DECISIONS FROM THE COURTS OF QUEBEC AND THE MARITIME PROVINCES.*

Assignments and Preferences.]-The first point decided by Barker, J., in an interesting judgment in Tooke Bros. Limited v. Brock & Patterson Limited (N.B.), 3 E. L. R. 270, is, that an amendment may properly be made in a suit Legun by creditors to set aside as preferential certain chattel mortgages made by their debtor to the defendants, by adding his assignees for the benefit of creditors as parties plaintiff's, an assignment having been made under the Assignments and Preferences Act, C. S. N. B. c. 141, pendente lite. The second point is, that the plaintiffs who commenced the suit as creditors of P., the insolvent, had a right to base their suit solely on the ground that, as against them, the preferential mortgages were void under s. 2 of the Act. Its provisions being similar to those of the Ontario Act, AttorneyGeneral for Ontario v. Attorney-General for Canada, [1894] A. C. 189, was regarded as sufficient authority for holding that the Act was not ultra vires. Upon the merits of the case, it was found that the debtor was insolvent, at the time he made the chattel mortgages, to the knowledge of the preferred creditors, and that a previous agreement to give them, but not until required, in order to save the credit of P., could not be relied upon as in any way assisting the defendants or rebutting the presumption of fraud which they had to meet, the assignment having been made within 60 days after the mortgages.

Company. In Farrell v. Manchester (N.B.), 3 E. L. R. 244, it was sought to make two directors responsible for the misrepresentations of an agent of an incorporated company, whereby the plaintiff was induced to purchase shares,

* Short notes of the most important cases in Volume III. of the Eastern Law Reporter, No. 6, pp. 241 to 296, inclusive.

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but the proof of authorization or approval by the directors of the statements contained in a sort of private prospectus issued by the agent which was before the plaintiff when he bought, failed, and the action was dismissed as against the directors. The company was also made a defendant, and rescission of the sale of the shares as against the company, and, as incidental thereto, restitution of the money paid, would have been adjudged by Barker, J., had he not deemed that the plaintiff had precluded himself by his laches from that relief. The bill was not filed until, according to one view of the facts, 11 months, or according to another 8 months, after the plaintiff had discovered the falsity of the representations upon which he bought, and either period was considered too long for the plaintiff to sleep upon his rights.

Criminal Law.]-Rex v. Hamelin (Que.), 3 E. L. R. 279, is noteworthy because of the extraordinary decision of the magistrate presiding over the preliminary investigation, who discharged the accused from custody, on application by their counsel, because the warrants charging them with manslaughter and rioting were irregular, inasmuch as they did not have affixed to them the stamps required by law. This decision has been held up to scorn by the press throughout . the Dominion. The magistrate refused to reserve a case; but the Court of King's Bench, in a short judgment delivered by Trenholme, J., gave leave to appeal and directed a case to be stated, on the application of the Crown, holding that the decision of the magistrate was upon a question of law arising upon the preliminary proceedings.

Witness's Religious Belief.]-After a witness had been sworn in the usual way, but before he gave any evidence, his competency as a witness was challenged on the ground of his religious belief, and Bell v. Bell, 34 N. B. R. 615, was cited as shewing that his evidence should be rejected. He was interrogated as to his belief, and the result of his answers was that he believed in a Supreme Power-a God as

defined by Christ's teaching in the New Testament; he believed in heaven and hell, and in a future state of rewards and punishments, but he did not believe that he was under any greater obligation to tell the truth by reason of taking the ath, and he did not believe that a person who swore falsely would be punished in the hereafter. "It would be a mistake,” said Barker, J., "in this age, with its almost endless variety of religious thought and beliefs, to refine too much in determining as to the competency of a witness. The taking of an oath implies a belief in God, to whom an appeal is made. The two important points, I think, are a belief in God and a belief in a future state of rewards and punishments. The witness believes in both. The witness in Bell v. Bell did not believe in either. I think this was a competent witness:" Farrell v. Manchester (N.B.), 3 E. L. R. 244.

EDITORIAL REVIEW.

The Prisoner and the Dock.

A memorandum from the Department of the AttorneyGeneral for Ontario calls attention to the "uncertainty regarding the cases in which defendants when on trial must stand in the dock," and suggests that it is "desirable that the practice should be definitely settled." In Archbold's Criminal Pleading, 23rd ed., p. 186, the rule is thus expressed: "No trial for felony can be had except in the presence of the defendant, and he must, it is said, stand in the dock to be tried;" citing Regina v. St. George, 9 C. & P. 483; Regina v. Douglas, C. & Mar. 193; Regina v. Zulueta, 1 C. & K. 215, 1 Cox 20. In Roscoe's Criminal Evidence, 12th ed., p. 171, it is said: "In all cases of felony the prisoner must take his place within the dock." As, under the Criminal Code, cases are no longer divided into felonies and misdemeanours, it is suggested that the reasonable course would be to hold that the rule as to the prisoner standing in the dock should apply in all cases where on conviction the punishment may be as much as 5 years' imprisonment. It is not pointed out in the departmental memorandum, but it is the fact, that the present Chief Justice of the King's Bench and the late Mr. Justice Rose, adopted the rule now suggested immediately after the coming into force of the Criminal Çode.

Another Toronto Railway Case before the Privy Council.

Before the Judicial Committee of the Privy Council in July (present, Lord Robertson, Lord Collins, Sir Arthur Wilson, Sir Elzear Taschereau, and Sir Alfred Wills), a motion in Toronto R. W. Co. v. King and another, by the Toronto Railway Company, for special leave to appeal from a decision of the Court of Appeal for Ontario, was heard.

Sir Robert Finlay, K.C., and Mr. D. L. McCarthy (of the Ontario Bar) appeared for the petitioners; Mr. J. H. Moss (of the Ontario Bar) for the respondents.

On the 21st December, 1905, a collision occurred between one of the tramears of the Toronto Railway Company and a covered delivery van driven by David King, at the intersection of Yonge and Adelaide streets, Toronto. As the result of the collision King was thrown out and injured, and subsequently died. An action was brought by his representatives against the company, claiming $10,000 damages, on the ground of alleged negligence on the part of the company. The action was tried on the 16th and 17th January, 1906, before Chief Justice Meredith and a jury, when judgment was directed to be entered for the plaintiffs for the sum of $4,500 and costs, upon the findings of the jury. The petition stated that at the conclusion of the plaintiffs' case counsel for the company attempted to move for a nonsuit, on the ground that upon the admitted facts no evidence of negligence was disclosed. The Judge, however, declined to nonsuit, and on the 18th January he delivered judgment, in which he said that, as there was "some slight evidence of negligence," he had directed the case to go to the jury, but he doubted whether an appellate court would take the same view. The company appealed to the Court of Appeal for Ontario, which gave judgment directing a new trial, but two of the Judges dissented, being of opinion that the case should have been withdrawn from the jury and the plaintiffs nonsuited. From that judgment the company endeavoured to appeal to the Supreme Court of Canada, but it was decided that that Court had no jurisdiction to hear the appeal. An application was then made by the company to a Judge of the Court of Appeal in Chambers, to allow their bond as sufficient security on an appeal which they proposed to prefer to his Majesty in Council. The application was referred to the full Court. That Court suggested to the plaintiffs' counsel the advisability of moving before the Master in Chambers to amend their claim by re