The rule was made absolute to strike him off the roll of attorneys.

As to so much of it as sought to strike him off the roll of barristers, he was in the present case acting as an attorney and he could not, consistently with the decision of the Court in Re J. B., an Attorney, 9 Occ. N. 354; 6 Man. L. R. 19, be struck off the barristers' roll. It seemed an anomaly that a man unworthy to remain on the one could be left on the other, but the opinion of the Court was that under the statute, as it was worded, it must be so.

Howell, Q.C., and Wade, for the Law Society of Manitoba. Ewart, Q.C., for the attorney.

Exchequer Court of Canada.

[BURBIDGE, J., 22ND JUNE, 1891.

REGINA v. MCCURDY.

Expropriation of land- The Expropriation Act, R. S. C. c. 39—Assignment of rights of land expropriated previously acquired by lease—Effect of new leases between same parties-Compensation—Assignment of chose in action against the Crown-Evidence.

An agreement by a proprietor to sell land to the Crown for a public work, followed by immediate possession and, within a year, by a deed of surrender, is sufficient under the Expropria. tion Act, R. S. C. c. 39, s. 6, to vest the title to such land in the Crown, and to defeat a conveyance thereof made subsequent to such agreement and possession, but prior to such surrender.

Under s. 11 of the Act the compensation money for any land acquired or taken for a public work stands in the stead of such land, and any claim to or incumbrance upon such land is converted into a claim to compensation, and such claim once created continues to exist as something distinct from the land and is not affected by any subsequent transfer or surrender of such land.

Partridge v. Great Western Railway Co., 8 C. P. 97, and Dixon v. Baltimore and Potomac R. W. Co., 1 Mackey 78, referred to. 2. Where a chose in action was assigned, inter alia, for the general benefit of creditors and all the parties interested were before the Court, and the Crown made no objection, the Court gave effect to such assignment.

Quære-In the absence of acquiescence in such an assignment, are the assignee's rights thereunder capable of enforcement against the Crown?

3. In a case of expropriation the claimant is not obliged to prove by costly tests or experiments the mineral contents of his land.

Brown v. The Commissioners of Railways, 15 App. Cas. 240 referred to.

Where, however, such tests or experiments have not been resorted to, the Court or jury must find the facts as best it can from the indications and probabilities disclosed by the evidence.

VOL. XI. C.L.T.

W

[25TH JUNE, 1891.

MARTIN v. REGINAM.

Negligence-Injury to person on a public work-Negligence of servant of the Crown—Liability—Brakesman's duty in putting trespassers off railway

train.

1. The Crown is liable for an injury to the person received on a public work resulting from negligence of which its officer or servant, while acting within the scope of his duty or employment, is guilty.

City of Quebec v. The Queen, 2 Ex. C. R. 252; ante p. 33, referred to.

2. One who forces a child to jump off a railway carriage while it is in motion is guilty of negligence.

3. The fact that the child had no right to be upon such carriage is no defence to an action for an injury resulting from such negligence.

Attachment of debts-Adjusted insurance moneys-Division Court attachment -Appeal to Court of Appeal-Time for giving security-Service of garn. ishee summons-Local agent of foreign insurance company-Defence of garnishee-Notice of rejection-Time-R. S. O. c. 51, ss. 149, 178, 182, 185, 188-Con. Rule 935.

Security upon à Division Court appeal may be given by deposit after the ten days' delay allowed by s. 149 of the Division Courts Act, R. S. O. c. 51.

2. Service of a Division Court after judgment garnishee summons upon the local agent of a foreign insurance company, whose powers were limited to receiving and transmitting applications:— Held, effective, having regard to the provisions of ss. 182 and 185, s-s. 3, of R. S. O. c. 51.

3. Where the defence of the garnishee is put in after the expiration of the eight days from service of the summons allowed by s. 188, s-s. 2, of R. S. O. c. 51, so long as it is put in in sufficient time to enable the creditor to give notice rejecting it, and for the clerk to transmit such notice to the garnishee, the latter is not bound to attend the trial if such last mentioned notice is not given, and the creditor cannot proceed to the trial of the action until that is done.

4. A claim under an insurance policy for a loss, the amount of which has been settled and adjusted, is not a debt which can be attached under s. 178 of R. S. O. c. 51; and Con. Rule 935 does not apply to Division Courts.

Semble, even if it did, that such a claim could not be attached so long as the insurance company's right to have the money applied in re-building was open.

Aylesworth, Q.C., for the appellants.
C. L. Lewis, for the respondent.

High Court of Justice.

QUEEN'S BENCH DIVISION.

[THE DIVISIONAL COURT, 5TH JUNE, 1891.

In re MCKAY v. MARTIN.

County Court-Jurisdiction—Ascertainment of amount—R. S. O. c. 47, s. 19, s-s. 2—Transferring action to High Court—54 V. c. 14, retrospective.

An action was brought in a County Court to recover the amount of a broker's commission on the sale of land. The defendant disputed his liability and the action was tried by a jury, who found that the plaintiff was entitled to recover $250. The amount was not ascertained otherwise than by the agreement of the parties, as found by the jury.

Held, by Rose, J., that the amount was not ascertained within the meaning of R. S. O. c. 47, s. 19, s-s. 2, and the County Court had no jurisdiction.

Robb v. Murray, 16 A. R. 503, followed.

Held, by the Divisional Court, that the Act 54 Vic. c. 14, passed after the determination that the County Court had no

jurisdiction, was retrospective, and enabled the action to be trans

ferred to the High Court.

Carscallen, Q.C., for the plaintiff.

Furlong, for the defendant.

[19TH JUNE, 1891.

In re TIPLING v. COLE.

Prohibition-Division Court-Judge reserving judgment without naming day -Garnishee summons-R. S. O. c. 51, s. 144.

By s. 144 of the Division Courts Act, R. S. O. c. 51, it is provided that the Judge, in any case heard before him, shall, openly in Court and as soon as may be after the hearing, pronounce his decision; but if he is not prepared to pronounce a decision instanter, he may postpone judgment and name a subsequent day and hour for the delivery thereof in writing at the clerk's office.

Held, that this applies to the Judge's decision upon the hearing of a garnishee summons; that it is a most necessary and essential provision, and a strict compliance with it should always be observed and enforced.

And where the Judge reserved judgment, indorsing the summons "judgment reserved till," but did not name a subsequent day and hour for the delivery thereof, nor adjourn the hearing or trial of the cause, prohibition was granted to restrain further proceedings.

Shepley, Q.C., for the primary creditor.

Douglas Armour, for the garnishees.

COMMON PLEAS DIVISION.

[THE DIVISIONAL COURT, 27TH JUNE, 1891. CONNOLLY v. MURRELL.

Dicovery-Privilege-Communications between husband and wife-R. S. 0. c. 61, s. 8-Solicitor withdrawing from examination.

The decision of STREET, J., ante p. 112; 14 P. R. 187, was affirmed on appeal to a Divisional Court, composed of GALT, C.J.. and MACMAHON, J.

E. R. Cameron, for the plaintiff.
Talbot Macbeth, for the defendant.