MEREDITH, C.J.:-It was argued on the part of defendants that there was no evidence of negligence proper to be submitted to the jury, and no finding of negligence which justified the entry of judgment in favour of plaintiffs, and it was contended that in any case judgment should have been entered for defendants because of the finding of the jury that the injuries for which they awarded damages were the result of mental shock only.

It is unnecessary, in the view I take as to the latter of these contentions, to determine whether the other of them is entitled to prevail, though my impression upon the argument was, and still is, that, reading the answer of the jury to the second question as I think it must be read, "In not giving proper or sufficient warning that the cut or opening of the train was not for the use of the general public," there was evidence to support that finding, and to entitle the plaintiffs to judgment.

I am, however, of opinion that it is impossible to distinguish this case from Henderson v. Canada Atlantic R. W. Co., 25 A. R. 437. In that case the jury found for the plaintiff, and assessed his damages for his personal injuries under two heads, those for personal injury resulting exclusively from mental shock at $600, and those "in respect of shock caused by blow or blows" at $400, and it was held by the trial Judge and by the Court of Appeal that there could be no recovery for the $600, because, as was said by the present Chief Justice of Ontario, "the evidence of the medical men as to the nature of the nervous shock and its effect upon the plaintiff brings this case fairly within the rule laid down by the Judicial Committee (Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222), and we must treat the matter as concluded so far as we are concerned."

In the Henderson case the facts were that the plaintiff's horses had run away owing to fright caused by the negligence of the defendants, resulting in the plaintiff being thrown from his carriage and receiving, in addition to the injuries which the jury found to be due exclusively to mental shock, somewhat severe bruises and other physical injuries.

The case at bar is not, I think, so strong a case for plaintiffs, because the jury have negatived the suffering of damages from the bruises which both of the plaintiffs testified they had received in the collision, and, as I have said, confined the damages to the mental shock only.

I am unable to discover any satisfactory ground for distinguishing this case from the Henderson case. It was argued, and that appears to have been the view of my brother Teetzel, that the cases are distinguishable because in this case plaintiffs' injuries were the result of actual impact between the defendants' train of cars and the vehicle in which plaintiff's were being driven, while in the Henderson case there was no such impact.

I am unable to adopt this view. The case in the Privy Council was not, as I understand the report of it, decided upon the ground that there was no impact, but upon the broad ground that "damages arising from mere sudden terror, unaccompanied by any actual physical injury, but occasioning a nervous or mental shock" (p. 225), were too remote and could not be recovered, and that too although there was evidence that the fright and consequent shock had caused the illness for which the jury had awarded damages.

It may be that the decision of the Court of Appeal goes further than the Coultas case, and that, inasmuch as the terror of the plaintiff in the Henderson case was accompanied by physical injury, damages for the injury occasioned by the accompanying mental or nervous shock might have been allowed without departing from the principle of the decision in the Coultas case; but, however that may be, we are in this Court bound to follow the Henderson case, and following it to hold that plaintiffs were not entitled to judgment.

In addition to the cases cited by my brother Teetzel, I may refer to Sloane v. Southern California R. Co., 111 Cal. 668, Purcell v. St. Paul City R. Co., 48 Minn. 134, followed by the Supreme Court of South Carolina in Mack v. South Bend R. Co., 40 L. R. A. 679, as supporting the conclusion to which my learned brother came, and as affording cogent reasons for doubting (if one were permitted to doubt) the correctness of the decision in the Coultas case.

Appeal allowed and action dismissed, but, in view of the unsatisfactory state of the law and the conflict in the decisions, there should be no costs of the action or of the appeal.

ANGLIN. J., gave reasons in writing for the same conclusion.

CLUTE, J., dissented, giving reasons in writing.

SCOTT, LOCAL MASTER.

CHAMBERS.

OCTOBER 18TH, 1905.

IMPERIAL BANK OF CANADA v. MARTIN.

Pleading

Counterclaim Exclusion Inconvenience Delay Mortgage Action Counterclaim for Wrongful Seizure and Sale of Goods--Convenience-Forum.

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Application by plaintiffs to strike out defendant's counterclaim. The action was an ordinary mortgage action for redemption or sale. The property covered by the mortgage was defendant's private dwelling house, and the amount claimed was $7,629.84, made up of $7,580.46 principal and $49.38

interest.

The mortgage was admittedly given as security for the repayment of all indebtedness and liabilities of defendant, and of him trading as Martin & Co., existing at its date. The defence admitted the making of the mortgage, but alleged that a considerable portion of the indebtedness thereby secured, which plaintiffs were seeking to recover, had since been paid off.

The counterclaim was for $20,000 damages alleged to have been suffered in the following circumstances. Subsequent to the date of the mortgage, defendant, trading as Martin & Co., became further indebted to plaintiffs, and as security for such subsequent indebtedness hypothecated to them the produce, flour, wheat, etc., in his mill. These plaintiffs afterwards took possession of and sold, and it was for this seizure. alleged to have been wrongful, and for sales alleged to have been made at an undervaluation, that the damages were claimed.

Travers Lewis, for plaintiffs.

F. R. Latchford, K.C., for defendant.

THE MASTER:—It will be observed that the subject matters of the claim and of the counterclaim have no connection with each other. This is, of course, by no means fatal to the latter. On the contrary, defendant is clearly entitled under the Rules to set it up. There is, however, a discretion under Rule 254 to strike it out if the claim thereby raised ought not

to be disposed of by way of counterclaim, but ought to be litigated in an independent action, and for this plaintiffs now ask.

In acting under Rule 254 the Court is guided by considerations of expediency and convenience; and, as pointed out by Kay, J., in Gray v. Webb, 21 Ch. D. 802, a counterclaim ought not to be allowed to stand, the effect of which would be to unduly delay the plaintiff in the trial of his action. In the present case it would not, I think, be convenient to dispose of the claim and the counterclaim in the same action, and the effect of doing so would be to unduly delay plaintiffs. In view of the defence set up, there is nothing in the plaintiffs' claim requiring it to be tried in Court at all. On the contrary it must eventually be disposed of in the Master's office. The only question at issue is as to the amount due under the mortgage, and the proper forum for such an inquiry is the Master's office.

If the counterclaim is struck out, a judgment for redemption or sale with a reference to take the account can be obtained at once without the necessity of waiting until a regular sittings of the Court. The counterclaim, on the contrary, involves matters which must be tried in Court, and the effect of allowing it to stand would be to prevent plaintiffs from proceeding with their reference for weeks, if not months, until the counterclaim had been finally disposed of. Then would come the reference to take plaintiffs' account, which could not be taken in Court, and the six months allowed for redemption would begin to run only after that.

Apart from the delay involved, I can see no advantage to defendant in having his counterclaim disposed of in this action. If he brings an independent action he can easily bring it on to trial long before the day fixed for redemption of plaintiffs' mortgage, and a pending appeal in defendant's action would, presumably, be a good ground for extending the period allowed for redemption.

As, therefore, the claim and the counterclaim, were the latter allowed to stand, would not be disposed of by the same forum, and as the only effect of allowing it to stand would be to delay plaintiffs, it appears to me to be a case in which I should exercise the discretion given by Rule 254 and make an order striking out the counterclaim.

In addition to Gray v. Webb, I have been referred to MeLean v. Hamilton Street R. W. Co., 11 P. R. 193; Central

Bank v. Osborne, 12 P. R. 160, and Odell v. Bennett, 13

P. R. 10.

CARTWRIGHT, MASTER.

OCTOBER 18TH, 1905.

CHAMBERS.

MCLEOD v. LAWSON.

Parties Addition of Defendants - Partnership Persons Interested-Mining Ventures-Cautioner.

The statement of claim alleged that plaintiffs and defendant Crawford entered into an oral agreement that they should be equal partners in certain mining ventures; that afterwards plaintiffs agreed that one John McLeod should be an equal partner, to which defendant Crawford afterwards assented; that a certain valuable mining location was discovered and a lease thereof taken for convenience in the name of Crawford, who afterwards wrongfully assumed to be sole owner and so dealt with defendant Lawson. Plaintiffs'

prayer for relief was: (1) that their share or interest in said mining lease and the mining lands comprised therein might be declared; (2) to have the agreement between Lawson and Crawford set aside; (3) an injunction; (4) an account of profits.

The writ of summons was issued on 17th July, 1905. John McLeod, who was alleged by plaintiffs to have an equal share in the venture, was not a party.

The statement of defence of defendant Lawson was delivered on 3rd October, and he thereupon moved for an order that John McLeod be added as a party, as well as one McMartin. who on 14th September registered a caution.

W. H. Blake, K.C., for defendant Lawson.

G. H. Kilmer, for defendant Crawford.

J. B. Holden, for plaintiffs.

R. McKay, for John McLeod.

THE MASTER-It is evident that this is an action to have a judgment establishing a partnership and directing an account and all other consequential relief; as to which see Andrews v. Forsythe. 7 O. L. R. 188, 3 O. W. R. 307.