IN RE LUCKHARDT.

[Jan. 10.

Boyd, C., Ferguson, J. Robertson, J. Dower-Mortgaged lands-Purchase of equity of redemption—Discharge of existing mortgage- New mortgage-Registration- Equitable dower42 Vict., c. 22-Legal estate-Momentary seisin.

A married man, making a purchase of certain lands, as part of the consideration, paid off an existing mortgage and obtained a statutory discharge in favour of his vendor. On the same day the vendor executed a conveyance to him, and he executed the mortgage in which his wife joined to bar dower, in favour of the vendor, to secure the balance of the purchase money. All three instruments were registered on the same day, the discharge first, the conveyance second, and the mortgage third. The purchaser subsequently made another mortgage, his wife again joining to bar dower, under which the lands were sold.

Held, affirming the judgment of ROSE, J., (ROBERTSON, J., dissenting), that the dower of the wife of the purchaser did not attach.

Per FERGUSON, J.: The right to equitable dower in cases other than those where the equitable estate comes into existence by the husband, being the owner of the land, executing a mortgage upon it in which the wife joins to bar dower, is unaffected by 42 Vict., c. 22, and stands as it stood before that Act was passed; and as in the present case the husband was not, at the time of the making of the mortgage, the owner of the land, but there was an outstanding mortgage upon it made by one who was or had been the owner, the case did not fall within the statute, and the appellant was not entitled to the new right spoken of in Martindale v. Clarkson, 6 A.R.I.

It was contended that the husband became entitled to the legal estate at the time of the discharge of the mortgage which was in existence when the equity of redemption came into his hands, and when he gave back another mortgage for part of the purchase money; but this contention could not prevail; upon the registration of the discharge, the legal estate which the mortgagee executing the discharge had, went directly to the purchaser's then existing mortgagee, without passing even momentarily through the purchaser. W. Davidson, for Luckhardt. J. C. Haight, for receiver.

Armour, CJ BANK OF TORONTO v. QUEBEC FIRE INS. Co.

Street, J.

[Jan. 17.

Discovery Examination of officer of company-Assignor of chose in action

Rules 439, 441.

Rule 441 of the Rules of 1897 provides that where an action is brought by an assignee of a chose in action, the assignor may without order be examined for discovery.

Held, that this rule could not be extended by reference to Rule 439 or otherwise, to the examination of an officer of a corporation, the assignors of a chose in action.

R. McKay, for plaintiffs. L. G. McCarthy, for defendants.

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

GALBRAITH.

[Jan 17. Division Court-Appeal from-Issue as to satisfaction of judgment-Prohibition-Chambers.

An appeal by the plaintiff from an order of the Judge of the County Court of Halton dismissing an application by the plaintiff for a new trial of a question or issue tried by the Judge, upon oral evidence, in Division Court Chambers, as to the satisfaction of a judgment recovered by the plaintiff in the 2nd Division Court in that county. The plaintiff moved, in the alternative, for prohibition.

Held, that the appeal did not lie, and the application for prohibition should be made in Chambers.

R. S. Appelbe, for plaintiff. D. O. Cameron, for defendant.

Province of Nova Scotia.

SUPREME COURT.

CROWN CASES RESERVED.

THE QUEEN v. HARTLEN.

Full Court.] [Jan. 11. Unnatural offence-Boy under age of fourteen held incapable of committing—

Assault-Code s. 260.

Defendant, a boy under the age of fourteen years, was tried before the judge of the county court for the County of Halifax, and convicted of the offence of committing an unnatural offence upon the person of a younger boy.

Held, that at common law (which, in this particular, was unchanged by anything in the Criminal Code) defendant was incapable of committing the offence charged, and that the conviction must therefore be set aside.

Per RITCHIE, J.: If the act was committed against the will of the other party defendant could be punished for an assault under sec. 260 of the Code. Attorney General, for Crown. J. J. Power, for prisoner.

THE QUEEN v. TROOP.

Full Court] [Jan. 11. Assault causing bodily harm-Rejecting of evidence as to statements made by witness before magistrate inconsistent with statements on trial-New

trial.

Defendant was indicted, tried and convicted for an assault committed upon S., causing actual bodily harm. At the trial counsel for defendant, who gave evidence on his own behalf, proposed to ask certain questions with the view of showing that one of the principal witnesses for the prosecution when examined before the committing magistrate made statements at variance with her testimony given upon the trial of the indictment. The trial judge having rejected the evidence,

Held, that he erred in doing so, and that there should be a new trial.

The statement proposed to be given in evidence was one made by the witness as to what she and the accused said at the time the assualt was alleged to have been committed.

Held, that this was material to the matter in issue, and part of the res gestæ, and could be contradicted under the statute. Code ss. 700-701.

Attorney-General, for Crown. W. E. Roscoe, Q.C., for prisoner.

Full Court.]

THE QUEEN v. CORBY.

[Jan. 11.

Theft Improper comment by prosecuting counsel on trial-New trialDominion Acts, 1893, c. 31, s. 4, sub-sec. 2.

66

Defendant was indicted for stealing a quantity of pine oil. He pleaded not guilty," and on the trial gave evidence on his own behalf. The prosecuting counsel in addressing the jury commented unfavorably on the failure of the defendant's wife to testify.

Held, that the comment was a violation of the provisions of the Act (Acts of 1893, c. 31, s. 4, sub-sec. 2), and that defendant was entitled to a new trial. Attorney-General for Crown. A. Drysdale, Q.C., for prisoner.

Murder-Dying declaration-Belief of impending death.

[Jan. 11.

On the trial of defendant on an indictment for the crime of murder, the Crown offered in evidence the dying declaration of the deceased, as follows : "He said he was shot. I said 'Do you really say you are shot?' He said ‘I am shot in the body. I am going fast.' I said, 'Can't you take my arm and I will take you away.' He said, 'I can never walk again.' I said, 'For God's sake who shot you?' He said, 'Henry Davidson shot me. God help him. I hope he will not be hanged for it.""

Held, that the evidence showed that deceased was speaking under a sense of impending death, and that the statement then made was properly received. Held, further, that the fact that deceased asked for a doctor did not lead necessarily to the conclusion that he had still some hope of living. Attorney-General, for Crown. C. E. Gregory, for prisoner.

Province of New Brunswick.

SUPREME COURT.

Vanwart, J.
In Chambers.

KELLY V. KELLY.

[Nov. 18, 1897.

Justices Court-Evidence-Title to land-Consent does not give jurisdiction. Action in a Justices Court on a promissory note by endorsee against maker (the note having been endorsed to plaintiff after maturity). The defendant disputed liability on the ground that he had given the note for cordwood,

which had been cut on land owned by A., but which he discovered had been cut on Crown land adjoining A.'s lot, and on which defendant had a license from the Crown to cut. There were no lines run between the lots in question, and on the trial the issue was as to the title to the land on which the wood was cut, defendants' counsel stating that he would not object to the Justice's jurisdiction on the ground of the title to land coming in question. Defendant, subject to objection, gave evidence of his license to cut without producing the license. The Justice found that the wood was cut on the Crown land, but gave a verdict for the plaintiff for the amount of the note, less $4, deducted for stumpage. Defendants' counsel, on review, relied solely on the ground that the Justice having found that the wood was cut on the Crown land on which defendant held a license to cut there was no consideration for the note.

Held, that the evidence of the license being improperly estimated defendant had failed to make out a good defence, but that there must be a non-suit on the ground of the title to land coming in question, notwithstanding the agreement of the parties that the question should be tried by the Justice.

C. E. Duffy, for plaintiff. C. W. Beckwith, for defendant.

North-West Territories.

SUPREME COURT.

WESTERN ASSINIBOIA JUDICIAL DISTRICT.

WOLF v. KOCH.

Richardson, J.] [Nov. 4, 1897. Practice-Judicature ordinance-Default judgment Order dispensing with production of original writ-Endorsement of service of writ-Motion to set aside judgment-Irregularity.

Judgment in default of appearance. Material: Affidavit of bailiff dated Feb. 4th, 1895; of service on defendant at his residence; of copy of writ and statement of claim annexed to affidavit. On an affidavit of sheriff that bailiff had informed him he served original instead of copy of writ, an order, dispensing with production of original was made on April 6th, 1895, date of judgment, by Judge in Chambers was tried according to s. 30, sub-sec. II of the Judicature Ordinance. Original writ was not annexed to affidavit of bailiff; but copy writ bearing no endorsement signed by him, but merely an unsigned endorsement in handwriting of sheriff.

Affidavits filed on behalf of defendant deposed that he never resided at alleged place of service, that he was never served with writ or copy, and that he first became aware of proceedings by seizure by sheriff Sept. 21st, 1897, under writs of execution issued April 6th, 1895.

Held, that the weight of evidence showed non-service, that no affidavit of service had been filed in compliance with s. 80 of Jud. Ord. since the affidavit required was one of facts within deponent's own knowledge, and that affidavit of sheriff did not remedy defect in bailiff's affidavit, that Rule 15 of Order 9 of Rules of Supreme Court, England, 1883, is applicable in N.W.T. and

requires endorsement of service of writ, and that the application was made within a reasonable time. Further that the order made under s. 30, sub-sec. 11, did not dispense with proper proof of service of the original writ.

Order setting aside judgment, costs to defendant, no action against sheriff. Rimmer, for defendant. Ford Jones, for plaintiff.

Book Reviews.

American Law Review.

Mr. Irving Browne writes an article for the last number on “The Allurement of Infants" in his usual sprightly style. The policy of modern law for the protection of juveniles, and the leading cases on the subject are discussed. The following is his conclusion: "Let me suggest that the leaning of judges in this matter is probably much influenced by their observation of their own small sons if they have any. Years ago I regarded the prevailing doctrine of the turntable case askance, but since I have been blessed and bothered with a grandson, I have become quite reconciled to it, and I own my allegiance to the Kansas judge who said: 'Everybody, knowing the nature and instincts common to all boys, must act accordingly.'"

Political Science Quarterly. Gunn & Co., 9 & 13 Tremont Place, Boston.

The December number of this excellent periodical, edited by the Faculty of Political Science of Columbia University, contains articles on a variety of subjects of interest to the general reader, and concludes with a valuable record of political events.

The Living Age, Boston, U.S.

During the year now closing the Living Age has embraced a wider field than heretofore. The periodical literature of France, Germany, Spain, Italy, and other continental sources, has been searched, and choice selections given from prominent writers. In addition a monthly supplement has been given, devoted to leading American periodicals and readings from new books, thus giving to the reader for the past year over 3,500 pages of most interesting reading. In the next volume the new and striking serial story "With All Her Heart," translated expressly for the Living Age, from the French of Rene Bazin, will be continued from week to week until completed.

Published by the Living Age Co., Boston, at $6 a year postpaid.

BOOKS RECEIVED.

Beach on Trusts and Trustees-Central Law Journal Co., St. Louis, Mo., U.S. Schoules on Bailments-Little, Brown & Co., Boston, U.S.

Alger on Promoters-Little, Brown & Co., Boston, U.S.

Gillett on Evidence-Bowen, Merrill Co., Indianapolis, U.S.

Law Quarterly Revnew-Stevens & Sons, London, Eng.

Wait on Engineering, &c., Jurisprudence-John Wiley & Sons, New York. Newell on Libel and Slander-Callaghan & Co., Chicago, U.S.

Legislative Power in Canada-By A. H. Lefroy. Toronto Law Book Co.