This last point I reserve to be further argued in Chambers before me, with leave to the counsel for the prisoner and the Crown to file further affidavits dealing with the facts affecting that point only.

In the meantime the prisoner remains subject to the recognizance already put in, and the security he has already given.

CALGARY, July 28, 1909.

The application was renewed on filing further affidavits, the same counsel appearing.

BECK, J.:-This matter was adjourned for the purpose of further argument upon the question whether I have a right to inquire into the facts so far as to enable me to decide whether the proceedings before the magistrate were "an abuse of the process" of the magistrate's Court, and, if I found it was so, whether I have a right to discharge the prisoner.

After the best consideration I have been able to give to them, my conclusion is that both these questions should be answered affirmatively.

This is not a case in which there has been a final adjudication by the magistrate. In such a case I suppose it is clear that, if the magistrate has jurisdiction over the alleged crime and the person of the accused, I should have no jurisdiction to inquire into the correctness of his decision. Had the information been laid in this province, and the prisoner been arrested in this province upon a warrant issued here upon such an information, it may be or may not be that a Judge of this Court on habeas corpus proceedings could inquire into the facts to such an extent as to decide whether or not there were "reasonable and probable grounds" for the informant's belief that the accused had committed an indictable offence (Criminal Code sec. 564), but in the present case the magistrate who issued the warrant and who "upon receiving such complaint or information . shall hear and consider the

allegations of the complainant or informant, and if of opinion

shall issue a sum

that a case for so doing is made out mons or warrant" (sec. 655) had, owing to the absence of the accused from the province in which the information was laid, no direct jurisdiction over the person of the accused; the accused could be brought under his direct jurisdiction only upon his warrant being indorsed or "backed" by a magistrate in this province (sec. 662.).

In such a case it seems to me to be in the interests of justice that I should hold that a Judge of a Superior Court of any province of the Dominion has jurisdiction to prevent the removal of an accused person from that province to another upon an information laid by a private individual before a justice of the peace in the latter province, if it is made to appear that the proceedings before the justice are frivolous or vexatious or mala fide or otherwise are an abuse of the process of the justice's Court.

Were it otherwise, a person accused on false or frivolous grounds, at the instance of a malicious and worthless complainant, might be taken from one end of the Dominion to another and be left without recourse for the gross loss and injustice to which he was put.

Upon habeas corpus proceedings in an extradition case a Judge has the right to consider the evidence in order to see if there is such and sufficient evidence of the guilt of the accused as would on an ordinary preliminary inquiry before a magistrate justify a committal for trial (Encyc. of the Laws of Eng. (2 ed.), tit. Extradition, p. 651), and, if such is not the case, to discharge the prisoner.

In the case of extradition from one province to another, I am of opinion that a similar right exists, namely, to consider the evidence in order to see if there is such and sufficient evidence of the guilt of the accused as would, upon an ordinary preliminary inquiry before a magistrate, "put the accused upon his trial"

. though it "does not furnish such a strong presumption of guilt as to warrant his committal for trial" (sec. 696). I therefore consider the evidence before me.

The undisputed facts are that the accused sent from Banff, Alberta, to one Maizie McGregor (not the informant) at Prince Albert, Saskatchewan, the following telegram:

"Get letter at Clayton Hotel, Regina, come immediately. Ernest threw from horse this morning, not serious. Have to stay here a week.

"A. H. MATHESON."

The terms of the telegram are admitted. It was signed by the accused with the name "A. H. Matheson" without Matheson's authority. The statements in the telegram were true. Its purpose was to have the person to whom the telegram was sent meet the accused at Banff instead of Regina.

Under the circumstances it seems to me to be impossible to establish the offence charged, of which "intent to defraud” is an essential element, and I therefore discharge the prisoner.

Order for discharge.

Note: Fraudulent use of false name-When criminal.

The bare fact of personating another, for the purpose of fraud, is no more than a cheat or misdemeanour at common law, and punishable as such. 2 East P.C., ch. 20, sec. 6, p. 1010. And the principal cases in which it has been considered as indictable have been laid as cases of conspiracy.

In a case where the prisoner had been acquitted on an indictment preferred against him for forgery, upon its appearing that he had merely passed himself off for the person whose real signature appeared on the instrument, in concert with that person, he was indicted again for the misdemeanour; but it is observed that this second indictment did not turn singly on the fact of such false personating for a fraudulent purpose, but was framed against him and his associates for the conspiracy as well as the cheat. 2 East P.C., ch. 20, sec. 6, p. 1010. And where a woman, living in the service of her master, conspired with another man that he should personate her master, and in that character should solemnize a marriage with her, which was accordingly done, for the purpose of afterwards raising a specious title to the property

21-c.c.c. XV.

Note-Continued.

Fraudulent use of false name-When criminal.

of the master; the gist of the indictment was for the conspiracy, and the conviction proceeded upon that ground. Rex v. Robinson, 1 Leach 37; 2 Russell on Crimes, 7th ed., 1763.

A man may permanently assume another name without an Act of Parliament where it is done in good faith, ex. gr., taking an assumed name for business purposes and as a trade name while continuing to use the former name for private purposes without any concealment of indentity. Barlow v. Bateman, 3 P. Wms. 66.

It has been held that under marriage laws requiring publication of banns under the true names of the parties, the intentional omission of one of two Christian names and the use of the other Christian name, by which the party was not generally known, was contrary to the statute, when done for the purpose of concealment from the father and by collusion between the parties to be married. Pougett v. Tomkyns (1814), 3 Maule & Selwyn R. 262. But if a person has acquired a name by use and repute, the fraudulent return to the occasional use of his baptismal name may constitute an act of concealment. Frankland v. Nicholson (1814), 3 Maule & Selwyn R. 259; Rex v. Billinghurst (1814), Ibid. 250.

To use a false trade description with "intent to defraud" does not necessarily mean with intent to cheat, for as good goods may be supplied under a false as under a true description; an intention to represent the goods as being manufactured by some one other than the real manufacturer brings a case within the section of the Merchandise Marks Act. Starey v. Chilworth, 24 Q.B.D. 90; Wood v. Burgess, 24 Q.B.D. 162. So a representation that goods are of foreign manufacture when they are of domestic manufacture may prove an intent to defraud by false description. Bischop v. Toler, 65 L.J.M.C. 1.

Every one is guilty of an indictable offence and liable to fourteen years' imprisonment, who, with intent fraudulently to obtain any property, personates any person, living or dead, or the administrator, wife, widow, next of kin or relation of any person. Cr. Code sec. 408.

And every one is guilty of an indictable offence, and liable, on indictment or summary conviction, to one year's imprisonment, or to a fine of one hundred dollars, who falsely, with

Note-Continued.

Fraudulent use of false name-When criminal.

intent to gain some advantage for himself or some other person, personates a candidate at any competitive or qualifying examination, held under the authority of any law or statute, or in connection with any university or college, or who procures himself or any other person to be personated at any such examination, or who knowingly avails himself of the results of such personation. Cr. Code sec. 409.

Every one is guilty of an indictable offence and liable to seven years' imprisonment who, without lawful authority or excuse, the proof of which shall lie on him, acknowledges, in the name of any other person, before any Court, Judge or other person lawfully authorized in that behalf, any recognizance of bail, or any cognovit actionem, or consent for judgment, or judgment, or any deed or other instrument. Cr. Code sec. 411.

Section 410 of the Code deals with the offence of "falsely and deceitfully" personating the owner of shares, company stock, government scrip, etc.

The uttering of a false letter of introduction the signature to which is forged, is an indictable offence under Code secs. 466 and 467 dealing with the crime of forgery, if the person uttering same knows it to be a false document, and to have been made with intent that it should be acted upon as genuine to the prejudice of any one. The first sub-section of Code sec. 466 extends the definition of forgery to cases not included in former statutory definitions in Canada of that term, and which would not be forgery at common law. Re Abeel, 8 Can. Cr. Cas. 189, 7 O.L.R. 327.

Where a fictitious name is assumed for the purposes of a fraud, the offence of forgery may be proved, but not where the credit is given solely to the person without any regard to the name, as in R. v. Martin (1880), 5 Q.B.D. 34, per Hagarty, C.J.O., in Re Murphy (1895), 2 Can. Cr. Cas. 578, 582; R. v. Whyte (1851), 5 Cox C.C. 290; R. v. Wardell (1862), 3 F. & F. 82.

Where a person passing under an assumed name falsely represents that he is in the employment of a certain firm, and that he is authorized to make a draft upon such firm, his signature in such assumed name to a draft upon the firm, and his fraudulent negotiation of it. constitute forgery, if the credit obtained.