such offence be not an offence against any law of the Province, but against a by-law of a body with restricted local jurisdiction, a fortiori can the Parliament of the Dominion, which is not restricted in any way whatever as to the exercise of its powers over matters within its jurisdiction— in other words, over all matters not expressly placed within the exclusive powers of the Local Legislatures. I wish also to be understood as not holding the opinion that, where a question like the present has been reserved by a Judge at the trial, it may be the subject of a writ of error.

Judgment for the Crown.

[QUEEN'S BENCH DIVISION.]

WIDDIFIELD V. SIMONS.

Voluntary conveyance—Undue influence-Incapacity.

The defendant, a grandnephew of the plaintiff who was of advanced age and feeble mind, obtained from the latter a conveyance of certain land, her only property and means of maintenance, for a nominal consideration. He verbally promised to support her as a consideration for the grant. He brought a witness, who was a stranger, from a distance, to explain the deed and witness it, though other relatives in the neighbourhood were not consulted. It was explained to her that the defendant could not be legally bound to maintain her, as he was a minor. The deed contained no power of revocation :

Held, that the deed should be cancelled, on the ground that the plaintiff was not in a fit state of mind to understand its effect; but indepen dently of this, that it had been made improvidently and under undue influence, and was wholly voluntary, and therefore could not stand.

THIS was an action to have a deed made by plaintiff to defendant declared void, on the ground of the vendor's state of mind, not knowing what she was doing, and also as having been obtained by undue influence and without value.

The case was tried before Hagarty, C. J., at the last Fall Assizes, at St. Thomas, without a jury.

Crothers appeared for the plaintiff.
McDougall for the defendant.

The plaintiff was an unmarried woman, aged about 84 years. She owned and lived on a place of about seven acres of land, worth from $800 to $1,000, in fee, and from $65 to $100 annual value. She had no other property.

Defendant was her grandnephew, living with his father and mother, about a mile or so from the plaintiff. Her brother and his wife also lived near.

On the 16th of April, 1881, a deed was executed by the plaintiff, conveying all this land in fee to defendant, in consideration of $1, registered 23rd April, 1881. The consideration attempted to be proved by defendant was, that he had verbally promised to support and maintain the plaintiff for the rest of her life. He was not then of age,

and was advised that he could not legally bind himself in writing, and he declared that he told this to plaintiff, and that she was satisfied to trust to his word.

She was then in her own house. About two days after she went, or was taken, to the house of defendant's parents. Early in the following July her brother and his wife took her to their house, where she had thenceforward remained.

On the 13th July two medical gentlemen attended her, and found her, as said, very old and feeble in mind and body; as it were, in "senili dementia," quite unfit to transact business. Dr. Gustin said that she must have been in that state for some time before; that he had seen her many times since, and his opinion was confirmed. Dr. McLarty was with her on the 13th July, and agreed as to her then state. He said that it was difficult to say, but he supposed she had been failing a length of time, and not fit to transact business.

Her sister-in-law said she had known her fifty years; that she had no education, was illiterate, could not read or write, and no more fit to make a deed or will than a twoyear old child; that she had seen her late in March. Other witnesses corroborated this view of her unfitness to transact any business.

One witness, George Jones, who lived within a quarter of a mile, knew her for twenty years, used to see her every few days, and for the last two years she was unfit to make a deed. He said she had an adopted child killed in the civil war, who left two daughters, and down to the last two years had heard her say that she wanted one of these daughters to get her property.

On the defence witnesses were called, who said they considered her capable to dispose of her property.

Judgment was reserved.

November 11th, 1882. HAGARTY, C. J.-I do not think it necessary to go further through the evidence on the point of the plaintiff's capacity. Judging of the facts as a jury, I think I must come to a conclusion unfavourable to the

defendant, and that at the date of this deed her mind was not in a state to rightly understand the nature and effect of this instrument. I am also of opinion that, even without an express finding on this point, this deed cannot be allowed to stand.

Defendant, as already stated, was under age at date of the deed-about twenty. He admits that the matter began by her saying that she couldn't do her garden and other work and he thereupon said that if she would make him a deed of the place he would look after the place and take care of her. She said he should have it. He told her he would get a deed drawn, if she would sign it. She said, yes.

After some little delay he went to a man named Pheffer, who lived from two to three miles from plaintiff, and who had no previous acquaintance with her, to act as a witness. They went to her to get from her a deed she held of the place. They then went into St. Thomas to a solicitor, and had this deed prepared. The solicitor told them to have it properly explained to the grantor.

They then went to plaintiff and told her they had the deed prepared; she said, all right; also they explained that the defendant, the grantee, could not legally bind himself to maintain her, being under age; that she was deeding her property away, and would have no more claim on it; that she said she did not expect to have any claim; that she would take his word, and trust him for her keep, and that she could depend on Pheffer as a witness. Pheffer said he would read it to her, and read part; she said to stop, that would do, that she was ready to sign it; that there upon the deed was signed.

Defendant and Pheffer swear strongly that she fully understood it, and was quite competent to do this act. Defendant says she was only a little forgetful. No one else was present. No money was paid. Two days afterwards she came to defendant's parents' house.

Three or four days after defendant's brother, (who testified to her capacity,) asked her if she intended to go back home. She said she did not know, perhaps she would if

Walter, (defendant,) took her there; that he was her keeper.

I am of opinion that, according to my understanding of the principles of equity, such a deed cannot stand.

The conveyance I cannot look upon as other than wholly voluntary. It was made on the suggestion of the grandnephew, and admittedly he could give no binding consideration. It was the whole of her property-her sole support -no power of revocation being inserted. She was at the best a feeble-minded, forgetful woman, of very advanced age. No person was referred to to look after her interests, or to advise with her, or to point out the utter unwisdom of the transaction on her part. A witness is specially selected from a comparative distance, unacquainted with the plaintiff, when persons with whom she was familiar could have been obtained. Her other relations were not informed or consulted, though living in the neighbourhood, and this lad and a stranger to plaintiff are alone present to obtain for defendant this great advantage.

I hardly think it necessary to go through the numerous cases bearing on this question. Since the celebrated case, Huguenin v. Baseley, there has been a stream of English authority flowing down to the present time, and the doctrine has received numerous and pointed illustrations. I refer to the copious references in the notes to that leading case in the last edition, (1877,) of White and Tudor, vol. 2, 556, et seq.

Our own Courts have also spoken on the subject. I refer to such cases as Mason v, Seney, 11 Gr. 447; Dawson v. Dawson, 12 Gr. 278; Donaldson v. Donaldson, 12 Gr. 431; Beeman v. Knapp, 13 Gr. 398; Fallon v. Keenan, 12 Gr. 388; Hume v. Cook, 16 Gr. 84; Watson v. Watson, 23 Gr. 70. In some of these the facts are somewhat like the case before me, and the chief English authorities are referred to.

The Courts have intentionally declined to define within any exact limits either what is undue influence, or what is to be considered a fiduciary relation between the grantor and grantee.