By the Statute Law Amendment Act of 1908, sec. 21, it was enacted that sec. 75, above referred to, be repealed. Section 21 came into force on the 12th June, 1908. In my opinion, this brought into force the Medical Professions Act as of that date. This Act provided for the establishment of a College of Physicians and Surgeons for Saskatchewan (sec. 2); that any person registered as a member of the College of Physicians and Surgeons of the North-West Territories, at the time of the coming into force of the Act, and whose fees were paid, should be a member of the Saskatchewan College (sec. 3). It provided, also, that, until a council could be elected, the affairs of the College should be in the hands of a person appointed by the Lieutenant-Governor in council, and he should have all the powers of a Registrar. The evidence shewed that Dr. Charlton had been appointed Registrar. Section 5 provided that the Registrar should, as soon as possible after his appointment, obtain for his guidance under this Act, from the Registrar of the College of Physicians and Surgeons of the North-West Territories, a certified list of the members thereof.

Sections 29 and 30 (a) read as follows:

29. The council shall cause to be kept by the Registrar a book to be known as the register, in which shall be entered the name of every person entitled to be registered according to the provisions of this Act, and those persons only whose names are inscribed in the register and who are not under suspension by the council shall be deemed to be qualified and licensed to practise medicine, surgery, and midwifery in the province, except as hereinafter provided, and such register shall be at all times open and subject to inspection by any

person.

"30. The council shall admit upon the register:

"(a) Every person registered as a member of the College of Physicians and Surgeons of the North-West Territories at the time of the coming into force of this Act and whose fees at such time are fully paid to the said college"

The evidence shewed that, immediately after his appointment, Dr. Charlton obtained from the Registrar of the College of Physicians and Surgeons of the North-West Territories a certified list of the members thereof. The plaintiff's name appeared on that list, and his fees were paid. He, therefore, became a member of the College of Physicians and Surgeons of Saskatchewan. Dr. Charlton held an

election under the Act, and a council was elected, which council appointed Dr. Charlton Registrar. The plaintiff produced a certificate, under the hand of Dr. Charlton and the seal of the College, certifying that his name appeared on the register of persons entitled to be registered under the Act. Dr. Charlton, however, was called upon to produce the register. When this was produced it was found to be simply the original list which Dr. Charlton had received from the Registrar of the College of Physicians and Surgeons of the North-West Territories, together with the names of those subsequently registered. It was not shewn that the council had ever formally accepted this list as the register required by sec. 29, but Dr. Charlton swore it was the only register which the council had, and that it was acted upon as the register.

For the defence it was contended that the only persons qualified to practise medicine in Saskatchewan were those whose names were inscribed on the register which, by sec. 29, the council should cause to be kept by the Registrar; that there was no evidence that the council caused or authorised any register to be kept, or that it adopted as its register the list made by Dr. Charlton; and that, as the register required by sec. 29 had not been kept, the plaintiff's name could not be entered thereon; and, therefore, he was not a duly qualified physician, and had no status to maintain this action.

For two reasons, I am of opinion that this contention must fail. First, whether or not the council formally adopted Dr. Charlton's list as the register which sec. 29 requires to be kept, or whether it was kept with all the formalities required by the Act, the list produced was the de facto register, and was acted on by the council as the one required to be kept. I have no doubt whatever that it was perfectly competent for the council to adopt Dr. Charlton's list as the register, and, although the evidence does not shew that they put through a resolution expressly adopting it, they did, as a matter of fact, act upon it, and must be presumed to have authorised it. In my opinion, the list must be accepted as the register. Secondly, I find in Odgers on Libel and Slander, 4th ed., p. 624, the law stated as follows: "So, too, a medical man can sue for a libel on him professionally, although his name does not appear in the medical register, if he can shew, by a certificate under the hand of the Registrar, or in any other way, that he is duly qualified and en

titled to be registered." In the present case, the plaintiff did produce a certificate under the hand of the Registrar, which not only admits that the plaintiff is duly qualified and entitled to be registered, but which expressly states that he is registered. I hold, therefore, that the plaintiff is a duly registered medical practitioner in this province, and entitled to maintain this action.

As to the merits. The plain inference from the portion of the letter complained of in paragraph 2 of the statement of claim is that the plaintiff had not lived up to the standard of conduct adhered to generally by the medical profession, that he had no respect for himself or his profession, and that his conduct brought disgrace and shame upon the profession. In Odgers on Libel and Slander, above referred to, at p. 25, the learned author states: "It is libellous to impute to a member of any profession that he has been guilty of any discreditable conduct in his profession." The words complained of do impute to the plaintiff discreditable conduct in his profession, and are, therefore, libellous.

As to the defence that the words are a fair comment on a matter of public interest, the law requires that the comment must be fair and upon facts which are true. In Mangena v. Wright, [1909] 2 K. B. at p. 976, Phillimore, J., states the law applicable to this case as follows: "No doubt, when there is one published document in which the writer partly alleges and partly comments, and of which the sum total is defamatory, the document cannot be justified unless the facts are true and the comment fair; because, if the facts do not warrant defamatory comment, the comment is not fair, and if the facts as alleged warrant defamatory comment, they are defamatory and must be proved to be true." Here no facts are proven to be true which would justify the defamatory comments made in the letter.

The portion of the letter set out in paragraph 8 of the statement of claim alleges as a fact that the plaintiff charged Mrs. Bucke and Mrs. Hesse the full regular fee for professional visits made to them at the hospital when those visits were made only at times when he went there to see his wife; also that he charged for drugs and surgical dressings that were the property of the hospital, and were not, nor ever had been, his. In the particulars set out in their statement of defence, the defendants allege that the plaintiff charged Mrs. Hesse for setting an ankle, when the ankle was not

broken or in any way affected so as to require setting, but only sprained; that he charged Mrs. Bucke with visits he never made and which should not have been charged for if made; and that he charged her for an analysis which he never made. All these allegations were absolutely denied by the plaintiff. To substantiate them, Mrs. Bucke and her daughter were called on behalf of the defendants. It is sufficient for me to say that I prefer to accept the statements of the plaintiff as against the evidence of Mrs. Bucke and her daughter, neither of whom impressed me as being entitled to much credit; while the plaintiff's explanations and evidence were candid and satisfactory. I find, therefore, that these allegations against the plaintiff are not true in fact, and that they are defamatory. The inference from the comment complained of in paragraph 4 of the statement of claim is that the plaintiff was exorbitant in his charges, and the inference from the comment in paragraph 8 is that the plaintiff in an operation for appendicitis had displayed a want of knowledge and professional skill. No facts were shewn which would justify any such conclusion. The defence of justification, therefore, must fail, because the facts are not proven to be true; and the defence of fair comment in a matter of public interest must also fail, because the comment was not a fair one on facts proven to be true. Nor do I see how it can be said that the comments were in a matter of public interest. The matter which called forth the letter of the defendant Cowper was a letter written by the plaintiff to the Western Canada Medical Journal referring to the conduct of a private hospital under the management of Mrs. Bucke and Mrs. Hesse. In his letter the defendant Cowper points out that, although the Board of Trade held an open meeting in reference to the undertaking, "it was brought out at that meeting that the institution would be a strictly private affair." The letter as a whole is, in my opinion, simply a personal attack by the defendant Cowper upon the plaintiff in his professional capacity. The letter being defamatory, and the defences set up having failed, the plaintiff is entitled to damages, which I fix at $500.

There will be judgment for the plaintiff for $500 and costs.

SASKATCHEWAN.

HANNON, DIST. CT. J.

FEBRUARY 28TH, 1911.

DISTRICT COURT OF REGINA.

RE MCNEILL AND SASKATCHEWAN HOTEL CO.

Criminal Law-Appeal to Judge from Magistrate's Order or Conviction-Jurisdiction-Condition Precedent-Deposit to be in Court before Appeal Heard - Criminal Code, secs. 749, 750, 757.

Upon an appeal to a Judge of the Supreme Court, under sec. 749 of the Criminal Code, from the order of a Magistrate under the Masters and Servants Ordinance for the payment of wages, the deposit required by sec. 750, sub-sec. (c), was made with the Magistrate within 10 days, as required, but was retained by him, and was not in Court before the opening thereof for hearing the appeal, or when the appeal came on to be heard:

Held, that the Judge had no jurisdiction to hear the appeal. History of sec. 750 (amended in 1909) and of sec. 757, and consideration of their provisions.

Review of the authorities.

Section 757 is not a guide to the procedure to be followed under sec. 750.

Rex v. Turnbull, 2 Sask. L. R. 186, 11 W. L. R. 55, distinguished.

Bestwick v. Bell, 1 Terr. L. R. 193, and Rev v. McLeod, 4 W. L. R. 124, applied, although decided before the amendment of 1909, and followed.

An appeal by the company from a magistrate's order for payment of wages to the respondent, W. B. McNeill.

J. F. Bryant, for the appellants.

C. E. D. Wood, for the respondent.

HANNON, DIST. CT. J.:-This is an appeal, under sec. 749 of the Criminal Code, from the order of a magistrate under the Masters and Servants Ordinance for the payment of wages. Section 750 of the Code contains the procedure for launching an appeal. The deposit required by this section, sub-sec (c), was made with the magistrate within the required 10 days, but was retained by him, and was not in Court before the opening thereof for hearing the appeal, or when the appeal came on to be heard. After the notice of appeal and the deposit were proved the respondent objected that the Court had no jurisdiction, on the ground that the deposit must be in Court before the sitting opens at which the appeal may be heard.