Held, also, that, as the testator had directed his executors to hold this and other moneys in trust with directions repugnant to the absolute right of the daughter, it would lead to confusion to let this money be mingled with other estate moneys in the hands of the executors, and that they were not competent trustees within the meaning of the Act, s. 11; and that as the widow had been duly appointed guardian to the infant daughter and had given security for the due performance of her duties and the proper application of the money she'should be entrusted with it rather than the executors and that the will was invalid so far as it assumed to deal with the policy.

D. M. Christie, for the petitioner.

W. M. Douglas, for the respondent.

[6TH JANUARY, 1891.

BEATTY v. DAVIS.

Sporting rights-Navigable water-Public rights-Private rights. Ownership of land or water, though not enclosed, gives to the proprietor, under the common law, the sole and exclusive right to fish, fowl, hunt, or shoot within the precincts of that private property, subject to the game laws when pertinent. And this exclusive right is not diminished by the fact that the land may be covered by navigable water. The right of navigation when it exists is to be used so as not to unnecessarily disturb or interfere with the enjoyment of the subordinate private rights of fishing or shooting, The public can only use the water for bona fide purposes of navigation, but not so as to occupy the water for the purpose of fishing or fowling when the soil underneath is the private property of one who objects to such occupation.

McCarthy, Q.C., and H. S. Osler, for the plaintiff.

N. F. Patterson, Q.C., for the defendant.

IN CHAMBERS.

[BOYD, C., 14TH JANUARY, 1891.

FLETT v. WAY.

Order-Power of Judge or Master in Chambers to rescind-Ex parte order— Order made after notice upon default-Rule 536.

A Judge or the Master in Chambers has power to reconsider a matter which has been brought before him ex parte on the application of an opposing party; and he can also open up a matter in respect of which an order has been made after notice and upon default to shew cause, if he is satisfied that opposition was intended and that any injustice has arisen.

Semble, that if necessary the words "ex parte order" in Rule 536 may be read so as to cover cases going by default, where through some slip cause has not been shewn.

Titus, for the plaintiff.

J. M. Clark, for the defendant.

[10TH FEBRUARY, 1891.

GAGE v. DOUGLAS.

Assignments and preferences—R. S. O. c. 124, s. 7—Action by creditors to set aside fraudulent transaction-Right to continue after assignment for benefit of creditors-Order continuing action for benefit of particular creditors.

An action begun by creditors of an insolvent to set aside a transaction in fraud of creditors, before an assignment by the insolvent for the benefit of creditors under R. S. O. c. 124, can be prosecuted by the creditors after an assignment has been made; for the assignment has not the effect under s. 7, s-s. 1, of transferring the existing cause of action to the assignee.

S. 7, s-s. (2) may be read so as to apply to pending litigation instituted by the assignee or into which he has been introduced; and an order was made under that enactment in an action begun by creditors before an assignment, in which the assignee was

after the assignment added as a co-plaintiff, authorizing the original plaintiffs and other creditors to continue the action as constituted, for their own benefit, upon indemnity to the assignee. W. Creelman, for the plaintiffs.

E. B. Brown, for the defendants.

[11TH FEBRUARY, 1891.

TOWNSHIP OF LOGAN v. KIRK.

Costs-Taxation-Defendants severing-Counsel fee on examination of witnesses out of the jurisdiction—Costs of examination for discovery.

In an action by a municipality against a contractor, one of his sureties, and the executors of a deceased surety, three separate defences were delivered by different solicitors. It did not appear that separate solicitors were employed for the mere purpose of increasing costs.

Held, that the defendants were not liable in any joint character, and were entitled to tax separate bills of costs.

Upon taxation a fee was properly allowed for counsel in British Columbia attending upon examination of witnesses there. An objection that a person examined by the defendants for discovery was not an officer or representative of the plaintiffs should have been taken at the outset and was not open on taxation.

Douglas Armour, for the plaintiffs.

C. J. Holman, J. M. Clark, and W. M. Douglas, for the defendants.

[FERGUSON, J., 4TH FEBRUARY, 1891.

STEWART v. WHITNEY.

Money in Court-Payment out to administrator-Infants.

Money in Court belonging at the time of her death to an intestate was paid out to her administrator notwithstanding that infants might be or might become entitled to it or a share of it. Semble, if the money belonged specifically to infants, the disposition might be otherwise.

Stephen M. Jarvis, for the administrator.

J. Hoskin, Q.C., for the infants.

[ROSE, J., 28TH JANUARY, 1891.

MAHONEY v. HORKINS.

Mortgage action-Appearance disputing amount claimed-Statement of claim not required—Præcipe judgment-Rule 718-Motion to Court for judgment-Rules 551 and 753.

In a mortgage action for payment, foreclosure, etc., the defendant entered an appearance in which she stated that she did not require the delivery of a statement of claim, and added, Take notice that the defendant disputes the amount claimed by the plaintiff.”

66

Held, that the record was then complete, and that a statement of claim was unnecessary and irregular.

Peel v. White, 11 P. R. 177, approved and followed.

Held, also, that the case was not within Rule 718 and the plaintiff could not obtain a judgment on præcipe.

Upon motion to the Court upon the record as contained in the writ of summons and the appearance, an order was made under Rules 551 and 753 directing a reference to take the mortgage account and directing that if the referee should find any amount due to the plaintiff, the plaintiff should have judgment according to the writ with costs.

Douglas Armour, for the plaintiff.
Masten, for the defendant.

[ROBERTSON, J., 21ST JANUARY, 1891.

In re PARSONS-JONES v. KELLAND.

Money in Court-Payment out to administratrix—Injants.

The administratrix of a deceased party was allowed to take out of Court a sum of $210, which was part of the personal estate of the deceased, notwithstanding that two infants were among the next of kin who would be entitled to share in the estate after payment of debts, etc.

Hanrahan v. Hanrahan, 19 0. R. 396, followed.
Swabey, for the administratrix.

J. Hoskin, Q.C., for the infants.

[MACMAHON, J., 31ST JANUARY, 1891.

In re SOLICITOR.

Solicitor and client-Delivery of bills of costs before termination of actionsApplication for taxation. Time - Special circumstances-R. S. O. c. 147, s. 34.

The solicitor defended an action of ejectment and prosecuted three actions for malicious prosecution on behalf of the applicants. On the 18th October, 1889, before the termination of any of the actions, the solicitor delivered to the applicants his bills of costs in them all up to that time. On the 29th April, 1890, he delivered further bills of costs in all the actions, which had then been brought to an end. Application for a reference of all the bills to taxation was made on the 20th November, 1890.

Held, that the application was in time; for the retainer existed until the litigation ended; and the applicants had a full year from the delivery of the bills last delivered to apply for the taxation of all the bills.

Held, also, that the "special circumstances" which, by s. 34 of R. S. O. c. 147, must exist to justify a reference to taxation after twelve months from delivery of the bills are not confined to cases of actual fraud or gross overcharge and pressure.

Re Norman, 16 Q. B. D. 673, followed.

Held, also, that bringing three separate actions which might all have been joined in one, and charging excessive counsel fees, were special circumstances to be regarded in ordering a taxation after twelve months.

J. B. O'Brian, for the applicants.

Masten, for the solicitor.

[THE MASTER-IN-ORDINARY, 23RD DECEMBER, 1890.

REILY v. CITY OF LONDON.

Discovery-Examination of person by surgeons.

In an action to recover damages for bodily injuries caused to the plaintiff by the alleged negligence of the defendants :

Held, that the Court had no power to order the plaintiff to