NEW BRUNSWICK.

En the Dicc-Admiralty Eourt.

[WATTERS, J., 6TH JUNE, 1891.

PURDY v. THE PARAMATTA.

Maritime law-Collision-Schooner hove to on port tack-Duty of vessel close hauled on starboard tack-Look-out-Fog-horns-Damages.

This was a case of collision, instituted by the owners of the schooner Mabel Purdy against the barque Paramatta, of St. John, N. B., for a collision which took place in the Bay of Fundy, about 2 o'clock p.m. on Tuesday 20th May, 1890. The wind at the time was blowing strong from south south-west. The weather was foggy, occasionally lighting up. At the time the Paramatta was first seen the schooner was hove to on the port tack under a reefed mainsail hauled on board and jib hauled to windward, her foresail and flying jib tied up, her head to the westward. The Paramatta was close hauled on the starboard tack heading from south south-east to south-east, and running in the direction of the schooner. The ship was under what her captain called snug canvas, viz.: foresail, fore upper and fore lower topsail, mainsail hauled up with both topsails on her. On her mizzen the spanker was set. Her jib and staysail were set. The ship had a deck load higher than her rails. The schooner was bound from the head of the bay to New York with a load of piling. Both vessels had tin mouth horns, which, it was stated, were blown regularly, but these horns did not appear to have been heard by the other vessel. The reason given for the schooner being hove to was that there was too much wind for her to run down through the north channel. The evidence showed that the ship did not alter her course but continued in the direction of the schooner, striking her on her starboard quarter and causing the damage complained of. The defence set up—(1) there was not a proper look-out on the schooner; (2) the schooner did not have a proper fog-horn properly going; (3) the schooner being on the port tack and

seeing the barque distant about half a mile made no effort to avoid the collision; (4) the schooner was short handed.

On the part of the schooner it was contended (1) that at the time the barque was first seen the schooner was hove to on the port tack practically motionless, going slightly to leeward; (2) that no measure was taken by those in charge of the barque to avoid the collision, and the schooner being hove to was unable to get out of the way; (3) the barque was in fault in not having a proper look-out, in not sounding her fog-horn, and in not keeping out of the way of the schooner.

WATTERS, J.-The barque, being under command, could easily have swung off one or two points, which would have brought her clear of the schooner's stern, and thus the collision would have been wholly avoided. It is therefore plain that the ship might by a very slight deviation from her course, after risk of collision was apparent, have avoided it, but she continued her course directly for the schooner, and only put her helm hard up and squared her main yard when the vessels were so close to each other that the accident was inevitable. Even then she almost cleared the schooner, striking her abaft the main rigging not far from the stern. It was strongly urged by the defendants' counsel that, inasmuch as the schooner was not provided with a proper fog-horn, as required by the regulations, she must be pronounced in fault and not entitled to recover in this action, and the decision of the Admiralty Court given in the case of the Love Bird, 6. P. D. 80, was cited for that purpose. I may here remark that R. S. C. c. 79, s. 5, differs materially from the section of the Imperial Act under which the case of the Love Bird was disposed of. I have, however, come to the conclusion, under all the evidence and circumstances of the case, that this collision was not occasioned or contributed to by the non-observance of the schooner in not having and blowing an efficient foghorn, but solely by the fault of the ship in not keeping a proper look-out, and by continuing her course unaltered until danger to the schooner became inevitable. I am satisfied that had a proper look-out been kept, the schooner would have been seen in ample time to have enabled the ship to adopt measures whereby she could easily have avoided the schooner altogether. I therefore must pronounce against the ship for damages and costs. I assess the damages at the sum of $2,250.

L. A. Currey, for the plaintiffs.

C. A. Palmer, Q.C., for the defendants.

MANITOBA.

In the Queen's Bench.

[FULL COURT.

In re LISGAR ELECTION.

COLLINS v. ROSS.

Elections-Dominion Controverted Elections Act-Preliminary objections— Address of petitioner insufficient—Petition not published.

Petition presented under the Dominion Controverted Elections Act, praying that it might be declared that the election of A. W. Ross as a member of the House of Commons for the electoral division of Lisgar was void.

The following, amongst other, preliminary objections were taken :

The name, residence, address, and occupation of the petitioner were not set out in the petition, nor was any information or means given of identifying him, whereby the respondent was prevented from discovering whether there were any objections to said petitioner.

At the time of the presentation of the petition at the office of the clerk of the Court or prothonotary, the petitioner did not leave a copy of the petition with the prothonotary for him to send to the returning officer of the electoral district for publication, nor did the petitioner furnish or pray to the prothonotary or the returning officer the expenses necessary for the publication of the petition, and the same was not published as provided by the Act.

Held, that the objections were fatal and the petition must be dismissed with costs.

Howell, Q.C., and Cameron, for the petitioner.
Haggart and Cassidy, for the respondent.

GENDRON v. MANITOBA MILLING AND BREWING CO. Foreign commission—Application to suppress depositions-Oath taken before unauthorized commissioner--Questions and answers not reduced to writing.

Application to suppress the depositions taken under a foreign commission.

Two grounds were stated: that the commissioner did not take the prescribed oath, and that the questions and answers were not reduced to writing as directed by the commission.

The commission was executed at Sherbrooke, P. Q. Before entering on his duties the commissioner took and subscribed an oath in the form indorsed on the commission, the jurat appearing in this form, "Sworn before us this 17th February, 1891, Cabana & Bowen, P. S. C." Appended, there was the seal of the Superior Court of Quebec. C. & B. were the joint prothonotaries of the Superior Court for the district.

Several affidavits were filed as to the powers of the joint prothonotaries to administer oaths.

Held, that the joint prothonotaries had no authority to administer the oath in the present case; they were not appointed under Con. Stat. Man. c. 7, ss. 67, 69.

The oath was certainly one in or concerning a cause, matter, or thing depending in the Court of Queen's Bench in Manitoba, and no person could have authority to administer an oath in a cause or proceeding depending in that Court, unless he derived that authority from some source in Manitoba.

The taking of the oath by the commissioner before entering on the discharge of his duty is imperative, unless expressly dispensed with by the order. Here the oath which he professed to take was taken before persons who had no jurisdiction or authority to administer it, and it was the same as if no oath had been taken.

The commission directed the commissioner to reduce the questions and answers to writing. This he did in the case of some witnesses only; the evidence of others was taken down in narrative form.

Held, a valid objection.

Order of referee suppressing depositions affirmed, and appeal dismissed with costs to be costs in the cause to the defendants in any event.

Patterson, for the plaintiff.

Cumberland, for the defendants.

ONTARIO.

Supreme Court of Judicature.

COURT OF APPEAL.

IN CHAMBERS.

[OSLER, J.A., 8TH JUNE, 1891.

BEGG v. ELLISON.

Parties-Appeal to Court of Appeal Notice of cross-appeal-Third parties— Rule 821-Variation of order appealed from.

An order was made by a local Judge, upon the ex parte application of the defendant, allowing him to serve a third party notice, but, upon the application of the third parties so called upon, this order was set aside by an order of the Master in Chambers, which was affirmed by a Judge at Chambers and by a Divisional Court upon the appeal of the defendant. The Court, however, at the same time made an order staying the proceedings until the plaintiffs should add the third parties as defendants, and from this order the plaintiffs appealed to the Court of Appeal, not making the third parties respondents. The defendant, however, served notice of cross-appeal upon the plaintiffs and the third parties by which he asked that the order made by the local Judge might be restored; and the third parties moved to strike out this notice.

Held, that the word "parties" in Rule 821 means persons who are parties to the action or proceeding in question on the appeal; and that what the defendant sought by the cross-appeal was not a variation of the order appealed from, which is what Rule 821 speaks of, but the substitution of one of an entirely different character; and the notice was struck out.

Aylesworth, Q.C., for the third parties.

W. M. Douglas, for the defendant.

VOL. XI. C.L.T.