Held, that the judgment was properly a personal and not a proprietary one, having regard to her capacity to contract at the time of incurring the liability; and an application, upon habeas corpus, to discharge her from custody under an order made in the Division Court for her committal for failure to attend upon an after-judgment summons, was refused.

Scott v. Morley, 20 Q. B. D. 123, followed.

Re McLeod v. Emigh, 12 P. R. 450, distinguished, and doubted in view of Aylesford v. Great Western R. W. Co., [1892] 2 Q. B. 626.

Quare, whether such an order to commit is by way of punishment or execution.

Shepley, Q.C., for the applicant.

W. Cook, for the plaintiff.

[9TH APRIL, 1898.

WILSON v. BOULTER.

Parties-Indemnity-Relief over―Third parties-Identity of claims-Negligence-Breach of contract.

In an action to recover damages for injuries sustained by the plaintiff in the defendants' factory, in October, 1897, the negligence charged was that there was a defect in the lugs holding the door of a retort, whereby they were broken by the force of steam, and the plaintiff thereby injured from the escape of hot air, etc., and that the retort was dangerous because not furnished with a safety valve, whereby the lugs were exposed to an undue pressure of steam. The defendants sought to bring in as third parties the manufacturers of the retort, which was made in January, 1896, under written contracts, which contained no warranty, and from which it appeared that the defendants undertook to provide and put in their own fittings, including the safety valve.

Held, that the object of the Rules permitting a third party to be brought into an action is to prevent the same question. common as between the 'plaintiff and defendant and the defendant and the third party, from being tried on different occasions and in different forums, and there was no such identity here; there

could be no claim for indemnity against the manufacturers; if the defendants could recover at all, their damages would be assessed on a different principle from those of the plaintiff; and no relief over all could be attained.

Arnoldi, Q.C., for the proposed third parties.

R. McKay, for the defendants.

W. H. Blake, for the plaintiff.

[12TH APRIL, 1898.

DAVIDSON v. COCHRANE.

Gift-Money in savings bank—Assignment to infant-Want of noticeIncompleteness.

An appeal by Hugh D. Cochrane, an infant, by his next friend, from an order of the local Judge of Peterborough directing that garnishees should pay the judgment creditor the moneys due from them to the judgment debtor, and barring the claim of the appellant to such moneys.

The judgment debtor was the mother of the appellant; the moneys in question were in the Canadian Bank of Commerce to the credit of a savings bank account kept in the name of the mother; an entry of an assignment of the moneys to the infant was made in the savings bank book, but the account was still allowed to stand in the name of the mother, and the book itself was held for her, and she had the absolute control of it. No notice of the assignment was given to the infant or to the bank. The mother intended the money to be her son's and to be given or sent to him on his next birthday, when he would be of age.

Held, not a completed gift, the test being whether everything has been done that is required in law to be done to transfer the property.

Appeal dismissed with costs.

Poussette, Q.C., for the appellant.

R. R. Hall, for the judgment creditor.

[MEREDITH, C.J., 11TH MARCH, 1898.

SMEDLEY v. BRITISH AMERICA ASSURANCE CO. Discovery-Production of documents-Contradicting affidavit —Admissions of deponent—Examination for discovery—Documents mentioned in documents produced.

Where, in an action upon a fire insurance policy, the plaintiff, in making discovery of documents, referred in his affidavit to the application for the insurance, which, when produced, showed that at its date he had a set of books connected with the business in respect of which he was effecting the insurance, which books, however, he did not produce :

Held, that the books were material, and the reference to them in the document produced was sufficient ground for ordering a better affidavit on production.

Quare, whether the admissions of the plaintiff upon his examination for discovery as to the existence of documents other than those mentioned in his affidavit could be looked at to contradict the affidavit.

Washington, for the plaintiff.

h. D. Gamble, for the defendants.

[FERGUSON, J., 7TH APRIL, 1898.

In re REGINA ex rel. HALL v. GOWANLOCK.

Prohibition-County Court Judge-Municipal election inquiry-Municipal Act, s. 220, s-s. 4; s. 227-Proceedings by two relators-Duty of Judge as to second proceeding-Collusion-Jurisdiction-Waiver.

A motion by the respondent for an order continuing a prohibition granted by MACMAHON, J., against further proceedings in the County Court of York, before the senior Judge thereof, to inquire into the validity of the election of the respondent as an alderman for the city of Toronto.

There were two motions pending to try the validity of the election, one before the Master in Chambers in the High Court, which was first in time, and the other before the Judge of the County Court.

Such a motion may be made before the Judge of a High Court or before the Master in Chambers, or before a County Court Judge: s. 220, s.-s. 4, of the Municipal Act. By s. 227,"where more motions than one are made to try the validity of an election, all the motions shall be made returnable before the Judge who is to try the first of them, and the Judge may give one judgment upon all, or a separate judgment upon each one or more of them, as he thinks fit."

When the Judge of the County Court gave his fiat or leave to move, it was known that the motion was pending for the same purpose before the Master in Chambers in the High Court, yet the motion before the County Court Judge was not made returnable before the Master, but before himself. The Judge of the County Court proceeded with the motion before him, and, notwithstanding objections made, decided that there was before. him prima facie evidence that the first application, that before the Master, was collusive, and that the irregularities manifest on the face of the proceedings, as set out in the affidavits before him, were of such a nature as to support the suggestion that the proceedings before the Master were collusive, and that the irregularities were intended to produce an abortive result; and, such being the case, and the first proceedings being also taken in another Court, he was of opinion that his jurisdiction. was not ousted to try and determine the application before him.

Held, that s. 227 is positive and irrevocable in its terms. Collusion in respect of the first motion may be suggested or shown, and it may be suggested that apparent irregularities were intentional and with a view of bringing about an abortive result; but this, if established, could not prejudicially affect a motion by another relator returnable before the same Judge, for his duty would be to pronounce either one judgment upon all the motions before him, or a separate judgment upon each one or more, and if one motion failed for irregularity or collusion, it would not at all follow that another or the others would fail also. Although the County Court Judge had jurisdiction at the commencement, yet when he departed from the course he was bound to pursue, by not making the motion before him returnable before the Master, and by going on regardless of the existence of the first motion, he was proceeding without juris

diction, and the evidence was not sufficient to show that he right to object to the jurisdiction had been waived.

Order made continuing the prohibition with costs.

Marsh, Q.C., and G. G. S. Lindsey, for the respondent.
DuVernet, for the relator.

NEW BRUNSWICK

En the Supreme Court.

IN CHAMBERS.

[MCLEOD, J., 11TH APRIL, 1898.

LOGUE v. PRESCOTT.

Sheriff-Duty of—Replevin bond-Exhibiting to defendant.

The defendants in an action of replevin applied to the sheriff to see the bond; the sheriff refused to show it, upon the ground that the defendants had no right to see it until it was forfeited; and thereupon the defendants made application to the Court for an order to compel the sheriff to exhibit to them the bond.

Held, that a sheriff before he executes a writ of replevin is in duty bound to take a bond according to the terms of 60 V. c. 24, s. 354; and the defendant on application to the sheriff is entitled to see the bond before he takes any step in the cause.

C. N. Skinner, Q. C., for the sheriff.

A. A. Wilson, for the defendants.