BEEMER v. INKSTER. Replevin.-Writ improperly issued.-Action against sheriff. To an action of trover against a sheriff the defendant justified under a writ of replevin. Replication that the writ was “improperly and without any right or authority whatever in that behalf sued and prosecuted out of the said court; and was not to recover goods wrongfully distrained; and afterwards to wit on the twenty-first day of April, 1884 the said matters in the said writ contained having been brought before the said court for adjudication, Mr. Justice Taylor, then sitting in the said court for the hearing of cases, determined that the said court had not jurisdiction to issue the said writ of replevin in the said plea mentioned, and to try the action consequent thereon, and that the said writ was of no force and effect whatever and was absolutely null and void.” Rejoinder" that the said writ of replevin was good and valid on its face, and appeared to be regularly issued and was signed by the proper official in that behalf, and the defendant had, at the time he received the same and at the time of the execution thereof, no notice or knowledge that the said writ was issued improperly and without any legal authority, and the said writ has not been set aside, nor has any judgment of any kind been entered in the said suit which was commenced by the said writ of replevin." Demurrer to the rejoinder. Held. That the rejoinder was good. If a writ be issued by a proper officer and from the proper office for such a writ in a proper case to issue from, it is not wholly void, so far as the sheriff who executes it is concerned. S. C. Biggs, Q. C. for plaintiff. H. M. Howell, Q. C. and Isaac Campbell for defendant. [30th June, 1886.] KILLAM, J.-It appears to me that the case of Andrews v. Marris, 1 Q. B. 1, is a distinct authority in favor of the position taken by the defendant, and shows that the demurrer to the rejoinder must be overruled. “ There the precept in the nature of a ca. sa, under which the plaintiff had been arrested, was, to use the words of the replication to which this rejoinder is pleaded, issued improperly and without any right or authority whatsoever." This was so distinctly the case that the clerk who issued it was held liable in trespass to the party arrested. And yet, the officer who executed the writ was held to be justified, and a verdict was entered in his favor. There, as here, the court had authority to issue the process issued, if the case were proper for it. In Carratt v. Morley, 1 Q. B. 17, where such process was improperly issued from a similar court, the court having no jurisdiction over the party arrested or authority to award such process against him, the commissioners who presided and awarded the process were held liable in trespass to the party arrested; and yet it was distinctly held that the officer who executed it was not on that account liable. He was held liable under the circumstances because, but only because, the process did not upon its face purport to be issued from that court, or in fact from an existing court. It has undoubtedly been several times held by my brother Taylor, when actions of replevin have been brought before him for trial, and it has been made to appear that the actions have not been brought for goods taken under distress, that under the Act as found in the Consolidated Statutes such actions could not be maintained, and were not within the jurisdiction of the court, and he has uniformly refused to allow such actions to be tried before him. In so deciding he may have made use of expressions which declared the writ of replevin to be of no force and effect, as in the replication he is said to have adjudged with reference to the writ in question; but such expressions would not be necessary to the determination of the question before him, and at most could only amount to declaring the writs to be of no force as the commencement of actions between the parties. They might, as issued without authority and under circumstances which gave the court no jurisdiction, be invalid . as between the parties, and yet give full protection to the sheriff, as the cases I have referred to clearly show. While for the purposes of this demurrer, I accept, without the expression of any opinion of my own, the view thus taken by my brother Taylor, I cannot agree that it involves the finding that the sheriff was not justified in executing the process of the court which, upon its face, was perfectly good. As to the expression used in Atkinson on Sheriffs p. 301, that "if it," (the writ) "be void the sheriff is responsible whether he knew it to be void or not, or could have discovered the defect with ordinary care," it is merely founded upon the case of Hooper v. Lane, 10 Q. B., 546, in which the writ in question was not signed by the proper officer, and was, in fact, not the process of the court. The other cases which I have cited show that if the writ be issued by the proper officer and from the proper office for such a writ in a proper case to issue from, it is not wholly void, so far as the sheriff is concernd, and the rejoinder sets out facts which show that, though issued improperly, it was not wholly void. It is not correct, as urged by the plaintiff's counsel, that the replication alleges that the writ was of no force and effect, and was absolutely null and void. It alleges merely that this was so determined by my brother Taylor. The replication is not framed as by way of estoppel; and it could not be so, as the present defendant is not shown to have been a party to the action in which this was so determined; at most the determination could only be that, as between the parties to the replevin suit, the writ was null and void. The older authorities cited by the defendant's counsel clearly bear out the view which I take. There are expressions in some text books which appear against this, but upon examination they are found to be too loose and general, and based upon cases which may bear them out under their particular circumstances, but not to the full extent to which the words would seem to go. Judgment must be entered for the defendant upon the demurrer. THE EASTERN JUDICIAL DISTRICT BOARD Judicial District Boards.-Separation of Winnipeg from Selkirk. The charter of the city of Winnipeg (47 Vic. c. 78,) separates the city from the county of Selkirk, but in a qualified manner only, and it may be liable to the Eastern Judicial District Board for debts and liabilities due by the city at the date of the Act. The court will take judicial notice of the territorial divisions of the Province. An allegation that a by-law was passed is a sufficient allegation that it was sealed, if sealing was necessary. By-laws of the Board, except those under which debentures are to be issued, need not be under seal. Where an Act of Parliament casts upon a party an obligation to pay a specific sum of money to particular persons, an action of debt may be maintained for the amount; and that, although a different remedy may be provided by the Act. A mandamus would not be granted. The Judicial Districts in apportioning among the municipalities the amounts necessary to be raised have a discretion as to whether the equalized assessment shall be of the real and personal estate or of the real estate alone. An allegation that the amount was "on the basis of the equalized assessment and valuation of the real property, duly apportioned, and directed to be borne," is a sufficient allegation that the Board did exercise the discretion vested in it, J. H. D. Munson for plaintiffs. D. Glass for defendants. [29th of April, 1886.] TAYLOR, J.-The defendants demur to the first and second counts of the plaintiffs' declaration. All the objections taken to the first count are taken to the second also, and in addition the latter is objected to on the ground that the City of Winnipeg is not part of the County of Selkirk, but is now entirely separated from it. On the argument the various statutes affecting municipalities and Judicial District Boards and also the charter of the City of Winnipeg were referred to and remarked upon. The objection which applies to the second count only may be first dealt with. That count alleges that by by-law passed by the plaintiffs, which recited among other things that it was necessary for the plaintiffs to provide for and pay the liabilities of the theretofore existing corporation of the County of Selkirk, for which the plaintiffs were then liable under the statute in that behalf, and the defendants having with other municipalities formerly constituted said county, the plaintiffs duly levied upon the municipalities, cities and towns of said county the sum of the said liabilities and at which they had been duly audited, and apportioned the said sum among the said several municipalities, cities and towns in the said county * * *of which sum the proportion to be paid by the defendants, was thereby estimated and apportioned at the sum of &c. In making this levy and apportionment the plaintiffs were proceeding under section 491 of "The Manitoba Municipal Act, 1884." That section provides that on the 15th day of May, 1884, a date before the passing of the by-law in question, the functions of county councils shall cease. It further provides that all debts, liabilities, and contracts of the county councils thereby abolished, which may be unpaid or subsisting when the abolition of such county councils takes effect, shall be and become the debts, liabilities and contracts of the Judicial District Board, within which such counties are situated, which shall make provision for the performance of such contracts, and for the amount necessary to pay and satisfy any such debts and liabilities or any interest and sinking fund thereon as the same shall become due, and shall yearly and in every year estimate, and obtain from the municipalities interested, the amount necessary to be raised for such purposes, and all such amounts so necessary for the purposes aforesaid, shall form a charge against the municipalities or parts of municipalities formerly constituting the county by whom such debts, liabilities or contracts were entered into or incurred, and shall be apportioned among and required to be raised by such municipalities or parts of municipalities, according to their equal |