If it is the party who has been examined, any part of his examination may be so used. In the case of a corporation being the party, the examination of the corporation is by way of an examination of an officer selected by the company or selected by a Judge, if the corporation refuses or fails to select any or what the Judge considers the proper officer or officers having regard to the questions involved. Any part of the examination of any officer or officers so selected may be used as evidence at the trial against the corporation. The examination of an employee, whether of an individual party or of a corporation (other than the selected officer) cannot be used as evidence-but only as a source of information -except that if it be made to appear that the party examining for discovery has after due diligence been unable to obtain the attendance at the trial of the person examined, or if for any other reason it appears to be just and convenient, the Court or Judge may permit the whole or any part of the examination of such employee to be used in evidence. In England the practice exists of administering interrogatories to an officer of a corporation and such officer's answers are admissible as evidence against the corporation—subject to the company's right to show mistake or other ground why any particular answer or answers should not be held binding upon it: Welsbach Incandescent Gas Light Co. v. New Sunlight Incandescent Co. [1900] 2 Ch. 1; 69 L.J. Ch. 546. Both under the English practice and our own the question must arise from time to time as to who is the proper officer to answer on behalf of the corporation and consequently, with the limitation already expressed, to bind it by his answers. In Manchester Val de Travers Paving Co. v. Slagg [1882] W.N. 127; 47 L.T. 556, the Chancery Division said that where the person desired by the plaintiff to be examined as representing the defendant corporation was, though it was said that he was the only member who could give the desired information, interested in the plaintiff's success, he ought not to be imposed by the Court upon the corporation. The Court said generally that if there was any reasonable objection to App. Div. 1918 The Pelican V. Th Northern Alta. Nat. Gas and Dev. Co., Ltd. et al Beck, J. App. Div. 1918 the naming of a particular person to represent the corporation he ought not to be named. See also Berkeley v. Standard The Pelican Investment Co. (1879) 13 Ch. D. 97; 49 L.J. Ch. 1; 41 L.T. 388; 28 W.R. 125. Oil & Gas Co., Ltd. V. The Northern Alta. Nat. Gas and Dev. Co., Ltd. et al Beck, J. In the latter case it is laid down that the proper practice is for the solicitor for the corporation to act in preparing the answers to the interrogatories on behalf of the corporation and that his costs of so doing are the costs of the corporation; a practice of the official or member named to answer for the corporation being represented by a separate solicitor is denominated a scandal. In Lea v. City of Medicine Hat, 11 Alta. L.R. 380; [1917] 2 W.W.R. 789, the Court, in this respect also agreeing with the English practice, held that an officer answering for a corporation is bound to inform himself of matters within the knowledge of the employees of the corporation acquired by reason of and in the course of their employment. See also McLean v. C.P.R., 12 Alta. L.R. 61; 10 W.W.R. 949, at p. 951. Mr. McLaws whom the plaintiff company wishes to impose upon the defendant corporation has defended in the name of a solicitor who is not the solicitor for the corporation or for either of his co-defendants and in his defence makes admissions which it is said are or at least may be prejudicial to the corporation if made, as presumably is likely, in case he were examined as the corporation's representative. The fact referred to by my brother Stuart that there is a matter at least very closely associated with the matters in issue in which the interest of McLaws is adverse to that of the company does not it seems to me cease to be a circumstance to be taken into account in considering whether the Court ought to impose him upon the company for the purpose of examination. While recognizing in one placed in such a position the highest honesty and candour there remains always the fear that even unconsciously there might be some colouring of the e idence or some failure to appreciate some particular aspect the facts or the inferences from them. App. Div. 1918 No objection is offered to Mr. McLaws being examined as an employee of the defendant corporation and thus the plaintiff can get the full benefit of his knowledge relating to the The Pelican matters in issue and on his examination the defendant can be compelled to produce all proper documents, etc.-the corporation has control over them even if Coste has not; at all events the Court has jurisdiction over the corporation in this regard. If the plaintiff company chooses to postpone the examination of Coste as representative of the company until McLaws has been examined for discovery it seems quite clear to me that the plaintiff company will have every advantage that the rules intend shall be available. I think it may be admitted that a Court or a Judge under the rule may, as is done in England, name a new officer, substitutionally or additionally to one already selected to answer for the company. It may be that in circumstances arising in the future such an order may properly be made. In the meantime I would affirm the order of Scott, J. and extend the time until May 1 next within which the defendant company may apply for an order adjourning the examination of Coste and declaring that the order now affirmed shall be without prejudice to an application for the substitution of McLaws for Coste as the representative of the company. With the limitations mentioned I would dismiss the appeal with costs. HYNDMAN, J. concurred with Beck, J. Appeal dismissed with costs, Stuart, J. dissenting. Short, Cross, Maclean & Macdonald, solicitors for plaintiff, appellant. Savary, Fenerty & Chadwick, solicitors for defendants, respondents, except defendant McLaws. Oil V. Beck, J. April 5 1918 [APPELLATE DIVISION] REX V. MACKAY Criminal Law-Theft-S. 355, Criminal Code-Relationship Statutes-Interpretation-Use of Marginal Notes. In sec. 355 of The Criminal Code which provides that every one commits theft who, having received any money, etc., on terms requiring him to account for or pay the money to any other person, fraudulently converts the same to his own use, or fraudulently omits to account for or pay the same, the person who receives the money means a person who stands in the relation of agent in the proper sense of the term to the person to whom he is to pay or account, and not merely a person who, by virtue of some contract between the two whereby both are under mutual obligations, is under an obligation to pay or account. In the latter case, it is inappropriate to say of one of the two contractors that money or property coming to his hands in pursuance of the contract is received by him "on terms requiring" him to account or pay and that the money or property is money or property "which he was required" to pay or account for (per Beck, J.). Per Stuart, J., not assenting to the above interpretation: It is doubtful whether the word "requiring" refers to a person at all; it is the "terms" or conditions of some bargain or contract, not a person, that are said to "require" an accounting. Harvey, C.J., dissenting, apparently concurred with Stuart, J. On a case stated by Scott, J. after a conviction for theft under sec. 355 of The Criminal Code, held, per Stuart, Beck, and Hyndman, JJ.; Harvey, C. J. dissenting, that the conviction should be quashed. Stuart J. held that there was not sufficient evidence of fraudulent intent; Beck and Hyndman, JJ. held that it was not established that the relationship in which the accused stood to the private prosecutor was one contemplated by the section; Harvey, C.J. dissenting, found sufficient evidence of fraudulent intent. Quaere whether the English rule that the marginal notes to a statute are not to be referred to as an assistance to its interpretation is applicable to statutes passed by the Dominion or provincial legislatures as government bills. (Per Beck, J.) A case stated by Scott, J., after a conviction for theft under sec. 355 of The Criminal Code. The facts are given at length Conviction quashed, Harvey, in the judgment of Beck, J. The argument was heard by HARVEY, C.J., STUART, BECK and HYNDMAN, JJ. HARVEY, C.J. (dissenting)-I find myself unable to agree Harvey, C.J. with the conclusions of any of my brother Judges. In the main I agree with the views expressed by my brother Stuart except in the conclusion that there was no evidence from which a fraudulent intent on the part of the accused can be inferred. He never repudiated his liability to pay Sullivan a part of the moneys received. Whether he could have been held civilly liable appears to me to be beside the point. The arrangement between them is admitted by both to be that each of the parties was entitled to a part of the moneys and the evidence for the defence is that the share to which Sullivan was entitled was paid over to him. The trial Judge decided that this was not the fact. That, perhaps, if not probably, meant that accused was setting up a dishonest defence and committing deliberate perjury to support it. That coupled with the facts stated by the witness Sullivan that accused admitted his further liability and agreed to pay it, and as to accused's conduct afterwards as mentioned in the reasons of my brother Beck if true in my opinion are quite sufficient to justify an inference that he knowingly neglected to pay over to Sullivan moneys which belonged to him and as he had no excuse or justification for it such neglect would appear to be fraudulent. STUART, J.-It seems to me that the gist of this case lies. in the proper answer to the questions: When the accused received the money from the government was it all his own property in the legal sense with a mere contractual liability in debt on his part to pay Sullivan so much money, or on the the other hand was the money when received by the accused the joint property of him and Sullivan to the knowledge of the accused? If the evidence was such that no reasonable inference could be made that the relationship between the parties was anything else than that which would be expressed by an affirmative answer to the first question then no doubt there was no |