D. C. 1903

J. H. Moss, contra. The action is one for trespass, and section 470 of the statute does not apply, and the Judge LAWRENCE performed a duty in disposing of the costs. There is no appeal on a mere question of costs.

v.

CORPORATION

OF

OWEN SOUND.

Street, J.

Shepley, in reply.

March 6. The judgment of the Court was delivered by STREET, J.:—The action is brought by the plaintiff against the defendants, the municipal corporation of the town of Owen Sound, for damming a stream, and thereby diverting its waters upon his land, and causing him damage.

The fact of the diversion of the stream and of damage to the plaintiff was shewn, and by consent, the trial Judge having found that the plaintiff was entitled to proceed by action, and not for compensation, under the Municipal Act, the question of damage was referred to His Honour Judge Creasor.

Upon settling the judgment, a question has arisen as to whether the trial Judge had discretion to deal with the costs. The defendants had paid into Court $50 by way of amends, and the plaintiff had refused to accept the amount in satisfaction of his claim.

The defendants contend that the Judge, under section 470 of the Municipal Act, was bound to reserve the question of costs until the result of the reference should be known, instead of giving to the plaintiff the costs of the action to the trial at once, as he has done, and only reserving subsequent costs and further directions.

In my opinion, the case does not fall within section 470. That section applies only to actions brought to recover damages "for alleged negligence on the part of the municipality." Here the municipality acted without a by-law; they had, therefore, no right to do the act complained of, and are liable to an action for doing it, because it was a trespass. It is not for doing a rightful act negligently that the action is brought, but for doing a wrongful act, and the section, therefore, does not apply.

The plaintiff should have the costs of the present application. event of the non-acceptance by the claimant of such tender or of the amount paid into Court, and of the action being proceeded with, and no greater amount being recovered than the amount so tendered or paid into Court, the costs of suit shall be awarded to the defendants, and set off against any amount recovered against them.

G. A. B.

[IN CHAMBERS.]

LIDDIARD V. THE TORONTO RAILWAY.

Parties-Joinder of Plaintiffs-Amendment-Con. Rules 185 and 206.

Con. Rule 206 is to be read in connection with Con. Rule 185 and parties to an action who might have been joined under the latter may be added by way of amendment under the former.

In an action brought against a street railway company for damages for running an electric car into and colliding with the plaintiff and his horse and waggon in which his son was seated with him, who was also injured :Held, that the son should be added as a party plaintiff by his father as next friend in an action already commenced by the father alone.

THIS was an application to add one Edward Liddiard, the son of George Liddiard, as a party plaintiff by his father, as his next friend, in an action already commenced by the father.

The motion was argued before Mr. Winchester, the Master in Chambers, on the 18th of February, 1903.

J. E. Cook, for plaintiff.

James Bain, for defendants.

February 18. THE MASTER IN CHAMBERS: This is an application to add one Edward Liddiard, the son of the present plaintiff, by his father, as next friend, as a co-plaintiff to this action.

The action is brought to recover damages from the defendants alleged to have been caused to the plaintiff and his horse, waggon, etc., by the negligence of the servants of the defendant company in running one of the company's electric cars into and colliding with the plaintiff and his horse and waggon.

It appears that the plaintiff's son was riding on the waggon in question, by the side of his father, and received serious bodily injury by reason of the collision.

It is sought to add him as a plaintiff to this action that he may recover damages for his injuries.

The motion is opposed by counsel for the defendant company on the ground that the son has a distinct cause of action, if any, and it is therefore improper to embarrass the defendant company by two actions in one.

1903

Feb. 18.

Master in Chambers.

1903

LIDDIARD

V.

TORONTO RAILWAY.

When the motion was first made, counsel supporting it relied upon Rule 206 as entitling him to the order; but it appearing that that rule did not fully cover the case in question, the application stood over until this morning, when Rule 185 was relied upon.

That rule provides that "All persons may be joined in an action as plaintiffs in whom any right to relief in respect of or arising out of the same transaction or occurrence, or series of transactions or occurrences is alleged to exist, whether jointly, severally, or in the alternative, where if such persons brought separate actions, any common question of law or fact would arise;

Rule 206, which provides for the adding of parties, is to be read in connection with the above Rule 185: Edwards v. Lowther (1876), 24 W.R. 434; and any person who might have been joined originally under Rule 185 may be added under Rule 206: Smith v. Haseltine (1875), W. N., p. 250; Long v. Crossley (1879), 13 Ch. D. 388.

The facts stated in the plaintiff's material in support of this application shew that the right to the relief claimed arose out of the same transaction or occurrence, and that there is a common question of fact or law, and that brings the case within the provisions of the rule: Stroud v. Lawson, [1898] 2 Q.B. 44; The Universities of Oxford and Cambridge v. Gill, [1899] 1 Ch. 55; and Walters v. Green, [1899] 2 Ch. 696.

Upon filing the consent of the proposed plaintiff and his father, as next friend, the order will go adding him as party suing by his next friend. The costs of the application and amendment will be to the defendant company in any event.

G. A. B.

[STREET, J.]

REX V. MULLEN ET AL.

Criminal Law-Crown Case Reserved-Application for-Grounds—Misapprehension of Jurors-Statements by.

It is no ground for stating a reserved case, after a trial and conviction, that two of the jurors who joined in the verdict of guilty did so under a misapprehension; it is contrary to principle to allow the statements of jurors, even under oath, to be used for the purpose of an application for a reserved case.

THE defendants were tried before STREET, J., at the Ottawa Winter Assizes on the 21st January, 1903, and convicted of an assault occasioning actual bodily harm. They were represented by counsel, who was present when the jury returned their verdict, and who addressed the Judge on their behalf on the 24th January, 1903, for the purpose of obtaining a lenient sentence upon them for their offence.

On 27th February, 1903, an application was made to STREET, J., by letter from G. S. Henderson, as counsel for the defendant Murphy, accompanied by the following affidavit, to state a reserved case under sec. 743, sub-sec. 2, of the Criminal Code:

"I, Gordon Smith Henderson, of the city of Ottawa, in the county of Carleton, barrister-at-law, make oath and say:1. That I was and am counsel for William Murphy herein.

"2. That the prisoners were tried on the 21st day of January, 1903, before the Honourable Mr. Justice Street and a jury, at the January Assizes in and for the county of Carleton. 3. That the jury were out two hours and fifty minutes considering the verdict herein, and then found, the prisoners guilty, and they were sentenced on the 24th of same month. "4. That the jury were not polled.

5. That James E. Macpherson, one of the jurors herein, was not in favour of the verdict of guilty, and so informed me, but that he and another juror, who was also for an acquittal, were led to believe by other jurors and the constable in charge, that ten were sufficient to convict.

1903

March 2.

1903

REX

v.

MULLEN.

"6. That the said James E. Macpherson on or about the day of the conviction expressed himself, upon learning that the jury must be unanimous in criminal cases, that a mistake had been made, to Mr. Edmund F. Burritt, of Code & Burritt, barristers, who spoke to Police Magistrate Smith of the county of Carleton, who communicated with me, whereupon I immediately in person verified the said James E. Macpherson's statement and notified the department of justice."

March 2. STREET, J. (after setting out the facts as above): —I see no ground upon which I can state a reserved case. I am not aware of any question of law having arisen in the case. What is alleged is, that two of the jurors who joined in the verdict of guilty did so under a misapprehension; but it is contrary to principle to allow the statements of jurors, even under oath, to be used for a purpose such as is here proposed: Jackson v. Williamson (1788), 2 T.R. 281.

In my opinion, it would be an extremely dangerous practice to permit the verdict of a jury to be disturbed in the manner or for the reasons here suggested, and I therefore refuse to state or reserve any case.

T. T. R.