presiding, by way of appeal from the order of Mr. Justice Gwynne, for an order to fix the time and place of trial. The motion was dismissed without costs on the ground that he was not prepared to interfere with the order of another Judge of the same Court.

Held, affirming the decisions appealed from, that the pleadings did not disclose any matter in controversy, in reference to which the Court could be properly asked to adjudge or which a judgment of the Court could affect.

Irving, Q.C., for appellant.

Burbridge, Q.C., for respondent.

ONTARIO.

High Court of Justice.

QUEEN'S BENCH DIVISION.

WILSON, C. J.

REGINA v. SWALWELL.

Livery stables-Con. Mun. Act, 1883, sec. 570—By-law imposing license fee— Conviction for contravening-Certiorari—Recognizance—19 Vict. cap. 49, sec. 8 (D.)- Shall no longer apply," meaning of.

Held, that since the passing of the Act, 49 Vict. cap. 49, sec. 8, there is no longer any necessity for a defendant on removal by certiorari of a conviction against him to enter into the recognizance as to costs formerly required.

Held also, that the words shall no longer apply" in section 8, mean that from the day of the passing of the statute, the Imperial Act shall no longer apply, not that the Imperial Act shall cease to have application in Canada upon a general order being passed under section 6 of the Canadian Act.

The Consolidated Municipal Act, 1883, section 510, authorizes the licensing of owners of livery stables, and of horses, etc., for hire. A by-law passed under this section required every person owning or keeping a livery stable or letting out horses, etc., for hire, to pay a license fee. The defendant was convicted under this by-law, for that he did keep horses, etc., for hire," without having paid the license fee.

Held, that the conviction was in conformity with both statute and

by-law.

Watson, for the motion.

Aylesworth, contra.

REGINA v. BRADY.

Canada Temperance Act, 1878-Presumption from the finding of appliances mentioned in section 119-Variance between conviction and minute of adjudication—Power of Amendment—Certiorari—Power of Court to dispose of the case on the merits on return of, under secs. 117, 118.

The defendant was charged with the offence of keeping liquor for sale contrary to the provisions of the second part of the Canada Temperance Act. Evidence was given of the finding of certain of the appliances mentioned in section 119.

Held, that apart from the presumption created by that section upon the finding of such appliances, such finding was evidence of a keeping for sale, of the weight of which the magistrate was the proper judge.

The magistrate at the close of the case made a minute of adjudication, in which he stated that he found the defendant guilty and imposed a fine of fifty dollars and costs, to be paid by a date named, and awarded imprisonment for thirty days in default of payment. Afterwards, when drawing up the formal conviction, the magistrate adopted the form I 1, in the schedule to the Summary Convictions Act, directing that in default of payment by the day named, the penalty should be levied by distress and sale, and awarding imprisonment for thirty days in default of sufficient distress.

Held (i) that the conviction in the form I 1, was the proper conviction to be made, under the combined provisions of sections 107 of the Canada Temperance Act, and sections 42 and 57 of the Summary Convictions Act, and not the form I 2, to which form the minute of adjudication apparently pointed.

(ii) That the conviction was open to the objection that it did not correspond to the minute of the actual adjudication, and, therefore, could not be supported for want of jurisdiction in the magistrate to make it.

(iii) That under sections 117 and 118 of the Canada Temperance Act, the Court, upon the motion to quash, might dispose of the case upon the merits upon the material returned with the certiorari, and that in this case the conviction, being warranted by the evidence, ought to be affirmed and the minute of adjudication amended so as to conform to it.

[CAMERON, C.J., 12TH, 16TH AND 21ST OCTOBER, 1886. BERTRAM v. MASSEY.

Trial-Reading depositions and evidence under commission-Practice. During the course of the trial it appeared that the plaintiff had been present at the examination of the defendant before special examiners. and when he was in the box his counsel proposed to ask him questions as to certain admissions made by the defendant on such examination.

Cameron, C.J., ruled that admissions made under such circumstances could be proved only by reading those parts of the depositions containing them.

The learned judge also ruled (i) that the plaintiff was entitled to read portions of the evidence of a foreign witness who had been examined under commission without reading the whole of his evidence.

(ii) That the defendant could not read the cross-examination of one of the foreign witnesses taken under commission without reading his evidence in chief.

The defendant read part of the plaintiff's depositions taken before trial and closed his case. Counsel for the plaintiff proposed to read in reply other portions of the plaintiff's depositions in explanation of those parts read by the defendant.

The learned judge ruled that they could not be read in reply, but should have been read immediately after the portions read by the defendant, and the plaintiff should be put in the box to explain if necessary. Robinson, Q.C., S. H. Blake, Q.C., and Lash, Q.C., for the plaintiff, McCarthy, Q.C., Watson and Smoke, for the defendant.

COMMON PLEAS DIVISION.

REGINA v. MARTIN.

Conviction-Beating drum contrary to by-law.

A conviction found that the defendant on the 16th May, 1886, created a disturbance on the public streets of the village of Lakefield, by beating a drum, etc., contrary to a certain by-law of the village. The information was in like terms, except that the act was laid as done on Sunday, 16th May. The by-law under which the conviction was had was as follows: 66 The firing of guns, blowing of horns, beating of drums, and other unusual or tumultuous noises on the public streets of Lakefield on the Sabbath day, are strictly prohibited." The evidence was given by a person who said that he saw the defendant playing the drum on the street on the day in question.

Held, that the conviction was bad, in not alleging that the beating of the drum was without any just or lawful excuse.

CHANCERY DIVISION.

[THE DIVISIONAL COURT, 6TH SEPTEMBER, 1886. BLACK v. BESSE.

Exclusion of witnesses at trial-Witness remaining in Court-Rejection of his evidence-New trial.

At the trial of an action the witnesses were put out of Court, and before the case was closed the defendant's counsel tendered a witness

who had remained in Court, but the presiding Judge refused to allow him to be examined.

Per Boyd, C. There must be a new trial.

Per Proudfoot, J. The practice is to receive such evidence, but with

care..

S. H. Blake, Q.C., and J. W. McCullough, for the motion.
Chapple, contra.

[22ND SEPTEMBER, 1886.

MERCHANTS' BANK OF CANADA v. McKAY.

Mortgage-Security for indebtedness-Sureties-Change of original securities-Release of sureties.

K. & Co. were customers of the plaintiff, and gradually accumulated a liability of about $26,000, to secure which the defendants gave a mortgage containing a recital that the plaintiffs had agreed to make further advances to K. & Co. on receiving security for their present indebtedness, and a redemption clause providing for the payment of all bills, notes and paper, upon which K. & Co. were then liable, together with all substitutions and alterations thereof, and all indebtedness in respect of the same being a continuing security, notwithstanding any change in the membership of the firm.

The Bank did business with K. & Co. in two different ways, one by discounting K. & Co.'s customers' notes, in which case their rule was to notify the customers that they held their notes, and another by discounting K. & Co.'s own notes and taking their customers' notes as collateral, in which case they always got the collateral notes to an amount exceeding the advance, but did not notify the customers. At the time the mortgage was given all the notes held by the Bank were believed to be genuine, and the discount of the customers' paper very largely exceeded the discount of K. & Co.'s notes. K. & Co. suspended two years later. At the time of the suspension it was discovered that by renewals and substitution nearly all the notes held at the date of the mortgage had been replaced by K. & Co. (in renewals and substitutions) by forgeries, and that the amount of the discounts of K. & Co.'s notes secured by the collaterals very largely exceeded the discounts of the customers' notes. In an action by the Bank to foreclose the mortgage, the mortgagors claimed that they as sureties were discharged by the Bank's action.

Held, that the Bank parted with genuine and received fabricated securities, and through its laches or default necessarily worked prejudice to the rights of the sureties; that of two innocent parties of whom one must suffer on account of the fraud or crime of a third, the one most to blame by enabling the wrong to be committed should bear the loss, and the defendants were exonerated from liability in so far as they were prejudiced by the conduct of the Bank.

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40

Held, that prima facie the Bank was liable to the extent of the face value of the securities surrendered; but that they could reduce that by evidence as they might be advised.

Rae, for the plaintiffs.

Moss, Q.C., and Stewart, for the defendants.

FURLONG v. REID.

Assignment for benefit of creditors-Chattel Mortgage-Proof of consideration -Onus of proof-New trial.

In an interpleader issue, where the plaintiffs were a chattel mortgagee and an assignee for the benefit of creditors of the judgment debtor, to try the right to the proceeds of the goods sold by the sheriff, the assignee was examined and showed that he was a brother and an employee of the assignor, and that all the money he had collected under the assignment had been used by him in carrying on the assignor's business and not in payment of creditors, and the mortgagee put in and proved the chattel mortgage, but gave no evidence of a debt due or of pressure used. On this the learned Judge charged the jury that, in his opinion there was no evidence of a debt or of pressure, and that if they believed the assignment was made for the purpose of defeating or delaying creditors it was bad, and he refused to allow the consideration to be proved after the plaintiffs closed their case, and the jury brought in a verdict for the defendant. On a motion to enter a verdict for plaintiffs or a new trial it was Held, per Boyd, C. The plaintiff proved enough to cast the burthen of attack on the defendant. Proof of the mortgage, duly executed, showed that the property and title to the goods passed from the judgment debtor to the mortgagee before the seizure. The execution creditor should displace this ownership by showing want of consideration or other reason. Suspicion would not justify the conclusion that the mortgage was a voluntary instrument contrary to its purport. There was no evidence that the wife knew of the husband's insolvency and concurred with him in an attempt to gain a preference at the expense of the other creditors.

Per Proudfoot, J. The mortgage might be valid if given for a present advance of money for carrying on the business or other proper purpose, and insolvency could not be a circumstance shifting the onus of proof, and the production of the mortgage would be prima facie evidence, and as the jury had found on the evidence sufficient to justify their verdict that the assignment was not honestly made the verdict should not be interfered with on that point, but as the plaintiff the trustee appeared to have been misled and was refused leave to supplement his evidence, a new trial should be given.

E. Furlong, the trustee plaintiff in person.

F. F. Fitzgerald, for the assignee plaintiff.
J. Parkes, for the defendant.