may well have been so offered as to fall short of what would be necessary for such confirmation and still be sufficient to disprove the alibi.

The author of the note at the foot of the report of the case seems doubtful whether the circumstances were such as to make the evidence admissible in reply, and in Taylor on Evidence, 7th Ed. p. 352, the case seeins hardly to be approved, and is spoken of as carrying "the privilege of adducing evidence in reply to its extreme limit." Mr. Phillips in his work on Evidence, 4th Am. Ed. Vol. 2. p. 913, appears to regard the case in the same light.

Even under the English Judicature Acts, though in many respects a counter-claim is viewed as a cross-action, it was held in Green v. Sevin, 13 Chy. D. 596, where the issues on the claim and the counter-claim were the same, that the plaintiff, having given evidence on the issues to prove his claim could not, in reply to defendant's evidence and to meet this counterclaim, give further evidence on those issues. I think this

contention of the plaintiff untenable, even if it were correct that this was matter for defence as showing contributory negligence, as well as evidence directly in answer to what the plaintiff ought to have proved.

In my opinion, the learned judge was quite correct in ruling that the evidence in question should not be given in rebuttal. I prefer to base my decision upon this ground, as it is with this ruling only that the plaintiff finds fault. If this ruling had been erroneous, it would then become necessary to consider the wider question raised by the defendants, whether, supposing it to have been shown that the train had stopped when the plaintiff leaped, and taking all the evidence most strongly in the plaintiff's favor, it appeared free from doubt that he was guilty of contributory negligence in attempting to alight in the manner in which he did. This, however, is a question only indirectly in issue upon this application, and I think that it is the direct objection to the ruling of the learned judge, which should first be considered.

The rule must be discharged with costs.

LANDED BANKING & LOAN CO. v. ANDERSON.

(IN EQUITY.)

Appeal from Master upon evidence.-Foreclosure ordered instead of sale.

In a mortgage suit the master after hearing evidence ordered a sale instead of a foreclosure, as being more beneficial for infant heirs. Upon appeal

Held. That the evidence showed that a sale would not realize the plaintiff's claim, and foreclosure was directed.

A rule to govern appeals from the master upon questions of fact approved. H. E. Crawford for plaintiff.

J. H. D. Munson for infant defendants.

[7th April, 1886.]

KILLAM, J.-This is an appeal from the finding of the master in a mortgage suit, that a sale of the mortgaged premises would be more beneficial for infant heirs of a deceased mortgagor than foreclosure of the mortgage.

The bill asks for foreclosure, and the plaintiff now appeals from the report.

The amount due to the plaintiff, for principal money and interest to the expiration of the time for redemption, will be about $2,800. Costs up to, and including report, would be $100.00. If there should be a sale, the costs will be about $100

more.

John W. Finney, the only witness called by the guardian for the infants, said that he thought that, on a forced sale, the property will bring $3,000, though the effect of his evidence is shaken by the statement that, while he has owned a little real estate in Winnipeg, he does not do so now, and he is not able to give any opinion on the value of land or houses in Winnipeg. He described the land and terrace of houses upon it, and showed what rents were paid by tenants at one time when he collected them for the mortgagor. John B. McKilligan, a real estate agent, valued the land at $1,000 and the buildings at $800, and said that in two years time, it might bring from $2,200 to $2,400. John

O'Reilly, a solicitor residing near the property, valued the land at $100, and the buildings at $1,800, and said that he thought the property would not, if now offered for sale, bring $1,900. Colin H. Campbell, agent and solicitor for plaintiff, valued the land at $200 or $300, and the buildings at $1,000 to $1,300, and said he did not think that the property would bring either for cash or on time, more than $1,500. He showed that the rentals realized by the plaintiff have not been sufficient to pay taxes and insurance premiums; that the land was valued in October, 1883, when the loan was made, at $500, and the buildings at $3,500 or $3,600, and that the moneys were advanced on progressive estimates as the buildings were erected; that rentals now being collected amount to $180 per year, and taxes to $53 per year.

These witnesses differ so materially, that upon their estimates alone it would be difficult to arrive at any intelligible valuation of the property. None of them, however, makes a valuation which will exceed the amount due the plaintiff after a sale has been effected, and the costs thereof have been incurred. It is safe to say that the plaintiff's claim will then exceed $3,000, allowing for rents to be received in the meantime and taxes for the proportionate part of the present year.

If we consider the evidence as to the position and nature of the land, the descriptions of the buildings, the rents realized both before and since the plaintiff began the collection of them, I think it impossible to expect that anything like $3,000 will be realized upon a sale of property. If enough cannot be realized to satisfy the plaintiff's claim, it cannot be said to be more beneficial to the infants that there should be a sale of the property rather than foreclosure of the mortgage.

In coming to this conclusion, I do not overlook the weight that should be attached to the master's opinion. He certainly has far better opportunities than the judges of forming estimates of the value of properties and the probable results of sales, and his opinion should carry very great weight upon such a point. The question is, however, wholly one of weighing probabilities, where there cannot be absolute certainty in any conclusion. On this appeal, it appears to me I am bound to use my best judg ment, taking into consideration an additional element, the opinion of the master.

I think that the principle laid down in the case of The Glannibanta, 1 Prob. D.. 283, and adopted by Proudfoot, V. C., in Armstrong v. Gage, 25 Gr. 38, on an appeal from the report of a master, is applicable. "The parties to the cause are entitled, as well on questions of fact as on questions of law, to demand the decision of the Court of Appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect." As was said by Proudfoot, V. C., in the last mentioned case, “I have not been certified upon what evidence the master arrived at his conclusion. It does not appear from anything I see upon the depositions that the master at all proceeded on the manner or demeanor of the witnesses."

The only ground suggested as supporting the finding is the evidence of the cost of the property and its valuation by the plaintiff when the loan was effected.

In dealing with the question independently of the valuations. of the witnesses, it appears to me that the evidence of the position and shape of the lot, and of the nature of the buildings and the rents borne by them, is more important than that of the original cost. Buildings are usually worth, in a couple of years after erection, less than their cost. This depends upon circumstances, but it is usually so. Buildings located in a disadvantageous position will frequently be worth less than cost, immediately upon erection. Buildings of poor construction, as these are said to have been, deteriorate rapidly in value, and particularly so when occupied by the class of tenants usually found in tenements bearing the low rentals of those in question. Cost thus often becomes a poor criterion. Finney appears to have collected the rents some time in 1884, and the three houses then brought in $5, $6 and $8 per month respectively, the landlord paying taxes. After deducting taxes and insurance this would leave less than $150 per year, as the income from them, less than 5 per cent. per annum on $3,000. The plaintiff realizes only $5 per month from each house, and has to pay taxes and insurance premiums out of this. It appears that the property would be a poor investment if purchased at much less than $3,000. It appears impossible to anticipate such a sudden

advance in value as to make the property a good investment within the time that would elapse before sale, and if the sale should be delayed the amount due the plaintiff would be continually increasing. No evidence was given to show a probability of such an advance, and I know of nothing that would warrant a belief in its probability.

The circumstances to which I refer and the evidence as to the value of the property, appear to me so completely to outweigh any reason based on the cost of the property for supposing that the result of a sale would be to realize a larger amount than that due the plaintiff, that notwithstanding the weight of the master's opinion, I am driven to the conclusion that his finding is wrong.

The effect of the finding would be that a sale would be ordered, and the plaintiff would thus be put to a large additional expense. While it is necessary that the master and the court should jealously guard the interests of infants, care should be taken that a mortgagee should only be put to this additional expense, if there is good ground for believing it to be necessary in the interests of the infant.

I think that the appeal must be allowed. I make no order as to costs as none was asked for.