The great St. John fire of the 20th June, 1877, having destroyed the whole edition of Hannay's Reports, including every copy, with three or four exceptions, in the possession of the Bar of St. John, I made application to the Provincial Government for a grant to aid in their republication. This application was indorsed by His Honor Chief Justice Allen and was handsomely responded to by the Government. The result is these volumes which are now reprinted, with some corrections. The new edition is commended to the Profession as a considerable improvement on its predecessor.

JAMES HANNAY.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF

NEW BRUNSWICK,

IN HILARY TERM,

IN THE THIRTIETH YEAR OF THE REIGN OF QUEEN VICTORIA.

WHITE v. BARTON.

FEBRUARY 5th.

Service of a rule to discontinue, without payment of the costs, will not prevent the defendant from obtaining judgment as in case of a nonsuit.

Curry moved for judgment as in case of a nonsuit, on the ground that the plaintiff had not proceeded to trial according to the practice of the Court.

H. B. Rainsford opposed the motion on an affidavit of the plaintiff's attorney, stating that he had obtained a rule to discontinue on payment of costs; which rule had been served on the defendant's attorney before notice given of this motion. He contended that after service of the rule to discontinue, the defendant was not in a position to move for judgment.

Per Curiam. (WILMOT AND ALLEN, JJ.-The suit is not discontinued until the costs are taxed and paid, and there is nothing to show that this has been done. The mere service of a rule to discontinue amounts to nothing. The motion must be granted.

Rule accordingly.

HARRIS 2. MITCHELL.

FEBRUARY 6th.

Defendant being about to leave the Province, gave a power of attorney to an agent, authorising him to appear to and defend any action that might be brought against the defendant during his absence. A suit was commenced, and a copy of the writ sent to the agent, who declined to appear. Held, that the agent was not bound to appear, and that interlocutory judgment signed for want of appearance was irregular. This was an application to set aside interlocutory judgment signed for want of appearance, made before ALLEN, J. at Chambers, and was by him referred to the Court. The defendant left the Province for England in July last, and previous to his departure executed a power of attorney to his brother, James Mitchell, Sheriff of Northumberland, containing among other things the following clause: "and for me, and in my name to appear to and defend any action, "suit or other proceedings that may be sued out or proceeded with "against me, during my absence." During the defendant's absence, the plaintiff's attorney sued out a writ against him, and enclosed a copy of it to James Mitchell, the agent, who acknowledged that he had received it, and said he would consult his legal adviser about it. No appearance having been entered, interlocutory judgment was signed.

Straton now moved to set aside the judgment, on the ground that there had been no service of process on the defendant.

G. Botsford, contra. The authority given by the defendant to his brother, places the latter in the same position as the defendant himself, and service on the agent is as good as service on the defendant himself. The agent was bound to act under the authority. [RITCHIE, C. J.: Is this any stronger than a bond and warrant of attorney would be; suppose the attorney refused to act, could you compel him?] There is a distinction between such a case and the present. [ALLEN, J.: It was only an authority to James Mitchell, under which he could appear or not, just as he pleased.] The intention of the defendant was to provide for the defence of suits that might be comenced against him in his absence; and the agent was bound to appear. [WILMOT, J. There are only two ways of serving a writ personal service, and service at the defendant's dwelling-house. If you have not complied with either requisite, you cannot make it good service.] Here is an authority distinctly given, under which the agent was bound to act. [RITCHIE, C. J.: Suppose defendant had given his brother authority to accept all bills of exchange drawn on him during his absence; could that be construed into an actual acceptence? The plaintiff here is attempting to avail himself of a power to which he was no party.] This was not a mere

The Queen v. Commissioners of Sewerage, &c.

power; it was a substitution of the agent in the defendant's place, for the purpose of defending suits.

Per Curiam. To enable a party to obtain interlocutory judgment he must show that he has made such a service of process as the law requires. The plaintiff cannot avail himself of any power as between the defendant and another party. The power of attorney does not authorise the service of writs upon the agent; if it had, the case might have been different.

The judgment must be set aside, but under the circumstances, without costs.

Rule accordingly.

THE QUEEN . THE COMMISSIONERS OF SEWERAGE, &C., OF THE CITY OF ST. JOHN.

FEBRUARY 8th.

The Act 2 Wm. 4, c. 26. incorporating the St. John Water Company, authorized them to draw water from, erect reservoirs on, and carry pipes through private property, provided that no such water should be drawn, &c., without compensation being paid for the use of the same, and for any damage sustained by the operations of the company, and in case of disagreement between the company and the owners of the land, the compensation to be determined by arbitration; and if the owner of the property should decline to appoint an arbitrator, the Supreme Court, on application of the company, should issue a warrant to the Sheriff to summon a jury to assess the amount to be paid.

By Act 12 Vict., c. 51, further powers were given to the company to enter on private property, erect dams, and draw water from any stream, on paying compensation to the owners-the amount to be determined as by the Act 2 Wm. 4, c. 26. After the passing of this Act, the Water Company erected a dam upon a stream flowing through private property, laid down pipes and diverted the water from its natural channel, without the consent of the owners.

By Act 18 Vict., c. 38, all the property, rights, powers and privileges of the Water Company were vested in Commissioners appointed under this Act, saving to all parties all rights, remedies and actions for any act done, or for any contract theretofore made, and giving the Commissioners power to lay down pipes, &c., for extending the supply of water; and providing that in case of damage done in the execution of the works, the Commissioners should pay the party sustaining the same, such compensation as should be agreed upon, and in case they could not agree, the Commissioners should, on request of such party, apply to a Justice of the Peace for a warrant to the Sheriff to summon a jury to assess the damages. The Commissioners continued the obstruction placed on the stream by the Water Company, and laid down additional pipes, drawing off a much larger quantity of water.

A, claiming as one of the heirs of the former owner, then gave notice to the Commissioners that he claimed damages under the Act 2 Wm. 4, c. 26, and the several