running order the defendant was not bound to accept delivery of it, or to pay for it. It was said that by taking the machine and using it the defendant waived any right to insist on the performance of the condition, but the defendant could not, until he had tried the machine, know whether it was in good running order or not. He objected more than once that it was not, and men were sent by the plaintiffs' agent to put it in order. After they had worked on it with that object, what could the defendant do but try it again to see if the defects had been removed. It could not be said that he used it for an unreasonable time, or did more than was required to satisfy him that the condition had not been fulfilled, and then he notified the plaintiffs' agent. Howell, Q.C., for the plaintiffs. Pitblado, for the defendant. REGINA v. HERRELL. [9TH JULY, 1898. Liquor License Act-Second offence-Sufficiency of evidence-No evidence to prove previous conviction-Bias of magistrate. Rule nisi to quash a conviction of the defendant for a second offence against the Liquor License Act, R. S. M. c. 90. Three objections were taken by the rule: 1. That there was no evidence to sustain the conviction. It was argued that there was no evidence to identify the liquor sworn by the constable to be intoxicating liquor, with the liquor which was in the bottle which a boy delivered to the prosecutor as having been bought by him at the shop of the defendant. Held, that the evidence upon this was not satisfactory, but it could not be said there was no evidence on which the magistrate could act, and unless that could be held, his finding could not be interfered with: Regina v. Grannis, 5 Man. L. R. 153. 2. That there was no evidence to prove a previous conviction. VOL. XVIII. C. L.T. AA The information was laid charging a previous conviction. but the record of the depositions and proceedings before the magistrate contained nothing on the subject. Among the papers returned under the certiorari, there was a certificate which, it was contended, was sufficient under s. 200 of the Liquor License Act to prove the previous conviction. But there was no evidence proving the identity of the defendant with the person named in the certificate. Held, that when the conviction was of a second offence, with the increased penalties, the proceedings ought to show either that the accused admitted the previous conviction, or that the fact of such conviction and the identity of the accused were both proved. A magistrate has no right to act upon any personal knowledge he might be supposed to have; he must act upon evidence adduced before him. There was a total absence of evidence that the defendant, the particular person then before the magistrate on a charge, had ever been convicted. There was no evidence of identity, and in the absence of an admission of the fact by the defendant, that was essential. 3. That the magistrate was disqualified on account of bias and interest. It was alleged that the prosecution was at the instance of a society known as the Women's Christian Temperance Union, of which the magistrate was an honorary member. and to the funds of which he subscribed. It appeared, however, that, although the society on one occasion supplied the constable with money to be used in taking steps to discover cases of alleged illegal liquor selling, the society were not prosecutors in this case, but the prosecution was brought by the constable under instructions from the mayor. Held, that where the magistrate has no pecuniary or private interest in the subject matter of the controversy, and there is no sufficient evidence of actual bias, the question is whether he is so far connected with one of the parties as to be adjudging in what is directly or indirectly his own cause. There was no such connection in this instance. Conviction quashed. It could not be amended so as to make it a conviction for a first offence. Ashbaugh, for the defendant. Maclean, for the magistrate. ONTARIO.] Supreme Court of Canada. [14TH JUNE, 1898. ANDERSON v. GRAND TRUNK R. W. CO. Railways-Use of railway premises-Trespass-Passenger-Invitation-Neg. ligence-Station-Evidence. At a place called Lucan Crossing, on the line of the Grand Trunk Railway, passengers are received and set down, tickets being sold to and from such place. There is no regular station, but there is a small building, part of which is used for a waiting-room, and no right of way to the public highway is provided, passengers being obliged to cross the railway lines. M., on returning from London to a place about three miles from Lucan, found he could only get to the latter place, owing to a violent snow-storm, and arriving there started to walk to his home, but in going along the railway to reach the highway he was struck by a train and killed. In an action by the administrators of his estate for damages: Held, that, notwithstanding the user for many years of the lines by passengers for egress from the train, M. could not be said to be on the railway by invitation or license of the company, and the action would not lie. Judgment of the Court of Appeal, 24 A. R. 672, 17 Occ. N. 392, reversed. Osler, Q.C., for the appellants. Aylesworth, Q.C., for the respondents. JORDAN v. PROVINCIAL PROVIDENT INSTITUTION. Life insurance-Application-Representation-Materiality-Good faith— 55 V. c. 39, s. 33 (2), (3). The provisions of s.-s. 2 of s. 33 of the Ontario Insurance Corporations Act, 1892, requiring any condition or warranty VOL. XVIII. C.L.T. BB indorsed on the policy which provides that the contract of insurance shall be avoided by reason of statements in the application, to be limited to cases in which such statements may be material to the contract, do not require the materiality of the statement to appear on the indorsement; but the contract will only be avoided thereby if such statement is subsequently judicially found to be material under the following sub-section. A misrepresentation in such a statement, if so found to be material, will avoid the policy, notwithstanding that it was made in good faith, and in the conscientious belief that it was true. Judgment of the Court of Appeal affirmed. James Reeve, Q.C., and J. E. Day, for the appellant. QUEBEC.] KLOCK v. LINDSAY. Landlord and tenant-Loss by fire--Negligence-Legal presumption-Rebuttal of-Onus of proof-Lease, construction of—Covenant to return premises in good order—Art. 1629, C. C. A steam saw mill was totally destroyed by fire, during the term of the lease, whilst in the possession of and occupied by the lessees. The lease contained a covenant by the lessees 66 to return the mill to the lessor at the close of the season in as good order as can be expected considering wear and tear of the mill and machinery." The lessees, in defence to the lessor's action for damages, adduced evidence to show that necessary and usual precautions had been taken for the safety of the premises, a night-watchman kept there making regular rounds, and buckets filled with water kept ready and force pumps provided for use in the event of fire, and they contended that, as the origin of the fire was mysterious and unknown, it must be assumed to have occurred through natural and fortuitous causes, for which they were not responsible. It appeared, however, that the night-watchman had been absent from the part of the mill where the fire was first discovered for a much longer time than was necessary or usual for the making of his rounds; that during his absence the furnaces were left burning without superintendence; that sawdust had been allowed to accumulate for some time in a heated spot close to the furnace where the fire was actually discovered; and that on discovering the fire the watchman failed to make use of the water buckets to quench the incipient flames, but lost time in an attempt to raise additional steam pressure to start the force pumps, before giving the alarm. Held, that the lessees had not shown any lawful justification for their failure to return the mill according to the terms of the covenant; that the presumption established by Art. 1629 of the Civil Code against the lessees had not been rebutted; and that the evidence showed culpable negligence on the part of the lessees, which rendered them civilly responsible for the loss by fire of the leased premises. Murphy v. Labbé, 27 S. C. R. 126, approved and followed. Judgment of the Court below affirmed. KING v. DUPUIS. Appeal-Jurisdiction—Amount in controversy-Opposition afin de distraire ―Judicial proceeding—Demand in original action—R. S. C. c. 135, 8. 29 -Contract-Sale of logs-Delivery of possession—Bailment to manufacturer. An opposition afin de distraire, for the withdrawal of goods from seizure, is a "judicial proceeding" within the meaning of s. 29 of the Supreme and Exchequer Courts Act, and on an appeal to the Supreme Court of Canada from a judgment dismissing such opposition, the amount in controversy is the value of the goods sought to be withdrawn from seizure, and not the amount demanded by the plaintiff's action or for which the execution issued. Turcotte v. Dansereau, 26 S. C. R. 578, followed. McCorkill v. Knight, 3 S. C. R. 233, Cass. Dig., 2nd ed., 694, referred to. Champoux v. Lapierre, Cass. Dig., 2nd ed., 426, and Gendron v. McDougall, Cass. Dig., 2nd ed., 429, discussed and distinguished. |