McLeod v. Murray.

is strong to shew that a return is conclusive only in the particular cause in which it is made, and there is no authority the other way." 2nd. If it was an estoppel, it should have been pleaded as such, otherwise the truth can be shewn. Estoppel by record and by deed must, in order to make them binding, be pleaded if there be an opportunity; otherwise the party omitting to plead waives the estoppel, and leaves the issue at large, on which the jury may find according to the truth. In Young v. Raincock (7 C. B. 338), Coltman, J., in delivering the judgment of the Court, says: "By joining issue on the replication has referred it as matter of fact to the jury, who are not bound by the estoppel, but may and must find the truth of the fact according to the evidence," which was done in this case. See also on this point, Freeman v. Cook (2 Exch. 654); Vosght v. Winch (2 B. & A. 662); Feversham v. Emerson (11 Exch. 385); Williamson v. Kirby (15 C. B. 430); Mathew v. Osborne (20 L. & E. 242.)

Rule discharged.

MCLEOD v. MURRAY.

OCTOBER 29, 1870.

In an action for continuing to overflow the plaintiff's land by a mill-dam, after notice, the dam having been erected before plaintiff became owner of the land, the defendant sought to show that the dam was erected by permission of the former proprietor, and claimed a right to retain the dam. This defence he afterwards abandoned Held, That the title to land came in question, and the action was properly brought in the Supreme Court.

This was an action for overflowing the plaintiff's land by the erection of a mill-dam by the defendant, with a count in trespass for the trampling down of the plaintiff's grass by the defendant's servant, in walking to and from the dam. At the trial before Allen, J., at the York sittings, it appeared that the dam had been erected before the plaintiff got possession of the land, and the defendant's counsel opened his case to the jury by stating that the dam had been built by William Murray, by the permission of the former owner, before the plaintiff came into possessson, and therefore that Murray was then in possession of the land. He called evidence to prove the permission to build the dam, but on the learned Judge stating that the permission being verbal, would not last beyond the ownership of the first proprietor, and it appearing that the dam had been built by William Murray for the defendant, his counsel abandoned the ground of the right to continue the dam, and gave evidence to show that the land had not been damaged. The jury found a verdict for the plaintiff in the sum of five dollars damages on the third count, for con

McLeod v. Murray.

tinuing the dam after notice to remove it, and ten cents for the trespass. The plaintiff went down to taxation without a certificate from the Judge who tried the cause, that there was good cause for bringing the action in the Supreme Court, and the costs were taxed at $120.80.

G. F. Gregory on a former day in this term moved for a review of the taxation of costs, on the ground that the action should have been brought into the County Court. He contended that the title to land did not come in question, and as the plaintiff had only claimed twenty dollars damages, and only recovered five dollars, the case was one which should have been brought to the County Court, and the plaintiff was not entitled to any costs, as enacted by 30 Vict. cap. 10, sec. 21. In Latham v. Spedding (4 L. & E. 273), it is held, that in trespass, where the defendant pleaded not possessed, but no question of title in fact came in question, the jurisdiction of the County Court is not ousted. The learned Judge on the trial in charging the jury, observed that the title to the land was not disputed, and did not leave any question of permission to them; it would therefore be unfair now to rule that the title did come in question, and so give costs to defendant, he having no opportunity to move for a new trial. Fraser contra. I submit that the title to land did come in question in this case. The defendant was a trespasser after notice, and he sought to establish a right to put up the dam by permission of a former proprietor. This defence raised the question of title, and was only abandoned when the learned Judge intimated that the permission being verbal, would not last beyond the ownership of the former proprietor. The case of Latham v. Spedding does not affect this, because there no question of title was raised in evidence, and that case is directly contradicted by Timothy v. Farmer (7 C. B. 814), where it is held that a plea of not possessed to an action of trespass takes the case out of the jurisdiction of the County Court.

RITCHIE, C. J., now delivered the judgment of the Court.

This was an application for a review of the taxation of costs in this case, on the ground that the action should have been brought in the County Court. The action was for overflowing the plaintiff's land in consequence of the erection of a dam by the defendant, and there was also a count in trespass. The plaintiff recovered $5 damages for the continuance of the dam after notice, it having been erected before he got possession of the land; and ten cents for the trespass, which was by the defendant's servants walking through his grass and grain in going to and from the dam. The question arises under the County Courts Act, 30 Vict., cap. 10. By Sect. 7,

McLeod v. Murray.

"The Courts shall not have cognizance of any action. 1st, where the title to land is brought in question." (It then states other cases in which the Court has no jurisdiction.) Sect. 8. "Subject to the exceptions in the last preceding section, the County Courts shall have jurisdiction and hold plea in all personal actions of debt, covenant, and assumpsit, when the débt or damages claimed do not exceed the sum of $200, and in all actions of tort where the damages do not exceed $100." By Sect. 21, "If any action be brought in the Supreme Court that could have been brought in a County Court, the plaintiff shall not be allowed any costs, unless the Judge who tried the same shall certify that there was good cause for bringing the action in the Supreme Court."

The defendant's counsel, in opening the case to the jury, stated that the dam had been built by Wm. Murray by permission of a previous owner of the land, before the plaintiff came into possession, and therefore that Wm. Murray had possession of the land; and he called evidence to prove the permission to build the dam. It appeared, however, that Wm. Murray had built the dam for the defendant, and the counsel afterwards abandoned the ground as to the right to continue the dam, and gave evidence to show that there was no damage to the land. Had the action been brought in the County Court, and had the defendant's counsel there set up the right to continue the dam, as he did in this case, the plaintiff must have been nonsuited; for it has been held in Sloan v. Davis (2 Allen 693), that the title to land comes in question where the defendant claims a right to use the land; and as he did so claim at the trial, and offered evidence of his claim, the case of Latham v. Spedding (15 Jur. 576), cited for the defendant, is not an authority against the plaintiff's right to costs, because he has shown that the title bona fide came in question in this case. This was not a case where the plaintiff's attorney could have prudently brought the action in the County Court, therefore we think it comes within the exception stated in the twenty-first section of the Act, and that the plaintiff is entitled to costs.

*See Mountney v. Collier (1 E. & B. 630), Chew v. Holvoyd (8 Exch. 249), and Marsh v. Dewes (20 Law & Equity, 356), as to the title to land coming in question.

The granting of a quo warranto is discretionary with the Court, and it refused withou costs a quo warranto against the Mayor of Fredericton for having moneys of the City improperly in his hands at the time of his re-election, where no corrupt motive was charged, and no inconvenience to the Corporation shown, the amount being small, and the motives of the relator questionable.

G. F. Gregory, on a former day in this term, showed cause against a rule granted last Trinity Term, requiring him as mayor of Fredericton to show cause why an information in the nature of a quo warranto should not be filed against him for illegally exercising the office of mayor of Fredericton. The grounds of the application were, that at the time of his re-election as mayor, he had improperly in his hands moneys belonging to the city, which he had collected as fines and fees; and also certain sums collected for rents and licenses, belonging to the city; and the improper payment of money without authority of law, which it was contended disqualified him from serving as mayor, under 22 Vict., cap. 8, § 8-86, and 32 Vict., cap. 87, § 2. The facts as stated in the affidavits on both sides are fully set forth in the judgment of the Court. He contended that although the charges of fraud might form matter for indictment, they showed no ground for a quo warranto.

Fraser, contra, contended that the facts shown formed proper grounds why a quo warranto should issue.

Cur. adv. vult.

RITCHIE, C. J., now delivered the judgment of the Court.

This was a rule granted in Trinity Term last, calling upon George F. Gregory, Esq., to show cause why an information in the nature of a quo warranto should not be filed against him for illegally exercising the office of Mayor of Fredericton. The affidavits on which the rule was granted, stated that Mr. Gregory had been elected Mayor of Fredericton in 1869, and was re-elected for the present year on the 10th of January last; that at the time of his re-election he had in his hands $5.50, collected by him in November last for fines for breach of the City By-Laws; and that he had since received for such fines the sum of $9 in April last, and $2 in June, none of which had been paid over to the City Treasurer, as directed by the Charter of the City; also, that he had received for rent from the City Hall the sum of $4 in January last, and $12 between that date and the 1st June, which sums he had not paid over. Also, that he was indebted to the City in the sum of $80, retained by him as paid to one Gearon on the 27th August, 1869, out of moneys which he ought to have paid over to the City Treasurer; the said Mayor

Ex parte Torrens.

having no authority by law to pay such money, as all city moneys must be paid over to, and be paid out by, the City Treasurer.

In showing cause against the rule, Mr. Gregory admits by his affidavit that at the time of his election in January last he had in his hands $10.60, the amount of two fines collected by him in November last; and that since his election, and before the granting of the rule in this case, he had collected $37.10 for fines, the whole of which sums he had paid to the City Treasurer on the 6th July last. That at the time of his re-election he might have had a small sum in his hands, received for licenses and rent of the City Hall, but that it did. not exceed $25; and that he had paid to the City Treasurer all moneys received on those accounts, though he believed he was not bound to pay them before the 31st of October next. That he paid the sum of $80 to Gearon out of moneys in his hands, under the authority of a resolution of the City Council authorizing him to settle with Gearon, who had threatened a suit against the city, and that afterwards at a meeting of the City Council held on the 10th December, 1869, at which the relator, Torrens, was present as an alderman, the City Council confirmed the payment, and allowed the amount in the accounts for the year. The statement with regard to the payment of the $80 was corroborated by the affidavit of the City Clerk, giving extracts from the Minutes of the Council.

The Acts of Assembly which were relied on as creating a disqualification of Mr. Gregory, are the 8th and 86th sections of the 22 Vict. cap. 8, and the 2nd section of the 32 Vict. cap. 87. By the 8th section of the former Act it is declared, inter alia, "that no person accountable for the city revenues, or any part thereof, shall be qualified to be elected or to serve in the office of Mayor or Councillor"; and the 87th section enacts that "all fines, penalties and costs imposed by virtue of the Act, or any by-law of the corporation, shall be paid over to the City Treasurer on the first Monday in each month, and that a detailed account thereof, under oath, shall at the same time be filed with the Treasurer, by the Mayor or Councillor paying the same." The 32 Vict. cap. 87, sec. 2, enacts that in addition to the disqualifications mentioned in the above Act, no person shall be qualified to be elected or to serve in the office of Mayor, &c., "so long as he shall be a defaulter, or indebted to the said city for any taxes or fines."

We doubt whether this section, or the 8th section of the former Act, applies to moneys collected by the Mayor for fines imposed for breaches of the city by-laws. The revenues of the city would seem rather to mean the annual income derived from lands, ferries, licenses aud taxes, see Imperial Dictionary, "Revenue;" and the words "defaulter, or indebted to the city for any taxes or fines," to mean the person upon whom a tax or fine has been imposed; and not an