municated to the solicitor, with the object of obtaining his advice or enabling him to defend an action." Southwark and Vauxhall Water Co. v. Quick (1878) 3 Q.B.D. 315 followed. E..G. Long, for the motion. Edward Bayly, contra.

Teetzel, J.]

HORLICK v. ESCHWEILER.

[Jan. 8. Master's office-Reference-Examination on commission-Right of cross-examination-Con. Rules 654-700.

Appeal from the report of the Master at Kenora made upon reference to tax accounts, based upon the Master's refusal during the reference to issue, on the application of the defendants, a commission to cross-examine the plaintiffs upon their affidavits filed with him in proof of their accounts, upon which he was adjudicating.

Held, that the defendants were entitled to the commission of cross-examination as of right.

Casey Wood, for defendant. Douglas, K.C., for plaintiff.

Cartwright-Master.]

ONTARIO LUMBER Co. v. Cook.

Pleading-Particulars-Settled accounts.

[Jan. 11.

In order to open settled accounts on the ground of mistake specific errors must be alleged and proved. General allegations are not sufficient and if made must be supplemented by particulars.

Lawrence, for plaintiffs. Marsh, K.C., for defendant.

Cartwright-Master.]

WRIGHT v. Ross.

[Jan. 19.

Venue-Contract-Sale of goods-Agreement as to place of trial -Action to set aside contract.

An action for the cancellation of a contract of sale on the ground of failure of consideration is an action "arising out of the transaction" within the meaning of a provision in the contract that any such action shall be tried in the county where the head office of the vendors is situated, and, apart from any question of convenience, the venue if laid elsewhere will be changed to that county.

R. U. McPherson, for plaintiffs. A. C. McMaster, for defendants.

Divisional Court.]

IN RE MACINTYRE.

[Jan. 23.

Surrogate Court-Passing accounts-Executors and administra

tors-Trustee-Creditor's claim.

A Surrogate Court judge on passing the accounts of an executor, administrator, or trustee, under the provisions of s. 72 of the Surrogate Courts Act as amended by 5 Edw. VII. c. 14 (O.), has no jurisdiction to call upon a creditor of the estate to prove his claim and to adjudicate upon that claim and allow it or bar it. If, however, the executor, administrator, or trustee, has in good faith paid the claim of a creditor before bringing in his accounts the Surrogate judge has jurisdiction to consider the propriety of that payment and to allow or disallow the item in the accounts. Order of the Surrogate Court of Elgin barring the claim of a creditor set aside as having been made without jurisdiction.

J. A. Robinson, for claimant. S. Price, for administrator.

Meredith, C.J.C.P.]

WILE v. BRUCE MINES RY. Co.

Railways-Appointment of receiver.

[Jan. 30.

The High Court of Justice at the instance of a creditor of a railway company has power to appoint a receiver both where the company, being situate within the province, is under provincial legislative jurisdiction and where it is under federal legislative jurisdiction if there is no federal legislation providing otherwise. M. C. Cameron, for the motion. Britton Osler, contra.

Province of Nova Scotia.

SUPREME COURT.

DOUCETTE V. THERIO.

[Dec. 9, 1905.

Full Court.] Assault-Forcible removal of trespasser-Liability for excess. In an action claiming damages for unlawfully assaulting and beating plaintiff, defendant pleaded that at the time the acts complained of were committed defendant was the owner of and engaged in carrying on a lobster factory and that plaintiff entered and created a disturbance and refused to leave, when

requested to do so, and that defendant thereupon removed plaintiff, using no more force than was necessary.

Held, that defendant was justified in using such force as was necessary to effect the removal of plaintiff from his premises, but as by his own admission he did more than this plaintiff was entitled to recover for the excess, and the verdict of the jury in defendant's favour must be set aside.

J. J. Ritchie, K.C., for appellant. R. G. Monroe and T. R. Robertson, for respondent.

Full Court.]

WILCOX v. STEWART.

[Dec. 18, 1905. Slander-Words charging theft-Privileged occasion.

In an action brought by plaintiff claiming damages for words spoken by defendant of a concerning plaintiff imputing that plaintiff was a thief, the defence set up was that on the occasions when the words in question were used defendant, on behalf of the Reid Newfoundland Steamship Company, was conducting an enquiry into a shortage of accounts of one M., who was agent of the company at North Sydney and that all the parties present were employees of the company and were endeavouring to ascertain what had become of money which appeared by the accounts to have been taken from the office at the place where the enquiry was being held. The trial judge instructed the jury that the occasion upon which the words complained of were uttered was privileged and that the words were not the subject of an action. unless the jury found that defendant in uttering the words was actuated by ill-will or by some indirect motive other than a sense of duty, and that the burden of proving this was upon plaintiff.

Held, that the instructions given were correct and that in the absence of evidence such as that indicated the verdict of the jury in favour of plaintiff was wrong and must be set aside and the action dismissed with costs.

Covert, for appellant. W. F. O'Connor, for respondent.

Full Court.]

[Dec. 18, 1905.

MARKS v. DARTMOUTH FERRY COMMISSION.

New trial No substantial change in evidence-Withdrawal of case from jury.

The judgment of the Supreme Court of Nova Scotia in an action by plaintiff as executrix of M. to recover an amount

claimed to be due under a contract of hiring with defendant was reversed on appeal to the Supreme Court of Canada the illness of deceased by which he was permanently incapacitated would itself terminate the contract and that a finding of the jury that deceased did not continue in his employment after notice of a rule that an employee was only to be paid for time that he was actually on duty was against evidence and must be set aside. A new trial having been ordered and had, the presiding judge, on the conclusion of plaintiff's case stated that in his opinion the additional evidence given made no material change in the case from what it was before and withdrew the case from the jury. Held, that the facts being substantially the same as before, no useful purpose could be served in submitting the case to a jury, and that the judge was right in withdrawing the case from the jury and in dismissing the action.

W. B. A. Ritchie, K.C., and Finn, for appellant. Drysdale, K.C., for respondent.

Full Court.]

MCLEAN v. CAMPBELL.

[Dec. 18, 1905. Slander-Words charging theft-Publication-Misdirection of jury as to privileged occasion-New trial--Damages.

In an action for slander the words complained of were "You (meaning the plaintiff) stole my feather bed and silver spoons,' and at the same time, in answer to the question, "Do you really mean to blame me for stealing them," the further words, "Most undoubtedly I do" (meaning thereby that the plaintiff was guilty of stealing his feather bed and silver spoons). Plaintiff was a tenant of a portion of defendant's house and owing to some difference which had arisen was engaged at the time the words in question were used in packing up the articles belonging to her with a view to their removal and defendant was objecting to having them removed until the following day, claiming that they had not been properly checked over. The words were uttered in the presence of third parties. The trial judge instructed the jury that the occasion was privileged unless malice was shewn. The jury returned a verdict in plaintiff's favour and assessed the damages at $250.

Held, 1. The occasion on which the words complained of were uttered was not privileged and that the directions given to the jury were erroneous on this point, but as it was evident that defendant was not prejudiced thereby a new trial should not be allowed.

2. While the damages were large under the circumstances that was a matter peculiarly within the province of the jury and they were not so excessive as to call for the interference of the Court.

W. F. O'Connor, for appellant. A. Drysdale, K.C., and Burchell, for respondent.

HORNE v. HORNE.

Full Court.] [Dec. 18, 1905. Tenants in common-Division of lands by agreement and subsequent occupation-Way-User for more than twenty years.

L. and H. who owned and occupied a farm in common agreed upon a division of the property between them and called in a surveyor for that purpose who ran a line upon which a fence was erected and by which the parties continued to hold. At the time of the division there was a road upon the property which had been used as a means of obtaining access to the public road and which both parties continued to use. After a time H. constructed a road on his part of the property which gave him a more convenient mode of access to the public road when going in certain directions, but he continued from time to time as necessary to use the former road. After the death of H., L. erected a fence for the purpose of preventing defendants, who claimed under H., from making use of the portion of the old road which passed through his land and upon defendants taking down the fence brought an action claiming damages for the removal of the fence and an injunction to prevent defendants from passing over his .land.

The evidence shewed a continuous user of the way for a period of about thirty years and plaintiff failed to shew any abandonment or interruption of the user.

Held, affirming the judgment of the trial judge that plaintiff could not succeed in his action, and that the construction by H. of the new road over his own land and its use as mentioned was not an abandonment of his right to use the former way.

W. F. O'Connor, for appellant. H. Ross, for respondent.