store account for goods sold and delivered. The cause of action herein arose before the commencement of the first action.

Held, that the two claims should have been joined in one action, and that it was a proper exercise of discretion to consolidate this with the former action, so that the two might be tried together, and the same defences made available in both.

Osler, Q.C., for the plaintiffs.
Moss, Q.C., for the defendants.

THE SARNIA AGRICULTURAL CO. v. PERDUE. Changing venue-Judge in Chambers-Judge holding Assizes-Divisional Court-Convenience-Costs.

Mr. Winchester, sitting for the Master in Chambers, refused the defendants' application to change the venue from Sarnia to Stratford, but gave leave to bring on an appeal from his order or a substantive motion to change the venue before Armour, J., at the Sarnia Assizes. Armour, J., entertained the motion, which was made according to the leave given, and made the order changing the venue to Stratford. The order was drawn up as made by a judge at the assizes, and was signed by the local Registrar at Sarnia.

Held, that, having regard to Rule 254, and to the leave given, and the character of the motion, the order of Armour, J., was to be regarded as that of a judge and not of the High Court, and could therefore be reviewed by the Divisional Court.

There is nothing to prevent a judge at the assizes hearing a motion which in the ordinary course would be heard at his Chambers in Osgoode Hall, if he is disposed for the purpose to treat the Court room as his Chambers.

Such application, however, should not be made at the trial on account of the inconvenience and loss to the public from the delay of other business appropriate to the assizes, and on account of injustice to parties to the cause who have prepared for trial, in having the venue changed at this stage; and it is too late, when the assizes have begun, to consider the balance of convenience; and, therefore, while the Court did not see dt, under the circumstances, to restore the venue to Sarnia, they ordered that the costs of the day at Sarnia, and of the several motions to change the venue, as well as of the present appeal should be costs to the plaintiff in the cause in any event.

W. H. P. Clement, for the appeal.

Aylesworth, contra.

CHANCERY DIVISION.

[PROUDFOOT, J., 11TH NOVEMBER, 1885.

CLARKE v. UNION FIRE INS. CO.-SHOOLBRED'S PETITION. Company-Winding up-45 Vict. cap. 23 (D)-47 Vict. cap. 39 (D).

There is nothing in 47 Vict. cap. 39, s. 2, to limit its application to companies being wound up at the date of 45 Vict. cap. 238 (17th May,1882). It applies to a company in liquidation, or in process of being wound up. Liquidation would apply to a company insolvent, though not technically being wound up, and against which proceedings are bein taken to realize its assets and pay its debts.

Notice need be given to the company only, as was done in this case, and perhaps also to creditors who have brought actions against the company, and whose actions would be stayed by the winding up order.

It is not correct to say that there is no power to refer the appointment of a liquidator under these Acts to the Master.

Foster, Q.C., for the liquidator.
W. H. Walker, for the petitioner.

IN CHAMBERS.

[BOYD, C., 23RD DECEMBER, 1885.

BOULTON v. BLAKE.

Extraordinary discovery-Rule 285, O. J. A.-Discretion of Court-Information for purpose of pleading.

The right of extraordinary discovery must be jealously guarded, lest it be abused; and it should, under Rule 285, O. J. A., be conceded only when it is clearly proved to be necessary for the furtherance of justice. An application to examine under Rule 285 is in the discretion of the Court, and that discretion was not wrongly exercised in allowing the defendant to examine the plaintiff and three witnesses before delivering defence, in order to obtain, for the purpose of pleading, a knowledge of material facts, not otherwise to be had by the defendant.

Walter Barwick, for the plaintiff.

Small, for the defendant.

Re ENGLISH.

Settled Estates Act-Separate examination of married woman Married Women's Property Act, 1884.

In a petition under the Settled Estates Act, the separate examination required by the Act of a married woman living out of the jurisdiction, was dispensed with, in order to avoid delay and save expense; but not the examination of married women within the jurisdiction, where no special circumstances existed. The Married Women's Property Act, 1881 (0), does not apply to cases under the Settled Estates Act, where the woman had acquired the property before the former Act came into force.

William Roaf, for the petitioner.

SCHRAGG v. SCHRAGG.

Solicitor-Costs-Retaining money-Payment-Delivery of Bill-Stipulation.

Solicitors retained out of moneys in their hands belonging to their client sufficient to pay their costs of the action, and handed to the client a cheque for the balance. The client accepted the cheque, but did not cash it till she had written to the solicitors stipulating that the cashing should not be taken as a waiver of her right to recover a larger sum if she could show that more was due her.

After a lapse of a year from this transaction, the client applied for an order for delivery of a bill of costs.

Held, that the circumstances did not constitute payment of the costs, and the order for delivery was made.

Re Sutton, 11 Q. B. D. 377, distinguished.
Holman, for the solicitors.

Aylesworth, for the client.

VOL. VI. C.L.T.

3

STANDARD INS. CO. v. HUGHES.

Interpleader-Claimants—Attaching creditors—Appeal.

Held, following Leech v. Williamson, 10 P. R. 226, that attaching creditors are such claimants as are embraced in the provisions of the Interpleader Act, and a sheriff is entitled to apply under the Act for relief in respect of a claim made by such creditors upon moneys in his hands, the proceeds of a sale under execution.

Although Macfie v. Pearson, 8 Ont. R. 745; 5 C. T. L. 137; in effect decides that the execution creditor who has seized before the issue of process against the defendant as an absconding debtor is to be paid in priority, yet that decision, having been rendered by consent in a summary way, is not binding upon the claimants, who may choose to litigate upon issues which can be carried to appeal.

Holman, for the sheriff.

Wm. Seton Gordon, and Aylesworth, for the attaching creditors.
Masten, for the execution creditors.

W. H. P. Clement, for the certificated creditors.

[ROSE, J., 22ND DECEMBER, 1885.

MCNABB v. OPPENHEIMER.

Rescinding order for ca. sa.-Jurisdiction of judge who made the orderDischarging defendant.

A Judge in Chambers has no power to rescind his own order for a writ of ca. sa., or to discharge the defendant from custody, after the order has been acted upon.

Masten, for the plaintiff.

T. C. Milligan, for the defendant.

En the Maritime Court.

(Reported by R. Gregory Cox, Esquire, Barrister-in-law.)
THE SIR C. T. VAN STRAUBENZIE."

Salvage agreement—Implied condition in fall contracts as to time of performance-Evidence of custom-Lex loci contractus-Contract made in foreign country to be performed in Ontario.

A vessel was aground on the north shore of Lake Superior in the month of November. The insurers in Buffalo accepted an offer made by the salvors at Port Arthur to take the vessel off for a certain sum "or no pay." The contract was wholly by telegrams between the parties, and no time was mentioned within which the job was to be done. Evidence was given to show a custom or implied condition that the job should be finished in the fall.

Held, that there is no such condition implied in such a contract, and that the evidence failed to prove the existence of any custom or usage by which such a condition is annexed to the written contract.

Held, also, that the law governing salvage agreements made by masters of vessels has no application to a contract made by the owners of the vessel with full knowledge of the facts.

This was a case of salvage instituted by Graham, Horne & Co., vessel owners, of Port Arthur, against the schooner Sir C. T. Van Straubenzie, to recover $3,500, alleged to be due under a contract with the underwriters for taking the vessel off the shore near Point Porphyry on Lake Superior, and towing her to Port Arthur. The Thames and Mersey Marine Insurance Company, and the Union Insurance Company (both American Companies), which had insured the vessel in the respective sums of $5,000 and $3,000, intervened, and by their answers admitted that they entered into an agreement with the plaintiffs to pay them the sum claimed if they should salve the vessel, but they alleged that the plaintiffs agreed to proceed forthwith to get the vessel off, and tow her to a safe place before the winter set in, and that it was on this express understanding that the defendants agreed to pay the sum claimed, which was an unusual and excessive amount, and the plaintiffs were not to be paid anything unless the work was performed before the winter. They further alleged that the plaintiffs failed to take the vessel off the shore in the fall, and that the defendants arranged with other parties to do the work in the spring for $1,000; that these parties made all the necessary preparations to take the vessel off and tow her into port, when the plaintiffs without authority interfered and removed the vessel. The defendants further alleged that they had been compelled to pay the parties referred to the said sum of $1,000.

The vessel was arrested and released on bail.