possession, where she remained at the cost and under the control of the plaintiff, and that the subsequent possession by the defendant did not revive the lien as such possession was taken under a new and different agreement. Judgment of the County Court of York reversed.

O'Donohue, Q.C., for appeal. A. F. Lobb, contra.

Boyd, C., Robertson, J.] THE QUEEN v. Hughes.

[Feb 8.

Liquor License Act-Club-Conviction of steward-R.S.O. c. 194, secs. 50, 53, 108, 112.

Motion on rule nisi to quash conviction for keeping liquor for the purpose of sale without license. The evidence showed that the defendant was the steward of an incorporated bicycle club, which by its charter was prohibited from selling intoxicating liquors; that he kept a bar in a room in the building of which the club was lessee, and, as agent of the club, supplied liquors, which apparently belonged to the club, at his own discretion, to such of the members and others, as presented tickets purchased from the club.

Motion dismissed with costs; and held, defendant rightly convicted under R.S.O. 1887, ss. 50, 53, 108, 112.

Ritchie, Q.C., for defendant. J. R. Cartwright, Q.C., for prosecutor.

IN RE FORSTER.

Boyd, C., Meredith, J.]
[Feb. 9.
Costs-Style of Cause removed from Surrogate Court-Order of transfer-
Terms-Consent judgment-Costs out of estate.

An order transferring a cause or proceeding from a Surrogate Court into the High Court contained a clause providing that in the event of the defendant, the applicant for the order, failing to establish his defence, his costs, if any were allowed him, should be on the Surrogate Court scale. By a consent judgment, which recited the pleadings and proceedings, and adjudged that the will which was disputed by the defendant was the last will of the testatrix, and should be admitted to probate, it was also adjudged that the costs of all parties should be paid out of the estate.

Held, upon appeal from taxation, that the defendant was bound by the order of transfer, and his costs should be taxed on the scale of the Surrogate Court.

L. G. McCarthy and D. L. McCarthy, for the appellant. C. J. Holman and Pattullo, for respondents.

Boyd, C., Meredith, J.] VIDEAN v. WESTOVER.

[Feb. 10.

Appeal-Waiver-Acting on judgment—Quashing appeal-Costs. Appeal from the decision of Ferguson, J., (ante. p. 35) quashed, following International Wrecking Co. v. Lobb, 12 P.R. 207, and Keith v. Keith, 25 Gr. 110, because the defendant was held to have waived his right of appeal by acting upon the judgment in obtaining his costs out of the fund in Court, pur

suant to the judgment, which costs, with the plaintiffs' costs, also paid out, exhausted the fund. Appeal quashed without costs, as no motion to quash was made by respondents.

Tremeear, for appellant. C. J. Holman, for respondents.

Armour, C.J., Street, J.]

Insolvency Conveyance by insolvent debtor - Preference - Impeaching — Pressure-Time-Consideration-Untrue statement in conveyance-Proof of other consideration-Burden of proof-Statute of Elizabeth.

Appeal by the plaintiff from the judgment of Meredith, J., dismissing the action, which was brought against the sheriff of the County of Essex and his bondsmen, for damages for wrongful seizure and conversion of a crop alleged to be the property of the plaintiff. but seized and sold by the sheriff under an execution against one Antilla, who had conveyed to the plaintiff the land on which the crop grew. The trial Judge held that the crop was not the plaintiff's because the conveyance to him was an unjust preference by an insolvent debtor, and therefore void.

Held, that as there was evidence of a request amounting to pressure on the part of plaintiff for the conveyance to secure him against the liability he was under for Antilla, and the first proceeding taken to impeach the transfer was the actual seizure by the sheriff more than sixty days afterwards, the transfer could not be impeached as a preference. But the transaction was void under the statute of Elizabeth. The statement of the consideration was untrue, because there was, confessedly, no exchange of properties, as stated in the conveyance. The onus was upon the plaintiff to prove beyond reasonable doubt that there was some other good consideration. The plaintiff contented himself with giving his own unsupported evidence of the existence of a consideration, which contradicted the statement in the deed. Under these circumstances the evidence of the existence of a consideration was insufficient, and the conveyance must be treated as voluntary. Appeal dismissed with costs. F.D. Davis, for plaintiff. S. White, for defendants.

CHRISTY V. ION SPECIALTY CO.

Meredith, C.J., Rose, J.] [Feb. 14. Pleading Disclosing no reasonable answer-Striking out-Rule 261—Amend

ment.

Appeal by the plaintiff from an order of Boyd, C., in Chambers, dismissing a motion by the plaintiff under Rule 261 to strike out paragraphs 13 and 14 of the statement of defence in an action to restrain the infringement of a patent for a bicycle saddle, on the ground that they disclosed no reasonable defence and were embarrassing. These paragraphs set up the invalidity of the first claim of the plaintiff's patent, and were, admittedly, an answer to the original statement of claim; but the plaintiff had amended his statement of claim by omitting his assertions based upon the first claim in the patent, and the defendants did not amend their defence.

Held, that it was only in a very clear case that a pleading should be struck

out as showing no reasonable ground of action or defence, and it could not be said that this was manifestly such a case; and it was also doubted whether a defence which was originally good could be struck out after the plaintiff had amended, and whether it was the duty of the defendant to amend. Appeal dismissed with costs to the defendant in any event.

Bristol, for the plaintiff. W. Cassels, Q.C., for the defendants.

Rose, J.]

IN RE DOMINION COLD STORAGE Co.

LOWREY'S CASE

[Feb. 15.

Execution Order of court of another Province-Winding-up Act, R.S.C. c. 129, s. 85—Production of certified copy-Entry.

Execution may be issued under s. 85 of the Winding-up Act, R.S.C. c. 129, upon the order of a court of another Province, without making such order a rule of court, or obtaining the direction of a judge, but upon the mere production to the officer of the High Court of a properly certified copy of such order.

Re Companies Act and Hercules Insurance Co., 6 Ir. R. Eq. 207, followed. Re Hollyford Copper Mining Co., L.R. 5 Ch. 93, and Re City of Glasgow Bank, 14 Ch. D. 628, followed.

In such cases the settled practice of the High Court is to have the order entered in the proper book as a judgment or order.

Masten, for D. Lowrey. George Bell, for liquidator.

Boyd, C., Robertson, J.,

Meredith, J.

THE QUEEN v. HAMMOND.

[Feb. 17.

Criminal law-Evidence-Coroner's inquest—Canada Evidence Act, 1893—56 Vict., c. 31, S. 3.

Crown case reserved. The Canada Evidence Act, 1893, 56 Vict., c. 31, s. 3, enacts: "No person shall be excused from answering any question upon the ground that the answer to such question may tend to crimimate him. Provided, however, that no evidence so given shall be used or receivable in evidence against such person in any criminal proceedings thereafter instituted against him other than a prosecution for perjury in giving such evidence. The evidence in this case was given before the coroner who had told the prisoner that "it was not necessary to be examined under oath without he wished to be so, and that any evidence taken might be used against him." The prisoner, however, said that he wished to give evidence and was sworn in the usual way, and gave evidence which was afterwards used to fix criminal liability upon him.

Held, (Meredith, J., dissentiente,) that the section applies to any evidence given by a person under oath, although he may not have claimed privilege.

Held, also, that as the Court of Appeal for criminal cases is now constituted the decision of the judges of one court is not binding on the judges sitting in another court of the same jurisdiction.

E. F. B. Johnston, Q.C., for prisoner. J. R. Cartwright, Q.C., for Crown.

Armour, C.J., Falconbridge, J.]

SMITH V. BOYD.

[Feb. 18.

Amendment Pleadings-Trial-Partnership-Conspiracy -- Accounts - Par

ties-Terms-Costs.

The action as framed was to recover damages for an alleged conspiracy between the defendants, the plaintiff's partner in a mercantile business and another, whereby they fraudulently and secretly withdrew money from the assets of the firm. The real grievance was the alleged misappropriation by the plaintiff's partner, with the assistance of the other defendant, of partnership funds to the injury of the partnership and of the plaintiff. At the trial the plaintiff sought to amend by alleging that moneys were received by the other defendant in trust for the firm, and by adding the firm's assignee for the benefit of creditors as a party, and by claiming an account.

Held, that the amendment should have been granted upon proper terms

as to costs.

DuVernet, for plaintiff. Delamere, Q.C., for defendant Boyd. H. S. Osler for defendant Cooper.

COUNTY COURTS.

COUNTY OF YORK.

O'BRIEN v. TORONTO.

Municipal corporation-Negligence-Icy sidewalks-55 Vict., c. 42, s. 531— 57 Vict., c. 50, s. 13-Granolithic pavement.

Held, that a municipal corporation has the right to select such material for sidewalks as in its discretion may think best, so long as it is a material which is generally used or adaptable for the purposes required, and the corporation is not liable for damages which may result, merely because such pavement becomes at any time so affected by natural causes, over which the corporation has no control, that more than ordinary caution is required by the public using such sidewalk to prevent accidents.

[TORONTO, 1897, MORGAN, J.J.

This was an action brought against the City of Toronto, for damages sustained by the plaintiff through the alleged negligence of the defendants.

The plaintiff while walking along a sidewalk in the City of Toronto slipped and fell violently, seriously injuring herself. It appeared that the sidewalk in question was a granolithic pavement, and had been in a slippery condition since the inception of the winter, that at the time of the accident it was covered with thin slippery ice, that the walk had been so covered for some five days prior to the accident.

At the close of the plaintiff's case the defendants moved for a non-suit. A. Mills, for plaintiff.

J. S. Fullerton, Q.C., and H. L. Drayton, for defendants.

MORGAN, J.J.: I have felt for a long time the difficulty that must come up and must eventually be decided with respect to the icy and dangerous condition of foot pavements. The city is not bound to construct a foot pavement of any description, either wooden or otherwise. If in the absence

of a pavement the snow fell upon the earth as it stood in its original character and was tramped down by foot passengers, it is very doubtful whether there would be the same condition of dangerous slipperiness as is complained of here; and, presuming such condition existed, it is exceedingly doubtful whether, in the absence of an artificial sidewalk the city would be bound to interfere with conditions of slipperiness that nature has produced by frost or fallen snow upon the places where foot passengers ordinarily go.

But, it may be argued that if the city chooses to change the condition of the original earth by putting down some sort of improvement for the convenience of passengers, and that the presence of that improvement produces a higher degree of slipperiness than would exist in the absence of the improvement, that to that extent they must at all times take care, under all circumstances and climatic influences, to protect the public against a condition of affairs that would not have existed but for the improvement and if they had not interfered with existing conditions. One would properly regret that this should be the law, because the demands of civilization call for these foot pavement improvements, the convenience of the public calls for, they are all put there with the consensus of the public, they are all enjoyed by the public and the public would naturally object if these pavements were not put down, and the city is only yielding to a well appreciated and well understood public demand if these things are done. Then can it be said, when the corporation, in obedience to a public demand, makes these sidewalk improvements, and makes them of the best and most durable material that experience seems to suggest as the proper thing for sidewalks, and that when these sidewalks, affected by the forces of nature, uncontrollable by the city-namely, snow and frost-at times become very slippery, that the city is bound, all over these sidewalks, at all times and under all circumstances, to protect the public against a danger caused by the forces of nature? I do not think I can say so.

The Legislature has recently provided that in damage actions for injury through snow and ice on sidewalks gross negligence must be proved (57 Vict., c. 50, s. 13). I think that the intention of the Legislature was to disturb an existing state of the law as expressed in decided cases and produce a different state of the law, that state of the law being to relieve the city from responsibility in cases on all fours with this; and I think I must give effect to the legislation intended and hold that in cases of this description the city is not liable and that the plaintiff has not made out such a case as would bring her within the right to recover.

The action must be dismissed.