The liabilities then were, beside the amount of $1545, for which the confession of judgment was given, a disputed claim of $200. I judge by the costs when I say disputed, and a note for $75, not maturing until January, 1905.

The debtor could not very well live in a house, or in fact live anywhere without some personalty, and there is no proof as to what the personal assets were. I think that insolvency was not proved, and this act apparently requires something further, namely, that the son in this case should have notice of the insolvency of his father when he took the confession of judgment. This might, in many cases, be readily inferred, but here there is a lack of evidence from which to draw such an inference. The law is thus stated.

In Johnston v. Hope, 17 Ont. App. 14, McLennan, J. said:

There is not from beginning to end a particle of evidence which could be submitted to the jury, on which they could properly be asked to find that the plaintiff had, when he obtained his mortgage, any notice or knowledge of the embarrassed state of the mortgagor's affairs, and so there was really nothing which could, with propriety, have been left to the jury in support of the defence.'

I refer also to the case of Gibbons v. McDonald, 20 S. C. C. 589, in which Ritchie, C. J. said:

66

That case disposes of the present, in which there was no concurrence of intent on the one side to give, and on the other to accept a preference over other creditors, inasmuch as there is nothing to show that the defendant was aware of the insolvency of the debtor, and there is nothing in the evidence to suggest any bad faith or collusion between the defendant and his debtor."

I refer also to Dana v. McLean, 2 O. L. R. 466. In my opinion this branch of the case has failed.

Then it is contended that it has been made out that the confession of judgment, which was registered against the land, was made to defeat or delay creditors.

The plaintiff relies for this contention upon the fact

that the judgment was a judgment by confession, therefore, there is a presumption that there was no consideration. In the statement of claim he alleged that it was given without any indebtedness from the father to the son, and one would think the burden was upon him. At the trial an admission was taken from the defendant as follows:

"It is admitted that the defendant, John W. White, recovered judgment by confession against the defendant, Joseph L. White, on the 17th of March, 1904, for $1545 debt, and $16.87 costs of suit, which judgment was recorded in the Registry of Deeds for Digby county, the 18th day of March, 1904.”

That case,

He relies upon a citation from Bump on Fraudulent Conveyances, 569, as follows: "If a judgment is by confession the creditor must prove it to be for a just debt,” and one of the authorities given is Sanders v. Holt, 327. The others are American authorities. and the context of Bump show that the matter dealt with was a different thing. They show that if a judgment creditor, by virtue of the statute of Elizabeth, is attacking another instrument as fraudulent and void as against creditors, and is upholding his own judgment, to enable himself to succeed as a judgment creditor under that statute, he must prove more than that he has a mere confession of judgment.

But I am not aware that the converse has ever been held, namely, that a creditor under that statute, attacking another's judgment, can get on merely by showing that it was a judgment by confession, and that, from that fact, no consideration was to be presumed. There is American authority to the contrary. Woodworth v. Woodworth, 21 Barbour, 346. I do not think that any distinction can be made between a judgment by confession to be registered against land and a mortgage given upon that land.

In either case the burden would be upon the plaintiff to show what he alleged here, that there was no debt due,

and if consideration will be presumed there is no fraud

shown.

But if that position is wrong, and the judgment by confession must be presumed to be without consideration, the plaintiff must still show that, by that confession of judgment, the debtor was subtracting from his assets so much that there was not enough left to pay the claims of creditors, the plaintiff's claim which I have already mentioned. For reasons I have given, I think he has failed to do this. I refer to the case of Ex-parte Mercer, In re Wise, 17 Q. B. D. 290.

The appeal ought to be allowed, but, under the circumstances, as there are many facts apparently not in evidence, the plaintiff may have a new trial on payment of the costs of the appeal, the costs of the trial of both parties to be costs in the cause.

LONGLEY, J.-I agree that the judgment in this casecannot stand, on account of the entire absence of evidence of lack of consideration of the deed given by the father tothe son, and also of the father's insolvency when the deed was given. But I think it might, perhaps, be doing. injustice to the plaintiff to refuse him a new trial. There is some reason to believe, from the judgment of the learned judge who tried the cause, that plaintiff's counsel was induced to curtail his evidence, and it seems to me more in accordance with the spirit of justice that he should beafforded an opportunity of presenting further facts by which it may be in his power to establish his right.

Appeal allowed and new trial allowed on

payment of costs.

THE KING V. WILLIAM BONNEVIE

Before TOWNSHEND, J., GRAHAM, E. J., and FRASER, RUSSELL, and LONGLEY, JJ.

Criminal Code, s. 971-Proof of previous conviction under-Time for -Procedure-Reserved case.

The proper time for proving a previous conviction against a prisoner under the Criminal Code section 971, is not upon the trial of the offence, but after the trial and before sentence.

Where there has been a previous conviction, within the recollection of the magistrate, but the Crown has failed to prove it, and it has not been otherwise shown, the magistrate may proceed upon his own initiative, and may inform himself at the same time as to the previous conviction, and the age, character and antecedents of the prisoner.

Semble, that the proper course to be pursued by the magistrate in such a case is not a proper subject for a reserved case.

The defendant, William Bonnevie, then a minor, was convicted before the stipendiary magistrate, in and for the city of Halifax, in April, 1905, under s. 785 of the Criminal Code, for unlawfully escaping from lawful custody from St. Patrick's Home at Halifax, the same being a public reformatory prison, and, the Crown consenting, he was released on suspended sentence, under s. 971 of the Code, his father being his surety.

In November, 1905, he was again convicted, on his own confession in court before the same magistrate, under s. 785 of the Code, on a charge of theft of $15 from the person. On the latter trial the former charge of escaping from lawful custody was not charged or proved against him, by production of the record, although available, or by evidence under oath, though the magistrate had a distinct recollection of such conviction and, so expressed himself in court, when the prisoner's father, offering himself as bail for his son, stated, in the prisoner's presence, that he was already bail for him on a recognizance for his suspended sentence on the conviction for escaping.

When the prisoner came up for sentence on the conviction for the theft, he again asked to be released on

suspended sentence, and the Crown representative stated that he did not move for sentence, and did not offer any evidence of the previous conviction, and was content that the prisoner should go on suspended sentence in consideration of the circumstance of his youth and other considerations. The magistrate had some doubt as to his power to suspend sentence, by reason of his recollection of the previous conviction, and reserved the points:

(a) Whether or not his recollection of the previous conviction and the father's unsworn statement in the prisoner's presence, when offering himself for bail, was legal proof of the previous conviction referred to, and (b) whether there was any evidence before him, on the trial and conviction for theft, of a previous conviction of the p. isoner.

1906, Jan. 31st. Criminal Code, ss. 743

J. J. Power, for the prisoner. & 971. There was no proof of

a previous conviction. Criminal Code, ss. 628, 676, 694, 952. Gether v. Capper, 24 L J. C. P. 69. Stroud's Judical Dictionary, p. 1594.

There

A. Drysdale, K. C., Attorney General, contra. was no ruling below from which there could be an appeal. There are cases in which former convictions must be proved at the trial. The first part of this section is applicable to such cases. Otherwise, it is a matter upon which the magistrate must inform himself. This is a distinct section, dealing with sentence, and leaves it all open to the judge.

J. J. Power, in reply. Queen v. Learmont, 23 N. S.

R. 424.

1906, Feb. 15th. GRAHAM, E. J. delivered the judgment of the court. By the Canada Criminal Code, section 971, it is provided as follows:

In any case, in which a person is convicted before any court of any offence, punishable with not more than 36-N. S. R. 38.