to the plaintiffs, was neither a right to indemnity nor to relief over, because it was a right which might be enforced before he was damnified, there being no reference on the face of the instrument to the liability asserted by the plaintiffs; and, therefore, she could not be brought in as a third party.

J. H. Moss, for the plaintiffs.

Tremeear, for the defendant Farley.

W. E. Middleton, for the defendant MacDonald.

[MEREDITH, J., 21ST MARCH, 1898.

ORFORD v. FLEMING.

Solicitor-Charging order—Rule 1129-" Property

· Judgment —Assign

ment-Notice-Taxation of costs-Sale of judgment.

An application under Rule 1129, by the solicitors who obtained on behalf of the plaintiff a judgment in the High Court for the recovery of money from the defendant, for an order charging their costs upon the judgment debt. Previous to the application the judgment had been assigned by the plaintiff to the mother of the defendant.

Rule 1129 is new in Ontario, and is as follows:

"(1) Where a solicitor has been employed to prosecute or defend any cause, matter or proceeding, it shall be lawful for the Court in which the cause, matter or proceeding has been heard or is pending, or for a Judge thereof, to declare such a solicitor . . . to be entitled to a charge upon the property, of whatever nature, tenure or kind, recovered or preserved through the instrumentality of such solicitor; and upon such declaration being made, such solicitor shall have a charge upon and against and a right to payment out of the property so recovered or preserved, for the taxed costs, charges and expenses of or in reference to such cause, matter or proceeding; and all conveyances and acts done to defeat, or which may operate to defeat, such charge or right shall, unless made to a bona fide purchaser for value without notice, be absolutely void and of no effect as against such charge or right.

"(2) The Court or Judge may make such order for taxation of such costs, charges and expenses and for the raising and

payment of the same out of the said property as may seem

Held, following Birchall v. Pugin, L. R. 10 C. P. 397, that the judgment debt was "property" within the meaning of the Rule.

Held, also, upon the facts that the assignment was not to a bona fide purchaser for value without express notice; but even if there were no express notice, that, following Cole v. Eley, [1894] 2 Q. B. 180, the assignee must be taken to have notice of the solicitor's lien, for she was buying a judgment debt, and the implied notice she would have would be notice within the meaning of the Rule.

An order was made for the taxation of the costs of the action and of this application, declaring the applicants entitled to a charge upon the judgment for the amount which should be taxed, and directing that such amount should be raised and paid out of the judgment by a sale thereof.

W. R. P. Parker, for the applicants.
Coatsworth, contra.

[23RD MARCH, 1898.

WINCH v. TRAVISS.

Arrest-Discharge-Failure to deliver statement of claim-Rule 1044-Extension of time-Rule 353—Terms.

Under the present practice, there is power after the expiration of the time appointed by Rule 1044 for the delivery of the statement of claim, where a defendant is detained in custody under an order for arrest, to extend the time. The case is within Rule 353, and the wording of Rule 100 of the Rules of Trinity Term, 1896, has been altered from "shall have been given" to "is given" in Rule 1044.

Where the statement of claim was delivered two days after the month had expired, and the defendant moved for his discharge, an order was made validating it for all purposes, upon terms as to speedy trial and payment of costs.

C. C. Robinson, for the plaintiff.

C. Millar, for the defendant.

NOVA SCOTIA.

En the Supreme Court.

IN CHAMBERS.

[TOWNSHEND, J., 11TH MARCH, 1898.

PITFIELD v. GUEST.

Particulars-Replevin-Deed of assignment-Plea of fraudulent purpose and intent-Statute of Elizabeth-Particulars of fraud.

This was an action of replevin against the sheriff of Yarmouth. The defendant pleaded, inter alia, that the deed of assignment under which the defendant claimed, (a) was made "for the purpose and with the intent to defraud, hinder, and delay the creditors of the grantor," etc., and (b) that the deed "is void under 13 Eliz. c. 5, as hindering and delaying creditors." The plaintiff moved under Order 19, Rule 7, for further and better particulars of the fraud pleaded as aforesaid, citing The Rory, 7 P. D. 121, and Wallingford v. Mutual Society, 5 App. Cas. 701.

Held, that the motion must be refused with costs. The plea of purpose and intent has a well-settled meaning and indicates all that can reasonably be asked. It is not such a general allegation of fraud as is mentioned in the cases cited by the applicant. It is as definite as is necessary. The defence of the stat ute of Elizabeth is specifically set up; and what that defence means, and the evidence required under it, are too well known to take anyone by surprise.

J. A. Chisholm, for the motion.
Ernest Gregory, contra.

MANITOBA,

In the Queen's Bench.

[FULL COURT, 5TH MARCH, 1898.

WHITLA v. PHAIR.

Contract--Construction—Rectification—Satisfaction of debts-Agreement to accept interest in mining location, if valuable-Conditions not fulfilled.

Action upon promissory notes given by the defendant and for the price of goods supplied to him. The defence was that by an agreement made between the defendant, of the first part, and the plaintiff and three other creditors of the defendant, whose claims had been assigned to the plaintiffs, of the second part, the debts had been settled and extinguished. By the written agreement dated 31st July, 1896, it was agreed that the plaintiffs and the other creditors should expend at least $1,000 in prospecting and developing a certain mining location, owned by the defendant, on the terms that in case it was shown by such development that the location was valuable, or likely to prove valuable with further development-of which fact the parties of the second part should be sole judges-the parties of the second part should incorporate a company, to which the mining location should be transferred for a consideration of one-half the stock to the defendant, and the other half to the creditors. It was also agreed that in the event of the mine proving valuable and being accepted and a company formed, the parties of the second part should, from the proceeds of their half interest in the mine, pay the then indebtedness of the party of the first part to them; provided, however, that the mining location should be re-conveyed to the party of the first part free from all incumbrances, if the agreement was not carried into effect by the formation of the company within twelve months.

Before they had sufficiently operated and tested the mining location to declare it valuable, the creditors obtained letters patent of incorporation of a company, and proceeded to develop the mine.

After spending more than $1,000 in developing, they came to the conclusion that the mine was not likely to prove valuable, and notified the defendant of their so deciding. They then brought the present action, which was tried before BAIN, J., who entered a verdict for the plaintiffs. The defendant appealed, contending that by the plaintiffs forming a company, as they had done, to operate the mine, the agreement was carried into effect, and the plaintiffs could not recede from it; that by their so doing they had waived the condition of further investigation of the mine, and were estopped from declaring that it was not likely to prove valuable. He also asked for rectification of the' written instrument, as it did not embody the true terms of the agreement made by him with the plaintiffs.

Held, that the appeal should be dismissed with costs. The evidence showed that it was for the purpose of convenience and in the interest of all parties that the company was formed before the other conditions had been fulfilled. The defendant himself was a party to this arrangement, and assisted in investigating the mine to find out whether it would prove valuable or not, after he knew that a company had been formed. The formation of a company was only one of the three conditions by the performance of which the agreement was to be considered as carried into effect. The defendant had not established that there had been a mistake, or in what form the rectification should be. The creditors spent more money than they were bound to do to develop and test the mine. By the agreement they were to be the sole judges of the fact that the mine was valuable or likely to prove so. It was clear from the evidence that they never decided that the mine was valuable or likely to prove so, and they never accepted it as such. Two of the three conditions were unfulfilled, and the defendant could not claim the benefit of the advantage which would have accrued to him, had the agreement been actually carried into effect.

Haggart, Q.C., and Whitla, for the plaintiffs.

Patterson, for the defendant.

HUTCHINGS v. ADAMS.

Principal and agent—Undisclosed principal—Liability of, for goods supplied to agents.

County Court appeal. One Piper, having become insolvent,