Anglin, J. 1908 WHITLING V. FLEMING. March 27. ANGLIN, J.:-Section 5 of the Libel and Slander Act provides that in an action for defamatory words spoken of any woman imputing unchastity "the plaintiff may recover nominal damages without the averment or proof of special damage." The contention on behalf of the defendant is that this provision, in the absence of averment and proof of special damage, restricts the plaintiff's right to nominal damages. On behalf of the plaintiff it was urged that the effect of the statute is merely to make words imputing unchastity actionable without proof of special damage; and that therefore the effect of the statute is to entitle the plaintiff absolutely, upon the defendant being found guilty, to nominal damages, and if the jury, in their discretion, see fit, to award them, to enable her to recover general or substantial damages. In my opinion the statute does not admit of the construction for which the plaintiff contends. The purpose of the legislation appears to have been, in cases in which the plaintiff could not prove special damage, to permit her to rehabilitate her character by the verdict of a jury. This purpose is fully accomplished by a verdict for nominal damages, and this, I think, was the full measure of the right intended to be conferred by the statute. To construe the statute otherwise is to give no significance whatever to the word "nominal." If it were intended that the plaintiff's right, without proof of special damage, should be to recover general or substantial damages, I can conceive of no reason why the word "nominal" was inserted. The only reported case to which I have been referred bearing upon the matter is Agar v. Escott (1904), 8 O.L.R. 177. The plaintiffs in that case were a married man and an unmarried woman. The report shews that special damage was there alleged as to the male plaintiff, but not as to the woman. There is nothing to indicate that the words imputing unchastity were spoken of her in the way of her trade or calling. As to the woman, therefore, the only cause of action was under the section of the statute above referred to. The question before the Court was as to the right of the plaintiffs to plead a certain letter written by the defendant to the female plaintiff reiterating the charges against both, which had been published orally on other occasions. As to this letter it was pointed out that it afforded no cause of action to the woman, and that the cause of action which it might give to the man, not being common to himself and the woman, could not properly be included in the action which they were allowed to bring jointly in respect of a. slander published at the same time affecting both. The Court, however, took the view that this reiteration of a slander in a letter addressed to the woman might be given in evidence to aggravate damages, and therefore could be properly pleaded, if made use of only as a plea in aggravation. As to the man, the statute of course has no application. Upon proof of the publication of the defamatory words, and of the special damage alleged, he would, if no defence were made out, be entitled to a verdict for the amount of such special damage. It is perhaps conceivable that his damage might have been aggravated by the sending of the letter. As to the woman, it need only be said that the report of the decision makes it reasonably clear that although the paragraph appears to have been allowed to stand as an allegation on behalf of both plaintiffs for the purpose of aggravating damages, the question as to the extent to which the woman could recover damages was not brought to the attention of the Court. I therefore think the decision in Agar v. Escott cannot be regarded as establishing that in an action under the statute more than nominal damages may be recovered without averment and proof of special damage. As to the other question, the practice appears to be quite clear. There is no provision in the rules entitling a plaintiff in an action for pecuniary damages, to sign anything but an interlocutory judgment for default of defence. A judgment awarding to the plaintiff nominal damages of any fixed sum and costs of action would be not an interlocutory judgment, but a final judgment. It is only in respect of liquidated claims that a final judgment for default is provided for: Rule 587. Where the claim is for pecuniary damages. interlocutory judgment only can be signed: Rule 589. In order to obtain final judgment, the case must be set down for hearing at a Court for the trial of actions, in order that damages may be assessed. There is no provision in the Rules and no practice enabling a plaintiff in a slander action, who is entitled to an interlocutory judgment under Rule 589, even though the damages can in no event be other than nominal, to obtain a final judgment for such damages and costs without bringing the action down to 18-VOL. XVI. O.L.B. Anglin, J. 1908 WHITLING v. FLEMING. Anglin, J. 1908 WHITLING V. FLEMING. trial for the assessment of damages. Rule 579 does not seem to apply: O.J. Act, sec. 102. The effect of non-delivery of a statement of defence is to entitle the plaintiff only to a judgment concluding the issue as to liability. It does not, under the practice, entitle him to final judgment for damages without assessment. Upon a finding of guilt by a jury, without assessment of damages, the Court cannot, even with the plaintiff's consent, enter a judgment in his favour for nominal damages: Wills v. Carman (1888), 14 A.R. 656; and upon a finding that there are no damages, there being no finding as to liability, the verdict is inconclusive; neither party is entitled to judgment, and a new trial is necessary: Bush v. McCormack (1891), 20 O.R. 497. Since, therefore, the plaintiff could not obtain final judgment for the nominal damages to which the statute entitled her and for her costs of the action without bringing this action down for assessment of damages at a Court for the trial of actions (Rule 589), it follows that she is entitled, as part of the costs of the action necessarily incurred by her, to the costs incurred in connection with the assessment of damages. There will, therefore, be judgment for the plaintiff for the sum of one dollar for damages and for her costs of this action, including the costs of the assessment of damages had before me. G. F. H. [IN CHAMBERS.] REX EX REL. BECK V. SHARP. Municipal Corporations Quo Warranto Proceedings Cross-examination on In proceedings instituted under the Con. Mun. Act, 1903, 3 Edw. VII. ch. 19 (0.), to unseat a member of a municipal council, the cross-examination of affiants on their affidavits can only be had on leave obtained therefor from the Judge or Master in Chambers or the officer before whom the proceedings are being carried on, who must take such cross-examination himself, no authority being conferred on him to direct any one else to do so. THIS was an appeal by the defendant from the order of the Master in Chambers, dated the 18th of February, 1908, requiring that he and Emily Davis, affiants on his behalf, should attend before the local registrar of this court at Brampton to submit to cross-examination upon their affidavits filed in answer upon proceedings taken to unseat the defendant as a member of the Brampton town council. Proceedings were instituted before the Master in Chambers under the Consolidated Municipal Act, 1903, 3 Edw. VII. ch. 19 (O.). Upon the matter coming before the Master, it was adjourned in order that the relators might consider whether or not they should take steps to cross-examine the defendant and Mrs. Davis. Without obtaining any direction in that behalf from the Master, the solicitor for the relators procured from the local registrar an appointment for the cross-examination of the affiants before him, proceeding under Consolidated Rules Nos. 490 and 492. This appointment was served upon the defendant and Mrs. Davis, and by advice of counsel they declined to submit to cross-examination pursuant to it. The relators then moved before the Master in Chambers for an order requiring that the defendant and Emily Davis should attend at their own expense and submit to cross-examination upon their affidavits; or, in the alternative, requiring that they should attend before the Master in Chambers for oral examination before him, and that in default the affidavits should be removed from the files. Upon this application the Master ordered that the defendant and Emily Davis should attend before the local registrar, at their 1908 Feb. 28. 1908 REX EX REL. v. SHARP. own expense and without payment of further conduct money, and submit to cross-examination upon their affidavits. From this order the defendant appealed. On February 24th, 1908, the appeal was heard by ANGLIN, J., sitting in Chambers. T. J. Blain, for the defendant. W. E. Middleton, K.C., for the relators. February 28. ANGLIN, J.:-The questions for consideration are whether Consolidated Rule 490 applies to proceedings under the Municipal Act to contest the validity of an election, and whether an affiant in such proceedings is liable to cross-examination before any other officer than the judicial officer by whom the matter is to be tried. It is not disputed by counsel for the defendant that the Master in Chambers might have directed that the affiants should attend and submit to cross-examination before himself; but he maintains that Rule 490 does not apply to these proceedings, that the appointment of the local registrar was issued without authority, and that the Master in Chambers has not power to direct the taking of oral evidence, whether original evidence or in the nature of crossexamination upon affidavit, before another officer. Mr. Blain contended that rules passed in the 14th year of the reign of her late Majesty Queen Victoria, regulating proceedings in quo warranto, are still in force. I am unable to accept that view. All rules of practice, save certain rules specially excepted, and not including these quo warranto rules, were expressly repealed by the Consolidated Rules of 1888 Rule 3. In the consolidation of 1888 there were a number of special rules governing proceedings in quo warranto matters, Nos. 1038 to 1044. These rules, however, did not provide the entire procedure. In fact, the main part of the procedure was then to be found in the Municipal Act, R.S.O. 1887, ch. 184, secs. 187 et seq. Section 197 of that statute contained provisions substantially the same as those now found in sec. 232 of the statute, 3 Edw. VII. ch. 19 (O.), which provides that "the Judge (i.e., in this case, the Master in Chambers) shall, in a summary manner, without formal pleadings, hear and determine the validity of the election, and the right of any person to sit, and may inquire into the facts on affidavit |