1896.

Municipality of Winchester, which forms no part of the County of Brandon, so he had no jurisdiction: Reg. v. Row, Argument. 14 U.C.C.P. 307; Hunt v. McArthur, 24 U. C. R. 254. (2) The warrant is directed to the keeper of the common gaol at Brandon, and not to the keeper of the Western District gaol, the only gaol to which the prisoner could be committed. (3) The warrant orders "Charles Cavelier" to be taken and detained, but Edouard Cavelier, the present applicant, is the person detained under it. (4) The preliminary inquiry, which resulted in the applicant's committal, was held, and the warrant was signed, upon a Sunday, but the inquiry was a judicial act, and having been held upon a Sunday it was void, and therefore there is nothing to uphold the warrant: Re Cooper, 5 P. R. 256. Section 729 of the Criminal Code, deals solely with the verdict of a jury, and the corresponding English Act was passed in consequence of what fell from the Judge in Reg. v. Winsor, 10 Cox C. C. 280.

H. A. Maclean for the Crown. The jurisdiction of the magistrate cannot be attacked; he was a Justice of the Peace for the Province, appointed under the statute which makes it lawful for the Lieutenant-Governor to appoint justices for the whole Province; as such he had jurisdiction in any and every part of it. The words "for the County of Brandon," are mere surplusage, and should be disregarded. The second objection has on a former occasion been dealt with by the Full Court, which held a warrant addressed to the keeper of the common gaol at Winnipeg sufficient, there being only one common gaol there: Reg. v. Holden, 3 M. R. 579. The error in the name is not a matter to be considered on a habeas corpus; it is not important. The warrant speaks of "the said Charles Cavelier," and "the said Cavelier," would have been sufficient. There is no evidence which can be looked at that the inquiry was proceeded with on a Sunday; the affidavit is not evidence; the depositions have not been brought before the Court by certiorari as they should have been: Hurd on Habeas

1896. Corpus, 353. The warrant is the only thing which can be Argument. looked at, and it is regular: Hurd on Habeas Corpus, 332. The offence is one over which the magistrate had jurisdiction and showing detainer under legal process sufficient. The warrant is one issued under the Criminal Code, and by section 564, sub-section 3, every warrant authorized by that Act may be issued on a Sunday.

TAYLOR, C. J.-What evidence is there before me on this application at which I can look? Can the prisoner's affidavit be read as evidence, or must my attention be confined to the warrant of commitment under which the Crown admits he is held?

In Bacon's Abr., Habeas Corpus, B. 3, it is said that, although upon the habeas corpus, and the return thereof, the Court can judge of the sufficiency or insufficiency of the return and commitment, as the case appears upon the return, yet they cannot, upon the bare return of the habeas corpus, give any judgment or proceed upon the record of the indictment, order or judgment, without the record itself be removed by certiorari. In Reg. v. Douglas, 7 Jur. 39, it was held that, on a motion to discharge a party brought up by a writ of habeas corpus, affidavits suggesting matters which, though not repugnant to the return, show the custody to be illegal, are not admissible. The case of The Sheriff of Middlesex, 11 A. & E. 273, in which Lord Denman, C. J., said that, on a motion for a habeas corpus, there must be an affidavit from the party applying, but the return, if it discloses a sufficient answer, puts an end to the case, was one in which the release was sought of two persons held in custody by the Sergeant-at-arms of the House of Commons for a contempt and breach of the privileges of the House.

In Church on Habeas Corpus, s. 287, after the statement that it has been said there is nothing properly before the Court upon the return of a habeas corpus except the warrant upon which the applicant is imprisoned, it is added, "On the return to a writ of habeas corpus issued to inquire into the cause of detention, after commitment by a magis

1896.

trate, and before indictment, additional proof may be received by the Judge for the purpose of enabling him to decide Judgment. upon the legality of the detention." And in Gude's Crown TAYLOR, C. J. Practice, vol. 1, p. 275, after dealing with the mode of obtaining a writ of habeas corpus in the case of a party in custody under a magistrate's warrant, and the writ of certiorari to bring up the depositions taken upon the commitment, it is said, "If any doubt exists as to the formality of the commitment it may be advisable to have also the affidavit of the party detained and others stating all the circumstances and they will be read when the party is brought up on the return of the writ."

In Van Boven's Case, 9 Q. B. 669, a rule for a habeas corpus was obtained, and the record was not brought up by certiorari, but on the return an affidavit was read and used as to the time when the prisoner was arrested and the length of time for which he was remanded, and on that it was claimed that on the day when he was committed he was not lawfully in custody and the magistrate had no jurisdiction to commit him. In Eggington's Case, 2 E. & B. 717, the prisoner had been arrested on a Sunday under a warrant following a conviction for wilfully refusing to deliver accounts, books, &c., after his dismissal from the office of town clerk of a borough, and the question was, whether the proceeding, which resulted in his conviction, was virtually a civil action or a criminal proceeding in which he could be arrested on a Sunday. Lord Campbell, C. J., said: The return is good on its face; but he has a full right to bring before us by affidavit the fact that he was arrested on a Sunday." Re Bailey, 3 E. & B. 607, was the case of a conviction under the Master and Servant's Act, 4 Geo. 4, c. 34, and the record was not removed by certiorari. On a motion to discharge the prisoner, he was allowed to use affidavits to show that there was no evidence before the justice from which he could reasonably infer that there was a contract creating the relation of master and servant, as that would show the justice had no jurisdiction.

1896.

In view of these authorities, I think the prisoner's affiJudgment. davit can be read on the present motion. It does TAYLOR, C. J. not directly contradict the return, but rather, to

use the expression of Patteson, J., in Re Clarke, 2 Q. B. 619, alleges an extrinsic fact, as it were confessing and avoiding it.

There is then evidence that the preliminary inquiry was wholly proceeded with on Sunday, and to do so was more than an irregularity. The making of such an inquiry was a judicial act, and no judicial act ought to be done on Sunday: Mackalley's Case, 9 Co. 66; Waite v. Hundred of Stoke, Cro. Jac. 496. In Burn's Justice, vol. 1, p. 1212, it is said, "A coroner's inquisition being judicial, must not be conducted on a Sunday." In Re Cooper, 5 P. R. 256, two prisoners committed on a coroner's warrant made on a Sunday, the inquisition having been held on that day, were brought up on a habeas corpus before Galt, J., who discharged them, saying that the inquest and inquisition being judicial acts done on Sunday, appeared to him to be void, and there was, therefore, nothing to support the warrant.

Since the Criminal Code was passed, the warrant, although issued on a Sunday, is good under section 564, sub-section 3. But I do not think section 729 has the effect of making a judicial act, such as the taking of a preliminary inquiry on a Sunday, good. That section, from its position in the Code, and its language, deals only with matters before a jury, and one can see abundant reasons for such a provision. The corresponding Act in England was passed, it is believed, on account of the difference of opinion between the the Court in Ireland in Reg. v. Conway and Lynch, 7 Ir. L. R. 149, and the English Court in Reg. v. Winsor, 10 Cox C. C. 280.

As the prisoner is entitled to be discharged under the fourth objection, it is unnecessary to consider the others.

An order may issue making the summons absolute, and ordering the prisoner to be discharged without the writ of habeas corpus actually issuing, or his being personally brought before the Court.

Order for discharge of prisoner.

1896.

COLQUHOUN v. SEAGRAM.

Before DUBUC, KILLAM and BAIN, JJ.

Fraudulent preference-Husband and wife—Assignment of debt.

This was an interpleader issue in which the plaintiff claimed that cer-
tain monies paid into Court by a garnishee under an order procured
by the defendant, a judgment creditor of the plaintiff's husband,
had been assigned by her husband to her before the garnishee order.
Defendant contended that the assignment was a fraudulent
preference, and that the husband could not in law assign the debt
to his wife; and at the trial before the County Court Judge, a ver-
dict was entered for defendant on the latter ground.

Held, that the verdict could not be sustained upon that ground, but
that there should be a new trial to enable the County Court Judge
to decide whether there had been a fraudulent preference.
All the Judges agreed that the circumstances showed that the debtor was
insolvent, and was aware of his insolvency, and that the effect of
the assignment was to give the plaintiff a preference over his other
creditors, but they were unable to decide whether there was suffic-
ient pressure upon the debtor to save the assignment under Molsons
Bank v. Haller, 18 S. C. R. 888, and Stephens v. McArthur, 19 S.
C. R. 446; as the only evidence on this point was that of the debtor,
who said that he had made the assignment at the request of the
plaintiff's solicitor.

The question to be determined in such case is whether the debtor was
actuated solely by a desire to prefer in making the assignment, or
whether the request to do so was the moving cause.

Decision of Parke, B., in Van Casteel v. Booker, 2 Ex. 691, followed. PER BAIN, J.-The evidence showed there was no real pressure actuating the mind of the debtor, and that he had made the assignment solely with the intent to prefer, and the original verdict for defendant should stand.

ARGUED 12th May, 1896.

DECIDED: 29th June, 1896.

RE-HEARING of an appeal from a County Court in an Statement. issue to try the right to a debt due to one Andrew Colqu

houn, husband of the plaintiff, who claimed under an