Statute, and came to an opposite conclusion. The law has been settled in this Province, in a case not cited in the Revue (Re Thomas, 15 Gr. 196) that the want of assets is no reason why the case should not fall within the scope of the Act.

A gift for life of consumable articles with limitation over, in a testamentary instrument, is usually held to vest in the donee the absolute ownership. There have been conflicting decisions as to the effect of such a gift in the case of farm-stock. But lately the Master of the Rolls has held (in Cockayne v. Harrison, 20 W. R. 504) 8 C. L J. N. S. 219, that the subject of such a bequest being in the nature of stock-in-trade, only a life-interest passed as to so much of the stock as was of a consumable nature, and that the gift over was operative.

It has been held in Chambers by Mr. Justice Gwynne in Jameson v. Kerr, that goods may be replevied out of the hands of a guardian in Insolvency, notwithstanding the provisions of Con. Stat. U. C. cap. 29, sec. 2. This is an important decision. The same point has arisen in Nova Scotia, but has not yet been decided, so far as we have heard.

STAMP OBLITERATORS.

The Government of Ontario propose doing a good deed in the working of Division Courts, which we are glad to notice, especially as it chimes in with what we have always contended for, namely, that every convenience should be given to officers in performing their duties, and that they should not be taxed to provide, as they have been, not merely conveniences but even necessaries.

Those who are acquainted with the prac tical working of the Courts, know the difficulty of making headway with business during the sittings, when the Judge has to see stamps put on the papers and cancelled in his presence. They will therefore appreciate the act of the Attorney General in ordering obliterators for the use of clerks, thereby saving the time of judges, officers, suitors and witnesses. The County Judge of Simcoe was so impressed with the necessity of some such labor-saving and time-saving machine, that he got at his own expense some instruments for cancelling stamps, which, though rather roughly constructed, nevertheless answered the purpose, and were found of the greatest service.

Mr. Harrison in his commentary upon the 44th section of the Common Law Procedure Act (as Consolidated), remarks that much difficulty has arisen about the meaning of the words "Cause of action" contained in that section. The difficulty has, of late, been much increased by the various conflicting decisions of the English Courts upon the corresponding sections of their statute, i.e., the 18th and 19th of the C. L. P. Act of 1852. The result of this conflict is briefly this: the English Common Pleas holds that the statute includes a case where the whole cause of action, technically speaking, has not arisen within the jurisdiction, but where such an act has been done on the part of the defendant, as in popular parlance, gives the plaintiff his cause of complaint. The Queen's Bench holds precisely the opposite of this, namely, that the whole cause of action and not merely the act or omission which completes the cause of action, must arise within the jurisdiction, in order that the language of the statute may be fully met. The Exchequer has occupied a somewhat intermediate position, and some of its decisions have been, so to speak, of an uncertain sound Thus Fife v. Round, 30 L. T. R. 291, is in accord with the holding of the Common Pleas, while the later case of Sichet v. Borch, 2 H. & C. 954, agrees with the view of the Queen's Bench--though it is to be observed that the court does not advert to its former contrary decision. In the lastreported case in the Exchequer, Durham v. Spence, L. R. 6 Exch. 46, a majority of the judges adopted the views of the Court of Common Pleas, as expounded in Jackson v. Spittall, L. R. 5 C. P. 542, and held that the cause of action" referred merely to the act or omission constituting the violation of duty complained of, and creating the necessity for commencing the action. Kelly, C.B., strongly dissented and upheld the interpretation given of the words by the Queen's Bench. Subsequent to Durham v. Spence, the only other case reported is that of Cherry v. Thompson, (in the Queen's Bench) 26 L.T. N.S. 791, where all the judges-Cockburn, C.J., Blackburn, Lush and Quain, J.J.—unanimously affirm the construction put by their court upon

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statute.

the

Thus the practice stands in about as great confusion as once obtained upon the question

of security for costs, in cases where foreigners within the jurisdiction were suing in the English Courts-a subject lately discussed in this journal. With colonial deference for English precedents, it will be rather a nice matter for our judges now to say what court or what practice they will follow. We have no reported decisions on the section in question, but the practice, as we understand, has always been in Ontario to hold that it must be shown that the whole cause of action arose within the Province. But suppose a case now to be brought before the judges in term-how would they decide? Follow the holding of the Queen's Bench, as has often been done in matters of practice, where the English Courts were at variance? (Per Robinson, C.J., in Gill v. Hodgson, 1 Prac. R. 381). Or, hold that the decisions of the Common Pleas, plus the later decisions of the Exchequer, outweigh those of the Bench? It seems to us that the true way out of the quandary is the eminently sensible course adopted by Mr. Justice Wilson, in Hawkins v. Paterson, 3 P. R. 264, where he says, "I am not prepared to adopt as a rule that we are to follow the decisions of the Queen's Bench, in England, more than those of the other courts. * * I think we should exercise our own judgment as to which is the best rule and practice to adopt, if there be a difference in the English Courts, and adopt that which will be the most convenient and suitable for ourselves, whether it shall be the decision of the one court or the other."

In that case the learned judge gave effect to the practice of the Courts of Common Pleas and Exchequer as against that of the Queen's Bench. In the present conflict we incline to think (if we may speak without presumption, where great masters of the law differ) that the practice of the Queen's Bench should be preferred to that of the other common law courts. As a matter of verbal interpretation, we think " cause of action" should be taken o mean the whole cause of action. Such has been the uniform meaning attributed to it when used in the English County Courts Act and in our Division Courts Act.

Again, to hold that provincial courts can entertain a suit against a foreigner where, for instance, only the breach of contract has taken place within the jurisdiction and he is not personally served, may give rise to very grave questions of what is clumsily called "private

international law," in case the defendant has no assets within the province and it is sought to make him liable on the judgment so obtained in the forum of his domicile.

This is just one of those troublesome questions that can only be settled by a gradual course of decision. As it is merely a matter of practice, it is thereby excluded from being a subject of error or appeal, so that each court is left to independent action, and to do what seems right in its own eyes.

SELECTIONS.

Iowa has added herself to the list of States which have abolished capital punishment. In that State all crimes heretofore punishable with death shall, hereafter, be punished by imprisonment for life at hard labor in the State penitentiary, and the governor shall grant no pardons, except on recommendation of the general assembly.

The tendency of modern philanthropy is to make punishment for crime as easy as posible, in a physical point of view. Granting everything that may be said, in a general way, in favor of improved modes of punishing crimes we think that the danger is upon us of making the doom of criminals too easy, physically.

Death is the severest physical injury that can befall a human being, and it is only in the extremest cases that such a punishment should be inflicted at all. But we have been able to find no adequate reason for abandoning the custom of ages of putting one to death who wilfully and deliberately kills another. In such a case, at least, we believe in the strict lex talionis, the doctrine of "an eye for an eye," "a tooth for a tooth," a "life for a life," not to exact retribution (for that cannot be), but for the safety of society. Self-preservation is the first and strongest law of nature; and the professional criminal, at least, will run more chances of being imprisoned for life, than of being hung immediately on conviction. The laws specifying what crimes shall be punished by death, and regulating the execution of criminals condemned to death, may and ought to be, modified in many instances, but the total abolition of capital punishment is a dangerous experiment.-Albany Law Journal.

MAGISTRATES, MUNICIPAL, INSOLVENCY & SCHOOL LAW.

NOTES OF NEW DECISIONS AND LEADING CASES.

ASSIGNMENT FOR THE BENEFIT OF CReditors.

Where a debtor made an assignment to trustees for the benefit of his creditors, providing by the terms of the instrument that the benefits conferred by it should be confined to those creditors who should execute it within one year, or notify the trustees in writing of their assent to it; and where one creditor had been aware of the terms of the deed, and had neglected to sign it, but had notified one of the trustees of his assent; and where another creditor had not been aware of the deed, but had taken no proceedings hostile to it, and had given his assent to it when it came to his knowledge; and where another, though aware of the deed and its provisions, had neither executed it nor notified the trustees of his assent to it, but had never acted contrary, or taken proceedings hostile, to it:

Held, that they were entitled to come in and prove their claims equally with those creditors who had executed the deed in accordance with its terms, although they had allowed more than ten years to elapse.

Objection being made to the application being made by petition in Chambers, and not by a separate suit,

Held, that it was properly made in Chambers by petition in the original suit.

The Statute of Limitations being urged against the admission of the claims,

Held, that the relation of trustee and cestui que trust had been established between the assignees and the creditors who had acquiesced in the deed, as well as those who had actually executed it, and that therefore the statute was inoperative. There was also the additional reason, in two cases, that the statute had never begun to run, owing to the creditors' right of action having arisen after the debtor had ab. sconded.-Gunn v. Adams, 8 L. J. N. S. 211. CRIMINAL LAW-EVIDENCE.

A prosecutrix, in an indictment for an indecent assault amounting to an attempt at rape, if asked on cross-examination whether she has had connection with a person other than the prisoner, cannot be contradicted.Reg. v. Holmes, L. R. 1 C. C. 334.

CRIMINAL LAW-LARCENY.

The prisoner, whose goods were in the hands of a bailiff under a warrant of execution, forcibly took the warrant from the bailiff, thinking

to deprive him of his authority. Held, that the prisoner was not guilty of larceny, but of taking for a fraudulent purpose.-Reg. v. Bailey, L. R. 1 C. C. 347.

FORGERY-BILLS AND NOTES.

Indictment for forging an instrument being an I. O. U. for thirty-five pounds purporting to be signed by the prisoner and one W. The latter's name was forged. Held, that the instrument was an “undertaking for the payment of money " within 24 & 25 Vic. c. 92 s. 23.Reg. v. Chambers, L. R. 1 C. C. 341. INSOLVENCY.

1. The word "due" in the English Bankrupt Act means "presently payable.” Ex parte Sturt; In re Pearcy, L. R. 13 Eq. 309.

2. Under the English Bankrupt Act the holder of a note signed by two members of a firm, by the firm, and by other persons, was allowed to prove against, and receive dividends from, the estates of the said two partners and against the joint estate of the firm.-Ex parte Honey; In re Jeffery, L. R. 7 Ch. 178.

SIMPLE CONTRACTS & AFFAIRS OF EVERY DAY LIFE.

NOTES OF NEW DECISIONS AND LEADING CASES.

BAILMENT-NEGLIGENCE.

The defendants received, as ordinary bailees, a dog to be carried on their road. The dog had on its neck, when delivered to the defendants, a collar, to which was attached a strap. The defendants secured the dog by the strap, and the dog slipped its collar, escaped, and was killed. Held, that securing the dog by the collar was the ordinary and proper way, and that the defendants were not guilty of negligence in fastening the dog by the strap suggested by the plaintiff, who delivered the dog without notice that the fastening was unsafe. Judgment. for defendant. - Richardson v. North Eastern Railway Co., L. R. 7 C. P. 75. BILLS AND NOTES-STATUTE OF LIMITATION.

land; and that said writ was properly served. Newby v. Colt's Patent Firearms Co., L. R. 7 Q. B. 293; s. c. GOOD-WILL.

The defendant, who had sold the good-will of a business to the plaintiff, began business again, giving out that the same was a continuation of his former business, and soliciting his former customers for orders. Held, that the defendant was entitled to publish any advertisement or circular to the world at large announcing that he was carrying on said business, but was not entitled by private letter, or by a visit, or by his agent, to solicit a customer of the old firm to transfer his custom to him, the new firm.-Labouchere v. Dawson, L. R. 13 Eq. 322.

NEGLIGENCE-CONTRADICTORY EVIDENCE-NONSUIT.

The defendant having charge of the plaintiff's colt, took it to a blacksmith's shop to be shod for the first time, and having tied it there went out. The colt pulling back, threw itself, and received injuries of which it died. The plaintiff sued the defendant for negligence in so tying the colt instead of having it held while being shod; and several witnesses were of opinion that what the defendant had done was improper, while others thought he had adopted the proper plan.

Held, not a case in which there should be a nonsuit, on the ground that the evidence was consistent either with the existence or nonexistence of negligence; but that the question was for the jury. Cotton v. Wood, 8 C. B. N. S. 568, and Jackson v. Hyde, 28 U. C. R. 294, distinguished. Henderson v. Barnes, 32 U. C. R. 176.

can

[In giving judgment, the court used the following language: -"In the present case, it hardly be said that any question of skill or science arises. It is, properly speaking, a mere matter of opinion, and any juror could, after hearing the facts, equally well judge of the propriety of the acts complained of, as any witness called to pass his opinion as to them. Affirmatively, there was abundance of testimony of negligence, in the opinion of the plaintiff's witnesses. Can we say that it is not evidence of negligence to take a colt to a blacksmith's shop to be shod for the first time, to tie him there by the neck, and to leave it so tied, with no person to look after the animal or watch it, and being so left it gets injured, and, as alleged, from the colt being so tied and unattended? Witnesses may be called and testify that they would have done just what the defendant did, and that they could see no negligence; but it is obvious there are various

circumstances to be considered in cases of this nature; for instance, much depends upon the temper and character of the horse; what would be considered a proper course with one horse, might be a very negligent way of treating another."]

NEGLIGENCE.

Defendant, in pursuance of a contract, laid down a gas-pipe from the main to a metre in the plaintiff's shop. Gas escaped from a defect existing in the pipe when laid, and the servant of a gas-fitter employed by the plaintiff went into the shop to find out the cause, carrying a lighted candle. The jury found that this was negligence on the servant's part. The escaped gas exploded and damaged the shop. Held, that the defendant was liable, and was not exonerated by the negligence of said servant.-Burrows v. March Gas and Coke Co., L. R. 7 Ex. (Ex. Ch.) 96; s. c. L. R. 5 Ex. 67. RAILWAY.

A railway company gave the plaintiff notice that it would require his leasehold premises, and subsequently entered into possession and paid for the same. Held, that the plaintiff was entitled to a decree that the company should accept an assignment of the lease and engage to indemnify the plaintiff against the rent and the covenants in the lease.-Harding v. Metropolitan Railway Co., L. R. 7 Ch. 154. SLANDER.

Action for slander in imputing adultery to the plaintiff whereby she was injured in her character and reputation, and became alienated from and deprived of the cohabitation of her husband, and lost and was deprived of the companionship and ceased to receive the hospitality of divers friends. On demurrer, held, that the alleged loss of hospitality was suffici ent to sustain the declaration, and was such a consequence as might reasonably and naturally be expected to follow the use of such slanderous words. Also, that the real damage was to the wife, and would sustain an action by husband and wife. Davies v. Solomon, L. R. 7 Q. B.

112. WILL.

Testator being tenant of a farm from year to year, bequeathed his farming stock, consisting of consumable articles, to his wife during the term of her widowhood, and then over.

Held, that the gift was made for the purpose of enabling her to carry on the testator's business of a farmer, and that she was entitled to an interest in the stock during her widowhood only, the ordinary rule as to res quæ usu consumuntur not applying.-Cockayne v. Harrison, 26 L. T. N.S. 385; 8 L. J. N.S. 215.

This was an action against the defendants, as executors of Duncan McLennan, executor of Donald Campbell. The declaration was for money payable to defendants, as executors to plaintiff; for money lent by plaintiff to Douald Campbell; money paid; money received by D. Campbell, for plaintiff; interest; and for money found to be due from D. Campbell to plaintiff, on accounts stated between them.

Pleas, never indebted, payment by D. Campbell, and payment by D McLennan.

The case was tried at Ottawa, before A. Richards, Q. C., sitting for the Chief Justice.

The plaintiff produced the following document, admitted, to be signed by Donald Campbell: "Good to Mr. Palmer, for eight hundred and fifty dollars, ou demand. 10th November, 1866. D. CAMPBELL."

No other evidence was offered. For defendant it was objected that this document was a promissory note, and required a stamp: 2. That there was no evidence of an account stated, or of any previous dealing between the parties: 3. That it was not an account stated between plaintiff and defendants, there being no privity between them.

A verdict was entered for plaintiff, with leave to defendants to move to enter a nousuit.

In Michaelmas term last Harrison, Q C., obtained a rule on the leave reserved, to which S. Richards, Q C., shewed cause, citing Horne v. Redfearn, 4 B. N. C. 433; Sibree v Tripp, 15 M. & W. 23; Tyke v. Cosford, 14 C. P. 64.

Harrison, Q. C., contra, cited Toms v. Sil's, 29 U. C. 497; Ellis v. Mason, 7 Dowl, 598; Brooks v. Elkins, 2 M. & W. 74; Wheatley v. Williams, 1 M. & W. 533; Green v. Davis, 4 B & C 235; Walker v. Roberts, C. & M. 590; Ritchie v. Prout, 16 C P. 426; Byles Bills (ed. 1866), 11.

HAGARTY, C. J.-The case presented at the trial was certainly not free from suspicion. The memorandum is dated November, 1866. The action is brought in July, 1871, nearly five years after, and against a second set of executors. The first question to be considered is the plaintiff's right to recover by the simple production of this instrument. It is either an admission of an existing debt to support an account stated, or it is

a promissory note. If the latter, the objection as to the want of a stamp must prevail.

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In order to constitute an account stated, there must be a statement of some certain amount of money being due, which must be made either to the party himself or to some agent of his"per Parke, B., in Hughes v. Thorpe, 5 M. & W. 667.

There is no doubt that in the paper in evidence there is a statement of a specific amount, and the document declares that it is "good to plaintiff for that amount, on demand."

It is not easy to find any legal definition of the word "good." It is not so specific as an "I. O. U.," which seems to have acquired a definite meaning as an admission of a debt. My brother Wilson somewhat discusses the point in Tyke v. Cosford, 14 C. P. 68. He says, "The words are, good to T. T. (the plaintiff) to the amount of $300, to be paid to him.' This seems to be an express declaration or acknowledgment of debt, for whatever 'good' may mean, to be paid,' must surely mean something. Suppose 'good' had not been there at all, but the instrument had been merely, the amount of $300 to be paid to T. T.,' it can scarcely be doubted that this would have been as strong and as direct an acknowledgment as could well have been made of a debt against the person making it. He thinks this the same as "I. O. T. T. $300." He adds, "A plain I. O. U. so much money, is evidence of an account stated, but with the words 'to be paid it becomes a promissory note," referring to Brooks v. Elkins, M. & W. 74; Waithman v. Elsee, 1 C. & K. 35. Again, he

says he inclines to hold that the word "good" would have amounted to an acknowledgment sufficient to sustain an account stated, if payable in money. "As I owe you' is an acknowlegdment, 'due to you' should be so too, and it is so according to the cases in Hump. Rep. Why not also good to you ?'

My own strong impression is, that "good" in this instrument must be considered as equivalent to "due," and that no rational distinction can be drawn between them. If the document mean anything it must be, in substance, to import that it is to be considered as declaring to the plaintiff that on demand he is entitled to $850 from the person signing it; that it is to be good to him to enable him to demand such sum from the signer.

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Brown v. Gilman, 13 Mass. 158, was a case of a memorandum signed, "Good for $126 on demand," signed by defendant. It was decided that a holder, who could not prove it was given to him, could not recover. No question is raised as to the effect of the word good. Parker, C. J, says: "On a count for money lent, money had and received, &c., it would be conclusive evidence of so much due, unless the party signing it should prove it was given with a different The present plaintiff must shew it was

intent.

given to him."

In Franklin v. March, 6 New Hamp. 364, "Good to R. B. or order, for $30, borrowed money," was held a good promissory note. Parke, J., says "Good to R. C. or order," is equivalent to a "promise to pay R. C. or order."

I do not refer to these American cases for any other purpose than to shew the common understanding as to the term "good." It is, I think,