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Doe ex dem. Boyd v. Roe.

ered the freight according to the bill of lading; here was denial on one side and an assertion on the other. But the defendant's rejoinder sets up that you the plaintiff had no authority to make the tender and receive the goods. "Undoubtedly, as Lord C. J. Tindall says, in Prince v. Brunatte (1 Bing N. C. 438), when a replication does not consist with or justify the declaration, it is a departure in pleading; for a plaintiff is not entitled to declare in respect of one right, and then set up another in his replication." The inconsistency is in this the plaintiff complains of a detention of his goods. The defendant says: I brought them from London for freight, which was due, and I detained them for the lien I had. The plaintiff says: I offered you the freight. The defendant: True, you offered the freight, but you had no authority to do so. That was a new ground not stated in the plea.

According to my views, the plaintiff is entitled to judgment on his demurrer to the fourth rejoinder, and the defendant to have judgment on demurrer to the second and third replications.

Judgment for plaintiff.

DOE ex dem. BOYD v. ROE.

APRIL 22nd, 1870.

A lease was made by A. to B., for fourteen years from 1st May, 1849, with a covenant by A. to pay for improvements or renew the lease at the end of the term. A. conveyed the reversion to the plaintiff in October, 1869, at which time it was alleged that $1,200 arrears of rent were due from B., who had left the country. In ejectment, for a forfeiture for non-payment of the rent, the plaintiff claimed the arrears, and also $72 for half a year's rent, due since he became the owner of the reversion. The affidavit of the bailiff stated that when he served the declaration there was not sufficient distress on the premises to satisfy the arrears of rent stated to be due, and that the value of the goods on the premises at that time did not exceed $50 in his estimation.

Held,-1st. That as this affidavit referred to the whole arrears of rent claimed by the plaintiff, it did not clearly show that there was not sufficient distress on the premises to satisfy the half year's rent accruing due since the plaintiff became the owner. 2. That as it did not appear that the lease had been renewed, or that B. held over after the expiration of the lease, or that the tenant in possession held under B. there was nothing to show that a new tenancy was created, to which the proviso for re-entry in the lease would attach.

If the goods on the demised premises are not sufficient to satisfy half a year's rent, the landlord may bring ejectment on the clause of forfeiture, without realizing a part by

distress.

Fraser, on a former day in this term, moved on affidavits for judgment against the casual ejector, under a clause of re-entry in a lease,

Doe ex dem. Boyd v. Roe.

for non-payment of rent. The affidavits set forth, that on the 1st May, 1858, Edward B. Peters and Martin H. Peters, the trustees under the will of Charles J. Peters, leased the premises to John Tilton for a term of fourteen years from 1st May, 1849, at a yearly rent of $144, payable quarterly, the lessor having a right to re-enter if the rent was thirty days in arrear. There was a covenant in the lease, that at the expiration of the term it should be at the option of the lessor either to pay for the buildings, or continue the lease for a further term. It did not appear that the lease had been renewed. On the 18th October, 1869, Martin H. Peters, the surviving trustee, conveyed the reversion to the lessor of the plaintiff, and Peters' affidavit states that there was then owing from the lessee, Tilton, $1,200 and upwards for rent, which he had not since received, and that Tilton was not then in the Province. The affidavit of the lessor of the plaintiff states that on the 1st of April, 1870, there was and still is due to him from Tilton, $1,200 and upwards, for arrears of rent up to 1st February, 1870. The affidavit of the deputy sheriff states that on 1st April, 1870, he served Noonan, the tenant in posession, with a copy of the declaratlon and notice, &c., and at the same time fixed a copy of the same in front of the building on the premises; that at the time of such service there was not sufficient distress to be found on the premises countervailing the arrears of rent stated in the affidavit of the lessor to be due; and that the value of the goods and chattels upon the premises, liable to distress, did not exceed in his estimation the sum of fifty dollars.

Cur, adv. vult.

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

The only forfeiture for which the lessors of the plaintiff could proceed in this action, would be for the non-payment of a half year's rent, due on the 1st February last. They became the owners of the reversion on the 8th October last, and if there was then a subsisting tenancy, a quarter's rent, £9, would become due on the 1st November. The affidavit of the bailiff states that on the 1st of April, when he served the declaration, there was not sufficient distress on the premises to satisfy the arrears of rent stated to be due, and that the value of the goods and chattels on the premises at that time, liable to distress, did not exceed in his estimation $50. It is not entirely clear from this affidavit that there was not sufficient distress on the premises to satisfy half a year's rent, ($72). The statement that the goods did not exceed fifty dollars in value, in his estimation, is not very satisfactory; and perhaps, had he distrained, the goods might have produced enough to satisfy the amount. The suit is evidently brought under the expectation that the lessors of the plaintiff are entitled to

Ex parte Eagles and Wilson.

recover the large arrears of rent due at the time they became the owners. Had the statement as to the value of the goods been more positive, and clearly showed that they were not worth more than fifty dollars, we think the case would have been within the Act, and that the lessors of the plaintiff would not have been bound to realize what they could by distress, before bringing ejectment. Doe dem. Haverson v. Franks, (2 C. & K. 678).

There is, however, a difficulty in the case, which we think will prevent this application being granted. The copy of the lease which is annexed to the affidavits, bears date the 1st May 1858. The habendum is "for the term of fourteen years from the 1st day of May which was in the year one thousand eight hundred and fortynine, thence next ensuing," &c. There is a covenant in the lease, that at the expiration of the term the buildings on the premises should be valued, and that it should be at the option of the lessor either to pay for the improvements, or continue the lease for a further term of not less than seven, nor more than fourteen years, at the same rent and on the same conditions as the former lease. This lease expired on the 1st May, 1863, and there is nothing to show that it had been renewed, or even that the lessee continued in possession after the expiration of the term, and it is stated that he is now out of the Province. It does not appear that the person in actual possession at the time the declaration was served, either went in or held under, the lessee. Though it has been held that a proviso in a lease for re-entry on non-payment of rent, is a condition which attaches to a yearly tenancy created by the tenant holding over and paying rent, Thomas v. Packer, (1 H. & N. 669); yet where there is nothing to show whether the lessee held over or not, or that any new tenancy has been created, we think the lessors of the plaintiff fail to establish a right to recover. Forfeitures are not favored in law, aud great strictness is required in cases of this kind.

Application refused.

Ex parte EAGLES.-Ex parte WILSON.

APRIL 22nd, 1870.

A complaint against a party, under 26 Vict. cap. 33, sec. 2. for engaging in an occupation in the city of Fredericton, not being a ratepayer of the city or county, or licensed, should be prosecuted in the name of the City Treasurer.

For the recovery of all fines and penalties under any Act relating to the municipal affairs of the city of Fredericton, the information should be laid by the City Treasurer, or by his authority; and a conviction therefor, founded on the information of a common informer, cannot be sustained.

Ex parte Eagles and Wilson.

Fraser, in Michaelmas Term last, obtained a rule nisi for a certiorari, to remove the proceedings had before the Mayor of Fredericton in these cases. The parties had been convicted and fined under 26 Vict., cap. 23, sec. 2, for engaging in an occupation within the limits of the city of Fredericton, without being ratepayers of the city or county, or having a license therefor. The grounds on which the rule was obtained, were: 1. That the proceedings were wrongfully in the name of the Queen, and should have been in the name of the City Treasurer. 2. That the informations on which the proceedings were founded, were not made by the City Treasurer, or by any person who had authority in law to make them. 3. That there was no sufficient evidence that Eagles was not a ratepayer of the City or County, and within the exception. The material facts are sufficiently stated in the judgment of the Court.

G. F. Gregory shewed cause in Hilary Term. 1. The fact of the convictions being headed in the Mayor's Minute Book in the name of the Queen, would not affect their substantial justice. All proceedings for violations of the common law or statutes are in the name of the Queen; but for violating city by-laws, in the name of the Treasurer. The proceedings here do not on their face reveal the name of the prosecutor, and the simple entry of the Minute in the Mayor's Book does not affect the information, the warrant, or the conviction. 2. I submit that under 22 Vict., cap. 8, sec. 86, it is not necessary for the City Treasurer to make the information. The Act says all penalties shall be sued for, recovered, and enforced, on the oath of one or more credible witnesses. The informations were made by a policeman, and it was his duty, and he was a proper officer, to make such information.

Fraser, contra. The proceedings should have been in the name of the City Treasurer, and the information should have been laid by him, otherwise there would be nothing to prevent the Treasurer from lodging a complaint against these men to-morrow for the same cause, and these convictions would not be an answer to it. Not being in the name of the City Treasurer, and the information being made by a person who had no authority to do so, the conviction must be quashed. Regina v. Hicks, (30 L. & E. 228).

Cur, adv. vult.

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

In these cases, the parties were convicted before the Mayor of Fredericton, under the Act 26, Vict. c. 33, sec. 2, which declares that "no person not being a ratepayer in the City of Fredericton, or the

Ex parte Eagles and Wilson.

County of York, shall engage in any trade, profession, occupation, or calling, within the limits of the said city, under a penalty not exceeding twenty dollars for each and every offence, unless he obtains a license therefor, as hereinafter directed." The 21st sec. directs that all fines, penalties, and forfeitures to be recovered by the provisions of the Act, may be recovered in the manner prescribed by the Act 22 Vict., cap. 8; and by the 86th section of that Act, it is declared that all complaints, suits, and prosecutions, shall be prosecuted by summons or warrant, in the name of the City Treasurer, and the proceedings shall be regulated by any Act then or thereafter to be in force, regulating summary convictions before Justices of the Peace, so far as the same may be applicable to that Act. The proceedings in these cases were not in the name of the City Treasurer, nor did it appear that they were taken by his authority. The informations were made by a policeman of the city, and a warrant issued thereon in one case; in the other, the defendant was in custody on another charge, and no summons or warrant was issued against him on the information. The subsequent proceedings were entitled in the Mayor's Minute Book, "The Queen v. Benj. F. Eagles," and "The Queen v. George Wilson." The convictions were according to Form (L), 1 Rev. Stat. 391, not stating the information, or the name of any prosecutor. As the statutory form has been followed, this is probably sufficient; though there would be no objection to stating the name of the informer, Reg. v. Johnson (8 Q. B. 102). But the objection here is, not that the name of the informer does not appear, but that it does appear that the person who laid the information had no authority by law to do so. The law relating to summary convictions, which regulates the mode of recovering fines, &c., before the Mayor, is found in the 1 Rev. Stat., cap. 138, which declares that no objection shall be allowed to any information or summons for any defect therein in substance or form, unless the party summoned has been misled, when the Justice may adjourn the hearing till a future day; and the 86th section of the Act 22 Vict., cap. 8, before referred to, declares that "judgment shall be given according to the very right of the matter, without regarding technical objections, imperfections or defects, which do not affect the substantial justice of the case." As the information is the foundation of the subsequent proceedings, the Justice has no authority to proceed without it, Paley Conv. 64; per Williams, J., in Turner's case (9 Q. B. 91); and an information by a person who has no authority to make it, is the same as no information. Then, had the policeman any authority here, and does he stand in any other light than a common informer?

We are of opinion, that as all fines, penalties, &c., recovered under any Act relating to the municipal affairs of the city, belong to the

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