Judgment of Meredith, C.J.C.P., refusing to discharge the prisoner and remanding him to custody, affirmed.

J. B. MacKenzie, for prisoner. Cartwright, K.C., for Crown.

Case reserved-Co. Carleton.]

REX V. LACELLE.

[Dec. 13, 1905.

Criminal law-Seduction-Girl under 16-Indictment for offence committed on named date-Election to be tried summarily -Amendment to prior date-Right of election on new charge.

The offence under s. 181 of Criminal Code of having seduced a girl of or above the age of 14 and under that of 16 years can only be committed once, namely, on the first occasion on which the connection takes place, and on no subsequent occasion, for only on such first occasion can the requisite of the statute be complied with that she was of previously chaste character.

A prisoner having been indicted for having committed the said offence on Jan. 9, 1905, elected under s. 767 of the Code to be tried summarily by a county judge. On the evidence disclosing a prior connection six days previously, the charge was amended by setting up the offence as having been committed on such prior date, and without giving the prisoner the privilege of electing whether or not he would be tried summarily thereon, he was tried. and convicted.

Held, that the conviction could not be supported and must be quashed, for that the date being material to the charge, an amendment could not be made substituting a new date, and in effect a new charge, without the prisoner being given an opportunity of electing under s. 767 how he should be tried thereon.

Cartwright, K.C., for Crown. No one appeared for the prisoner.

HIGH COURT OF JUSTICE.

Teetzel, J.]

[July 25, 1905.

RE CALDWELL AND TOWN OF GALT.

Municipal corporations-By-law limiting number of tavern licenses and prescribing accommodation—“License year”— Liquor License Act-Objections to procedure-Validity of by-law.

A by-law passed by the council of a town before the 1st March, 1905, limiting the number of tavern licenses, prescribing

the accommodation to be possessed by taverns, and fixing the amount of license duties, was held not to be invalid because it omitted the words "beginning on the first day of May," after the words "license year," in prescribing the number of tavern licenses for the "ensuing license year."

In prescribing the accommodation for taverns the by-law did not limit its provisions to the ensuing license year, but was so general that it might apply to all future years:

Held, that the scope of the by-law being limited on its face to the license year 1905-1906, the general words of the clause dealing with accommodation were limited to that year.

Sections 20 and 29 of the Liquor License Act, R.S.O. 1897, c. 245, considered.

Objections to the procedure of the council in relation to the passing of the by-law were overruled, the by-law being valid on its face, none of the objections having been raised by any member of the council, and the matters objected to being matters of internal regulation.

J. Bicknell, K.C., for applicant. W. H. Blake, K.C., for respondents.

Magee, J.]

WOODS v. FADER.

[Sept. 2, 1905.

Contempt of Court-Disobedience of subpona-Service-Necessity for shewing original.

To bring a person into contempt for disobedience of a subpœna, it must be proved that the original writ was shewn at the time of service, as well as that a copy was delivered to and left with the person.

J. E. Day, for plaintiff. G. Grant, for defendant Fader.

MCWILLIAMS v. DICKSON Co., OF PETERBOROUGH. Discovery-Examination of officer of company-Refusal to answer-Remedy-Master in Chambers.

The Master in Chambers has no power to strike out the defence of a company defendant for refusal of an officer to answer questions upon his examination for discovery, nor to order him. to attend again to make answer; the plaintiff's remedy, if he wishes to have the questions answered, is by motion to commit the officer.

Badgerow v. Grand Trunk R.W. Co. (1889) 13 P.R. 132 and Central Press Association v. American Press Association (1890) ib. 353 applied and followed.

Clute, for plaintiff. Grayson Smith, for defendants.

Anglin, J.]

[Oct. 9, 1905.

RE JAMES BAY RY. CO. AND WORRELL.

Railway-Expropriation-Trustee-Notice.

A bare trustee of land is not "the owner of the land or the person empowered to convey the land, or interested in the land sought to be taken," within the meaning of s. 71 of the Dominion Railway Act, 1903; and notice under that section must be served upon all the cestuis que trust.

R. B. Henderson, for company. Worrell, K.C., for trustee. Ballantyne, for beneficial owners.

Anglin, J.]

ADAMS v. SUTHERLAND.

[Oct. 9, 1905.

JOSH v. SUTHERLAND.

Arrest-Ca. re.-Special bail-Waiver-Discharge of bail.

The defendant was arrested under an order in the nature of a ca. re., and was released from close custody upon giving special bail by the deposit of a sum of money with the sheriff.

Held, that he had not thereby waived his right to be relieved under Con. Rule 1047; and, it appearing, upon the material filed upon a motion under that Rule, that the order for arrest should not have been made, an order was made for the return to him of the sum deposited.

Grayson Smith, for defendant. R. McKay, for plaintiffs.

C. v. D.

[Oct. 9, 1905.

Cartwright, Master.] Executors and administrators-Action-Crim. Con.-Death of plaintiff Revivor-Appeal to Court of Appeal-Issue of order from High Court-Indorsement-Rule 399.

The provisions of Trustee Act, R.S.O. 1897, c. 129, s. 10, apply to an action for criminal conversation; and where the plaintiff dies pendente lite the action may be continued in the name of his personal representative.

Where at the time of the abatement an appeal to the Court of Appeal is pending, an order of revivor may, nevertheless, issue from the High Court of Justice.

The absence of the indorsement on the order of revivor required by Con. Rule 399, notifying the opposite party of the time within which to apply to discharge the order, will not be regarded as a ground for setting aside the order upon a motion for that purpose made within the proper time.

C. W. Kerr, for defendant. W. R. Smythe, for plaintiff.

Meredith, C.J.C.F., MacMahon, J., Teetzel, J.]

SLATTERY v. LILLIS.

[Oct. 13, 1905.

Mechanics' lien-Material supplied-Request, privity and consent, and credit of owner.

In a mechanics' lien action it was shewn that the contractor for the building of a house had become embarrassed while the work was in progress and a material man had refused to supply him with lumber on credit. The owner then assured the latter that he "need not be afraid there will be no trouble about that" or that he would see him paid. Upon that assurance the lumber was supplied to the contractor, and, although it was charged to him in his general account in the lumberman's books the name of the owner was placed in brackets opposite the items of the lumber. The owner also paid the first bill delivered and promised to call and pay the second but died before doing so.

Held, that there was a request by the owner that the lumber should be furnished: that his credit was intended to be pledged: that it was supplied upon his promise to pay and that he received the benefit of it.

Held, also, that under the provisions of s. 2, s-s. 3, and s. 4. R.S.O. 1897, C. 153, as expounded in the cases there is given to the material man under the circumstances of this case a direct lien upon the property as against the owner and not a sub-lien upon the moneys payable by the owner to the contractor or the 20 per cent. which the statute requires to be set apart for the. payment of lien holders.

Held, also, that the evidence here shewed a request by the owner; that the lumber was supplied with his privity and consent and perhaps upon his credit, and that the lumberman was entitled to a lien upon the interest of the owner for the price of the lumber supplied.

Graham v. Williams (1884) 8 O.R. 478; (1885) 9 O.R. 458; Blight v. Ray (1893) 25 O.R. 415; Gearing v. Robinson (1900) 27 A.R. 364, considered.

Baird, for appeal. Heyd, K.C., contra.

Meredith, C.J.C.P., Britton, J., Teetzel, J.]

[Oct. 25, 1905.

BUTLER V. THE TORONTO MUTOSCOPE CO., LTD.

Evidence Of opinion-Experts-Obligation to testify-Witness fees-Tariff allowance-Fees for opinion evidence demanded. It would be a serious hindrance to the proper administration of justice if an "expert witness," whether of the learned professions or not, were at liberty to refuse to testify as a witness unless upon the condition of being paid for the opinion he is called upon to give.

In an action for damages caused by an electric machine two medico-electric experts were called as witnesses and although they admitted they were qualified to form and had the materials before them on which they were able to give their opinion as to the possibility of the electric machine having caused the injury, they declined to state their opinion unless paid a higher fee for giving it than that provided for by the tariff.

Held, that an "expert witness" whether coming within either of the classes mentioned in items 119 and 120 of the tariff "B" or not is not entitled to refuse until he has been paid his fee for the opinion he is to give to testify as to any matter relevant to the issues as to which he is competent to speak though it be requisite for him to use his technical knowledge or skill in order to answer the questions put to him, and a new trial was ordered. Judgment of the County Court of the county of York reversed. D. O. Cameron, for appeal. W. N. Ferguson, contra.

Meredith, C.J.C.P., Falconbridge, C.J.K.B.,

Street, J.]

JOHNSTON V. BARKLEY.

[Oct. 30, 1905.

Judgment-Procurement by fraud and perjury-Right to attack, in subsequent action-Fraudulent assignment-Action to set aside-Res judicata-Garnishing proceeding in Division Court.

When it can be shewn that a judgment, whether foreign or domestic, has been obtained by fraud, it cannot be held binding upon the party against whom the fraud has been practised;