yards, etc., the cattle reach the line of railway and are killed or injured, the company must pay for the injury unless they can establish affirmatively that the owner was guilty of negligence. The mere fact that the cattle were at large or the fact that they were not in charge of a competent person is not to prevent the plaintiff's recovery.

Middleton, for defendants. No one for plaintiffs.

Boyd, C.]

RE STEWART v. EDWARDS.

[Jan. 4. Division courts Judgment debtor-Married woman-Committal.

The committal of a judgment debtor in a Division Court for wilful default in appearing to be examined is in the nature of process to coerce payment, rather than of a punitive character, as for contempt; and there is no jurisdiction to make an order for the committal of a married woman judgment debtor who refuses to attend for examination upon a judgment summons, even though her non-attendance amounts to wilful misconduct. Ex p. Dakins (1855) 16 C.B. 77 followed.

W. H. Barry, for the defendant. A. C. Hill, for the plaintiff.

Meredith, C.J., Street, J., Teetzel, J.]

KENNEDY V. FOXWELL.

[Jan. 4.

Mortgage-Foreclosure-Partics-Final order-Deccase of infant defendant-Right of representatives to redeem-Revivor-Account-New day.

An action upon a mortgage for foreclosure was begun in 1898, and the usual judgment was pronounced on the 30th January, 1899. One of the mortgagor's defendants died on the 20th June, 1899, an infant, unmarried, and intestate. On the 2nd May, 1900, a final order of foreclosure was granted, no notice being taken of the death of the infant, and he and not his personal representatives or those claiming under him being declared to stand absolutely debarred and foreclosed :—

Held, that the final order was irregular and was not binding on the infant's mother, who was not a party to the action, and in whom an undivided interest in the estate of her deceased son vested at the expiration of a year from his death: and that she was entitled to redeem and to be added as a defendant upon her own application.

Campbell v. Holyland (1877) 7 Ch. D. 166 followed.

An order was made adding her as a defendant, and directing that the action be carried on between the plaintiff and the continuing defendants and new defendant, and that it stand in the same plight and condition in which it was at the time of the infant's death.

The effect would be to require a new account to be taken and a new day fixed for redemption, of which all the defendants would be entitled to avail themselves.

W. Proudfoot, K.C.; J. B. Clarke, K.C.; Cartwright, K.C.; Harcourt, Middleton and Hollinrake, for the various parties.

Province of Nova Scotia.

Full Court.]

SUPREME COURT.

JOHNSTON v. HAZEN.

[Aug. 15, 1905.

Evidence-Marriage registry-Legitimacy-Pedigree - Declaration by deceased parent.

A. was married at St. Paul's Church, Halifax, in 1809. In the entry of the marriage in the church's marriage registry his name appears with the addition "batr.," a contraction for bachelor. There was nothing to shew by whom the entry of the addition was made or that it was made in pursuance of a duty prescribed by statute.

Held, that the registry while admissible in proof of the marriage could not be received as evidence that A. had previously not been married.

To prove that C. was the legitimate son of A. by an alleged previous marriage it was shewn that he resided for two or three years at A.'s home, previous to departing to learn a trade, and at a subsequent time for a few months; that he addressed him as "father," was treated as a member of the family, was treated by A. 's wife as his son and by children by her as their brother; that after his removal to the United States he wrote letters to A. in one of which he informed him of his (C.'s) marriage; that subsequently to his death D., a son of A., corresponded with a son of C. during which he referred to C. as a half-brother; and that in an oral declaration by A. in the hearing of a witness, who was a neighbour of the family, he referred to the Christian name of his former wife, and to her personal appearance.

Held, that C.'s legitimacy had been proved.

A. O. Earle, K.C., and J. R. Campbell, for plaintiffs. C. N. Skinner, K.C., S. Alward, K.C., L. A. Currey, K.C., J. R. Armstrong, K.C., and W. B. Naylor (of the Wisconsin Bar), for the various parties.

Barker, J.]

GAULT v. MORRELL.

[Aug. 17, 1905.

Practice-Parties-Striking out and adding names-Assignment for creditors.

Where after a suit was brought for a declaration that stockin-trade in possession of defendants belonged to plaintiffs, the defendants made an assignment for the benefit of their creditors, and their assets were insufficient to pay their liabilities in full, the names of the defendants were ordered to be struck out and that of the assignee added.

M. G. Teed, K.C., for plaintiffs. J. B. M. Baxter, for defendants.

Province of Manitoba.

KING'S BENCH.

Mathers, J.]

LEE . GALLAGHER

[Oct. 31, 1905.

Pleading Statement of claim-Amendment-Parties—Joinder of causes of action-Specific performance-Recovery of land. Appeal from the referee's order.

The defendants Pepler and Macdonell entered into a contract for the sale of the land in question to the defendant Gallagher who assigned the same to the plaintiffs O'Shaughnessy and Armstrong, and they in turn sold the lands to the plaintiff Lee. Lee paid to Pepler and Macdonell the balance due them under the contract and received from them a transfer of the land under the Real Property Act. He then discovered that the defendant Langley was in possession of part of the land and claimed title to same by prescription. This prevented Lee from getting his transfer registered and he brought this action for recovery of possession of the land from the defendant Langley, joining, by leave of a judge obtained under Rule 258 of "The King's Bench Act," a claim for specific performance of the agreement as

against defendant Gallagher and damages by way of compensation or otherwise. The plaintiffs afterwards applied for leave to amend their statement of claim by adding a claim against the defendants Pepler and Macdonell for specific performance of the contract alleged to have been made by them directly with the plaintiff Lee when he paid his money to them and they gave him the transfer or for compensation in default. The referee refused to allow such amendment.

Held, that the amendments asked for should be allowed.

It is the policy of the King's Bench Act that all questions between the parties should as far as possible be determined in the one action "and all multiplicity of legal proceedings concerning any such matters avoided." King's Bench Act, s. 38, s-s. (k); Krutz v. Spence, 36 Ch. D. 770.

The test as to whether an amendment ought to be allowed is whether or not the other party would be placed in such a position that he could not be compensated by an allowance for costs or otherwise: Stewart v. Metropolitan Tramway Co., 16 Q.B.D. 180; Annual Practice, 1905, p. 350.

The amendment asked for setting up a new cause of action is not of itself a sufficient ground for refusing to allow it: Budding v. Murdock, 1 Ch. D. 42; Hubbock v. Helms, 56 L.J. Ch. 539.

The contention that leave to join another cause of action with one for the recovery of land can only be granted before the commencement of the action is not supported by the authorities, which shew that such leave is granted whenever the Court thinks it reasonable to do so: Rushbrooke v. Farley, 52 L.T. 572; Hunt v. Tensham, 28 Sol. J. 253, and White v. Ramsay, 12 P.R. 526.

Pitcher v. Hinds, 11 Ch. D. 905; Musgrove v. Stevens, 1881, W.N. 163, McIlhergey v. McGinnis, 9 P.R. 157, and Clark v. Wray, 31 Ch. D. 68, distinguished.

Daly, K.C., for plaintiffs. Hough, K.C., for Gallagher. Aikins, K.C., for Pepler. Machray, for Macdonell. McKercher, for Langley.

Full Court.]

IN RE BENNETT.

[Feb. 10.

Surrogate Courts Act-Transfer of contentious matter to King's Bench-Notice of application-Practice-Appeal to Full Court.

One Bennett having died intestate, Alice Maud Bennett claimed to be his widow and took out letters of administration.

There was a surviving son. Afterwards a sister of the deceased petitioned the Surrogate Court to have the letters revoked, alleging that Alice Maud Bennett was not the deceased's lawful widow. The petition being contested, the petitioner applied, under R.S.M. 1902, c. 41, s. 63, to have the proceedings removed to the Court of King's Bench, and gave notice of the application to the administratrix, but not to the son, who was a minor. The application was granted and the order made. The widow appealed to the Full Court, when the appeal was reached the official guardian on the son's behalf asked and was granted leave to interview as an appellant.

Held, that the son was a party concerned, and as s. 63 says that reasonable notice of the application for removal "shall be given to the other parties concerned," and no notice had been given to the son, the order appealed from was made without jurisdiction and must be set aside.

Held, also, that, under s. 58 of the King's Bench Act the order, having been made by a judge of this Court, was one from which an appeal lies to this Court in banc.

Doll v. Howard, 11 M.R. 21, distinguished.

Appeal allowed with costs to the official guardian, but not to the administratrix, who had not raised the point on which it turned before the judge who had made the order.

Haggart, K.C., for the administratrix. Mulock, K.C., and Phippen, for respondent. H. J. Macdonald, K.C., for infant.

Full Court.]

BARRETT v. C.P.R. Co.

[Feb. 10.

Railway Act, 1888, ss. 90, 92, 146-Action for damages in running trial line-When remedy limited to arbitration-Damages resulting from exercise of statutory powers.

In running a trial line for a proposed branch of the defendants' railway, their surveyors entered on the plaintiff's land and cut down a number of the trees on the course of the line where it passed through a grove near his dwelling house.

The plaintiff sued in the County Court for damages and the findings of law and fact by the trial judge were that the defendants had a right under their charter and the Railway Act to enter upon the plaintiff's land to run the line; that, if it was necessary to cut through the grove for that purpose, the defen