to account for the money, and no more could they call upon Wenman to do so.

Action dismissed against James Barbour and Mrs. Barbour, without costs. Wenman would be entitled to his costs, including those of appearing at the trial. It was not until then that the plaintiffs admitted the correctness of his submission as to the amount remaining due from him.

J. A. Taylor, for the plaintiffs.

H. Acheson, for the defendants the Barbours.

A. D. Cameron, for the defendant Wenman.

[DUBUC, J., 5TH APRIL, 1898.

DOUGLAS v. PARKER.

County Court appeal-Right of appeal-Amount in question—Jurisdiction. The action was brought in a County Court to recover the value of thirteen or fourteen tons of hay belonging to the plaintiff, alleged to have been taken by the defendant. The jury returned a verdict for the defendant, and the plaintiff appealed.

Held, that the appeal should be dismissed with costs.

A Judge in appeal has power to draw inferences of fact and to decide all questions of fact as a jury might do, as well as questions of law. On the evidence adduced the hay was worth very little; its real value was not more than fifty cents, or at the utmost one dollar a ton. The plaintiff would not be entitled to recover, in any event, more than $14.

By s. 315 of the County Courts Act, as amended by 59 V. c. 3, no appeal lies when the amount, or the value of the goods in question, is under $20. In Aitken v. Doherty, 11 Man. L. R. 624, 17 Occ. N. 349, it was held by the full Court that "the amount in question" means the amount that the plaintiff might possibly have recovered.

McMeans, for the plaintiff.

Elliott, for the defendant.

[KILLAM, J., 12TH APRIL, 1898.

MCILROY v. McEWAN.

County Court-Counterclaim in excess of jurisdiction—Abandonment of excess-Transfer to Queen's Bench.

Motion to transfer the action from a County Court to the Queen's Bench, on the ground that the counterclaim filed by the defendant was beyond the jurisdiction of the County Court.

Held, that the application should be dismissed without

costs.

Under the County Courts Act, R. S. M. c. 33, s. 67, a party is only entitled to set up a counterclaim for an amount beyond the jurisdiction of a County Court by abandoning the excess. Apparently there had been no formal abandonment of the excess in this case, but, notwithstanding this, and apart from the question whether the mere act of putting in the counterclaim constitutes such an abandonment, a defendant cannot acquire a right to a transfer of the action from the County Court to the Court of Queen's Bench by filing a counterclaim for an amount beyond the jurisdiction. The condition to the right to set it up at all is the abandonment of the excess, in which case the counterclaim could not be said to involve matters beyond the jurisdiction of the County Court.

The excessive amount must either be deemed to be abandoned, or the counterclaim was improperly put in for the larger amount. In the former case the transfer is not authorized, and in the latter the defendant could not thus obtain a right to take away the plaintiff's right to sue in the County Court, nor should a Judge, as a matter of discretion, interfere to do so.

Hull, for the plaintiff.

Bradshaw, for the defendant.

IN CHAMBERS.

[KILLAM, J., 4TH APRIL, 1898.

MOORE v. KENNEDY.

Q. B. Act, 1895, Rules 334a, 665–Interlocutory judgment-Leave to defend-Defence on merits-Discretion of Judge.

An appeal by the plaintiff from an order of the Referee in Chambers setting aside the interlocutory judgment entered for the plaintiff upon payment by the defendant to the plaintiff of the costs of signing and entering judgment and of the costs of the application, except the costs of the examination of the defendant by the plaintiff.

Held, that the order of the Referee should not be disturbed, or other conditions imposed. The evidence did not show a defence upon the merits; but under Rules 334(a) and 665, a defendant is not obliged to show the existence of a defence upon the merits as clearly as was required in order to set aside a judgment in default of appearance under the Common Law Procedure Act. There is a discretion to let him in if a Judge thinks that, under the circumstances, he ought to be permitted to defend, as under Rule 596. Under both Rules, where a good defence is not sufficiently made out, terms may be imposed, but this is wholly discretionary, and not obligatory upon the Judge.

There was a bona fide intention to defend. There was a mistake as to the time of service, and an attempt to put in the defence, only one day too late. The action was one for damages, and not for the recovery of a debt. The judgment was interlocutory, and an assessment of damages must still be had.

The case appeared to be one in which it was not unreasonable to let the defendant in upon the terms imposed.

Appeal dismissed with costs to the defendant in any event. Phillips (Allen & Cameron), for the plaintiff.

Metcalfe, for the defendant.

NORTH-WEST TERRITORIES

En the Supreme Court.

[THE JUSTICES IN BANC, 11TH FEBRUARY, 1898. REGINA v. SKELTON.

Criminal law-Perjury-False statutory declaration-Indictment-Omission of statement of intent to mislead-Criminal Code-Forms-Preliminary inquiry-Evidence taken against three defendants-Amendment of indictment- Privilege of Crown prosecutor-Election as to method of trial -Right to re-elect after amendment—Admissibility of evidence-Statement on oath at preliminary inquiry-Authorized declaration—Canada Evidence Act, 1893, s. 26-Indictable offence-Joint declaration by three persons.

Crown case reserved by WETMORE, J., upon an indictment and conviction of the defendant for perjury, and heard by RICHARDSON, ROULEAU, and SCOTT, JJ.

The original charge was that the defendant at Battleford, on or about the 16th day of April, A.D. 1897, in a certain solemu declaration made voluntarily before a justice of the peace in and for the North-West Territories, did falsely, wilfully, and corruptly declare and state of J. B. M. to the effect and in the words following, that is to say:-" We," meaning the defendant and others, "know that he," meaning J. B. M., "kept in the Conservative committee rooms the Battleford list of voters that had been made out and posted by the enumerator. This, we believe, was done to allow the Conservative committee to examine and revise such lists, and also to prevent their being always open to examination by the public, as provided by law, and that by such action injury was done to the Liberal candidate."

Upon the defendant being arraigned upon this charge, he applied, before pleading to it, to quash it, because it did not allege, in the language of s. 147 of the Criminal Code, that the statement set out in such paragraph was one authorized or required by law to be made on solemn declaration; and because it did not allege that the statement was made with intent to

mislead; and because the offence set out was not founded upon the facts or evidence disclosed in the depositions taken at the preliminary examination, and the charge was not preferred by the Attorney-General nor by his direction nor consent, nor with the consent of a Judge; and because the preliminary inquiry was held against three persons, including the defendant, and not against the defendant alone.

The Crown counsel made a general application to amend, if necessary. The trial Judge refused to quash the charge, and stated that if the Crown wished to amend, the amendments should be specified.

The defendants then pleaded "not guilty," and elected to be tried by a Judge with a jury, and the Court was adjourned till the following day.

Next morning, at the opening of the Court, the Crown applied to amend by striking out the word "to" in italics at the end of the words quoted, and by adding the words "he, the said defendant, being then duly authorized by law to make any statements on solemn declaration (s. 147)."

The trial Judge allowed the amendments to be made, and a plea of "not guilty" was entered by the defendant to the amended charge.

The defendant's counsel then stated that he desired to withdraw his election to be tried by a jury, and to elect to be tried by a Judge alone, and asserted his right to re-elect, as he had been called upon to plead de novo; but the trial Judge refused to allow him to re-elect; and the trial proceeded with a jury.

but whatever you say will be

At the preliminary examination of the defendant before a justice of the peace, after the examination of the witnesses for the prosecution, the defendant was addressed by the justice in these words Having heard the evidence, do you wish to say any. thing in answer to the charge? You are not obliged to say any thing unless you desire to do so, taken down in writing, and may be given against you at the trial." Whereupon the defendant made a statement, but, before making it, he was, at his own request, sworn. The statement was taken down in writing and signed by the defendant, and was offered by the Crown in evidence and received at the trial, against the objection of the defendant.