contract to deliver 4,000 cords, and the measure of those damages is the profit he would have made under his contract with the paper company.

Held also, Brodeur, J., dissenting,, that W. can recover the damages paid to the paper company for his failure to deliver the 1,400 cords.

On behalf of J. H. Roberts, a motion duly supported by an affidavit sworn to, not by the accused himself, but by his attorney, is presented to the Court challenging the panel of grand jurors as returned by the sheriff of the District of Quebec on the ground of partiality and wilful carelessness of said officer in connection therewith.

Roberts, charged before the Sessions of the Peace with seditious libel, has been committed to stand his trial before this Court. The Grand Jury not having as yet pronounced on the bill of indictment, the accused is not, at this stage, before the Court.

Roberts bases his motion on section 925 of the Criminal Code, reading as follows:

"925. Either the accused or the prosecutor may challenge the array on the ground of partiality, fraud or wilful misconduct on the part of the sheriff or his deputies by whom the panel was returned, but on no other ground.

"2. Such challenge shall be by way of objection in writing, and shall state that the person returning the panel was partial, or was fraudulent, or wilfully misconducted himself, as the case may be

The Crown contends that the provisions of such section concern the petty jury only, and that the section which applies when the challenge is aimed at the panel of grand jurors is 899 which enacts that:

"Any objection to the constitution of the grand jury may be taken by motion to the Court, and the indictment shall be quashed if the Court is of opinion both that such objection is well founded and that the accused has suffered or may suffer prejudice thereby, but not otherwise."

That section comes under the caption "Objections, Pleas and Record."

The section enacts without reservation whatever that any objection to the constitution of the Grand Jury may be taken by motion, and the indictment shall be quashed if the Court is of opinion that such question is well founded and causes prejudice to the accused.

The law therefore prescribes imperatively that the objection is to be raised upon the arraignment of the accused, since the section provides that the indictment shall be quashed if such objection is well taken. The objection therefore can only be proposed when a true bill is returned or when the accused is arraigned. And when the law speaks of "any objection to the constitution of the Grand Jury," it comprises objections which may be made against the collective panel or any individual juror, for fraud, partiality or other cause likely to prejudice the accused.

If section 925 had reference to the Grand Jury, section 899 would have no application or raison d'etre and in fact the very institution of the Grand Jury would be jeopardized. It would constitute a flagrant contradiction and a downright absurdity which the law-maker cannot have had in mind.

And what is the reason for section 899 if not to prevent proceedings like the present motion, which may be useless and serve no purpose unless the Crown place an indictment before the Grand Jury and the latter return a true bill.

To countenance such a request would be to impede the way of justice and create confusion in legal proceedings.

The point is by no means a new one. It has been debated at length by Honorable Mr. Justice Bossé, with the concurrence of Honorable Mr. Justice Blanchet In re The Queen v. Honorable Honoré Mercier, former Prime Minister. In that famous case, we had contested the qualification of the Grand Jury. It was held that the criminal law does not vest the accused with the right to impeach the Grand Jury either through a challenge to the array or through a challenge to the polls.

Such a proceeding is unknown and no similar precedent is to be found in the English practice.

If the constitution or any action of the grand jury are illegal objection may be raised by plea at the time of the arraignment (Reg. v. Mercier, 1 K.B., pp. 541, 546 and 549).

The same question-with a similar decision-was also ably dealt with in 1909, by Honorable Mr. Justice Martin, of the British Columbian Bench (In re King v. Haynes, 19 C.C.C. 101).

What clearly shows that section 925 concerns the petty jury only is that whenever such section is to be applied, the Court appoints two triers to pronounce on questions of fraud, partiality or misconduct on the part of the sheriff. As a matter of fact, such triers are called upon to act as regards the petty jury only-no such provision existing in the case of the grand jurors -and are taken or may be taken from among the petty jurors. (Vide Crankshaw, pp. 1017, etc.)

The only case I recollect, when I was practising at the Bar, that a challenge to the array was resorted to on the ground of partiality on the part of the sheriff, is that of The Queen v. Rouleau, in 1890 (14 L.N. 110). But in that matter, it was the panel of petty jurors that was impeached, and triers were resorted to. The objection consisted in the relationship between Sheriff Gagnon and Honorable C. A. Pelletier-later LieutenantGovernor-who had been illegally imprisoned during an election in the County of Kamouraska.

Even were the present motion directed against a petty jury, it could not be granted, as it discloses no grounds of partiality, fraud or wilful misconduct on the part of the sheriff, and contains no allegation of his having been unjust, unfair or guilty of favouritism. Furthermore, the motion does not even pretend, as required by statute, that the accused suffered prejudice.

According to the legal authors, among other Crankshaw (1017), a formal allegation of manifest partiality is necessary.

The sheriff exercises no discretion in returning a panel of jurors he is commanded by law, in the most absolute manner, to summon any juror whose name appears in the list of qualified jurors drawn in the form prescribed by law. Indeed, a different course would be, in certain cases, fraught with serious danger. If the sheriff returns a panel of jurors unqualified morally or legally, exception may be taken in due course before the Court.

Motion quashed.

PROVINCE OF QUEBEC.

Lumbering Operations-Logs Mixed in River—Question as to Ownership of Unidentified Logs-Seizure in Revendication.

A somewhat difficult problem arising out of lumbering operations was solved by the Court of Appeal at its last full sitting, in the case of B. & S. Lumber Company v. Michaud (K. B. No. 649, Judgment March, 1923). The parties to the action carried on lumber operations in the district about the River Tartigou, and in the spring of 1919, according to the respective allegations, the B. & S. Company put into the river about 43,000 logs and Michaud about 64,000. Only a small portion bore the mark of the owners, and the two lots were similar in kind and in dimensions. As a result of circumstances, the responsibility for which could be attributed to neither party, the logs got mixed and proceeded gaily downstream in a mass in which it was impossible to distinguish the logs belonging to either party, save for the small proportion which was marked. Michaud, whose mill was higher up-stream than the company's, stopped the logs on their arrival, took out about 62,000, and let the rest float down to the Company's mill. About 28,000 reached the Company's mill in this way, so that about 17,000 had become in some way casualties en route; Michaud lacked about 2,000 and the company about 15,000 from the number they respectively put into the stream. (Just why Michaud did not retain his entire quota does not appear, nor was there anything to indicate what proportion of the logs of each party was among the 17,000 casualties).

In these circumstances the B. & S. Company took out a writ of seizure in revendication, alleging that it was the owner of 15,284 logs improperly retained by defendant and praying that it be declared owner thereof and that the seizure be declared valid, etc. The action was dismissed on the ground, principally, that plaintiff had not proved his ownership of the logs in question. Greenshields, J., was for confirming this judgment on the same ground. It was, he said, absolutely impossible to identify any of the logs which were not marked, and therefore ownership in any unmarked log could not be established. Hence, since the writ of revendication lies only in favour of the owner (or one with a right of possession against the whole world) and such a seizure cannot be maintained without proof of ownership, the action must fail.

The rest of the court, however, agreed with Rivard, J., who arrived at what seems the most equitable solution by an ingenious process of reasoning. There must, he says, be ownership to form a basis for a claim in revendication. Then, how can appellant establish ownership in the logs in question? Such right of ownership as he may have in them can only arise from the mixing of the two lots of logs which belonged respectively to the two parties. But Michaud also had a right of property therein and there is no means of deciding which individual logs belong respectively to each party. The result is that each one must be held to have a right of ownership in the mass in proportion to the quantity belonging to each. (Article 437 C.C.). This conclusion is based upon the principle laid down by Proudhon (Traité du domaine de propriété. Vol. II., No. 629) as follows: "Dans les pays des rivières, sur lesquelles on flotte le bois à bûches perdues, si deux flottes de même essence, arrivant ensemble sur le même port se trouvent confondues, les deux marchands seront associès dans le tout, et chacun d'eux aura droit au prix suivant la proportion de la grandeur de sa flotte." But where such an undivided right of ownership exists the share of each co-owner is not a material part of the mass, but a share therein represented by a figure in fractions. Such share cannot, so to speak, be individualized in such a way as to give rise to revendication. Thus the plaintiff's conclusions in the action is revendication cannot be maintained as such. He might have proceeded by means of conservatory attachment, since that has been held to lie in cases of undivided ownership, but as the conclusions of a seizure in revendication are not the same, and are inconsistent with those of a conservatory attachment, they cannot be maintained. However, since plaintiff prays, in the action taken, that he be declared sole proprietor of the logs, the court, which can always grant less than is demanded, may declare him not sole proprietor but co-proprietor, and the interests of justice require that some definite pronouncement be made if possible.

Having made this point, the learned Judge proceeds to lay down the basis of division. After appreciating the somewhat unsatisfactory evidence, he declares plaintiff and defendant jointowners of the logs seized, in the proportion of 8/15 to the former and 7/15 to the latter, leaving it to the parties to give effect to the judgment either by amiable arrangement or by supplementary judicial proceedings.