The only question is, whether the first call was well made. by a quorum only, and not a majority of the directors. MACAULAY, C. J., delivered the judgment of the court. I am disposed to think all right. The statute requires the election of twelve directors (sec. 3), of whom four constitute a quorum (sec. 12). The ninth and fourteenth sections require calls for the payment of instalments by stockholders to be made at meetings when a majority of the directors are present. All the calls in the present instance were so made, except the first four per cent., which was required by a meeting of five directors only. But the ninth section distinguishes between the payment of the first five per cent. and subsequent calls or instalments; it says, of the first, that one per centum shall be paid at the time of subscription, and four per cent. to be ready as a deposit, to be called for by the directors as soon as they may deem it expedient, and the remainder shall be payable in such instalments as a majority of the directors might determine upon, under the regulations therein prescribed, and which are not applicable to the first five per cent. Now I do not think the four per cent. was required to be called for at a full meeting of all the directors, but that a quorum was sufficient. It is not like future calls-the money was to be ready whenever called for; it was, in short, payable on demand or request by the directors; and for that, in common with the general management and details of business affairs of the corporation, a quorum would seem sufficient, except on those occasions and for those purposes in which the statute requires the meeting to be composed of a greater number. I think therefore the payment of the four per cent. was required at a meeting sufficiently full, and that the provisions of the statute as to the number to be present at the making of future calls, the periods of payment, the notices and promulgation thereof, &c., do not apply to the four per cent.balance of the first instalment of five per cent. The tenth section points out all that the plaintiffs need allege or prove in actions for calls; and it is not contended that due proof was not given of such allegations. I think therefore the rule should be discharged. MCLEAN, J., and RICHARDS, J., concurred. TRINITY TERM, 19 VICTORIA. Present:-THE HON. J. B. MACAULAY, C. J. CROFT V. THE TOWN COUNCIL OF PETERborough. Municipal corporation-Notice of action. The defendants, as a municipal corporation deriving their power under the statute 12 Vic. ch. 81, having by resolution authorized the raising and levelling of a street within their jurisdiction, which, when done, injuriously affected the plaintiff's property: Held, that a by-law should have been passed to sanction the act complained of. Held also, that if the defendants were within the statute 14 & 15 Vic. ch. 54, and had pleaded the general issue "per statute," they would have been entitled to notice of action. McLean, J., dissentiente. Writ issued 17th March, 1854; declaration, 17th March, 1855, amended. First count recites that plaintiff was possessed of a house, shop, and tenement, abutting on Hunter-street, in the town of Peterboro', in which said house he with his family resided, and carried on the business of a saloon and eatinghouse; yet defendants, well knowing, and contriving to injure him &c., on &c., and on divers days &c., wrongfully and injuriously raised the said street, upon which the said tenement of the plaintiff abutted as aforesaid, and the side-walk upon which the tenement next adjoining the said tenement of the plaintiff abutted, several feet, to wit, six feet higher than the same had theretofore been or ought to have been, or to be, and had thence hitherto continued the said street and sidewalk so wrongfully and injuriously raised as aforesaid, by means whereof, at divers times and seasons of the year, to wit, in the spring, autumn, and winter, and during and after rain and thaw, the said house, shop and tenement of the plaintiff hath been, and becomes overflowed with water, which ran and flowed, and runs and flows from the said street and side-walk; and by reason of the same having been so wrongfully and injuriously raised as aforesaid, into, through and upon the said house, shop and tenement of the plaintiff, and remained, and remains in and about and under the same, and became and becomes stagnant, offensive and injurious, whereby, &c.; laying special damage, loss of customers, &c., sickness of family, &c. Second count states that plaintiff before and at, &c., was possessed of another messuage, house and tenement, abutting on Hunter-street, in the said town of Peterboro', in which said house plaintiff and his family resided and reside, and in which shop plaintiff carried on his business of a saloon and eating-house, &c. That before and at &c., defendants were engaged in raising the said street (called Hunter-street) opposite plaintiff's said house and shop, to wit, six feet higher than before; and thereupon it became and was the duty of defendants, in so raising the said street, to make and place a sufficient and proper drain or culvert, or to adopt some other sufficient means to carry off and away from plaintiff's said house and shop the water which would otherwise flow from the said street, when so raised, into the said house and shop, so that the same might not be damaged, or plaintiff injured thereby; and that although defendants did raise the said street opposite to the plaintiff's said house and shop, several, to wit, six feet higher than before, yet defendants, not regarding their duty in that behalf, but contriving and intending, &c., to injure the plaintiff, &c., did not make or place any drain or culvert, or adopt any other sufficient means to carry the said water off and away from the said house and shop of plaintiff, according to their duty, and have so kept and continued the same, &c., thence hitherto; by means whereof, at divers seasons, &c., to wit, in the spring, autumn, and winter, and during and after rain and thaw, the said house and shop of plaintiff have been overflowed with water, which flowed from the said street, so raised as aforesaid, and for want of such drain or culvert, or other sufficient means, &c., to carry off and away the said waters from said house and shop, and which water remained and remains in and about and under the same, and becomes stagnant, offensive and injurious, and the plaintiff thereby deprived of the use and enjoyment thereof, and hath lost great gains, &c., and himself and family rendered sick, &c. Pleas to first count.-First. Not guilty of the said sup posed grievances, &c. Second. Not guilty of raising the said street. Third. Not guilty of raising the said side-walk. Fifth. As to so much of the declaration as relates to raising the said street, &c., that defendants were incorporated under the Upper Canada Municipal Corporations Act, with the corporate powers and authorities conferred upon defendants. by the said acts, and that they were thereby (amongst other things) authorised and empowered to level, pitch, raise, lower and improve any existing street or highway within the jurisdiction of defendants. And that the said street was and is within the town of Peterboro', and within their jurisdiction, and became, and was before, and at the said time when, &c., in some parts thereof, and near and in front of the said house and tenement of the plaintiff, where the same abutted thereon, as in the declaration alleged, uneven, hollow and lower than, and beneath what the surface or level of the said parts of the said street ought to be, and lower and beneath what the surface or grade of the said parts of the said street was determined to be by the said defendants. And that defendants, being such body corporate as aforesaid, and the said street so being within their jurisdiction as aforesaid, and so becoming and being in some parts thereof, and near and in front of the said house and tenement of plaintiff abutting thereon, uneven, hollow, and lower, and beneath what the surface or level of the said part of the said street ought to be, and lower and beneath what the said surface or grade of the said part of the said street was determined to be by the said. defendants as aforesaid, it became and was the duty of the said defendants, under the said herein before mentioned acts, to level, raise and improve the said parts of the said street, and to make the surface thereof uniform and level throughout, or as near so as might be, for the more safe, commodious and convenient passing and repassing, and the communicating thereby of the inhabitants within the jurisdiction of defendants, &c.; wherefore defendants, so being such body corporate, in order to improve the said street, and make the surface thereof uniform and level throughout, or as near as might be, as thereinafter in that plea mentioned, did after the passing of the above mentioned acts, and at the said time when, &c., cause to be raised, and raised the said street near and in front of the said house and tenement of the plaintiff, where it abutted upon the said street, as in the said declaration mentioned, and still do keep raised the said street as aforesaid, as they lawfully might-they, the said defendants, then doing as little damage as might be in that behalf, and no further or other damage or injury to the said plaintiff than was necessary, or which by proper diligence and care might be avoided in the execution thereof, for the purpose aforesaid, which are the the same supposed grievances in the introductory part of said plea mentioned: verification. Replication Similiter to 1st, 2nd, 3rd and 4th pleas. To 5th plea, that defendants at the said time when, &c., of their own wrong, and without the cause by them in their said last plea alleged, did commit the grievances in the introductory part of that plea alleged, in manner and form as the plaintiff hath above thereof complained against the defendants: to the country and similiter. Plea to second count-Not guilty. Similiter and issues. This case was tried before Mr. Justice Burns, when it appeared in evidence that the Municipality of Peterboro' was petitioned to raise the level of Hunter-street, but not expressly at plaintiff's premises, and that a resolution was accordingly passed, under which it was raised three or four feet, and paid for by defendants, but no formal by-law was passed for the purpose. That there were remonstrances and petitions against raising the street from other inhabitants, but they were disregarded, and no drains were made for carrying off the water—although the drains and channels might have been constructed. The work was done in 1852, and the side-walk raised in 1853. There was much evidence given on the one hand to show that what was done was necessary, beneficial to, and an improvement of the public road; and on the other, that it was injurious, and caused damage to the property of the |