arbitrator appointed for that township, having refused to act until it should be decided whether the Act respecting disputes under the drainage laws, 54 V. c. 51, prevented arbitrators appointed in drainage matters previous to the passing of the Act, from continuing to act.

Folinsbee, for the motion.

W. R. Meredith, Q.C., contra.

*

GALT, C.J.-The question involved in this application is of considerable importance, viz., what is the effect of c. 51 of 54 V., entitled "An Act respecting disputes under the drainage laws." There is no dispute in this case as to the facts. * * A careful perusal of the statute satisfies me that its provisions are entirely prospective. There is no reference in the statute to any matters then being proceeded with before arbitrators, and doubtless there were many in which a great expense had been incurred. The clause of the statute which seems to have occasioned the most difficulty is the 4th, which enacts that "The said Referee is hereby substituted for the arbitrators provided for by the drainage enactments aforesaid." That, however, seems to me to mean only in cases arising after the passing of the Act and after the appointment of the Referee. The statute is not imperative as to the appointment of a Referee; it is permissive; it is that "the Lieutenant-Governor in Council may appoint a Referee for the purpose of the drainage laws; " and until such appointment was made it is quite clear that the provisions of the statute could have no effect. * * * In my opinion, therefore, Mr. Fleck is still the arbitrator of the township of Metcalfe, and, as it appears from his affidavit that he is quite willing to act as arbitrator after a decision is given respecting the right of arbitrators to act, it is plain that no arbitrator should be appointed by the learned Judge. Consequently this motion must be granted; but as it was made simply for the purpose of obtaining a decision as affecting the construction to be placed upon the statute, I think there should be no costs. In case Mr. Fleck should hereafter refuse to act as arbitrator, there is no reason why another application should not be made to the learned Judge.

[FERGUSON, J., 21ST SEPTEMBER, 1891. GREER v. HUNTER.

Counter-claim-Exclusion of—Action for slander—Counter-claim for assault. In an action for $2,000 damages for slander, the plaintiff pleaded an assault and battery in mitigation of damages, and also counter-claimed for $2,000 damages for the assault and battery.

Held, that the claim and counter-claim could not conveniently be tried together; and an order under Rule 374 excluding the counter-claim was affirmed.

It was imposed as a term that the defendant should be at liberty to bring a separate action for the assault and battery, and if he did so that the plaintiff in this action should not be entitled to judgment without a Judge's order.

Furlong, for the plaintiff.

C. W. Kerr, for the defendant.

KENNEDY v. BOWES.

Discovery-Married woman defendant-Right of plaintiff to examine as to separate estate at date of contract-No allegation in pleading.

An appeal by the defendant from an order of the Master in Chambers requiring the appellant to attend for re-examination at her own expense, she having refused, under the advice of counsel, to answer certain questions upon her examination for discovery before trial.

The defendant was a married woman, and the action was upon the covenant for payment contained in a mortgage.

The statement of claim alleged that the defendant was a married woman and was. possessed of separate estate; but it did not allege that she was possessed of separate estate at the time she made the covenant sued on; and the questions which the defendant declined to answer were as to what separate estate she had at the time she made the covenant.

The appeal was argued before FERGUSON, J., in Chambers on the 21st September, 1891.

Hilton, for the defendant. Under Moore v. Jackson, 16 A. R. 431, it is necessary to allege and prove that a married woman

defendant had separate estate at the time of her contract, and the plaintiff, not having alleged it, cannot interrogate the defendant as to it.

Roche, for the plaintiff, contra.

FERGUSON, J., held that the plaintiff had the right to the discovery he sought, under the wide terms of Rule 487, and therefore affirmed the Master's order.

[STREET, J., 14TH AUGUST, 1891.

In re GARBUTT.

Extradition-Evidence-Alibi-Identity-Extradition Judge - Junior Judge of County Court—R. S. C. c. 142, s. 6, s-s. 2, directory-Forgery-Infor mation-Variance from proof-Christian name of indorser—R. S. C. c. 174, ss. 57, 58, 70-Reading over foreign depositions to prisoner.

Where evidence is given by the prosecution before an extradition Judge positively identifying the prisoner, the Judge cannot receive evidence on behalf of the prisoner to shew an alibi; for that would be in effect trying the guilt or innocence of the prisoner; if the evidence given by the prosecution is sufficient to justify the committal of the prisoner he must be committed under s. 11 of the Extradition Act, R. S. C. c. 142.

Semble, that a prisoner is entitled to go into evidence to disprove his identity; but that means his identity with the person named in the warrant, not his identity with the person who actually committed the extradition crime.

The junior Judge of a County Court is a Judge of a County Court, and has the functions of an extradition Judge.

Re Parker, 19 O. R. 512, followed.

R. S. C. c. 142, s. 6, s-s. 2, is directory only; and the neglect of a Judge to forward to the Minister of Justice a report of the issue of a warrant, as required by the sub-section, is not a ground for the discharge of the prisoner.

The information upon which a warrant issued committing a person to await extradition for forgery stated the Christian name of the indorser of the forged instrument as Albert, whereas when the instrument was proved it appeared to be James.

Held, that the variance was immaterial under ss. 57 and 58 of R. S. C. c. 174, which are made applicable to extradition proceedings by s. 9 of R. S. C. c. 142.

It was objected by the prisoner that certain depositions taken abroad and put in by the prosecution were not read over to the prisoner, as required by s. 70 of R. S. C. c. 174.

Held, that the objection was not one which as a matter of law would entitle a prisoner to be discharged; and it should not be given effect to as a matter of discretion because it was entirely technical in its character.

W. G. Murdoch, for the prisoner.
J. W. Curry, for the prosecution.

[MEREDITH, J., 1ST JUNE, 1891.

RICHARDSON v. MARK.

Mechanic's lien-Action to enforce-Settlement and dismissal of action by consent-Right of other lien-holders to prosecute action.

This was an action to enforce a mechanic's lien, begun on the 17th December, 1889, by James Richardson, who claimed a lien for material supplied against the defendant Mark, contractor, and the defendant Gibson, land-owner.

Pleadings were delivered and the action came on for trial before STREET, J., at the Toronto Spring Assizes, 1891, when by consent of the parties judgment was pronounced and entered dismissing the action.

Upon becoming aware of this, David McCurdy, who had filed a lien for wages but had done nothing during the progress of the action, moved for an order for leave to proceed with the action.

The motion was argued before MEREDITH, J., in Chambers on the 1st June, 1891.

J. M. Clark, for the motion. The provisions as to notice in s. 11 of the Mechanic's Liens Act, R. S. O. c. 126, having been complied with, under s. 9, s-s. 3, the wage-earner has a priority. Under s. 30 this action must be construed as being for the benefit of all lien-holders. Inasmuch as the applicant could not have proceeded during the pendency of the action, he should not be deprived of his rights by an agreement with reference to which he was not consulted and of which he knew nothing. I refer to McPherson

v. Gedge, 4 O. R. 246; Holmested's Mechanics Lien Act, pp. 94, 95, 141.

Allan McNab, for the defendants. The action, having been finally dismissed, cannot be revived, no fraud being suggested or proved. The defendants in fact had a good defence on the merits. The decisions as to actions to set aside fraudulent conveyances apply to this case.

J. G. Holmes, for the plaintiff. If the order is made, security for costs should be given by the applicant.

Clark, in reply. The judgment being by consent, there was no adjudication as to the merits. The applicant makes out a prima facie case, and that is sufficient. The applicant desires to carry on the action at his own risk and in his own name, and security for costs should therefore not be ordered.

MEREDITH, J., ordered that David McCurdy should be at liberty to prosecute this action in his own name in substitution for that of the plaintiff for the benefit of himself and all other lien-holders of the same class, and that all necessary amendments for that purpose should be made in the pleadings and proceedings in the action.

Costs in the cause.

NOVA SCOTIA.

En the Supreme Court.

OAKES v. BLOIS.

Canada Temperance Act-Action against informant for false imprisonment— Evidence of active interference in procuring arrest, and opposing discharge, etc., should go to the jury.

The defendant laid an information under which the plaintiff was convicted of selling intoxicating liquor in violation of the Canada Temperance Act, and was ordered to pay a fine of $50 and $11.50 costs, and was subsequently arrested and imprisoned under a warrant issued in the absence of sufficient distress.

It appeared that the defendant, in addition to laying the information, attended at the trial and gave evidence against the plaintiff, described himself as the prosecutor, was active in pro