siderable moment to a number of persons other than the appellant, there being, I am informed, a large number of cases, some thirty or forty I believe, adjourned to await the result of the present appeal, I decided, instead of forming my conclusions from reading the evidence taken before the police magistrate, to hear the parties and their witnesses, and allow what has amounted practically to a new trial.

Except the testimony of two professional analysts and of two witnesses called in rebuttal the mass of evidence adduced before me consisted of that most unsatisfactory, inconsistent and highly contradictory class of evidence known as expert testimony, or as it is more properly and correctly styled "opinion evidence." Some thirty-three medical men were called one after the other, and each gave his opinion as to whether a fermented malt liquor containing a certain percentage of alcohol is intoxicating or not. In answering this query some were outspoken, some were cautious, some hedged their answers about with conditions; others wanted preliminary admissions or concessions made before they could make up their minds. What was meant by intoxication? Was the liquor to be taken on a full or empty stomach? Was it with reference to the effect upon a person unaccustomed to the use of intoxicating liquors, or were we asking as to its effect upon more seasoned vessels? Then the changes were successively rung upon the words inebriation, stimulation, exhilaration, obfuscation and intoxication. I was told that there was a great difference between becoming intoxicated in the popular sense, and in becoming intoxicated in the medical sense. I had the various stages of intoxication' graphically described to me, and the capacity of the human stomach earnestly considered with reference to the number of pints, or quarts of liquid it might or could contain. The probable effect of drinking a large quantity of Blue Ribbon beer at one draught, as compared with drinking a glass every ten minutes, was sought to be established by the opinions of skilled witnesses. The analysts, had by their testimony, fixed the percentage of alcohol in the liquor seized, and I had the virtues and evil properties of this ingredient considered in every phase-its effect upon the human system, upon the circulation, upon the brain, and upon the legs. I was assured that a man might not be considered intoxicated whose legs were a little groggy, so long as his brain was clear, and I was also informed that giddiness and talkativeness, coming on after drinking certain quantities of alcoholic beverages, were, in a medical sense, no reliable indication of insobriety. One medical gentleman asseverated that in his opinion one could drink enough liquor containing 21⁄2 to 3 per cent. of alcohol to burst, but as to discovering any symptoms of intoxication, the earlier calamity would supervene and prevent further investigation. I was told that vomiting and rejection by the stomach of liquor of the strength of that described to the witnesses, would most certainly follow rather than any symptoms of alcoholism. On the other hand I was most solemnly assured by four or five most eminent physicians that two or three glasses of this liquor would certainly produce symptoms of intoxication, and four or five glasses would successfully inebriate the patient.

It is upon contradictory evidence of this character that I am to form my conclusions as to the quality and properties of the liquor seized in the possession

of the appellant, and for the keeping of which he has been duly convicted by the police magistrate. Mr. Shuttleworth, the analyst called by the prosecutor, analysed a portion of the liquor seized, and states that he found it contained 2.97 per cent. of alcohol. Mr. Ellis, public analyst, also examined a portion of the same liquor, and states he found but 2.14 per cent. From these conflicting analyses, counsel agreed that it would perhaps be fair to treat the liquor seized as containing 2.5 per cent. of alcohol, this being the average of the two reports. It also appeared from the evidence of Mr. Heys, lecturer on chemistry, called by the appellant, that beer of this quality, if kept for a short time, might by reason of fermentation still proceeding up to a certain period, develop an increased percentage of alcohol, say to the extent of .33 per cent. beyond the quantity present when turned out of the brewery. Mr. Davies, the brewer, who manufactures the Blue Ribbon beer, when called by the prosecutor, also admitted this fact. He said fermentation and production of alcohol would go on unless the beer had been treated by a special process, which, however, could only be applied to it when bottled, and this fermentation must be expected unless the beer is kept in a very cool place.

From this evidence I do not think it at all unfair to assume that 3 per cent. would be taken as approximately the maximum strength of this beer, as possibly 2 per cent. may be said to be minimum strength. It was established by clear evidence that with a strength of 2.5 per cent. of alcohol an imperial pint of this liquor would contain 1⁄2 oz. of alcohol, and with 3 per cent. the quantity of alcohol would be three-fifths of an ounce; an imperial quart would, therefore, contain from I oz. to to I 1-5 oz. of alcohol. Now, it was shown by a large number of the medical witnesses called on both sides that a person unaccustomed to the use of liquor, and taking it upon a comparatively empty stomach, would exhibit signs of intoxication if he took a drink of any liquor containing from one to two ounces of alcohol. Some thought one and a half to two ounces would undoubtedly produce that effect; others that one ounce would be sufficient to indicate perceptibly to a third person observing the patient that he, the patient, had been drinking. In other words, the first stages of intoxication, as it is popularly known, would be produced. This being the case, from one quart to three pints of Blue Ribbon beer would render a person unaccustomed to the use of liquor, perceptibly under the influence of liquor, though not drunk. The first stages of intoxication would be produced; and such a person would, in a large proportion of cases, become excited, talkative, perhaps giddy and unsteady on his legs, though possibly not incapacitated. from performing all his ordinary duties.

In view of this evidence, and the fact that this liquor is one that may increase perceptibly in strength if exposed to heat or motion, I can come to no other conclusion than one adverse to the appellant's contentions. It would be opening a wide door to a fraudulent evasion of the Act, and its wise provisions for controlling and regulating the sale of and traffic in intoxicating liquors if a liquor which contained even so small a percentage as 221⁄2 to 3 per cent. of alcohol could be openly offered for sale without a license in every grocery, house, or shop in the community. The law is not made alone to regulate what shall be sold to the man accustomed to the use of liquor, but is equally for

those who are unaccustomed to its use, and these also must be protected. No one can be allowed to offer for sale without a license, under the guise of a temperance beverage, a liquor which is capable, if freely drunk, of producing even the incipient stages of intoxication. I think Blue Ribbon beer will do this if used freely by the class of persons last mentioned, though doubtless its effects upon more seasoned drinkers may be questionable. Upon the whole case and from the whole evidence I must decide that this beer is an intoxicating liquor, and that the appellant has been properly convicted.

McDougall, Co.J.]

VERNEY V. GUTHRIE.

[Nov. 10.

Easement-Non-reservation-Derogation from grant-Drainage. Plaintiff and defendant owned adjoining houses, which originally belonged to one owner The defendants' house was drained by a branch drain which went under the plaintiff's house and connected with the plaintiffs drain, which drain, so used for both premises, but on plaintiff's land, emptied into the street sewer. There was no mention of the drain in any of the conveyances, and neither party knew of the position of the drains until shortly before the action was commenced.

Held, that the privilege to drain defendant's house through plaintiff's premises not being an easement of necessity, and there being no reservation of any such right, the defendant had no right to use the drain on the plaintiff's premises, and he was liable for damages resulting to plaintiff by such user. Wheeldon v. Burrows, L.R. 12 Ch.D. 49, followed.

D. T. Symons, for plaintiff. Smoke, for defendant.

McLeod, J.]

Province of New Brunswick.

SUPREME COURT.

MELLIN V. MUNICIPALITY OF KINGS.

[Oct. 29.

Practice-Striking out name of defendant-Action in tort-Power to plaintiff to enter nolle prosequi—60 Vict. c. 24, s. 145.

The Court or a judge has no power to strike out the name of a defendant in an action ex delicto, s. 145 of 60 Vict. c. 24, being limited to an action on contract. But the plaintiff may get rid of it in the action by entering a nolle prosequi, and this may be done at any time, even after verdict.

A. A. Stockton, Q.C., and J. P. Byrne, for plaintiff. A. S. White, Solicitor-General, for defendants.

Full Bench.]

FIDELE V. LEGERE.

[Nov. 1.

Costs of County Court appeal-Next friend-Attachment. Court refused an attachment against the next friend of the respondent for non-payment of appellant's costs on a County Court appeal, holding that they should be added to the appellant's costs in the Court below, and recovered by attachment out of the County Court.

J. D. Phinney, Q.C., in support of the motion.

Full Bench.]

EX PARTE TURNER.

Payment of debt by instalments—Future earnings.

[Nov. 4.

The Court made absolute an order nisi to quash an order made by a Clerk of the Peace under Act 59 Vict., c. 28, s. 53, for the payment of a debt by instalments against a laborer, holding, as in Ex parte Killam, 34 C.L.J., 390, that the Act does not contemplate future earnings or income that may be uncertain.

M..G. Teed, in suport of order nisi. J. H. Dickson, contra.

Disclosure-Service of notice on agent-Proof of agency.

[Nov. 4.

J. H. B. acted as attorney of the applicant, the plaintiff, in a suit in the 'City of Fredericton Civil Court, and after judgment gave directions as to the suit against the bail therein.

Held, on motion to make absolute an order nisi for certiorari to remove an order discharging the defendant from arrest under the Act 59 Vict. c. 28, that service of the disclosure notice on J. H. B, as agent of the plaintiff, was sufficient proof, of the said J. H. B. having acted as above having been made before the County Court Judge, who granted the order of discharge on the day on which the summons against the bail was returnable (the defendant having been in the meantime rendered in discharge of his bail). Order nisi discharged.

J. H. Barry, in support of order nisi. O. S. Crocket, contra.

Full Bench.]

MACPHERSON v. WALLACE.

Trover-Title to property-Res judicata.

[Nov. 8.

In an action of trover for the conversion of a carload of wood, brought by appellant against one R., the judge of the York County Court, who tried the cause without a jury, found the property in defendant. An appeal to the Supreme Court from this finding was dismissed. Appellant subsequently proceeded to trial in another action of trover against the present respondent, W., who purchased the wood from R., the action against W. having been commenced simultaneously with that against R. On the trial the judgment in the action against R. was proved, and the County Court judge nonsuited the plaintiff, holding that the property having been found in R. in the action first tried, and W. having purchased from him, the matter was res judicata.

Held, on appeal, that that the nonsuit was right, and appeal dismissed with costs.

C. E. Duffy, in support of appeal. F. St. John Bliss, contra.

Bain, J.]

Province of Manitoba.

QUEEN'S BENCH.

O'CONNOR V. FAHEY.

[Oct. 20.

Administration of estates—Q. B. Act, 1895, Rule 766—Discretion of the Court.

This was an application under Rule 766 of the Queens' Bench Act, 1895, by a legatee under the will of the deceased for an order for the administration of his estate on the ground that more than a year had elapsed from the testator's death, and the legacy had not been paid. The only property out of which the legacy could have been paid was a hotel in the city of Winnipeg, which the executors were directed by the will to sell as soon after the testator's death as they might deem proper, and as soon as they could conveniently do so without sacrificing the estate. The executors had tried to sell the property, but had so far been unable to do so. There were also unpaid creditors' claims to a large amount.

Held, that the Court had a discretionary power to grant or refuse the order, and that, as the executors were acting in the administration of the estate, and were in no default, the application should be dismissed with costs. Elliott, for applicant. Culver, Q.C., and West, for executors.

Province of British Columbia.

SUPREME COURT.

Irving, J.]

Town v. BRIGHOUSE.

[Sept. 14.

Practice-Agreement for sale-Lis pendens-Cancellation of-R.S.B.C. c. 111, s. 85.

Action for specific performance of an agreement for sale of land. The plaintiff entered into an agreement with an alleged agent of defendant for purchase of certain land belonging to defendant, who repudiated the agreement. Another agent of defendant then made a sale of the same property, and as the conveyance was about to be completed the plaintiff commenced his action for specific peformance, and filed a lis pendens against the property. The defendant then applied under the provisions R.S.B.C. c. III, s. 85, to have the lis pendens cancelled.

Held, that an order will not be made cancelling a lis pendens under s. 85 of the Land Registry Act in a case where damages would not be complete compensation.

As the learned judge had doubts as to the plaintiff's ultimate success the lis pendens was not cancelled, but the plaintiff was ordered to give an undertaking to abide by any order the Court or a judge may make as to damages