shewn to be entitled; and that under sec. 3 of the statute the statements so furnished are" final and conclusive between the parties thereto . . and shall not be impeachable upon any ground whatever." In his examination for discovery, however, Mitchell admits the agreement entitling plaintiffs to share in net profits, as alleged in the 10th paragraph of the statement of claim.

In their reply defendants charge that the statements furnished them were false and fraudulent. Particulars of the charge of fraud having been demanded, plaintiffs served the following notice: "Take notice that plaintiffs intend to give evidence at the trial of this action that the premises and figures from which the alleged statement or return of net profits was deduced are false, and that the details of such premises and figures lie in the knowledge of defendant Mitchell, and plaintiffs are unable to give them until defendant Mitchell has given discovery thereof." No further steps to enforce delivery of particulars appear to have been taken.

On examination for discovery defendant Mitchell admitted that he had in his possession a document drawn up to embody the terms of an arrangement between the parties to this action. Upon this admission the Master in Chambers very properly determined that Mitchell's affidavit on production was incomplete because it omitted all reference to this document. Upon the argument of the appeal, however, the document itself was produced. By consent I made a personal inspection of the document, and upon such inspection was satisfied that defendant Mitchell was not bound to produce or account for it in his affidavit.

In answer to another question defendant Mitchell admitted possession of a statement shewing the basis upon which the sum of $8,500 accounted for as net profits of the business had been arrived at. This statement defendant has not produced. It is alleged to be relevant upon the issue of fraud raised by the reply.

Mr. Moss argued that the statement or return of net profits furnished by an employer to his employee is, under sec. 3 of R. S. O. 1897 ch. 157, not impeachable for fraud. Mr. McKay maintained the contrary proposition. No authority was cited by either of the learned counsel, both stating that this statutory provision had not yet been the subject of judicial construction.

Notwithstanding the sweeping terms in which the statute declares the finality of statements furnished by the employer, I cannot conceive that it was thereby intended to render fraudulent statements conclusive and unimpeachable.

Nulla pactione effici potest ut dolus præstetur is a familiar maxim in the law of contracts. A man cannot effectually contract in advance for immunity from the consequences of his own fraud. No general words in a contract will be read as intended to afford such immunity. Such terms as "Nullis exceptis," commonly found in foreign policies of marine insurance, are invariably construed as not negativing an exception of fraud on the part of the assured.

In Tullis v. Jacson, [1894] 3 Ch. 441, although he held that an agreement between parties to a building contract that the awards of an architect shall be final and binding and shall not be set aside or attempted to be set aside on any ground or for any reason or for any pretence, suggestion, charge, or insinuation of fraud, collusion or confederacy, precluded any impeachment of such architect's certificates for fraud to which the defendant, the owner, was not a party, Chitty, J., expressed his view that the result would have been different had complicity of the owner been established.

In the absence of express language rendeing a statement furnished by his employer, in cases within the purview of R. S. O. ch. 157, sec. 3, unimpeachable for fraud upon his part, I cannot hold that the employee is precluded by the general words of the statute, broad as they undoubtedly are, from attacking it upon this ground.

But is a mere allegation of fraud in his employer's statement to entitle an employee to the production of documents relating to the employer's business which he would otherwise have no right to see or examine? At all events until fraud is proved, the employer's statement is final and conclusive.

It is impossible to say that, if the plaintiffs' charge of fraud is well founded, the production of the document, possession of which the defendant Mitchell admits, may not help them to prove that charge. The question of fraud is in issue. Unless the plaintiffs abandon their charge it must be determined at the hearing. In aid of a proper presentation of their case the plaintiffs seek discovery by production. They are prima facie entitled to it: Graham v. Temperance and General Life Assurance Co. of N. A., 16 P. R. 536; Sheppard Publishing Co. v. Harkins, 8 0. L. R. 632, 4 0. W. R. 250, 277. On the other hand, if, having

had such production, they should fail to substantiate the charge of fraud, they will have been allowed access to a document which in that case they had no right to see. But the Court cannot try an issue to determine the right to discovery which is alleged to be requisite to the fair presentation of such issue itself; Duncombe v. Davis, 1 Hare 184, 189. The materiality of the discovery sought must be determined upon the assumption that the case of the party seeking it is true: Gresley v. Mouseley, 2 K. & J. It is better that this defendant should be required to produce a document, which in the ultimate event of this action it may appear that he is strictly entitled to withhold, "than that honesty and fair dealing should appear to be violated with impunity:" Smith v. Hunt, 1 0. L. R. 534.

I am therefore of opinion that upon this branch I cannot disturb the order of the learned Master. The order will stand as a general order for a further and better affidavit on production according to the usual practice.

How far the plaintiffs will have improved their position should they succeed in proving the statement already furnished them to be false and fraudulent-what in that event will be their rights and remedies in view of the provisions of the statute-are questions upon which I express no opinion.

The appeal having failed upon one point, and having succeeded on the other solely because of the opportunity afforded me of perusing the document in demand, the costs should be costs to the plaintiffs in the cause.

OCTOBER 19TH, 1905.

DIVISIONAL COURT.

PLOUFFE v. CANADA IRON FURNACE CO.

Negligence-Learing Unguarded Hole in Ice Formed upon Navigable Water-Evidence of Negligence-Death of Person Walking over Ice-Cause of Death-Absence of Direct Proof-Contributory Negligence-Findings of Jury.

Appeal by plaintiff, the widow of Urgel Plouffe, from the judgment of BRITTON, J., 5 0. W. R. 758, 10 O. L. R. 37, dismissing the action.

A. E. H. Creswicke, Barrie, for plaintiff.

E. E. A. DuVernet, for defendants.

THE COURT (MEREDITH, C.J., ANGLIN, J., CLUTE, J.), dismissed the appeal without costs.

OCTOBER 19TH, 1905.

DIVISIONAL COURT.

REX v. BRECKENRIDGE.

Criminal Law-Penalty under Alien Labour Act Written Consent of Judge to Prosecution-Requisites of Consent― Jurisdiction of Magistrate.

Case stated by the police magistrate for the city of Ottawa under sec. 900 of the Criminal Code, 1892.

W. H. Blake, K.C., for defendant.

J. G. O'Donoghue, for the prosecutor.

The judgment of the Court (MEREDITHI, C.J., ANGLIN, J., CLUTE, J.), was delivered by

MEREDITH, C.J.:-The defendant was convicted on 9th May, 1905, for that he "on or about the 28th day of March, A.D. 1905, at the city of Ottawa aforesaid, did unlawfully and knowingly assist the importation of E. L. Day, an alien and foreigner, into Canada, under contract and agreement made previous to his importation, to perform labour and service in Canada, namely, at the office of the International Harvester Company of America, in the service and employ of the said International Harvester Company of America, contrary to the form of the statute in such case made and provided."

The statute under the authority of which the conviction is made is the Dominion Act 60 & 61 Vict. ch. 11, intituled "An Act to restrict the importation and employment of Aliens," as amended by the Acts 61 Vict. ch. 2 and 1 Edw. VII. ch. 13.

In the view I take, it is unnecessary to consider any of the objections to the conviction except (b):-" The consent filed. herein (exhibit A.) is insufficient in law to authorize the proceedings herein.”

By sec. 3 of the principal Act, as amended, the written consent of the Attorney-General for the Province in which the prosecution is had, or of a Judge of'a Superior Court or County Court, is a condition precedent to the recovery by summary conviction of the penalty imposed by the Act, and therefore to the jurisdiction of the functionaries before whom it may be recovered attaching.

The consent referred to in the case is in the following form:

"In the matter of a proposed information against F. E. Breckenridge for violation of the Alien Labour Act (60 & 61 Vict. ch. 11; 61 Vict. ch. 2; 1 Edw. VII. ch. 13).

"Consent.

“I, John J. O'Meara, junior Judge of the county of Carleton, do hereby consent to a summary prosecution being maintained, under the provisions of the Alien Labour Act (60 & 61 Vict. ch. 11, 61 Vict. ch. 2, 1 Edw. VII. ch. 13), against Frank E. Breckenridge, general agent of the International Harvester Company of America, or against the said International Harvester Company of America, or both, for violations of the above Act and amendments thereto.

"Dated at Ottawa this 15th day of April, 1905. "J. J. O'Meara,

"Junior Judge of the county of Carleton."

It will be observed that there is no reference to the person or persons in respect of whom the violations of the Act are alleged to have been committed, or of the time when or place where the violations occurred.

I am of opinion that this document is not such a consent as the Act requires, and that therefore the police magistrate had no jurisdiction to entertain or try the charge upon which the defendant has been convicted.

The purpose of requiring the consent was doubtless to prevent frivolous complaints being laid, and in order to determine whether the consent should be given it was necessary that the learned junior Judge should be informed of the facts so that he might judge whether there was reasonable ground for the prosecution which it was desired should be authorized to be begun.

For all that appears in the consent or from its terms, the alleged violations of the Act which were laid before the learned Judge were in respect of persons other than Day, and the case of Day may not have been even mentioned to him.