general distribution among them rateably and proportionably according to the amount of their respective claims.

To hold that this clause in the deed operates so as to compel the court to hold, as an incontrovertible conclusion of law, that the deed was not made and executed as in its terms it professed to be, for the purpose of paying and satisfying rateably and proportionably all the creditors of the debtors their just debts, but was made and executed with intent to defeat and delay such creditors, appears to me to involve a manifest perversion of the plain language of the deed, and such a construction of the clause in question is not warranted by any decision in the English courts or in those of the Province of Ontario, from which this appeal comes, and there is in my judgment nothing in it which so recommends it as to justify us in making a precedent by its adoption. If it be said that the clause in question, although not operating as such a conclusion of law, at least affords evidence of the deed having been executed with an intent to defeat and delay creditors, and not for the purpose of paying and satisfying the creditors their just debts rateably and proportionably, and for that reason was proper to have been submitted to the jury to be taken into consideration by them, the answer is that such a point should have been made at the trial, and not for the first time, as it was here, in the Court of Appeal for Ontario in the argument of the counsel for the appellant in his reply. And as the jury have rendered a verdict for the plaintiff, they must on this appeal be taken to have found, as matter of fact, that the deed was not executed with intent to defeat and delay creditors, but was executed for the purpose of paying and satisfying them their just debts rateably and proportionably.

ment of this court refusing such rule, sustained by the Court of Appeal for Ontario, is what is before us, and I am of opinion that the verdict of the jury should be upheld, and that the rule moved for was properly refused. I have, however, carefully perused the judgments in the case of Nicholson v. Leavitt, so much relied upon by the counsel for the appellant, as it was decided by the Court of Appeals for the State of New York, as reported in 6 N. Y. R. 10, and also the same case as decided in the Superior Court of the State, and reported in 4 Sandf. 254. The Court of Appeals, when reversing the judgment of the Superior Court, seem to me to rest their judgment in a great degree upon a proposition which they lay down, to the effect that a debtor might with equal justice prescribe any period of credit which to him should seem fit, as that which the trustee should give upon sales of property assigned to him, as assume to vest in him a discretion to sell upon credit if such a mode of selling should seem reasonable and proper and in the best interests of the creditors.

With the utmost respect for the high authority of the Court of Appeals for the State of New York, this seems to me to be equivalent to saying that to express an intent of vesting in the trustee authority and permission to exercise his best judgment by selling on credit, if such mode of disposing of the property should seem to be in the interest of the creditors whose trustee he is made, and to express an intent of divesting such trustee of all such authority, and to prescribe to him a rigid, unalterable course which, in the discharge of his trust, he must pursue against the dictates of his own judgment, and against the will of the creditors whose trustee he is made, are one and the same thing. There are other parts of the reasoning upon which this judgment is rested which seem to me to lead to the conclusion, that delaying a creditor in obtaining satisfaction of his debt by the particular process of execution in a suit at law is equally a defeating and delaying of him within the prohibition of the statute as the vesting the trustee with authority in his discretion to sell upon credit, if such would be a reasonable and proper course to

of the statute is established in our courts beyond all controversy.

Upon the whole, therefore, after a careful perusal of both judgments, I must say that that of the Superior Court is, in my opinion, based upon much sounder reasoning, and is more reconcilable with the English authorities than is that of the Court of Appeals, and I think it a sound rule to lay down as governing all cases like the present that an assignment of property by an insolvent debtor can never be declared void under the statute in question here, if in the opinion of the tribunal for determining matters of fact in each case, the actual intent of the debtor, as a matter of fact, in executing the deed was, as the jury must be taken to have found that fact in this case, to provide for the payment and satisfaction of the creditors of the debtor rateably and proportionably without preference or priority according to the amount of their respective claims; and, in my opinion, the mere fact that the deed contains a clause authorising the trustee in his discretion to sell the property assigned or any part of it, on credit, if such a mode of selling it should seem reasonable or proper and in the interest of the creditors, does not justify as a conclusion of law an adjudication that the grantor's intent in executing the deed was not to provide for such payment, but on the contrary, in violation of the provisions of the statute in that behalf, was to defeat and delay his creditors.

THE CASE OF MR. BUNTIN. On p. 228 we gave the observations of Mr. Dugas, Police Magistrate, when committing Mr. Buntin for trial. The Grand Jury having found a true bill, the trial took place during the November Term of the Court of Queen's Bench, and the defendant was convicted. There being no Case Reserved, and the motion in arrest of judgment being overruled, Mr. Justice Monk (Dec. 2) passed sentence as follows:

Mr. Buntin,—It is useless for me to attempt, nor do I wish, to disguise from you my regret that it now becomes my duty to pronounce upon you the sentence of the law in pursuance of the verdict finding you guilty

cusation was that you, in concurrence with Mr. Craig, president of the Exchange bank, yourself being then a director of the bank, secured and received an undue preference over other creditors to the extent of $8,000. You were a large creditor of the bank, and the amount thus withdrawn was only a part of the deposit then standing at your credit. At this time the bank had suspended payment and was in a state of insolvency. In thus acting you become involved in the commission of an illegal act. Upon this point the statute is clear and precise, and the facts proved were undeniable and in truth could not be denied. You were ably defended and you had a fair trial. The verdict of the jury was sustained in law by the rulings of the court, and the result was and is that you stand convicted of having violated the law, and thereby you have subjected yourself to the penalties of a misdemeanour. For this offence the statute inflicts a sentence of imprisonment in jail for any period less than two years, at the discretion of the court. It may be proper to remark that you, being a man of wealth, returned the money with interest so soon as you became convinced that you had committed an illegal act. The creditors of the bank did not lose one dollar by this undue preference. But in the opinion of the jury the law had been transgressed; no compromise was proved, and, in law, was not possible. There are, however, many circumstances attending your case which incline the court to exercise the utmost leniency compatible with a reasonable application and a rather mild vindication of the law. Had it been in my power to impose only a fine possibly I might have considered myself justified in doing so. It may perhaps be thought that your case is one of considerable hardship, but even so the sentence of the law is inevitable; and, on the other hand, it will probably occur to you that you acted with great rashness and want of reflection in doing what you did. I do not deem it necessary to add another word except to say that after a careful consideration of all the incidents of your particular case as disclosed by the evidence, the court would rather err on the side of clemency than on that of harsh

ness.

Your sentence is that you be imprisoned in the common jail of this district for a period of ten days.

for the prosecution.

citing several cases mentioned by the plaintiff, the court said: "What those cases really decide is that,

APPROPRIATION OF MONEY FOUND.-Ellen Moody, a hawker, was charged on demand at the Thames Police Court on Tuesday, with stealing a purse containing about $2. It was alleged that the woman found the purse; but the evidence was not satisfactory, and the magistrate discharged the prisoner. In doing so, he observed that there was a good deal of misapprehension respecting the finding of property. "If." he said, a person found anything and appropriated it to his or her own use, knowing who the owner was, that person would be guilty of theft; but if a person found, say a purse, in which there was nothing to show to whom it belonged, there was no obligation to find out the owner; and no theft would be committed if the finder appropriated the money.-Washington Law Reporter.

An English lawyer's right to his fee seems to rest on a very intangible basis. A case is reported in which a barrister gave up all his regular practice to devote himself to a particular case, and after years of devoted labour succeeded in winning it. His client, being a woman, utterly ignored him as soon as she had the estate in enjoyment. He thereupon brought suit (see Kennedy v. Brown, 32 L J.C. P., 137), for his fee, amounting to $100,000. But the judges would not allow him any standing in court. They enlarged on the value of an advocate's services to his client; but held that his remuneration must be a gratuity-an honorarium, for which no suit could in any case be brought. The plaintiff was utterly ruined, having abandoned all his other practice with the particular case, and died shortly afterwards broken-hearted.-Ky. L. Rep.

CONTRIBUTORY NEGLIGENCE.-In the recent case of the "Vera Cruz," in the English Admiralty Court (41 L. T. Rep. N. S 26), which was an action to recover damages for personal injuries, the plaintiff contended

of the plaintiff. yet unless he, the plaintiff, might by the exercise of ordinary care have avoided the consequences of the defendant's negligence, he is entitled to recover. If by ordinary care he might have avoided them, he is the author of his wrong (cf. the judgment of Parke, B., in Davis v. Mann). This doctrine, it will be seen, is a different thing from that for which the plaintiff is here contending."-Daily Law Record (Boston).

MEASURE OF DAMAGES.-In the case of King v. Watson, the Texas Court of Appeals decided that, where a contract is broken, the measure of damages in respect of such breach is the amount which would arise under

circumstances that may reasonably be held to have

been in the contemplation of both parties at the time of making the contract. In the case in question, A made a contract to thresh B's grain, and told him he would thresh it on July 4th. B prepared his grain, A failed to thresh it, and the grain remained exposed until Septempber. The Court held that B could not recover the amount of the deterioration of the grain from exposure, as neither party at the time of contract could reasonably be supposed to have contemplated such exposure. It was further decided in the same case that, where the plaintiff's petition shows a case entitling him to nominal damages, but joins a claim for substantial damages, which is not tenable, it is not error to sustain a demurrer to the whole petition.-Lane Record (Boston).

THE CASE OF MR. JUDAH.-A correspondent of the Gazette, referring to the observations of Mr. Desnoyers (ante, p. 371), says :-"The cases cited by him to justify the hanging up of this case until the civil action is concluded, are hardly in point. They are cases where there was no doubt about the offence charged being a crime, one of them, if I mistake not, being a charge of perjury In this case, according to all the authorities, there was no crime. The English case cited by Mr. Macmaster in his argument was very clear upon that point, and no attempt was made to meet it. But there is another case nearer home. Some years ago the firm of Owen McGarvey & Co. purchased some property to which the vendor, it turned out, had no proper title. A criminal action was taken for false pretences, and the matter came before the Court of Queen's Bench, Mr. Justice Ramsay, whose ability as a criminal lawyer everybody admits, presiding. The moment the facts of the case were stated by the learned Queen's counsel who had charge of it for the prosecutors, the judge at once, on the ground that a breach of contract or covenant, arising out of a defect in title to land, could not be made a crime, ordered a verdict of acquittal, which the jury rendered without leaving the box, and the accused was at once dismissed. The deed in that case was made by Trefle Brien dit Deroche to the firm of Owen McGarvey & Co., passed by Alphonse Clovis Decary, notary."

ploy of the Protestant Board of School Commissioners of Montreal. His salary being seized under a judgment, he claimed exemption under 628 C. C. P.

Held, that the provisions of 38 Vic., Cap. 12, which subject a portion of the salaries of public employees to seizure, do not apply to the salary of school teachers under the control of the Boards of School Commissioners, and that under C. C. P. 628 their salary is exempt from seizure.

Kerr, Carter & Goldstein for the plaintiff.
Downie & Lanctot for the defendant.

COUR DE REVISION.

QUEBEC, 30 oct. 1884.

Coram STUART, CARON et BOURGEOIS, JJ. SENECAL V. CHOQUETTE.

Procédure-Faits et Articles-Preuve.

Le présent jugement de la Cour de Révision, infirme un jugement de la Cour Supérieure de Montmagny, par lequel le défendeur avait été condamné à payer au demandeur la somme de $50 de dommages pour injures verbales. Le demandeur réclamait $12,000 par son action.

Le jugement de la Cour de Révision est très explicite par lui-même, et nous le donnons en entier:

"La Cour, etc.

Considérant que le dit demandeur en vertu d'un ordre valide, a été, le 14 janvier dernier, dument assigné à répondre le quinzième jour de février alors prochain et maintenant dernier, à certains interrogatoires sur faits et articles annexés au dit ordre ;

"Considérant que le dit demandeur dument assigné n'a pas répondu aux dits interrogatoires le dit jour, quinze février dernier, ni depuis ;

“Considérant que le dit demandeur n'a jamais offert de répondre aux dits interrogatoires sur paiement de ses frais de déplacement;

"Considérant que les interrogatoires numéros cinquième et sixième annexés aux dit ordre, étaient pertinents à la contestation mue entre le défendeur et le demandeur;

"Considérant qu'il résulte de la preuve faite par les parties en cette cause que le dit défendeur n'a pas proféré sur le compte du

demandeur les accusations mentionnées en la déclaration, que les paroles dont le défendeur s'est servi en parlant du demandeur ne comportait aucune imputation directe de malhonnêteté, et que le défendeur n'a causé aucun dommage au demandeur;

"Infirme le jugement rendu le quatrième jour de juillet dernier contre le dit défendeur en faveur du demandeur par la Cour Supérieure siégeant dans et pour le District de Montmagny, et rendant le jugement que la dite Cour aurait dû rendre, déclare avérés les faits articulés dans les dits interrogatoires numéros cinq et six, et renvoie l'action du dit demandeur avec dépens de la Cour Supérieure et les dépens de la Révision en faveur du défendeur.

J. G. Bossé pour le demandeur.
P. Aug. Choquette pour lui-même.

(P.A.C.)

SUPERIOR COURT.

SHERBROOKE, Feb. 26, 1884.

Before BROOKS, J.

MCFARLANE V. MCNEECE.

Capias-Intent to defraud.

Held, that where a debtor who in 1875 had secreted his property and left Canada with intent to defraud, came temporarily into the Province in 1882, and was capiased as he was again leaving, that the secretion and departure in 1875 coupled with intention of again leaving in 1882, were sufficient ground for the arrest; and the capias was declared good.

PER CURIAM. The defendant was arrested under a capias in November 1882. The affidavit alleges that in 1875 defendant secreted his property and absconded and has since resided in a foreign country, is now temporarily in Quebec, about to leave for England.

Defendant petitions against this and alleges the allegations of the affidavit to be untrue.

Defendant, a physician, was residing and practicing in Bury; after the rendering of judgment in favor of plaintiff, defendant sold at auction all his moveables and left Bury. It is shown that he was indebted to various parties, and that his movables must have sold for considerable; one witness states he paid his debts as far as he was able from the