Criminal Law Magazine.-July, 1885.

Pardon and Amnesty, by W. W. THORNTON. The subject is discussed at considerable length. Who may pardon, when, and in what manner, the effect of the pardon, and cognate questions, are fully treated.

Ibid.-September, 1885.

Proving an Alibi, by W. F. ELLIOTT. An alibi need not be specially pleaded, but may be set up under the general issue, or plea of not guilty. It has been held that the evidence of it must outweigh the evidence of the prosecution, but the position best supported is that it is sufficient if it raises a reasonable doubt of the guilt of the accused. Particularity as to time, place and identity are, of course, of the highest importance where this defence is raised. The character of the witnesses must also be well enquired into, and they should be subjected to the most minute and rigid cross-examination. Failure of an attempt to prove an alibi, while it may be taken into consideration, is not necessarily proof of guilt, and it is error to instruct the jury that it must have great weight against the prisoner-it should have no greater weight against the prisoner than failure to prove any other defence.

Measurement of Blood Corpuscles, by MARSHALL D. EWELL. Dr. Ewell gives the results of his experiments made with a view of determining whether there is a constant average size of the human red blood-corpuscles such as to render it possible to distinguish, by means of micrometric measurements, human blood from the blood of domestic animals. A table of results of the measurements is appended. The conclusions reached are, shortly, that when a sufficient number of corpuscles are measured, there appears to be an average size which varies within very narrow limits, which may possibly be accounted for by personal or instrumental errors; that, granting that it is possible to identify blood by the measurement of the red corpuscles (of which the learned writer is not fully satisfied), it is reckless in the last degree, if not criminal, to express an opinion upon the measurement of less than 100 corpuscles; and that, by a selection of the corpuscles, a dishonest observer might increase or lessen the average unfairly, and without possibility of detection. Publication at an early day of the results of continued investigation is promised.

Ibid.-November, 1885.

Profert of the Person in Criminal Cases, by M. W. HOPKINS. No person can be compelled, in any criminal case, to be a witness against himself. The article discusses the unsettled question whether or not Courts can compel one accused of crime to make profert of his person; and, if so, would this in effect be compelling an accused to give evidence against himself. The cases in favour of compelling such profert, and those opposed, are first collected separately, and an interesting discussion of them gone into; the conclusion reached is adverse to the power of the Court to compel profert.

Competency as Witnesses of Attorneys, Judges, Jurors and Prosecutors, by STEWART RAPALJE. As a general rule, none of the persons named is, on grounds of propriety, in the face of objection, a competent witness. Exceptions are noted and explained.

Ibid.-January, 1886.

Habeas Corpus in controversies touching the custody of children, by SEYMOUR D. THOMPSON. The rights of the father. adoptive father, widowed mother and guardian, in respect to the custody of children, are explained, together with what conduct will impair or forfeit these rights. The scope of the remedy by habeas corpus is very fully treated of. Remarks follow upon the case of apprentices, questions touching the religious education of children, and cognate matters.

Ibid.-February, 1886.

Liquor Laws, by W. L. MURFREE, Sr. The subject is discussed from the standpoint of American constitutional law.

Conviction of one Crime under Indictment for another, by W. F. ELLIOTT. "The following is submitted as a fair, if not an entirely satisfactory statement of the law upon the subject: where a Court has general jurisdiction over both misdemeanours and felonies, one may be convicted therein, under an indictment for one crime, of any crime proved by the evidence, provided it is included in the crime charged and embraced within the terms of the indictment; and this is true, although the crime charged should be a felony and the one proved but a misdemeanour, except in those states or jurisdictions where the doctrine of merger is in force."

Ibid.-March, 1886.

Proving Criminal Intent, by W. F. ELLIOTT. Except in cases where the law presumes a criminal intent from the very act itself, and in other cases involving certain statutory crimes, intention is a question of fact, to be proved as any other fact, although it is not always necessary to prove a specific intent to do the particular act. This is generally done by showing the surrounding and attending facts and circumstances. Where the party himself may give evidence, it may also be done by that evidence. Evidence is also admissible of acts of the accused not contemporaneous with the crime, but so connected with it as to cast light on the intention. So, also, of declarations and threats made by the accused. Evidence of drunkenness is often admissible on the question of intent. Where the accused is a competent witness, and the intent is material, he may testify directly with regard to it.

THE VICKERS EXPRESS CO. v. CANADIAN PACIFIC R. CO. Consolidated Railway Act, 1879-Express Companies-Reasonableness of rates-Facilities-Preference.

The judgment of the Court below, 9 O. R. 251; 5 C. L. T. 322, was affirmed.

Robinson, Q.C., McCarthy, Q.C., and A. R. Creelman, for the appellants. Moss, Q.C., Cassels, Q.C., and Blackstock, for the respondents.

REGINA v. ST. CATHARINES M. & L. CO.

Constitutional law-Indians-Title to the soil.

The judgment of the Court below, 10 O. R. 196; 5 C. L. T. 323, was affirmed.

McCarthy, Q.C., A. R. Creelman, and W. P. R. Creelman, for the appellants.

Mowat, Q.C., A. G. Cassels, Q.C., and D. Mills, for the respondents.

ROSE, J.

WALDIE v. BURLINGTON.

Order amending plan by closing street-R. S. O. cap. 111, sec. 84-By-law declaring street open-Municipal Institutions Act, R. S. O. cap. 174, sec. 506-Quashing by-law.

The judgment of Rose, J., 7 Ont. R. 192; 5 C. L. T. 31, was affirmed. Lash, Q.C., and Carscallen, for the appellants

Osler, Q.C., and Laidlaw, for the respondent.

C. C. HURON,]

McLEAN v. TAYLOR.

Sale of chattels-Failure to deliver-Measure of damages.

The plaintiff claimed that the defendant had contracted to sell him seven head of cattle for $260, and had failed to deliver them, and he sued for damages for breach of contract. The learned Judge of the County Court of the County of Huron, before whom the action was tried without a jury, gave judgment in favour of the plaintiff and assessed the damages at the sum of $150.

It appeared in evidence that the plaintiff was in the habit of purchas ing cattle in Ontario to sell again in the Buffalo market, and the defendant was told that the cattle in question were wanted on a particular day named, so as to be shipped; but it was not proved that the defendant knew or was told that they were intended for the Buffalo market or were required to complete a shipment. The plaintiff required these cattle to make up a car-load, or twenty-six head, and he claimed that, not getting the defendant's cattle, he could not ship any, as it was necessary that the car should be filled to prevent the cattle hooking one another; but he admitted subsequently that this could be obviated by fencing the cattle off in the cars. The plaintiff swore that, after defendant's failure to deliver, he could not buy cattle suitable for his purpose, although it was not shown that none could be purchased; but that, had he secured defendant's cattle, his profit on the sale of the car-load in Buffalo would have been $150 to $175.

Held, that it was improper to assess the damages on the basis of the loss on the entire car-load, as this could not reasonably be supposed to have been in contemplation of the parties when they made the contract; and that, at the most, the damages should be limited to the loss upon the seven not delivered.

Held, further, that inasmuch as the evidence showed that the plaintiff could have purchased cattle to complete his car-load (though at a higher price) the profit on the resale in the Buffalo market was not the true test of the measure of damages; but the latter should be fixed by the difference between the contract price and the price at which other cattle could be then bought; the judgment was therefore upon computation reduced to $55, with Division Court costs to the plaintiff of the action, and no costs of appeal.

66

High Court of Justice.

CHANCERY DIVISION.

[BOYD, C., 20TH JANUARY, 1886.

In re TRENT VALLEY CANAL. In re WATER STREET AND " THE ROAD TO THE WHARF."

Public Works-Expropriation-Compensation-Ownership of roads-Soil vested in Crown-Parties.

Certain lands, on which were two roads called "Water street" and The Road to the Wharf," being required for public works were expropriated by the Government of Canada, and the compensation therefor was claimed by the corporation of the village in which the roads were situate and by one R. C. S., through or over whose lands the roads ran. It appeared that roads were established as a public highway by the municipal authorities by by-laws in the years 1842 and 1845 respectively, under 4 & 5 Vict. cap. 10, secs. 39 and 51, although no compensation was paid to the owners therefor.

Held, that although originally the soil and freehold of the roads or streets may have remained in the private owner, subject to the public easement (the right of user), since the year 1858, at all events, it became vested in the Crown by virtue of 22 Vict. cap. 99, sec. 301, and that the Attorney-General of Ontario should be added as a party to give protection to the Dominion in expropriating the land.

[5TH MAY, 1886.

The Attorney-General of Ontario having been added as a party, the matter was reargued, when it was