Divisional Court.] DOUGLAS V. HUTCHINSON. [Aug. 1. Libel-City Solicitor-Newspaper-Comments in, on conduct of-Belief in truth of statements published—Erroneous charge—New trial. The discussion of the conduct of a solicitor of a municipal corporation in that capacity, is a matter of public interest, and a newspaper is entitled to criticise or make fair comments thereon, but the statements on which the criticism or comments are based must be true, and not merely believed to be true. Where, therefore, in an action for libel for statements published in a newspaper on which comments were made criticising the plaintiff's conduct as such solicitor, the jury, although they were told that any criticism on the plaintiff's conduct must be based on the truth, were, at the same time told that it was sufficient if the statements on which the criticism was founded were believed to be true, on which there was a finding for the defendant, such finding was set aside and a new trial denied. MACMAHON, J., dissented. Shepley, Q.C., for plaintiff. John King, Q.C., for defendant. HENRY, J.] Province of Nova Scotia. SUPREME COURT. IN RE LAWRENCE H. MILLER. Collection Act of 1894, c. 4-Warrant for commitment to jail—Where bad, new warrant cannot be substituted after jailor's return under R.S., c. 117. Application for discharge of prisoner under R.S., c. 117. Prisoner was confined in jail under the warrant of a Commissioner under the "Collection Act," N.S., Acts 1894, c. 4. The warrant was in the form schedule H to the Act, and recited "that the said debtor obtained credit for the said debt without having at the time any reasonable expectation of being able to pay same, and obtaining credit for the said debt by false pretensions or representations." The warrant had previously recited the recovery of the judgment, but did not specifically state that the judgment was recovered for a debt. The jailor having returned the warrant, Harris, Q.C., moved for his discharge, citing the decision of RITCHIE, J. in Re Moore. the Ritchie, Q.C., admitted the warrant was bad, and asked for an adjournment to file a new warrant, citing Rex v. Rogers, 1 D. & R. 156, Rex. V. Taylor, 7 D. & R. 622, Reg. v. Lavin, 12 P. R. Ont. 642. HENRY, J., adjourned the hearing, reserving the question as to whether that course was proper, and also as to whether a new warrant could be substi tuted. The matter coming on for further hearing, and a good warrant having been filed in the meantime, Harris, Q C.—The Judge should not have adjourned the proceedings: In re Timson, 5 L.R. Exch. 257; Paley on Convictions, 347; Short & Mellor, 357. A new warrant cannot be substituted after return of the jailor: Ex parte Cross, 26 L. J.M.C. 201. The Commissioner is functus officio when he signed the first warrant: Acts, 1894, c. 4, s. 9. Assuming that a warrant can be amended where there is a good conviction there is nothing here to amend by, as the commitment and conviction are in one document, and both bad. Ritchie, Q.C.-The new warrant holds the prisoner, and cannot be ignored. The Commissioner had power to substitute a new warrant at any time before discharge R. S., c. 117, ss. 5, 10; In re Phipps, 11 W.R. 730; Ex parte Cross, 26 L.J.M.C. 201; Ex parte Smith, 3 H. & N. 227; Reg. v. Turnan, 33 L.J.M.C. 291; Charter v. Graeme, 13 Q.B. 216. HENRY, J., held that the warrant was bad, and that he should not have delayed the discharge of the prisoner. He did not think a new warrant could be legally substituted after the return of the jailor under R.S., c. 117, 5th series. The Commissioner acting under Acts, 1894, c. 4, was functus officio when he made the first warrant. The words of R.S., c. 117, s. 10, refer to a warrant filed in another proeeeding, and are not authority for substituting a good warrant for a bad one. The prisoner was discharged. Province of Prince Edward Island. SUPREME COURT. HODGSON, J.] MCPHERSON v. MCDONALD. Ca. sa.-Irregularity. [Sept. 7. The plaintiff having recovered judgment issued a writ of fi. fa. to the Sheriff of Queen's Co. under which defendant's goods were sold. The Sheriff made return that he had seized and sold certain goods of defendant, but did not state that the defendant had no other goods to levy on. The plaintiff then issued a ca. sa. for the whole amount of the judgment without reference to the previous fi. fa., but in endorsing the amount due on the back of the ca. sa. credit was given for the sum realized under the fi. fa. The defendant was committed to jail and an application was made to discharge him and set aside the ca. sa. for irregularity inasmuch as it was issued without any entry on the record of the previous fi. fa. and return and award of the ca. sa., and because it did not recite the first writ and the amount levied under it. Held, that the ca. sa. was irregular. Stewart, Q.C., for defendant. McDonald, Attorney-General, for plaintiff. Full Court.] Province of Danitoba. QUEEN'S BENCH. DAY V. RUTLEDGE. [June 27. Tax sale-Mortgagor and mortgagee-Purchase at tax sale by wife of mortgagor Assignment of tax sale certificate-Purchaser for value without notice-Pleading-Joinder of causes of action-Onus probandi-Assessment Act, s. 186. Appeal by plaintiff against the lien for taxes paid given to the defendant Lawlor by the judgment ordered to be entered at the trial before Dubuc, J., noted ante. p. 279, and appeal by the defendant Lawlor who claimed that the action should be dismissed as against him with costs. In allowing the plaintiff's appeal and dismissing Lawlor's appeal with costs, the following points were decided : 1. An objection by Lawlor to the statement of claim for multifariousness on the ground that a separate action should be brought to set aside the tax deed to him, could not succeed: Cox v. Barker, 3 Ch. D. 359; Child v. Stenning, 5 Ch. D. 695. The objection should have been to the joinder of other causes of action to an action for possession of land without leave as required by Rule 251 of the Queen's Bench Act, 1895, if in fact no such leave had been given. 2. The plaintiff was entitled to meet the defendant Lawlor's allegation of a title paramount under the tax deed and its statutory effect as evidence by showing omissions and informalities which invalidate the proceedings and to have an adjudication upon the question of title without any specific prayer for relief against the deed. 3. When the tax sale took place, the wife of the mortgagor was as free as any stranger to acquire for her own benefit any title to or interest in the land paramount to that of the mortgagee, either by using money of her own, if she had any, or by inducing a third party to advance it on her separate account, provided the transaction was not merely colorable and really carried out on behalf of the mortgagor. 4. There was not sufficient evidence of any trust as between the defendant Lawlor and the Rutledges, and for all that appears in the evidence there was an actual sale of the tax certificate and the rights conferred by it by the first assignee to Lawlor for valuable consideration, and the onus was not thrown upon him to prove that Mrs. Rutledge acted on her own account and not as agent for her husband in making the tax purchase. 5. Mrs. Rutledge's conduct after she had purchased, in concealing the fact from the mortgagee, in endeavouring to obtain an extension of time, in executing a new mortgage and in other ways, would have disentitled her to proceed with her purchase and she could not have acquired a valid title as against the mortgagee; but it does not follow that a person purchasing her apparent rights under the tax sale certificate, for value and without notice of her special incapacity might not have acquired a title under a tax deed which would have cut out the plaintiff's mortgage. 6. To entitle Lawlor to claim protection as a purchaser for value without notice of Mrs. Rutledge's fraudulent conduct he should have pleaded this as a defence and given evidence of it, although the plaintiff had not in his pleading alleged notice to Lawlor of the concealment by Mrs. Rutledge: McAllister v. Forsyth, 12 S.C.R. 1; Attorney-General v. Wilkins, 17 Beav. 285; and as Lawlor had neither pleaded nor proved such want of knowledge and notice the plaintiff was entitled to judgment without being called upon to prove any notice to Lawlor, especially as the Court had not been asked for relief on the ground that such defence was omitted through any error or slip, and that it could be successfully raised, and the Court held that there was nothing to suggest that the defendant had been taken by surprise or misled in any way. 7. The judgment entered should be varied by striking out the clause declaring that Lawlor held as trustee for his co-defendants, and by substituting a declaration that any title to the lands in question which Lawlor took or holds under the tax sale deed is held by him subject to the plaintiff's mortgage. 8. The case does not come within section 186 of the Assessment Act, and Lawlor is not entitled to any lien on the land for the taxes paid as against the plaintiff's mortgage, and the clause in the judgment giving such lien should be struck out. Culver, Q.C., and Mulock, Q.C., for plaintiff. Ewart, Q.C., and Wilson for defendant. Full Court.] LAWLOR 7. NICKEL. [July 9. Bailment of goods-Sale of goods—Statute of Frauds. Plaintiff delivered a quantity of wheat at an elevator leased by defendants whose employee agreed to purchase the wheat at 38 cents and the rise," meaning that plaintiff could take his wheat checks at any time, and get at least 38 cents per bushel, but if the market prices were higher, then he could demand the market price of the day. The wheat was received in the elevator, and receipts given for it, stating that it was received in storage for plaintiff, but as a matter of fact it was not intended that the identical grain received from plaintiff should be kept for him, the well understood course of the business being that, unless a price was agreed on, the plaintiff could only require the equivalent amount of wheat of the same grade to be accounted for to him. Plaintiff claimed the value of the wheat as if it had been sold to defendants, but it did not appear that there had been a price agreed on. Defendants disputed the receipt of three out of seven lots of the wheat delivered by the plaintiff, and paid into court a sufficient sum in payment for the other four lots. Held, following South Australia Insurance Co. v. Randell, 6 Moore P.C. N.S. 341, that in such a case the contract between the parties is really one of sale and not of bailment, and that whether the vendor is to receive a price in money or an equivalent quantity of grain, or has an option to do either, it is really a sale, as the property in the goods has passed to the warehouseman, and he is to pay the grain or money. Held, also, that as the property passed to the defendants upon delivery and acceptance of the grain, it is not like a case in which specific goods are stored, the property remaining in the original holder, with an oral agreement for a subsequent sale to the bailee; and the Statute of Frauds offers no bar to the recovery. Verdict for plaintiff for price of wheat as if sold at 38 cents per bushel affirmed with costs. Metcalfe and McPherson, for plaintiff. Wilson and A. C. Ewart, for defendants. Full Court.] REGINA V. HERRELL, [July 9. Liquor License Act, ss. 151, 180, 182, 200, 209, 210-Evidence of former conviction—Amending conviction-Disqualification of magistrate—Certificate of former conviction. Rule nisi to quash a conviction of defendant for a second offence under the Liquor License Act on the following grounds: (1) That there was not sufficient evidence of the commission of any offence under the Act, it being argued that there was no evidence to identify the liquor produced at the trial, and shown to be intoxicating, with the contents of the bottle furnished by the accused. (2) That the former conviction was not proved, there being nothing to show the identity of the defendant with the person named in the certificate produced. (3) That the convicting magistrate was disqualified to sit upon the case, as he was an honorary member of the Women's Christian Temperance Union, which had taken a great interest in enforcing the Liquor License Act, and had provided funds for that purpose. Held, 1. Although the evidence was not satisfactory, it could not be said that there was no evidence to prove the commission of the offence, and under Reg. v. Granis, 5 M.R. 153, the finding of the magistrate could not be interfered with. 2. As the prosecution was really conducted by the town authorities, and not by the W.C.T.U., and the magistrate's connection with the society was only nominal, and he had taken no part in the conduct of its affairs, beyond having contributed $1 towards a lecture fund, it could not be said that he was disqualified to adjudicate on the case. Reg. v. Deal, 45 L.T.N.S. 439, and Leeson v. General Council, etc., 43 Ch. D. 366, followed. 3. It was necessary to prove the identity of the defendant with the person named in the certificate of the former conviction, the similarity of names not being sufficient for that purpose: Queen v. Lloyd, 1 Cox C.C. 51. nor even the personal knowledge of the magistrate; that the conviction must therefore be quashed. Reg. v. Brown, 16 O.R. 41, distinguished. 4. The evidence of the commission of the offence not being satisfactory, the court could not amend the conviction under sections 209 and 210 of the Act so as to make it a conviction for a first offence, because it could not be understood from it that the penalty or punishment appropriate to the offence |