert to any member of the respondent's committee.

Held,-1. That the Respondent, having a perfectly legitimate motive promising Robert to try and get an for brother-in-law-his desire to please political friend and supporter-was not guilty of a corrupt act in making such promise;

further, that the act Lobert, relation to the votes of the Pard family, even if a corrupt was not committed with the knowledge consent of the respondent.

Robert was respondent's agent or not, the conversations which took place between him and the Pard family do not sufficiently show a corrupt intent part to influence their vote, and that he not guilty of bribery undue influence within the meaning of the

Statute.

[Richards, and Strong, J., dissenting.]

Per Richards, J. and Strong, J. that there was sufficient evidence to declare lobert to of respondent's agents.

(Henry, J.,

Preliminary

EMTEKNT. -- - - - - - - - - - - - - - Plaintiff not admissible Actions against Administrators-Construction chap Stat. N. 4th series.] &

. accepted service and acknowledged amount due, but R. pleaded to the action.

trial both defendants died. Then R. & R. R., administrators R., were, before trial, made parties to the action. At the trial was examined as a witness support of his and when asked what had taken place between and the deceased Mf. R., the learned Judge ruled that the *dence was inadmissible under of the Revised Statutes of Nova Scotia, 4th series.

Held (affirming the judgment of the Court below) :-That under said section, action against administrators made parties to an action after issue joined, but trial, the plaintiff cannot give any evidence in his favor dealings with a deceased defendant. (Henry, J. dissenting.)

2.-Rejection o-Promissory Notes-Joint Liability of- Misdirection as Interest.] Plaintiffs sued W. upon two promissory notes signed one T. E. and W. The notes were dated at Halifax and made payable to plainorder in Boston, The notes were unstamped, but before action brought double stamps were and no contract as to terest appeared the face of them, W. pleaded, inter alia, that had signed the notes upon an understanding and agreement that should liable thereon surety for T. E., and that plaintiffs, without knowledge or consent, agreed to give and time to T. E, and forbore to enforce payment when they might have been paid. the trial sought to cross-examine the plaintiffs an affidavit made the witand to which was annexed letter to plaintiffs from E.

rule nisi to aside verdict was discharged the Supreme Court of Nova Sootia, but they referred the rate of interest to a Master of the Court. Held,-That there was an improper rejection of evidence, and that the jury should have been directed as to interest.

3.-Of Respondent in controverted elections admissible

(P.- Q.)

Liability of Ddbat de compte-Interest-Prescription.] representing of the universal residuary legatees

W. D.,

Sen., appellants joint testamentary executors the said W. Sen., to render an account and pay over the balance of the estate their hands.

a the total value of the estate was proved to worth this amount appellants in their said capacity, as appeared an account rendered them,took possession

The balance of appeared the books of W. D. & to due to the estate of D., Sen., Jun., one the executors, and to have never into the possession the other executors. Held,-That under Art. Civil L. appellants were jointly and severally responsible only for the amount they took possession of their joint capacity, and, therefore, that D.,

Jun., alone was responsible for the amount of such balance

(Taschereau, J. dissenting.)

JUDGMENT-Appeal-Demurrer-Supreme and Exchequer Court Act.]

Order setting aside a demurrer frivolous and irregular under the Nova Scotia Practice Act an Order a matter of practice and not a judgment appealable under the

2-See

FIRE-Misrepresentation as

Situation of Risk-Survey Agent.]

appellaiits' agent solicited and prevailed T. to insure his premises with the appellants.

Previously had examined the premises to insured, and the

April, T.S, signed the application which had caused to and upon the back of which was a diagram purporting to relation to adjoining buildings.

T. S. stated at the time of signing the application, that the distances put down in the diagram were not

FIRE-continued.

property and make an accurate measurement the distances.

one of the conditions of the policy it provided that if an agent should up the application, should deemed to the agent that purpose of the insured and not of the company, but the company will responsible for all surveys made their agents personally. Held,-Affirming the judgment the Court of Error and Appeal, that with respect to the survey, description and diagram the assured was dealing with C.M.,not his agent, but the agent of the company,and that thereany inaccuracy, omissions or errors therein were those of the agent the company, acting within the of deputed authority, and not of the assured.

encumbrances-Indivisibility of policy-36 , cap. Ont.]

The appellants issued to the resinsurance to the anount of follows, viz.: their building, and on the stock. the respondents' application, which had been signed blank and delivered to the person through whose instrumentality the licy was it was stated that there were incumbrances on the property, although there were several mortgages.

It was also proved that after the issuing of the policy the respondents further encumbrance the land, but did not notify Defendants. Vc., 0., proviso (since repealed 7,) to declared, " That the concealment any encumbrances on the insurediproperty, on the land which it may situate * * shall render the policy void, and no claim loss shall recoverable thereunder, unless the tion to waive the defect."

the conditions of the policy provided that the policy should made void the omission to make known any fact material to the risk. action upon the policy, the Court Pleas refused to set aside the verdict favor of the appellants, but appeal to the Court of Error and Appeal for Ontario it was held that the policy was divisible and that respondents were entitled to recover the insurance the stock. Held,-On appeal, that the contract of insurance on the building and the stock was entire and indivisible, and that the conditions of the policy well as the of cap. 0., rendered the policy wholly void - - - - - - - ISSUE-Any of body lawfully begotten children of such issue surviving him or

Illegal Prefer- Presumjption Insolvent Act of sub. and 3, and Insolvent and 88-Arts. C..L.C.

1040-Doctrine of Pressure opposed Art.

T.F., an hotel keeper, being largely indebted, sold B., his principal creditor, the January, notarial duly registered, certain movable and immovable property, being the bulk of estate, comprising the hotel and furniture, for Thelmmovable property, valued assessors at was sold

The sale was also made subject to right redemption F, re-imbursing, within three years, the stipulated price and interest at the rate of with a provision that, in case of insolvency or default payment, this right of remdrd should delivery took place, and ten months later F., who remained in of the property under a lease from

B. of the date that of the sale, also bankrupt.

In the meantime A.B., with

P's consent, had leased the furniture to T. & ., in whose hands they were when appellant

(Fs revendicated them part the insolvent estate.

T. it J. did not plead, but B. intervened and claimed the under the sale above mentioned

Assignee contested the intervention, alleging that deeds passed the January, made T.F. in fraud of his creditors. Held,-That there was sufficient evidence to prove that the object of the transaction was to defeat F's creditors generally, and therethe sale and lease of January, were null and void under Arts.

and C.L and sees and

Insolvent Act and sub.

Insolvent Act of

2.-Foreign Bankruptcy-Assignment thereunder-Lands in Canada.] a naturalized

British subject, who owned lands in

Oanada, resided and carried business partnerwith B. 4 in the State of New

York.

In November, the of D.,

H. & became insolvent.

February, the said under the Bankruptcy Act of the United States (sec. 5,

Stat. executed a deed purporting to

" convey, transfer and deliver all their and each of their estate and to one trustee for the creditors.

the 26th Sept., a writ execution against lands

Canada was placed the hands of the proper sheriff the respondents, who had in the meantime recovered judgment against him.

Subsequently way of further assurance, and in pursuance of the the 14th Feb'y, granted as trustee, lands

Canada, specifying the different parcels.

the appellant, was afterwards substituted to

C. as trustee, and, such, fyled bill the

Court of Chancery to obtain declaration that the lands the bill were not liable to the operation the writ of execution of the respondents. Held,-That a bankrupt assignment, made under the provisions of an Act the Congress of the United States America, will not transfer immovable property Canada. Also,-That the deed of the February, was not effectual, either as a deed of bargain and sale, or a deed of grant to pass any legal title or interest the lands of D. Canada.

Co.---- - - - - - - 3.-Plea ofInsolvency-Discharge not pleaded -Judgment after certificate granted.] T. J. W. sued F. B., and 9th June, F. B. assigned property under the Insolvent Act of

6th August, F. B. became party to deed of composition.

F.B. that since action commenced duly assigned under the Act, and that deed of composition and discharge executed his creditors was discharged all liability.

the 19th ember, the Insolvent Court confirmed the composition and F.B's. discharge, but F.B. neglected to plead this confirmation. Judgment was given in favor of T.J. the 30th January,

30th an execution under the judgment was issued, and the 28th June, rule nisi to aside proceedings was obtained and made absolute. Held,-Reversing the judgment of the Supreme Court of Nova Scotia, that F.B., having neglected to plead discharge before judgment, might have done, was estopped from setting it up afterwards to defeat the execution.

(Strong, J., dissenting, ground that the rule or order of the Court below was not from which an appeal brought under the Supreme and Exchequer (aveu)-Deed, erroneous statement in-Art. C. L. notarial dated F. and P. K. purchased from one F. C. certain printing materials. The agreed price and was paid; but the erroneously stated the price to which amount was acknowledged the deed to have paid and received.

C. remained possession, and, after being in partnership with A. several months, failed.

7th F.AcN. and P.K. claimed the plant, and their petition stated the purchase had been made good faith, and that they had paid the agreed price, but that the deed erroneously stated the price to

The evidence to the price agreed upon and paid was that of P.McN., and his statement was confirmed P.C. appellant, as assignee to the insolvent estate of F. and claimed the payment being the balance between the sideration price mentioned in the deed and the admitted to have been paid. Held, the judgment of the Court low, that the only evidence support appellant's contention being that of the respondent, the appellant cannot divide the AVOWAL-continued.

respondent's answers (aven judiciare) order to avail himself of what favorable and reject what unfavorable.

(Strong, J., dissenting.)

That, although there an error, or even a false statement in deed, the obligation to pay the consideration proven to the true and legitimate remains.

McC. and another.

evidence showed that the promissory note in question was drawn and ". and made payable to S's order.

The said note was given mistake to it being supposed that the of was due him the drawers, instead of less of

The mistake being immediately discovered, gave back the exchange for another note opportunity occurring, afterwards, the same day, stole the note; caused it to stamped, indorsed it, and tried to collect it.

Held,-On appeal, reversing the judgment the Court Queen's Bench for Lower Canada

(Appeal side), that was not guilty of larceny of " a note " of "1 valuable security " within the meaning of the Statute, and that the fence which guilty was not correctly described in the indictment.

and Provincial impose-Sale

O-British

Act to amend and consolidate the law the sale fermented or spirituous liquors,"

then being a brewer licensed the Government of Canada under the manufacture fermented, spirituous other liquos, did manufacture large quantities of beer and did sell wholesale consumption within the Province of Ontario a large quantity of said fermented liquorsso manufactured without first obtaining a license required the said Act of the Legislative Assembly Ontario. The Attorney

General thereupon fyled an information penalties against S. demurrer to the information the special matter for argument was that the Legislature of the Province Ontario had no power to the statute under which the penalties were sought to recovered, to require brewers to take out any license whatever selling fermented or malt liquors by wholesale, as stated in the information.

Held,-On appeal, that the Act of the Provincial Legislature Ontario, cap.

is not within the legislative capacity that

Legislature.

That the power to tax and reg- LICENSES--continued.

ulate the trade of a brewer, being a restraint and regulation of trade and commerce, falls within the class of subjects reserved the British clusive legislative authority of the Parliament of Canada; and that the license imposed was a restraint and regulation of trade and commerce and not the exercise of a police power. That the right conferred on the Ontario Legislature sub-see. of the said Act, to deal exclusively with shop, saloon, tavern, auctioneer and " other licenses," does not extend to licenses on brewers or other licenses " which are not of a local or municipal character.

Regina Taylor, Q. B. senting.]

LIEN-Detinue, action

W. left with a chronometer for the purpose of its repaired.

after taking chronometer to pieces, found detent spring much rusted, and sent it to Boston to have it made right. for his work, but said would not deliver the chronometer until full charges were paid, viz., thereupon sued to recover possession and of his chronometer.

The evidence the making of the contract was conflicting, and the learned Judge at the trial charged the jury, a matter of law, that if defendant's version were correct to the orders given him plaintiff reference to putting the instrument in order, plaintiff was entitled to recover, because such order or instructions would give authority to send the instrument to a foreign country to have any portion of the work done; and that, if it was sent, no lien would exist in defendant's favor for the value of the work without special instructions plaintiff's consent; that no such order or consent was shown in the evidence, and that consequently lien existed.

SCOTIA-LegislativeAssembly of-Power punishing for for assault against and Assembly the Province Nova Scotia, on the 16thof April, charged the then Provincial Secretary-without being called to order doing so-with having falsified record. The charge was subsequently investigated bya mittee of the who reported that it was unfounded. days after the House resolved, that, preferring the charge without evidence to sustain it, W. was guilty of a breach of privilege.

the 30th April, W.

was ordered to make an apology dictated the and, having refused to do was declared, another resolution, guilty a contempt of the and requested torthwith to withdraw until such apology should made.

W. declined to withdraw, and thereupon another resolution was passed ordering the removal of the said from the the Sergeant-at-Arms, who, with his Assistant enforced such order and removed

W brought an action of trespass assault against the Speaker and certain of the and obtained a verdict of damages.

Held,-On appeal, affirming the judgment the Supreme Court of Nova Scotia, that the

Legislative Assembly of the Province of Nova

Scotia has, the absence of express grant, no power to remove one of its members for contempt, unless actually obstructing the business of the House; and having been removed from his seat, not because was obstructing the business of the House, but cause he would not repeat the apology required, the defendants were liable.

Kielley v. Carson

P.C.C. and Doyle v. Falconer

1 P.C. commented and

-Rev. Stat. of, Series,

Cap. 97.-See

Cap. 30.-See

Cap. 46.-See 1

NUISANCE--Damages--Possessionof wharf built public property-Right action for trespass.]

al. built a wharf in the bed of the

Lawrence, which communicated with the shore means of a gangway, and had enjoyed the possession of this wharf and its approaches mny years, when the ground that the wharf was a public nuisance, destroyed the means communication which existed from the wharf to the shore.

al. sued R.

damages, and prayed that the works restor- After issue joined, R. fyled a supplementary plea, alleging: that since the institution of the action, one through whose property al's bridge passed to reach the street shore, had erected buildings which prevented the restoration of the bridge and wharf. Beld,-That R. having allowed al to erect the gangway public property and remain in possession it for over a year, had debarred himself of the right of destroying what might have originally a nuisance to and that, notwithstanding the subsequent abandonment this wharf and gangway, al. were entitled substantial damages.

POLICY.-Indivisibility

AGENT-Trustee and que Trust-Laches.] In the plaintiff, W.J.T., before leaving Canada, conveyed certain lands, in which he had an interest as assignee of a contract to purchase, to brother, one of the defendants. In April, in anticipation of a which was afterwards brought C.against W.J.T, in relation to the lands question, without the knowledge of his brother, re-assigned the property to him, and having paid the balance of the purchase money, a deed the lot issued at G.T.'s request to W.J.T., such assignee. In October following a of attorney was sent to, and executed T., who was then in California in favor of to enable him to " sell the land in question, and to sell or lease any other lands owned Canada."

In G.T. veyed the property to the respondent, who had acted as solicitor for W.J.T., had full' means of knowing T.'s position and powers. for an alleged consideration of and immediately re-conveyed to T. one-half of the land for an alleged consideration of

In W.J. T. returnto Canada, and in January, fyled a bill impeaching the transactions between brother and seeking to have them declared trustees for him.

leld,-(Reversing the judgment of the Court of Error and Appeal and affirming theldecree of Vice-Chancellor Proudfoot, Strong, J., dissenting,) that W.J T. the owner of the lands question ; that he had not been debarred laches or acquiescence from succeeding in the present suit, and that the transactions between G.T. and set aside.

NOTES-Joint Liability See

name, could set the debt due to from personally, the way if had been the Principal; and that the verdict should sustained. Tas v. ----- IN 1.

OFF-Riant of -- --or 1.

Construction

1.-British

2.-Insolvent

3.-Insolvent

4.-37

5-36

6.-32

7.-Revised

Statutes,

N.S.,

4th-series,

9.-Revised

11.-Statute

30-Trespass Individual tors-Plea-Corporation aue

J.A.C., while Trustees ofSchool

Section South District of Pictou

County, and N.C., as their servant, entered upon the school plot belonging to their section, removed the school its foundation and destroyed portion of the stone wall.

Subsequently, the Trustees of said School tion brought action of trespass quare claufregit to the bo.se, the property of the

The defendants pleaded inter alia justification of acts complained of, asserting that the acts were legally performed them their capacity of Trustees. Stats., N. ., (4th series) declares that the sites for school houses shall the Trustees, subject to the sanction of the three nearestCommissioners residing out of the section.

this case the sanction of the three nearest Commissioners was not obtained. fHeld,-On appeal, that under cap. 23 Stat.,N.S., (4th series), J.C., J. N.C. were not authorized to remove the school house its site in the manner mentioned. That defendants having subsequently abused their right enter upon the lands of the corporation an overt act of spoliation, the plaintiffs, who are a corporate body and are identical with the corporation which existed at the time of the trespass, can maintain trespass against the defendants for the injury to the corporate property. That when action brought in the name of a corporathe defendants to plpad that the plaintiffs not legally constitute the corporation, such a defendants ought to apply to the summary jurisdiction the Court to stay 2-Right

3--Action for Assault against Speaker and Members

The testator died in leaving two D. and P., jun., and three daughters and grandson, P.

being of a daughter.

When the testator the property was subject a which expired

P. F., jun., after having gone into occupation, that year conveyed interest P. V. and left the place. Subsequently, the Appellant, of D.F, heir-at-law P.F., senr., took a conveyance

P. and thereupon the Respondent, heir-at-law of P.F., junr , brought action ejectment, claiming that under the will father took an estate tail which descended to

The Court Queen's Bench judgment favour of the heir-at-law, which judgment was reversed the Court of Appeal

Held,-On that the testator to first great grandson being void for remoteness, there being intention to to P.F., junr., any estate interest independent or unconnected with, the devise to the great grandson, there was valid disposition to disinherit the heir-at-law and therefore the Plaintiff was.not entitled to recover. (Strong, J., Dissenting ) Per .Ritchie,

J.-Where the rule law, independent paramount to the testator's intentions, defeats the devise the proper course to let the property as the law directs cases of intestacy.

Limitations-Acceptpossession-'

Lot 1 3, Ist Concession of East Hawkesbury. resided the west half of lot with his and occasionally assisted working the whole lot, until his death, which occurred In while his son Adam

WILL-continued.

worting the east half, and possession, James Gray devised it to and land was known

"Our

Ajan's." James Gray made a second will, in which said:

give and devise to John Gray, his heirs and assigns, &c., to have and to hold the premises above described-to the said John Gray, heirs assigns forever.

if said John should without leaving any issue of.his body lawfully begotten, or the children of such surviving then such I will heirs and assigns, have and to hold the at the death the said John Gray." After the father's death Adam remained in possession, and accepted a conveyance with full covenants for title John. September, Adam conve to the respondents, and k., the other respondent, claimed title under McC. landlord.

In John died without leaving any lawful issue, and the (appellant) brought ejectment against respondents, but neither at the trial nor term was any question raised as to the Johes

Held,-That father, at the time his desth had acquired title to the lot length That, under the will, John Gray took estate with an executory devise over to Thomas Gray, in the event that happened John Gray dying without leaving lawful 2. That Adam, having recognized, John's interest the land purchasing of bargain and sale, limited contingent astate, its was to stop the running of the Statute, and the Respondents cannot set Adam's possession under John to defeat the contingent estate. 3 That the Court of Appeal not refuse entertain the question as to the of John's although not raised at the trial nor term. INI)EX.