process of summer fallowing or hand-picking, is no evidence of waste, but only of ill-husbandry.

The fact that there is an Ontario statute for the prevention of the spread of noxious weeds, does not make any difference in this respect.

Judgment of STREET, J., 17 Occ. N. 380, affirmed.

N. Ferrar Davidson, for the plaintiff.

D. W. Dumble, for the defendants.

[BOYD, C., ROBERTSON, J., MEREDITH, J., 8TH FEBRUARY, 1898.

REGINA v. HAMMOND.

Criminal law-Evidence voluntarily given at coroner's inquest-Admissibility at subsequent criminal trial-56 V. c. 31, s. 5—Courts of co-ordinate jurisdiction-Decisions of.

Crown case reserved.

The Canada Evidence Act, 1893, 56 V. c. 31, s. 5, enacts: "No person shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him. Provided, however, that no evidence so given shall be used or receivable in evidence against such person in any criminal proceeding thereafter instituted against him other than a prosecution for perjury in giving such evidence."

Held, MEREDITH, J., dissentiente, that this applies to any evidence given by a person under oath, although he may not have claimed privilege.

Regina v. Williams, 28 O. R. 583, 17 Occ. N. 376, not followed.

Regina v. Hendershott, 26 O. R. 678, approved.

The evidence in this case was given before the coroner, who had told the prisoner that "it was not necessary to be examined under oath unless he wished to be so, and that any evidence taken might be used against him." The prisoner, however, said that he wished to give evidence, and was sworn in the usual way, and gave evidence which was afterwards used to fix criminal liability upon him.

Held, also, that as the Courts of appeal for criminal cases are now constituted, the decision of the Judges of one Court is not binding on the Judges sitting in another Court of the same jurisdiction.

F. F. B. Johnston, Q.C., for the prisoner.

J. R. Cartwright, Q.C., for the Crown.

In re

[BOYD, C., MEREDITH, J., 9TH FEBRUARY, 1898.

FORSTER-BATTISBY v. WITHERSPOON.

Costs-Scale of Cause removed from Surrogate Court-Order of transfer — Terms-Consent judgment—Costs out of the estate.

An order transferring a cause or proceeding from a Surrogate Court into the High Court contained a clause providing that in the event of the defendant, the applicant for the order, failing to establish his defence, his costs, if any were allowed him, should be on the Surrogate Court scale.

By a consent judgment, which recited the pleadings and proceedings, and adjudged that the will which was disputed by the defendant was the last will of the testatrix, and should be admitted to probate, it was also adjudged that the costs of all parties should be paid out of the estate.

Held, upon appeal from taxation, that the defendant was bound by the order of transfer, and his costs should be taxed on the scale of the Surrogate Court.

L. G. McCarthy and D. L. McCarthy, for the appellant.
C. J. Holman and Patullo, for the respondents.

[10TH FEBRUARY, 1898.

VIDEAN v. WESTOVER.

Appeal — Waiver—Acting on judgment— Quashing appeal—Costs. An appeal from the decision of FERGUSON, J., ante 35, was quashed, following International Wrecking Co. v. Lobb, 12 P. R. 207, and Keith v. Keith 25 Gr. 110, because the defendant was held to have waived his right of appeal by acting upon the

judgment in obtaining his costs out of the funds in Court, pursuant to the judgment, which costs, with the plaintiffs' costs, also paid out, exhausted the fund.

The appeal was quashed without costs, as no motion to quash was made by the respondents.

Tremeear, for the appellant.

C. J. Holman, for the respondents.

In re BEATTIE v. HOLMES.

Prohibition-Division Court--Assignments and preferences-Action by assignee for creditors to recover money paid to a creditor-R. S. O. 1897, c. 147, s. 10-Jurisdiction of Division Court.

An appeal by the defendants from the order of MEREDITH, C.J., ante 68, dismissing a motion for prohibition to the 3rd Division Court in the county of Huron. The plaint in the Division Court was by the assignee for creditors of one Hanna to recover $13.39 from the defendant, a creditor of Hanna, to whom it was paid by one Wilson, to whom Hanna had transferred a quantity of butter for the benefit of the defendant and others of his creditors. Wilson sold the butter and distributed

the proceeds among the creditors. The butter was sold in September for $1,800, and the proceeds distributed prior to the assignment to the plaintiff for the general benefit of creditors, made under the Assignments Act on the 2nd October. The transfer of the butter to Wilson was within sixty days of the assignment.

Held, affirming the decision of MEREDITH, C.J., that the plaintiff by his action had elected to avoid the transfer as to each of the creditors who had received a part of the proceeds. The transfer was divisible into as many parts as there were creditors. There was no dealing with Wilson except as a conduit through whom the butter might be turned into money and paid over to the beneficiaries. Each creditor might have the means of defending the payment made to him by showing such a state of facts as would rebut the presumption of fraud or preference. There was no common ground of defence by which the transfer as a whole was to be supported, and therefore there was no inquiry before the Division Court as to any matter not

within its competence, for the amount paid to each was within $100. It was not necessary to consider what might be the result if the transfer as a whole had to be set aside.

D. L. McCarthy, for the defendant.

Aylesworth, Q.C., for the plaintiff.

[MEREDITH, C.J., ROSE, J., 14TH FEBRUARY, 1898.

CHRISTY v. ION SPECIALTY CO.

Pleading-Striking out-Disclosing no reasonable answer-Rule 261Amendment.

An appeal by the plaintiff from an order of BoYD, C., in Chambers, dismissing a motion by the plaintiff under Rule 261 to strike out paragraphs 13 and 14 of the statement of defence in an action to restrain the infringement of a patent for a bicycle saddle, on the ground that they disclosed no reasonable defence and were embarrassing. These paragraphs set up the invalidity of the first claim of the plaintiff's patent, and were, admittedly, an answer to the original statement of claim; but the plaintiff had amended his statement of claim by omitting his assertions based upon the first claim in the patent, and the defendants did not amend their defence.

Bristol, for the plaintiff.

W. Cassels, Q.C., for the defendants, contended that one I claim of the patent being bad as a matter of law, the whole patent was bad, subject to the power of the trial Judge, under the Patent Act, to discriminate.

THE COURT held that it was only in a very clear case that a pleading should be struck out as showing no reasonable ground of action or defence, and it could not be said that this was manifestly such a case; and they also doubted whether a

defence which was

originally good could be struck out after the

plaintiff had amended, and whether it was the duty of the

defendant to amend.

Appeal dismissed with costs to the defendants in any event.

[ROBERTSON, J., 10TH JANUARY, 1898.

HOEFNER v. CANADIAN ORDER OF CHOSEN FRIENDS.

Life insurance—Benefit society—Certificate—Non-compliance with rules as to initiation.

Action on a relief fund certificate for $1,000 issued by the defendants, who were incorporated under R. S. O. 1887, c. 167, on the life of one Hoefner, deceased, in favour of the plaintiff. The deceased was balloted for and elected at a meeting of a subordinate council of the defendants, but died before being duly initiated according to the rules of the Order, before a duly constituted court of the council, though an irregular initiation had taken place before the chief councillor and the prelate of the Order, and the subordinate council falsely recorded in their minutes that the deceased had been initiated at a certain meeting.

Held, that the defendants were not bound by the irregular acts of the subordinate council, which could not, nor could its officers, waive the requirements of the society's laws in respect to the relief fund, and, as the deceased had not been properly initiated, the plaintiff could not recover..

Teetzel, Q.C., and McClemont, for the plaintiff.
Aylesworth, Q.C., and Lyman Lee, for the defendants.

[STREET, J., 1ST FEBRUARY, 1898.

MILLER v. BATTY.

Limitation of actions-Ejectment-Tenancy at will-Commencement of stututory period.

An action of ejectment and to recover rent and mesne profits. The defendant entered into possession in July, 1886, npon a promise from his father, the true owner, to give him the land, and had remained in possession ever since, without disturbance, and without payment of rent, or anything in the nature of rent, and without any acknowledgment of his father's title. This action was begun on the 19th May, 1897, by the executors and devisees under the will of the father.