[Moss, J.A., 22nd November, 1897.

In re SHERLOCK.

Executors and administrators -Application by executor under Rule 938 (a) -Appeal to Divisional Court-Leave to appeal to Court of Appeal— Interest of executor-Reimbursement of costs-Security for costs.

Under Con. Rule 938 (a), an executor applied in Chambers, by way of originating notice, and obtained a determination of a question affecting the rights of legatees under the will, which involved the construction of the will; but upon appeal by residuary legatees, the order in Chambers was reversed by a Divisional Court, which put a different construction upon the will.

Held, that the judgment of the Divisional Court was a sufficient protection to and indemnity of the executor, and if he sought to appeal to the Court of Appeal, he must do so at his own risk as to reimbursement of the costs, in the event of failure; and his application for leave to appeal could be granted only upon the usual terms as to giving security for costs under Con. Rules 826 et seq.

McBrayne, for the applicant.

S. Price, for the residuary legatees.

[11TH DECEMBER, 1897.

In re SHERLOCK.

Appeal-Leave-Status of appellants-Con. Rule 938-Will-Contending beneficiaries-Security on appeal.

An application by the daughters of Samuel L. Sherlock, who were the legatees interested in the bequest in question, for leave to intervene and appeal from the decision of a Divisional Court, 17 Occ. N. 401, and to dispense with the security required by Con. Rule 826.

It was objected on behalf of the residuary legatees, who opposed the application, that the intervention of the applicants raised a question between contending beneficiaries, and that there was no jurisdiction to deal with such a question under Con. Rule 938.

Held, that the question was one which a Master, in taking the accounts and making the inquiries directed to be taken, and made in an administration proceeding, would have jurisdiction to deal with see form of administration order (No. 157); Con. Rule 953; form of Master's report (No. 84); and if, for the purpose of ascertaining and determining the persons to whom legacies are payable, and the amount of the legacies, it should become necessary incidentally to place a construction on the will, the Master had jurisdiction to do so; and the test of jurisdiction under Con. Rule 938 was whether the question was one which, before the existence of the Rule, could have been determined under a judgment for the administration of an estate or execution of a trust: Re Davis, 38 Ch. D. 210; Re Royle, 43 Ch. D. 18.

The will having been construed in the first instance favourably to the applicants, but in the Divisional Court adversely to them, they should not be precluded from carrying the question further, if so disposed.

Order made for leave to appeal upon security being given by bond for $200 or by paying $100 into Court.

If the appeal should proceed, the costs of the application to be costs in the cause; if it should not proceed, the applicants to pay them.

J. H. Spence, for the applicants.

J. S. Denison, for the residuary legatees.

[17TH DECEMBER, 1897.

MACDONALD v. CITY OF TORONTO.

Parties-Substitution of plaintiff-Class suit-Dismissal of action-Appeal to Court of Appeal-Security for costs-Time-Extension.

A motion on behalf of the plaintiff for an order substituting a new plaintiff for him, and extending the time for giving security for the costs of the appeal to this Court and for delivering reasons of appeal.

The action was brought by the plaintiff, on behalf of himself and all other ratepayers of the city of Toronto, against the city corporation and R. J. Fleming, to have the appointment of the latter as assessment commissioner declared illegal, etc.

On the 11th November, 1897, MEREDITH, J., gave judgment dismissing the action with costs. See 17 Occ. N. 405. Notice of appeal from his decision was given by the plaintiff on the 9th December, 1897.

The plaintiff wished to be a candidate for the office of mayor or alderman for the city of Toronto at the next municipal election, and feared that the continuance of the action in his name might disqualify him as a candidate.

The application was opposed by the defendants.

Held, that where a judgment has been pronounced in favour of the plaintiff in a class action, that judgment enures to the benefit of the class, and he cannot deprive the others of that benefit; but not so where the action has been dismissed; the reasons which apply in favour of depriving a plaintiff of the control of a favourable judgment do not exist in the case of an adverse decision. There was no ground upon which, unless by consent of the defendants, an order for substitution could be made in this case.

The plaintiff, however, in the event of his wishing to prosecute the appeal in his own name, was allowed further time to give security and deliver the draft appeal case, together with his reasons for appeal.

Bradford, for the plaintiff.

Fullerton, Q.C., and W. C. Chisholm, for the defendants.

HIGH COURT OF JUSTICE.

[ARMOUR, C.J., FALCONBRIDGE, J., STREET, J., 15TH OCTOBER, 1897.

GOSSLING v. McBRIDE.

Arrest-Ca. sa.-Discharge.

Where a debtor is in custody under a writ of ca. sa., the Court cannot make an order for his discharge, except under the Indigent Debtors' Act.

G. W. Lount, for the defendant.

D. Armour, for the plaintiff.

[ARMOUR, C.J., FALCONBRIDGE, J., 8TH DECEMBER, 1897.

MOTHERSILL v. YOUNG.

Libel-Publication-Post-card sent by mail.

A motion by the defendant to set aside the verdict and judgment for the plaintiff for $50 in an action for libel, tried before MACMAHON, J., and a jury at St. Thomas, and to dismiss the action.

The alleged libel was written by the defendant on a postcard, addressed to the plaintiff at Port Stanley, and posted at St. Thomas. The words written were apparently of an abusive and satirical character. The plaintiff was a physician practising at Port Stanley; and the defendant a mail clerk, residing at St. Thomas. The words written seemed to accuse the plaintiff of being a "fakir" and "an amateur doctor."

J. M. Glenn, for the defendant, contended that the sending of a post-card by mail was not publication. In Odgers on Libel and Slander, 3rd ed., p. 73, it is said that there is publication if a message be sent to the plaintiff by telegraph; the contents of the telegram are necessarily communicated to all the clerks. through whose hands it passes; so with a post-card. Counsel contended that this statement was not borne out by the authorities cited for it.

J. A. Robinson, for the plaintiff, contra.

The motion was dismissed with costs, the Court holding that the authorities, especially Williamson v. Freer, L. R. 9 C. P. 393, and Robinson v. Jones, 4 L. R. Ir. 391, were against the defendant.

[9TH DECEMBER, 1897.

STYLES v. MICHIGAN CENTRAL R. R. CO.

Damages-Remoteness-Animals killed on railway-Negligence of section

man.

A motion by the plaintiff to set aside the judgment of Hughes, Co. J., upon the findings of the jury, dismissing an action in the County Court of Elgin, and for a new trial.

The action was brought to recover the value of two horses of the plaintiff killed on the defendants' railway at St. Clair Junction, near St. Thomas. A section man of the defendants drove three stray horses off the line into the plaintiff's field, where his own horses were. The stray horses were breachy, and broke the fence down, escaping upon the highway, and the plaintiff's horses followed them. They got from the highway upon the railway by reason of the cattle-guard being out of repair, and were struck by a train and killed. The jury found that it was not within the scope of the section man's duty to put the stray horses into the field.

J. A. Robinson, for the plaintiff, contended that this finding should be set aside, and that the negligence of the section man was the causa causans of the killing of the horses, and at all events that, even if the horses were wrongfully on the road, the defendants were responsible for their getting on the railway, by reason of the cattle-guard being out of repair.

D. W. Saunders, for the defendants, contra.

THE COURT held that the damages were too remote, and dismissed the appeal with costs.

[14TH DECEMBER, 1897.

LEIZERT v. TOWNSHIP OF MATILDA.

Municipal corporations-Accident on boundary road-Joint action-Notice of accident-Time.

An appeal by the plaintiff from the judgment of FERGUSON, J., dismissing the action, which was brought to recover damages for injuries sustained by the plaintiff by an accident upon a boundary road between the township of Matilda and the village of Iroquois. Notice of the accident was given within twenty days, and the action was brought against both the township corporation and the village corporation. Under the recent amendment to the Municipal Act, the notice should have been given to the village corporation within seven days. The trial Judge held that the action was against the defendants jointly, and was defeated by the want of notice to the village in due time.