Majority
J.
Neto Brunswick, discharging a rule nisi for a new trial. This was an action brought by the Testator Miles McMillan, against the appellants and one Daniel McLaughlin, to recover damages alleged to have been sustained by reason of the obstruction of the River Miramichi by the appellants' booms, and also for short delivery of quantities of McMillan's lumber, which floated down the river into the appellants' boom. The three first counts of the declaration were for obstructing the river, whereby the plaintiff was unable to float down a quantity of deals, and sustained damages by the loss in the price, from his inability to fulfil a contract he had made, and by the deterioration of the deals in value in consequence of lying in the water for four months. The fourth, fifth and sixth counts were for the loss of a quaitity of logs through the defendants' negligence. The seventh count was in trover. The South West Miramichi,-the river in question,is a tidal river and navigable for some distance above the boom for boats and small steamers.
The appellants were incorporated by the Act of the New Brunswick Legislature, 17 Vic., cap. 10, (N. Brun, L. & P. Acts, p. 856.) Their act of incorporation, being about to expire in 1872, was extended by 35 Vic., cap. W"nBoo' 44, (Acts of 1872, p. 86,) until the year 1882. By a sub. sequent Act, 37 Vic, cap. 107, (Acts of 1874, p. 384,) the -M capital stock of the Company was increased, and they were authorized to extend their works.
The pleas were not guilty and leave and license. The following extract, taken from the Judge's Fisher's notes at the trial, and agreed upon as part of the case between the parties to be submitted to the Supreme Court of Canada, shows what took place in reference to the addition of pleas.
"Mr. Davidson moves for trial.
"Mr. Wilkinson-The pleas are, not guilty, and leave and license. I propose to add a third plea, that the de- A plea of justification under the statute was not pleaded, and we have no power to add one now. And there are many good reasons for that, one of them is that the defendant might raise, as in this case another issue altogether, which would have to be tried in the Court below; and the plaintiff might choose to demur to this additional plea, and that would have to