siderably lowered, and cut down before the work complained of was executed, in some parts one foot, in others six feet, in some, not at all, and that in doing the work below plaintiff's land, they had to fill up in some places; that four feet was the deepest cutting at any part along plaintiff's line; at the corner of Duke and James Streets it was one and a-half feet, and then from three to four feet. He described again the space left at the base and top of the cutting in James Street, and said the widest at the top would not exceed forty-six feet, and that all along the plaintiff's land a distance of at least seven and a-half feet was left, allowing for the natural slope of the land, and he thought none of the work done under his directions approached nearer; that there was previously very little cutting at the corner of Robinson and James Streets, and that they cut about two feet nine inches at the north side of Robinson street, and deepened it as they came north.

Hodgins, a surveyor, said he had taken the levels of James Street for sewerage, and that opposite plaintiff's it was not too steep, and was as favorable to plaintiff as it can be, being a grade of from one in twenty to one in twenty-six, whereas one in thirty is what it should be where practicable; but that plaintiff's property was not as well situated for the road as before the cutting, and which was so far injurious, and is less valuable for building purposes, but improved as a private residence; that the land itself was not less valuable, meaning apparently, the soil, as gravel &c. That the public must have had a very dangerous road if the alterations in the levels had not been made.

Mr. Mitchell, one of the street and side-walk committee, denied permitting or directing gravel to be taken from Duke Street by Kenny &c., but said that if he wanted such permission, he should memorialize the council. He further stated that he knew plaintiff's property ten years ago, when the original level was altered, and people took away gravel and sand from that part of the road, cutting it down six feet; and that the whole surface had been cut away across into another property. He described also how holes had been made by the excavation of sand; and that the cutting he spoke of did not extend to the south part of his land, but

from a little above the centre of his lot north. He thought James Street was an original allowance for a side line read. David White said James Street had been graded and levelled by subscription many years ago; and that people trespassed on the land now owned by the plaintiff, by taking away sand and gravel next the road, and cutting three or four feet deep.

The learned judge remarked upon the three counts in the declaration, and the only plea of not guilty, which denied the wrongful acts alleged, and that, according to the case of Brown v. The Municipal Council of Sarnia, 11 U. C. Q. B. R. 87, the statutes 14 & 15 Vic. ch. 54, did not apply for the protection of Municipal Corporations to entitle them to prove special matters under the general issue; at all events not after having referred to that act as the one upon which they relied; and submitted it to the jury to decide-1st, whether the plaintiff had proved the work complained of in the first and second counts to have been done by the defendants, saying it was clear that, as regarded James Street, the defendants had contracted with Kenny and Cain to grade and gravel it in front of and above and below plaintiff's property, and that defendants endeavoured to shew that all required to be done under it could not have extended so near the plaintiff's property as to injure his fences or cause the land to slide down or cause the specific injuries alleged in the counts, of which the plaintiff had given evidence with a view to prove the contrary.

For the purposes of this trial, he ruled that if the defendants authorised or directed the excavation, or contracted to have it done in such manner and to such extent as to produce the damage complained of, they were on those pleadings liable; but that if the contract specification, and engineer's directions were as their witnesses represented, then they were not liable under those counts, because their contractors, for their own purposes, exceeded the terms of the specification and the engineer's directions, and did that which occasioned the damage to the plaintiff by improperly, injuriously, and negligently excavating. That on the other streets the evidence connecting the defendants with the excavation com

plained of was not so distinct, but there was evidence which he left to the jury subject to the same ruling as to James Street.

2nd-that as a general principle, applicable in the case more perhaps to the question of damages, the defendants, as a municipal corporation, under the act 12 Vic. ch. 81, had authority, and were particularly intrusted with the power to make and improve roads and streets within the limits over which their jurisdiction extended, being a public corporation for strictly public purposes. That on the two first counts, if the jury found the acts of the defendants were limited as they contended and endeavoured to prove, though what they did rendered access from plaintiff's close to the highway as constructed difficult or more limited than before, or than in the natural state of the ground, and so cause some damage in law, and also in fact, yet such damage was not recoverable; wherefore if the defence was established on such principles, in fact, the jury were told to find for defendants, but to find for plaintiff if the work was done as he contended, and injurious, as represented specifically in the declaration. As to the third count, that nothing was in issue but whether the lowering of any of the streets was done by the defendants, or by their authority or direction, nothing else being denied by the plea of not guilty. That on this count the plaintiff seemed entitled to a verdict, with such damages as the jury thought had been done to the general value of the plaintiff's property —that is, to its fair marketable value &c.; also, to sever their verdict, if they found for the plaintiff, stating what they gave on the first and second counts, and to distinguish between general and specific damages in reference to the third count, &c. The plaintiff's counsel objected that the mere fact of doing the acts complained of without passing a by-law was a wrong, and that the jury should be so directed. The jury, after a short consultation, being out only a few minutes, found for the defendants.

In the following term (Michaelmas Term, 18 Vic., December 1854), Read, for plaintiff, obtained a rule on the defendants to shew cause why such verdict should not be set aside and a new trial granted, as being contrary to law and evidence,

and the judge's charge, and also for misdirection, and for the reception of improper evidence for defendants, and upon affidavits filed.

The affidavits are of the plaintiff John McIntosh, and Isabella Reid, a sister of plaintiff, and represent that on the morning of the second day of the trial, before the opening of the court, the jury went to view the plaintiff's premises, and that Mr. Mitchell, one of the Municipal Council, and a member of the street committee, when the work complained as was done, was with them at the plaintiff's premises, conversing with one or more of the jurors, and speaking loud enough for all to hear him, and pointing out to them different spots or places, &c. The object being to shew improper interference with the jury by persons interested in the defence on that occasion.

MACAULAY, C. J.-The 12 Vic., ch. 81, sec. 60, No. 1, empowers the municipalities to make by-laws for opening, constructing, making, levelling, raising, lowering, repairing, improving, preserving, maintaining, &c., and for stopping up, pulling down, widening, altering, changing or diverting any new or existing highway, road, street, bridge, or other communication, &c.

Sec. 195, upon the passing of any by-law for the purpose of authorising the opening any road, street, or public thoroughfare, or of changing, widening, or diverting any road, street, or public thoroughfare, so as to cause the same or any part thereof to go through, or to be placed upon, or injuriously to affect the land or other real property of any persons, &c.; such persons may name an arbitrator, and give notice thereof to the corporation, &c., and the head of such corporation shall within three days name another &c., who may award the amount of damages, if any, to be paid to such person, &c.; and if the corporation neglect or refuse to arbitrate, such person may maintain a special action on the case at law against the municipality by which the by-law shall have been passed, &c. Sec. 197, benefit and advantage to be considered when it is for the opening, widening or diverting, any road or street, &c. The compensation words are opening, changing, widening, or diverting, so as &c.

The 13 & 14 Vic. eh. 15-The right to use as public highways all roads, streets, &c., vested in the municipality, and such roads, streets and highways shall be maintained and kept in proper repair, &c., by and at the costs of such corporations, &c.-16 Vic. eh. 181, (14th June, 1853), sec. 33, substituted for sec. 195 of 12 Vic. ch. 81.

14 & 15 Vic. ch. 109, sec. 35-Whenever any by-law, order or resolution shall be passed or adopted by any municipality whatever, and such by-law, order, or resolution has been quashed or declared illegal or void by any court having competent jurisdiction therein, the municipality by which such by-law, order or resolution shall be passed, shall alone be responsible in damages for any act or acts done or committed under such by-laws, order, or resolution; and any clerk, constable, or other officer acting thereunder, shall be freed and discharged from any action or cause of action which shall accrue or may have accrued to any person or persons by reason of such by-law being illegal and void, or having been quashed, &c.

Sch. A. No. 21, provides for quashing by-laws in reference to 12 Vic. ch. 81, sec. 155, and among other things enacts that no action shall be sustained for or by reason of anything required to be done under such by-law, unless such by-law, or the part thereof under which thes ame shall be done, shall be quashed in manner aforesaid one calendar month at least previous to the bringing of such action, with a proviso added for tendering amends, not saying within what time; and upon such tender being pleaded, if no more than the amends tendered shall be recovered, then, &c.

The King v. Commissioners of Sewers, County of Somerset (7 East, 71), Leader v. Moxon (3 Wil., 461-6-7).—The statute 11 Geo. III. ch. 21, empowered the commissioners to cause, order and direct the street to be paved, sunk or altered; and it was contended the power to alter gave power to raise, with appeal to Quarter Sessions for anything done under the act, &c., but with power only to give costs, not damages—per Blackstone, J., S. C. 2 W. B., 924.

The Governor & Co. of the Plate Glass Manufacturers v. Meredith (4 T. R. 794).—The words of the act were-paved,