prescribed for use contained words authorizing an absolute term of imprisonment in addition to that provided for in case of default of payment of the amount of fine and costs. The penalties were clearly defined, the jurisdiction complete, and the object of the Act certain.

Held, that the magistrate was justified in adopting a form of conviction made applicable to a different section of the Act.

After hearing the evidence and the arguments of counsel the stipendiary magistrate adjourned the case to a future day for the sole purpose of deciding as to the sufficiency of the evidence and giving judgment in the case. On the day fixed, in the absence of the defendant or his solicitor, and without notice to them, he heard a motion to amend the summons by changing the date of the previous conviction, and after making the amendment asked for, convicted the defendant.

Held, (MEAGHER, J., dissenting) that the stipendiary magistrate could not make this amendment in the absence of defendant and without notice, and that the appeal should be allowed and the conviction quashed with costs on that ground.

A. Drysdale, Q.C., for appellant. E. C. Gregory, for respondent.

Full Court.] RUDOLF V. BRITISH AND FOREIGN MARINE INS. CO. [Jan. 11. Marine Insurance-Partial loss on cargo-Evidence of stranding of vessel.

The schooner "Donzella,” on a voyage from Porto Rico to Halifax, put into Barrington for shelter. The wind at the time was south-east, with a heavy snow storm prevailing. The vessel was anchored near the light ship, with one anchor out, but as the wind increased a second anchor was put out. Subsequently during a heavy gale that sprang up from the north-west both chains parted. The vessel was then on a lee shore, studded with reefs and shoals, and the tide low. She was abandoned by the master and crew, and the following morning was not visible from the shore. Sometime afterwards she was picked up at sea by salvors, and was brought into port and put upon the slip and repaired. When brought in she had four feet of water in her hold, and the cargo was considerably damaged. On being put upon the slip it appeared that twelve feet of the shoe were off abaft the main chains, and another twelve feet off forward under the main chains. The butts on the bottom were open. The keel was more or less chafed and broken. The rudder was damaged and the rudder braces started off. There was a scar on the bilge on the port side, which looked as if the vessel had dragged or pounded on something. The sides of the keel were bruised more or less, and pieces off of it. The main keel was broomed up The flying jib boom and main boom were broken, and the fore boom was split.

Held, dismissing with costs the motion for a new trial, that there was sufficient evidence to warrant the jury in coming to the conclusion that the vessel had been on shore and beating on the rocks for some time, and on which they could properly find a verdict for plaintiff, and that the trial judge was right under the circumstances in not withdrawing the case from the jury. R. E. Harris, Q.C., and W. A. Henry, for appellant. A. Drysdale, Q.C., for respondent.

Full Court.]

FILLIS V. CONROD.

County Court-Ex parte judgment set aside-Costs.

[Jan. 11.

S. 26, c. 9, Acts of 1889, enacts that "the pleadings, practice, process, forms and procedure of the Supreme Court for the time being, as embodied in the Judicature Act and amendments thereof, and the orders and rules therein now in force . . . shall apply to and extend to the County Court .. except as the same may be modified and limited by this Act." S. 54 provides that “ . . . if any cause when called is not tried, either party shall be at liberty to move the Court on the last day of said term that the judg

ment below be affirmed or reversed as the case may be, with costs . . .” On appeal from the decision of the Stipendiary Magistrate in favor of defendant, defendant was not present when the case was called for trial in the County Court, and plaintiff called witnesses and took judgment ex parte.

Held, that the practice of the Supreme Court, which otherwise would have been applicable was modified in this case by the provision contained in s. 54, and that under that section it was the duty of plaintiff to have moved on the last day of term.

The County Court Judge having refused to set aside the judgment for plaintiff,

Held, that he was wrong in doing so, and that the judgment must be set aside, but, as plaintiff undertook to try the cause on the merits, that no costs of the appeal should be allowed except the cost of printing; defendant's costs on the summons to be costs in the cause.

A. R. Rowlings, for appellant. E. D. King, Q.C., for respondent.

Full Court.]

WRIGHT V. POLSON.

[Jan. 11. Contract-Mutual and independent promises-Non-performance no defenceRemedy in damages.

Plaintiff and defendant entered into a contract in writing, under which plaintiff undertook to excavate a cellar on land owned by defendant, and to do certain other work in connection therewith at prices named in the contract, and defendant, on his part, undertook to pay plaintiff for the work by crediting a small sum of money due him by plaintiff, by delivering to plaintiff two waggons, subject to certain alterations to be made in them, by doing the wood work of a light truck waggon for plaintiff, amounting in all to $188.75, and by paying the balance, if any, in cash. It was stipulated that the work to be done by plaintiff was to be finished by November 1st, 1896. Plaintiff brought an action for the amount due him according to the prices fixed, alleging that defendant refused to deliver the waggons, or to do the work on his part agreed to be done. The defence was that plaintiff had neglected to complete the work referred to in the contract, and on his part agreed to be done. The evidence showed that the sum of $15 would remove the defects complained of by defendant, and that in other respects plaintiff had substantially fulfilled his

contract.

Held, that the promises made by the parties to the contract were mutual and independent, that it was no defence for defendant to set up non-performance

on the part of plaintiff, and that both parties must be taken to have relied upon his remedy in damages.

Held, also, that as defendant had counter-claimed damages, and could be fully compensated in that way, and admitted that the sum of $15 would cover the defects alleged, plaintiff was entitled to have judgment entered in his favour for the amount of his claim, subject to that reduction, and to have his appeal allowed with costs.

H. Mellish, for appellant. D. C. Fraser, for respondent.

Full Court]

ALEXANDER v. BAKER.

[Jan. 11.

Setting cause down for trial before Judge at Chambers-Order must prevail until set aside-Application to set aside judgment.

At the instance of plaintiff and after due notice to defendant's solicitor, who was present when the application was made and made no objection thereto, the cause was set down for trial before a Judge at Chambers.

Held, that the order, being clearly within the jurisdiction of the Judge who made it, must prevail until set aside, and was not affected by the subsequent giving of a jury notice by defendant.

Defendant's counsel appeared at the trial and while objecting that the trial could not be proceeded with on account of the giving of the jury notice, went on with the trial and cross-examined plaintiff's witnesses, and called witnesses on behalf of defendant.

Held, that having taken his chances on the trial he had no merits upon which he could ask to have the judgment against him set aside.

Held, that the judgment of the Chambers Judge must be affirmed and defendant's appeal dismissed with costs.

Sugg v. Selber, 1 Q.B.D. 362, distinguished.

D. McNeil, Q.C., for appellant. C. S. Harrington, Q.C., for respondent.

Province of New Brunswick.

SUPREME COURT.

Full Court.]

COLE v. MCDONALD.

[Feb. 4.

Constable appearing in Justices' Courts-Presentment of note-Sec. 4 of Justices Court Act directory.

A constable appeared for the plaintiff on the return of a summons in a Justices' Civil Court and applied for an adjournment, which was granted, on account of the absence of the plaintiff, who was a necessary and material witness in his own behalf.

Held, (1.) that a judgment signed at the adjourned court for the plaintiff was bad, and that a non-suit should be entered. (2.) That s. 4 of the Justice's Civil Court Act providing that the Justice "shall read over to each witness

the evidence given by him, and the witness shall subscribe his name thereto," is directory, and that the fact that the Justice's return for review does not show that the evidence has been so read over to each witness, is not a ground for setting aside the judgment. (3.) That in the case of a note payable at a particular place, presentment at that place must be proved under s. 86 of the Bills of Exchange Act to entitle the plaintiff to judgment, and that the stamp of the Bank where the note was payable with the date of presentation was no evidence of presentment.

Non-suit ordered on first two grounds.

O. S. Crocket, for defendant.

This over-rules the judgment of the Chief Justice in Ackerman v. McDougall, reported in 33 C.L.J., 406.

Full Court.]

BOYER V. BOYER.

[Feb. 4.

Town of Woodstock Civil Court-Plaintiff may abandon at trial so as to give jurisdiction.

Held (VANWART, J., dissenting), that the right of abandonment so as to bring a claim within the jurisdiction of the Town of Woodstock Civil Court may be exercised after the issue of the summons, and at the trial.

A. B. Connell, Q.C., for plaintiff. W. P. Jones, for defendant.

Full Court.]

EX PARTE GORMAN.

[Feb. 4.

Canada Temperance Act-Magistrate a ratepayer of town into whose treasury fines are payable.

Held (HARRINGTON, J., dissenting, and LANDRY, J., dubitante), that the Stipendiary magistrate of the Town of Moncton is not disqualified from try ing complaints for offences against the Canada Temperance Act by reason of his being a ratepayer of the town into whose treasury the fines collected under the Act are payable.

Ex parte Driscoll, 27 N.B.R. 216, followed, and Town of Moncton v. Hebert, decided Dec. 1897, but not yet reported, overruled.

Rule nisi for certiorari discharged.

H. C. Hanington and D. Grant, in support of rule. D. I. Welch and W. B. Chandler, contra.

Full Court.]

EX PARTE GALLAGHER.

Canada Temperance Act-Qui tam action against magistrate

[Feb. 4.

Held, that the fact that a qui tam action was pending against the convicting magistrate in a C.T.A. case at the suit of the defendant was a ground of disqualification. Rule absolute for certiorari.

H. C. Hanington, and D. Grant, in support of rule. D. I. Welch, and W. B. Chandler, contra.

Full Court.]

MACPHERSON v. MILLER.

[Feb. 9.

Agreement on sale of personal property that title shall remain in vendor until purchase price is paid.

Held, that an agreement taken by the respondent on the sale of a wagon providing that its title and ownership should remain in him until promissory notes taken for the purchase price should be paid in full was valid, and did not require to be registered under the Bill of Sale Act to hold the property against the appellant, who had seized it under a bill of sale subsequently executed to him by the purchaser. Appeal dismissed.

C. E. Duffy, for appellant. O. S. Crocket, for respondent.

Province of Prince Edward Island.

SUPREME COURT.

EX PARTE TAYLOR.

[Feb. 11.

Hodgson, J., In Chambers. Habeas Corpus-Fisheries Act-Illegal warrant of commitment—Jurisdiction. Application on a writ of habeas corpus. In November last the applicant was convicted of an infraction of the Fisheries Act before the agent of the Marine and Fisheries Department. The applicant paid the costs of prosecution and was allowed to go at large till a few days before this application when he was arrested on a warrant issued in pursuance of the above conviction. The warrant recited the fact that the applicant had been convicted of an infraction of the Fisheries Act, but did not state that the Fishery Agent had adjudicated on the matter of imprisonment.

Held, that as the warrant did not set forth that the Fishery agent had adjudicated on the matter of imprisonment it did not show jurisdiction to direct imprisonment and was therefore void. Applicant discharged from custody.

W. S. Stewart, Q.C., for applicant. D. A. McKinnon, for Fishery Department.

Province of Manitoba.

QUEEN'S BENCH.

Taylor, C. J.]

ABELL V. CRAIG.

[Jan. 31.

Appeal from County Court-Leave to appeal-Striking out-County Courts Act, ss. 321, 326, 327,328, 59 Vict. (M.) c. 3, s. 2-Queen's Bench Act, 1895, Rule 168 (b).

Motion under Rule 168 (b) of “ The Queen's Bench Act, 1895," to strike out an appeal by the plaintiffs from a County Court decision, on the ground that the appellants had failed to comply with 59 Vict., c. 3, s. 317, which