common assault, although the complaint was not made or information laid within six months from the time when the matter of complaint or information arose.

J. R. Cartwright, Q.C., for the Crown.
Faulds, for the prisoner.

[MEREDITH, C.J., Rose, J., MACMAHON, J., 11TH MAY, 1898. RONDOT v. MONETARY TIMES PRINTING CO. Costs--Taxation-Depositions not used at trial-Counsel fee-QuantumReview.

In an action for libel the defendants, in support of their defence of justification, obtained a commission, and had the evidence of certain witnesses out of the jurisdiction taken thereunder for use at the trial. The evidence, however, was not used at the trial, owing to the plaintiff being called as a witness by the defendants, and admitting substantially what was stated by the witnesses in their depositions before the commissioner.

Held, that the defendants, having obtained judgment in their favour with costs, were entitled to tax against the plaintiff the costs of executing the commission, the taking of it having been, under the circumstances, not unreasonable, and the fact that it was not used not being sufficient to deprive the defendants of the costs of it.

The practice is not to interfere upon appeal with the discretion of a taxing officer as to the quantum of a counsel fee. Swabey, for the plaintiff.

King, Q.C., for the defendants.

[25TH MAY, 1898.

EWING v. CITY OF TORONTO.

Costs-Third party—Dismissal of action-Discretion of trial Judge-Appeal.

Where a third party has been brought into an action by the defendant, and an order has been obtained by the defendant directing that the question of indemnity as between. the third party and the defendant be tried after the trial of

the action, and that the third party be at liberty to appear at the trial of the action and oppose the plaintiff's claim, so far as the third party is affected thereby, and at the trial the action is dismissed :-

Semble, that the third party is entitled against the defendant to costs up to and inclusive of the trial.

Held, however, that the disposition of such costs is in the discretion of the trial Judge, whose order, by R. S. O. c. 51, s. 72, is not subject to appeal without leave.

Held, also, that the third party can not be heard in a Divisional Court upon an appeal by the plaintiff from the judgment at the trial, and is entitled to no costs of such appeal.

G. A. Kingston, for the third party.
Fullerton, Q.C., for the defendants.

[BOYD, C., 20TH AND 27TH MAY, 1898.

NEVILLS v. BALLARD.

Solicitor-Charging order—Infant plaintiff—Action for personal injuries— Lien on taxed costs- Sale of judgment.

An application by the solicitor for the infant plaintiff, under Rule 1129, for an order charging the amount of the judgment recovered by the plaintiff against the defendant with the costs incurred by the applicant as between solicitor and client.

Held, that by Rule 1129 a discretionary power is given to the Court; the solicitor has no absolute right to the charge, but only power to ask the Court, in the exercise of its discretion, to make the charge: Re Humphreys, [1898] 1 Ch. 526.

The Rule gives the solicitor an ancillary right-one not intended to displace the liability of the client to pay the solicitor out of his own pocket, but ancillary to his right to be paid on his retainer: Groom v. Cheesewright, [1895] 1 Ch. 730.

Here the retainer was given by the father of the infant, and the infant plaintiff was not liable to the solicitor for any

of the costs. It was just that the costs taxed against the opposite party by virtue of the solicitor's exertions should be charged or impounded to answer the solicitor's lien. But beyond this, in the case of actions grounded on personal injuries to infants, the Court ought not to go.

Order made directing that the judgment should stand charged to the extent of the taxed costs in favour of the solicitor, and enjoining the infant and next friend from receiving or disposing of the same.

Direction that charge be enforced by sale of judgment refused.

No costs of the application.

Mulvey, for the applicant.

John Hoskin, Q.C., for the infant plaintiff.

[ROSE, J., 1ST APRIL, 1898.

SINCLAIR v. BROWN.

Distribution of estates-Widow's charge-Foreign estate-R. S. O. c. 127, s. 12. Under the Intestates' Estates Act, 58 V. c. 21, now s. 12. of the Devolution of Estates Act, R. S. O. c. 127, the widow of a person dying intestate, and leaving no issue, is entitled to $1,000 out of his estate in Ontario, notwithstanding that she may have received other benefits under the laws of another country out of his estate in that country.

A. F. Lobb, for the plaintiff.

George W. Lount, for the defendants.

IN CHAMBERS.

[BOYD, C., 20TH MAY, 1898.

In re BENNINGTON.

Devolution of Estates Act-Executors and administrators-Power to mortgage lands-Consent of official guardian.

John Hoskin, Q.C., as official guardian, applied under Rule 972 for an order or direction touching certain real estate

in which infants were interested, the question being whether executors or administrators had power under s. 9 of the Devolution of Estates Act, R. S. O. c. 127, with the consent of the official guardian, to mortgage the lands in question.

THE CHANCELLOR held that executors or administrators had such power with such consent.

[25TH MAY, 1898.

DAVIDSON v. MERRITTON WOOD AND PULP CO. Settlement of action-Validity of—Trial-Issue-Action--Pleading.

An assignee for the benefit of creditors under a statutory assignment, having brought an action for damages for breach of a contract made by his assignor with the defendants, made a compromise settlement with the defendants, before the delivery of pleadings, while he was in gaol, and without reference to the inspectors or creditors. A new assignee appointed in his stead applied for an order directing the trial of an issue to determine whether the settlement was valid.

Held, that it was not necessary to bring another action to vacate the settlement, and it was more convenient to revive the action in the name of the new assignee as plaintiff and let him continue it, leaving the defendants to move summarily to stay it, or to plead the settlement in bar, than to direct the trial of an issue.

Rees v. Carruthers, 17 P. R. 51, distinguished.

Johnson v. Grand Trunk R. W. Co., 25 O. R. 64, and Haist v. Grand Trunk R. W. Co., 22 A. R. 504, followed. S. B. Woods, for the applicant.

R. McKay, for the defendants.

[STREET, J., 1ST APRIL, 1898.

TOWNSEND v. O'KEEFE.

Pleading-Slander-Particulars-Names of persons-Times and placesStriking out-Amendment.

In an action of slander the statement of claim, after alleging that the slanders had been spoken and published to certain named persons, added, "and to others at present unknown to the plaintiff."

Heid, sufficient.

It also alleged that during a period of five months the defendant spoke and published various slanders to certain named persons and to others not known to the plaintiff.

Held, bad, and struck out; for it did not show which of the persons mentioned were present when the different statements were made, nor at what times and places they were made.

Leave to the plaintiff to amend by adding further charges within reasonable limits.

Thurston, for the plaintiff.

W. H. Lockhart Gordon, for the defendant.

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

ORFORD v. FLEMING.

Solicitor- Charging order— Form of.

In this case, noted ante 142, the order, as drawn up and settled, contained no provision for the sale of the judgment charged with the costs of the plaintiff's solicitors.

The order was issued in the following form:

1. It is ordered and declared that the applicants are entitled to a charge on the judgment debt orsum mentioned in the notice of motion, and recovered in this action by judgment bearing date for the taxed costs, charges, and expenses of the said applicants, of or in reference to such suit, as solicitors for the plaintiff, including the costs of and incidental to this application.