66

The Queen v. Commissioners of Sewerage, &c.

easily disposed of. We cannot understand how a mandamus could be awarded to assess the amount Mr. Botsford is entitled to receive on behalf of the other heirs of Mrs. Botsford without it clearly appearing who those heirs are, and how he is entitled to make, in his own name, this application on their behalf, and to receive their shares. This certainly cannot be ascertained from the only allegations we have, and which are contained in the 16th paragraph of the applicant's affidavit as follows: "That in and by a certain deed of "partition between the heirs of the said Sarah L. Botsford, dated prior to the 24th day of February, aforesaid, and sometime during "the summer of 1865, all the other heirs remitted and acquitted "unto this deponent all right and title to the said lot of land, except "their right to damages occasioned by the obstruction on the said Little River, which were expressly reserved, and when recovered "to be divided amongst the said heirs in proportion to their several "claims in the said estate of the said Sarah L. Botsford." From this it would seem that "the other heirs" remitted and acquitted to Mr. Botsford all right and title to said lot, except their right to the damages Mr. Botsford now claims, which he says were expressly reserved, and when recovered (he does not say by whom) to be divided, &c.

It is not necessary for us to determine how far such a claim could at law be transferred, because there is nothing here professing even to be a transfer of the claim to Mr. Botsford, but an express exception to the contrary, expressly reserving it, so far as they could, to themselves; nor need we inquire how far the other heirs, by parting with their interest in the land, have interfered with their right to claim damages at all.

On the whole, therefore, we are of opinion that a mandamus should issue to the Commissioners, commanding them to make the necessary application, to some one of the Justices of the Peace of the City and County of St. John, for a warrant to the sheriff, or any constable in the said City and County, to summon a jury, under the 18th Vict., c. 38, to assess the damages which A. E. Botsford has sustained in respect of his interest in the lands in question, by reason of any damage done by the Commissioners in the execution of the works contemplated by that Act; or to show cause to the contrary.

Rule accordingly. (a)

(α) ALLEN, J., being connected with the applicant, took no part in this case.

MOFFATT v. DUPLISSEY.

FEBRUARY 12th.

Defendant gave his note payable at a future day, to the plaintiff, for a debt due from A. to the plaintiff, A. agreeing, in consideration thereof, to convey land to the defendant. A. afterwards refused to convey the land. Held, that the giving time for the payment of A's debt was a good consideration for the defendant's promise, and that the plaintiff's knowledge at the time the note was given, of the agreement between the defendant and A., respecting the land, did not affect the plaintiff's right to recover on the note, he not being a party to such agreement.

Assumpsit on four promissory notes made by the defendant in favor of the plaintiff, tried before WELDON, J., at the last York Sittings, when a verdict was given for the plaintiff.

It appeared that the defendant and his brother were severally indebted to the plaintiff-the defendant's indebtedness being about $60, and the brother's about $420. They met at the plaintiff's house; he added the amounts of their indebtedness together, and the defendant assumed the payment of the whole, and gave the four notes in question, payable six months after date. The consideration on which the defendant assumed the payment of his brother's debt was, the agreement of the brother to convey to him his interest in a lot of land. This was spoken of by the brothers at the settlement made with the plaintiff, but he was no party to it. The defendant's brother afterwards refused to convey the land.

On a former day in this term, Fraser moved to set aside the verdict, contending that there was a partial failure of consideration, that the plaintiff knew the condition on which the defendant gave the notes, and he accepted them on the faith that it would be complied with. The condition not having been performed, the plaintiff could not recover. [ALLEN, J.: The plaintiff was no party to the agreement about the land.] There was no consideration for the defendant's promise to pay his brother's debt, Croft v. Bcale, (5 L. & E. 408; 11 C. B. 172.) [RITCHIE, C. J.: The plaintiff gave time for payment of the debt.]

Cur. adv. vult.

RITCHIE, C. J., now delivered the judgment of the Court. A rule was moved for in this case on the ground of partial failure of consideration. The defendant's motive for giving the notes was an agreement made with his brother, by whom he was to be indemnified by a conveyance of lands; but the evidence does not show that the plaintiff was any party to this agreement. If the defendant's brother has deceived him, it is his misfortune; but the plaintiff should not be made to suffer for it. Giving time for the payment of the debt was a good consideration for the defendant's promise;

Leary r. Armstrong.

and as said by Jervis, C. J., in the case of Croft v. Beales, there is no reason why a party may not bind himself to pay the debt of

another.

Rule refused.

LEARY . ARMSTRONG.

FEBRUARY 13th.

The owner of land laid out and opened an alley-way leading from a street through his land, and leased the lots on each side of the alley. After the alley had been used by the public and the tenants occupying the lots, for more than twenty years, G., the administrator of one of the tenants, assigned to the defendant, and by the description of the land in the deed, conveyed to him the alley as a part of the property leased. Held, that this conveyance could not affect the right of the public to use the alley, and that the defendant was liable for obstructing it, though the plaintiff was the tenant of a house fronting on the alley, and also claimed under G. as representing another lessee of the property.

This was an action on the case for obstructing an alley-way in Woodstock.

At the trial before WILMOT, J., at the last Carleton circuit, it appeared that the plaintiff was tenant of a house in Woodstock. under a lease from John Hunter, Hugh M Lean and James Grover, administrators of one Phillips. The land had been previously leased to Phillips for a term of twenty-one years by the executors and trustees of the late Jeremiah Connell, by lease dated 25th July, 1849. In several of the leases of property adjoining that of Phil- . lips, made by the executors and trustees of Connell, the alley-way in question was expressly referred to, and in some of them shown by plans. The alley was a cul de se running from the public street to the rear of plaintiff's house, and was shown to have been used as such by the tenants of the several houses in front of it, and by the public, for more than twenty-five years previous to the obstruction by the defendant for which the action was brought. In June, 1864, defendant shut up the alley-way by erecting upon it a wooden barn, or shed, which was the injury complained of by plaintiff.

For the defendant, a lease dated 25th Feb., 1863, made between James H. Doyle, administrator of one John Doyle and the said James Grover, and one John McCoy, administrators of one Alice Kerrigan and John Reardon, to one Isaiah McCoy, was put in. By this lease the lessors demised to Isaiah McCoy, for a period of twenty one years, a certain lot of land lying to the northward of the alley and fronting on Wellington street, the description of which apparently

Leary v. Armstrong.

included the alley-way. This lease was, on the 20th May, 1864, assigned by McCoy to defendant. The title of Alice Kerrigan was by lease from the Connell estate, but the original lease to her was not put in evidence. The defendant contended that under the Kerrigan lease so assigned to him, he had a right to do as he did, and that, as James Grover was one of the parties conveying to McCoy through whom the defendant claimed, the plaintiff, who also claimed under James Grover, was estopped from denying his right. The learned Judge reserved this point, and upon the other questions raised in the case the Jury found for the plaintiff.

G. Botsford in Michaelmas Term last obtained a rule nisi for a new trial on the above ground.

S. R. Thomson, Q. C., now showed cause. The plaintiff proved a right of way existing for more than twenty-five years, and that during that time it was used for going into that particular tenement. It is immaterial whether it is a public way or a private way.

G. Botsford, contra. The case rests on the position Grover has put himself into with reference to defendant. [RITCHIE, C. J.: No, the user of more than twenty years settles it.] Grover leased this specific right to defendant; he would be estopped from disputing the defendant's right, and the plaintiff, claiming under Grover, can have no better title. [RITCHIE, C. J.: If there was a dedication of it to the public, Grover could not take it away.] As against the public he might not;-but it would be different between these par. ties. [WILMOT, J.: The lease was not given until the way had been open twenty-five years.] Grover having given the defendant a lease of the land in question, he has the right as against any one subsequently claiming under Grover, and if the plaintiff has suffered injury, his remedy must be against Grover. [RITCHIE, C. J.: This is claimed as a public way; and if so, nothing Grover could do can affect it.] The special user of it as an entrance to the tenement does not make it a public way.

RITCHIE, C. J. There is no doubt about this case. Grover rents to the plaintiff two rooms in a house, by a verbal lease, saying nothing about the right of way, the plaintiff only receiving from Grover the right of occupation, He finds that the original proprietor of the freehold laid out the alley which leads to his tenement, as a public way twenty-five years ago, by opening it and showing it on a plan. Plaintiff, as one of the public, says, "I wish to use this alley-way." I think he had a perfect right to do so, and should be protected in the exercise of his rights. He stands in a very different position from Grover.

McDonald v. Watt.

WILMOT, J. I am of the same opinion. The way was opened twenty-eight years ago by the original owner of the property; and in leases of the adjoining lots the alley is referred to and shewn by plans, as a public way. Grover had, therefore, no right to give a lease of the way, and the defendant no right to obstruct it. The lease to the defendant cannot affect the right of the public to use the way.

WELDON, J. I am of the same opinion.

Rule discharged. (a)

(a) ALLEN, J., having been counsel in the cause, took no part in the case.

MCDONALD v. WATT.

FEBRUARY 16th.

Where Justices make an order for support under the Insolvent Debtors Act-1 Rev. Stat., c. 124,)-and it appears by the examination of the debtor that he has given an undue preference to one of his creditors-this Court has power to quash the order. H. B. Rainsford showed cause against a rule nisi obtained to quash an order made for the support of the defendant under the Insolvent Debtors Act, on the ground that he had given an undue preference by conveying land to his son after the commencement of this action. He contended that as the Justices had decided that there was no undue preference, the Court could not interfere, because the Justices were the proper tribunal to decide the facts-1 Rev. Stat., c. 124. [ALLEN, J.: If there was conflicting evidence on the point you may be right; but here the defendant admitted the undue preference.] The Act gives no appeal from the decision of the Justices. [RITCHIE, C. J.: This Court has a supervising and controlling power over all inferior tribunals, statutory or otherwise.]

Curry, contra, cited Wyer v. Goss (1 Kerr, 193).

Per Curiam. The conveyance of the land by the defendant to his son after the commencement of the action, was an undue preference, even admitting that the son was a bona fide creditor, and therefore the Justice had no authority to make the order for support. If a debtor makes an undue preference of one of his creditors, he does it at the risk of imprisonment and must take the consequences of his own act. The rule must be made absolute to quash the order of the Justices.

Rule absolute.