CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF NEW BRUNSWICK, IN HILARY TERM, IN THE THIRTY-THIRD YEAR OF THE REIGN OF QUEEN VICTORIA. MULLIGAN v. RAINSFORD. FEBRUARY 7th, 1870. The fees of a witness in a criminal trial, certified by the Judge, may be recovered in an action before a Justice of the Peace, when it appears that the County Treasurer has sufficient funds to pay the same. A Judge at Nisi Prius has no power to make an order for the payment of a constable for attending the Court or securing the attendance of witnesses. The following judgment of Mr. Justice Allen, delivered at chambers in this case, on an application to set aside the judgment of the Justice of the Peace who tried the case, in consequence of the importance of the points involved, was, with the consent of all parties, referred to the Court: "This was an action brought against the defendant as SecretaryTreasurer of the County of York, to recover $18.80, a balance claimed by the plaintiff on an account of $31.80, for the following services, viz: Attending as constable at the Supreme Court Sittings, $16 00 7 80 8 00 $31 80 Each of these claims was certified as correct by the presiding Judge at the Court, and an order for payment made on the defendant by the clerk of the Court, in the usual way. The defendant paid $13 on account of the plaintiff's attendance as constable, and refused to pay anything further. By the Revised Statutes, cap. 160, § 12, the Court is authorized to order to the prosecutor and witnesses for the prosecution, on a trial Mulligan v. Rainsford. for felony or misdemeanor, such amount for travel and attendance as may be sufficient to meet their reasonable expenses, and an order for the payment of such amount is to be drawn on the County Treasurer by the clerk of the Court, and the same shall be paid out of any moneys belonging to such County in the Treasurer's hands. The claim for attendance as a witness in the case of Reg. v. Day comes within the powers given to the Judge by the Act, and so far as relates to that part of the plaintiff's claim, I think it was the defendant's duty to pay it if he had County funds in his hands sufficient, and the claim was properly certified. No objection was made that there was any informality in the order, and the defendant admitted that he had plenty of funds in his hands to pay all the demands. The question, then, is, is he liable to an action for it? I think he is, if it appears that he has sufficient County funds in his hands to pay it, as he admitted in this case that he had. The Judge's order fixes the amount to be paid to the plaintiff; the County Council have no power to alter it; and when the Secretary-Treasurer has sufficient County funds in his hands to pay the amount of the order, the law appropriates that amount in his hands to the use of the person in whose favor the order is drawn, and he can maintain an action for money had and received to his use. This imposes no hardship on the Secretary-Treasurer, who incurs no liability till he has the funds in his hands to pay the order; but it would impose great hardship on the holder of the order if he had not this summary remedy, and was compelled to apply to the Supreme Court for a mandamus against the Secretary-Treasurer. The other portions of the plaintiff's claim are not within the control of the Judge, who can make no order for the payment of money except such as he is authorized by statute, and consequently cannot determine the amount to be paid to a constable for attending the Court, or for looking after and securing the attendance of witnesses in criminal cases. Claims for such services are under the control of the Sessions, or of the Municipality in incorporated Counties, as part of the contingent expenses of the County. The plaintiff must therefore apply to the County Council for payment of any claim he may have beyond the $8 for attendance as a witness in the Crown case. The order will be that the judgment given by Justice Pickard be altered, and the verdict reduced to $8 with costs of suit,-each party to pay his own costs of the review." Fraser for the defendant now contended that the plaintiff being a constable in attendance at the Court, and being paid for such attendance, was entitled to no remuneration as a witness. [RITCHIE, C. J.: Without reference to that, what right had the defendant to Glasier v. The Fredericton Branch Railway Company. refuse to obey the order of the Judge to pay the plaintiff his witness fees? The Act was just brought in to obviate such a difficulty as this, and the Judge made the proper party to say what amount a witness should receive for his attendance at a trial for felony or misdemeanor.] I do not think an action before a magistrate would lie for this; the proper remedy would be mandamus. [RITCHIE, C. J.: I should say that an attacthment would lie for disobedience of the Judge's order.] The simple point is whether an action such as this will lie, or whether the plaintiff's remedy is not a mandamus. [ALLEN, J.: Rice v. Chute, (1 East. 579), is against you on that point.] Needham, for the plaintiff, was not called on. Per Curiam. The judgment of Mr. Justice Allen must be affirmed. GLASIER V. THE FREDERICTON BRANCH RAILWAY COMPANY. FEBRUARY 19th, 1870. A jury in assessing damages for land taken for railway purposes, besides the value of the lands allowed the plaintiff further damages on account of the severance of his farm by the railway, and the Court refused to disturb their award. J. L. Marsh, in Michaelmas Term last, shewed cause against a rule nisi granted by Allen, J., at Chambers, for a certiorari to bring up the award of the jury in this case for land damages by reason of the Fredericton Branch Railway crossing the plaintiff's land. The award is as follows: We, the undersigned jurors, summoned to assess the land damages between the Railway Company and Stephen Glasier, Esq., are unanimously of opinion that Mr. Glasier is entitled to recover from the company for such damages the sum of $350, for this reason, that the road running through Mr. Glasier's improved land cuts his farm in two parts, making it very inconvenient for occupying the rear of his farm, which might be obviated by cutting a culvert about fourteen feet wide under the road at the upper line; but as the jurors have no power to order the said cutting, and the law does not compel the company to do so, the jurors think that in consideration of the great inconvenience which Mr. Glasier must submit to as long as the road exists, the jurors think that Mr. Glasier is entitled to the above award, viz., $350. The rule was obtained on the ground that the jury had no right to give damages for any thing but the value of the land, which was not more than $75, and could not give damages on account of the particular manner in which the road had been built. He contended that the award was right, and justified under 28 Vict., cap. 12, § 2, which gave the jury authority to take such damages into consid eration. Doe ex dem. Gilbert v. Roe. Fraser, in support of the rule. We complain that the jurors have stepped out of their proper sphere, in saying whether a culvert should or should not have been built for the use of the plaintiff. By law, all the jury have a right to determine is the value of the land. They have no right to give damages for the particular manner in which the road is constructed. Lawrence v. The Great Northern Railway Company (4 L. & E. 266). The jury cannot take into consideration any act of the company after the works are commenced, as to whether they have built the road improperly or not. Cur. adv. vult. RITCHIE, C. J., now delivered the judgment of the Court. On a careful consideration of the 2nd sec. of 28 Vict., cap. 12, it is our opinion that parties whose lands are taken are entitled to have assigned the full value of all damage they shall have sustained as the direct and necessary result of such taking, to be reduced by any benefit the jury may find to have accrued by the construction of such railway. In this case we cannot discover that the jury have exceeded their powers. Rule for certiorari discharged. DOE ex dem. GILBERT v. ROE. FEBRUARY 19th, 1870. To obtain judgment against the casual ejector, where the premises are vacant and six months' rent in arrear, the affidavit should state that the party had searched for property on the demised premises on a particular day, and that there was no sufficient distress, and such facts should be stated as will enable the Court to judge whether there was in fact an absence of sufficient distress. H. B. Rainsford, on a former day in this term, moved on affidavit for judgment against the casual ejector. The affidavit of the lessor of the plaintiff stated the tenancy, that half a year's rent was in arrear, and the lessor of the plaintiff's power of re-entry. The affidavit of the Deputy Sheriff set forth that the premises were vacant, and that he affixed a copy of the declaration in ejectment and notice on the front door of the premises. The affidavit then states as lollows: "And this deponent further saith, that on the said fifteenth day of January instant, no sufficient distress could be found on the said premises to satisfy the sum of two hundred and eighteen dollars and forty cents, the amount of the arrears of rent for the said premises, which this deponent is informed is due," &c. [RITCHIE, C. J.: Should not your affidavit state explicitly that a search was made for a sufficient distress?] The affidvait follows the usual form. Doe ex dem. Gilbert v. Roe. [ALLEN, J.: The affidavit seems very vague; it does not state what, or that any, means were taken to discover a sufficient distress.] [RITCHIE, Č. J.: We will look into the matter, and settle the practice in proceedings of this nature.] Cur. ad. vult. ALLEN, J., now delivered the judgment of the Court. Applications for judgment against the casual ejector are made under the Revised Statutes, cap 126, § 24, which is substantially a copy of the English Statute, 4 George II. cap. 28. It authorizes the landlord to proceed by ejectment when half a year's rent is in arrear, and there is a right of re-entry for non-payment. If there is judgment against the casual ejector, "and it shall appear to the Court by affidavit that the rent was due before the declaration was served, that no sufficient distress could be found on the premises to satisfy such rent, and that the lessor had power to re-enter, he shall recover judgment." In the forms of affidavit given in Arch. Prac. for proceedings against the tenant under the Act 4 George II. cap. 28, it is stated generally, "that no sufficient distress was to be found on the demised. premises, countervaling the arrears of rent," &c. In 2 Chit. Arch. 968, it is said that before proceeding under this Act, (4 George II, cap. 28), you must make diligent search over the premises after the expiration of the time limited for payment of the rent, to ascertain the insufficiency of the property there to answer the distress, and you will have to prove such search at the trial, for which he cites Doe v. Wandlass, (7 T. R. 117). If it is necessary to prove on the trial that diligent search has been made for property to satisfy the rent, we should have thought that something more was necessary in case of a judgment by default than a bald statement that no sufficient distress was to be found; that the affidavit ought to state that the party had searched for property on the demised premises on a particular day, and that none could be found. The cases of Doe v. Roe (2 Dowl. 412) and Doe dem. Hicks v. Roe (1 Dowl. N. S. 180) show that a diligent search, and positive affidavit of the want of sufficient distress, are necessary. We can see no inconvenience in requiring the affidavit, on which motions for judgment against the casual ejector are made, to state the fact of the search, in order that the Court may judge of its sufficiency; but we can foresee that great injustice may be done by a contrary course; and whatever may have been the practice heretofore, we now do and shall for the future require, that the affidavit state such facts as will enable the Court to judge whether there was in fact an absence of sufficient distress. Motion refused. |