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long enjoyed, and, as it would seem, without complaint; on the other hand, that the plaintiff was only insisting on a plain legal right to have the water flow in its natural course, and that the twenty years' enjoyment which was to extinguish the right, to some extent at least, should be clearly shewn.

The jury found for the plaintiff, with one shilling damages. In the following term Dr. Connor, Q. C., for defendants, obtained a rule on plaintiff to shew cause why such verdict should not be set aside and a new trial granted, on the ground that such verdict was contrary to law and evidence, or against the weight of evidence.

Galt, and Cameron, M. C., shewed cause, and contended that the cause having been tried by a special jury and fully gone into, and all depending upon the facts and evidence, the verdict ought not to be disturbed; that it was left to a jury to decide the two points-first, whether there was any back water, as complained of; and, that being found, second, whether the defendants had enjoyed twenty years, &c., which issue was also found for the plaintiff.

Dr. Connor, in reply, urged that the question was of vital importance to the defendants that the dams only gave a head of four-and-a-half feet of water, and the least diminution would destroy the working of the defendants' mill; that the evidence was by no means clear in favor of the verdict, but very conflicting; that as to the fact whether the dams caused any back-water upon the plaintiff's land, the weight of evidence was, he was disposed to think, in favor of the verdict; but that, on the more material question of prescription enjoyed for twenty years, the weight of evidence was against the finding of the jury, as a careful examination of the evidence, to which he referred the court, would shew.

MACAULAY, C. J.-Having perused the notes of evidence of the learned Chief Justice, I can only say, it appears to me that it formed, as he considered it, a case of conflicting evidence, remarkable in the variances of the different witnesses as to the year in which undoubted events took place, and for the confidence with which disinterested and respectable per sons expressed themselves upon the point of time, relying as

they did upon occurrences well calculated to impress the memory and to insure accurate recollection in the several witnesses. Under such circumstances, I cannot but regard it as a case entirely for the consideration of the jury; and having been investigated by an intelligent jury under the direction of a most able judge, patiently devoting two days to the inquiry, I cannot say the result arrived at in either branch of the case is so doubtful or unsatisfactory as to warrant the court in granting another trial. I could not say on this evidence that a verdict the other way would be more in accordance with its weight, or more probably correct in point of fact; and it is not represented that other material and additional evidence could be given; both parties seem to have gone fully into the question, after a former trial of the same matters, between other parties in the same interest, when the verdict was the other way; and, however hard it may operate to the prejudice of the defendants, I cannot say I think the present verdict wrong, or that it is less in accordance with the weight and force of the evidence than the former.

The plaintiff's close seems to have been granted by the crown only in 1836. If such grant within twenty years would be a conclusive answer to the plea of prescriptive enjoyment, it has not been replied; and the provincial statute 10 & 11 Vic. ch. 5, secs. 2 & 8, seems to shew that, if relied upon, it should have been replied, and that it would not, even if replied, have displaced such plea.

MCLEAN, J., and RICHARDS, J., concurred.

Per Cur.-Rule discharged.

VOL. V.

GAUTHIER V. BLIGHT.

To debt on a judgment of the Superior Court of Lower Canada the defendant pleaded want of service of process, &c.; want of knowledge of the proceedings of the plaintiffs in the said suit; and that at the time of the commencement of the said action in which the said judgment was obtained in the said Superior Court, he, the defendant, was and from thence hitherto continually hath been, and still is, resident without the jurisdiction of the said last mentioned court-to wit, at the city of Toronto, in the Province of Upper Canada.

Held bad on demurrer, on the ground that by the plea the defendant should have denied his being formerly resident or domiciled within the jurisdiction of the court in Lower Canada, and his having real or personal property therein, &c.

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DEBT on a judgment of the Superior Court of Lower Canada. Writ issued 16th of December, 1854-declaration, 21st of April, 1835, alleges that plaintiff, heretofore-to wit, on &c. at Quebec, in that part of the province of Canada formerly called Lower Canada, in the Superior Court of Lower Canada, holding pleas at Quebec, in and for the district of Quebec, before the justices of said court, by the consideration and judgment of said court, recovered against the defendants jointly and severally, as well a certain debt of £83 48. 5d. with interest from, &c., as also costs, &c., which in and by said court were adjudged to the plaintiff, whereof defendants were convicted, as by the record remaining in the said court may more fully appear, which said judgment still remains in the said court in full force, &c.; and plaintiff in fact saith that the costs were taxed and allowed by the court at, &c.; and that the debt aforesaid and costs so taxed as aforesaid were and from thence hitherto have been and still are of great value, to wit &c., and that plaintiff hath not obtained execution nor satisfaction of the same; wherefore an action hath accrued, &c.; yet, &c., to the plaintiff's damage of, &c.,

Plea by defendant Blight, that although the judgment in declaration mentioned was in fact obtained by the plaintiff against defendants, yet defendant Blight was not at any time served with any process issuing out of the said Superior Court for Lower Canada in said declaration mentioned, at the suit of plaintiff, for the cause of action upon which the said judgment was obtained as aforesaid, nor had the defendant Blight any notice of any such process, nor was he ever

summoned in or notified of said action, &c.; and further, that at the time of the commencement of said action in the said Superior Court of Lower Canada, he, the defendant Blight, was and from thence hitherto continually hath been and still is resident without the jurisdiction of the said last mentioned court, to wit, at the City of Toronto, in that part of the Province of Canada called Upper Canada: concluding with a verification.

Demurrer to plea, on the grounds-first, of duplicity in setting up several distinct defences—that is, the want of process, the want of knowledge by Blight of plaintiff's proceedings in said suit, and the residence of defendant in the City of Toronto, &c.

Second, Not shewing by said plea that the cause of action upon which the said judgment was rendered was not properly cognizable by the Superior Court for Lower Canada, nor hath the defendant Blight shewn by said plea that he was not at or during the time the said cause was commenced or pending, or when the said cause accrued, subject to the laws of Lower Canada, although resident in Upper Canada, nor hath he denied possession or ownership of property real or personal, or heritable, or otherwise within the time aforesaid, within the jurisdiction of the said Superior Court, or that he had at any time before resided within such jurisdiction.

The demurrer was argued during this term by Helliwell, for plaintiff, and Paterson, for defendant.

MACAULAY, C. J.-We are required to take judicial notice of the provincial statute relative to absentees under the provisions of which this action may have been brought. See the statutes 7 Vic c. 4; 12 Vit. c. 38, sec 91; 14 & 15 Vic. c. 60; 16 Vic. ch. 194; McPherson v. McMillan (3 U. C. Q. B. R. 33, Ferguson v. Mahon (11 A. & E. 179), Cowan v. Braidwood (1 M. & G. 880), Douglas v. Forrest (4 Bing. 686), Reynolds v. Fenton (3 C. B. 187), Sheehey v. The Provincial Life Assurance Company (17 Ju. 651), S. C. (1 Common Law Reports, 583), S. C. (21 Eng. Reports, 268), Montreal Mining Company v. Cuthbertson (9 U. C. Q. B. R. 78).

The plea is insufficient; it does not deny that the defendant was formerly domiciled or resident within the jurisdiction of the court in Lower Canada, or that he had not property, real and personal therein.

He may have been proceeded against as an absentee debtor under the statute, consistently with all that is stated in the plea.

He is moreover sued jointly with another person for a joint as well as a several debt, and his joint contractor may have been served and had full notice of and may have defended the action on behalf of both, for all that appears to the contrary.

The case of Cowan v. Braidwood shews that the plea should have gone further, in the present state of the law in Lower Canada.

MCLEAN, J., and RICHARDS, J., concurred.

Judgment for the demurrer.

CARMAN V. MOLSON.

Deed-Construction of.

A, by deed, conveyed to B all and singular those lands and premises, with the uppurtenances, situate, lying, and being at Point Iroquois Canal, in the township of Matilda, being composed of the wharf, storehouses, and appurtenances built on part of the east half of lot number twenty-four in the first concession of the said township south of said Point Iroquois Canal, commonly known as Carman's wharf.

Held, that by such deed all the premises known as Carman's wharf would pass to B. although part of said wharf was in fact built in front of lot number twenty-three.

EJECTMENT. The plaintiff claims so much of the wharf called Carman's wharf as lies in front of lot No. 23, &c., as not being embraced in an indenture of conveyance made the 16th day of December, 1851, per statute, whereby, in consideration of one hundred pounds, the said plaintiff did grant unto the said defendant and his heirs, in fee, "all and singular those lands, premises, with the appurtenances, situate, lying, and being at Point Iroquois Canal in the said township of Matilda, being composed of the wharf, storehouses, and appurtenances built on part of the east half of lot No. 24 in the first concession of the said township, and lying south of said Point Iroquois Canal, commonly known as Carman's wharf."

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