SELECTIONS.

CONTRIBUTORY NEGLIGENCE IN A
COUNTY COURT.

A lady, whose silk dress had suffered injury by the fall thereon of some porter from the bar engine of a public house, while the pump was being worked by the bar-maid, brought an action against the landlord to recover compensation. The case, entitled Albert v. Sands, was heard before the judge of the Lambeth County Court, and his Honour held that the negligence was proved; but adjourned the question of damages, because a dyer had alleged his ability to restore the silk dress to its original beauty at a trifling cost. At the adjourned hearing the dyer confessed that the porter was too much for him, and thereupon the judge proceeded to assess the damages. The claim was for £5 18s., the cost of the dress; but his Honour thought there ought to be an abatement from this amount, as the lady had some wear out of the dress. So far that Mr. J. Pitt Taylor was in the right. But his Honour then said that as a public house was a dangerous place for a handsome dress, the lady was guilty of some negligence in entering a tavern in such a costume, and for that reason some deduction must be made from the claim. Perhaps we do not quite understand the intent of the learned judge, or his words may have been wrongly reported. Otherwise, here is our old friend the doctrine of "contributory negligence" appearing in a new and most awkward form. For, according to Mr. J. Pitt Taylor, the question of the negligence of the plaintiff is not only material so far as concerns the verdict or judgment in a cause, but must also be considered in regard to the quantum of damages to be awarded. The tendency of this novel theory can hardly be conjectured. Clearly, Mr. J. Pitt Taylor thinks that no person in good clothes ought to approach the bar of a public house; a startling opinion for city men, barristers, attorneys, and divers other liege subjects, who must be refreshed in the hurried intervals of buisness, and who now and then may indulge in the elegance of a new pair of pantaloons. But that is not the limit of the doctrine. When next some murderous railway company smashes a statesman, or stockbroker, or a queen's counsel, an appeal will be made to the judge not to award the full measure of damages, on the ground that the plaintiff was himself guilty of some negligence in entering the carriage of the company, that being a very likely place for a valuable person to get damaged in."-Law Journal.

Where at the commencement of a reference, L., the arbitrator for one side, conferred privately with the parties who nominated him on the matters in question, and on the evidence to be offered, and continued this course to the end, it was held that the impropriety was not cured by showing that after the reference had made some progress, the other arbitrator acted with similar irregularity on the other side.

The reference was to two arbitrators, with power for the arbitrators to appoint an umpire, who was to make an award if the two arbitrators disagreed; an umpire was accordingly appointed; and, the arbitrators differing, the umpire made an award:

Held, that each party was entitled to the free judgment of the two arbitrators on the matters in difference, as a condition precedent to the umpire's authority coming into force; as well as their free judgment in the appointment of the umpire; and that the irregularity of the arbitrator L's course in holding private conference with one of the parties was sufficient to avoid the award of the umpire.

After the two arbitrators had finally dif fered, the umpire had a private conversation on the subject of the reference with the arbitrator L., in the absence of the other arbitrator and of the parties: Held, that, as L. had acted as the agent for one side, private conversation with him was as injurious and objectionable as private conversation with the principals would have been.

The Court allowed the party prejudiced to serve a supplementary notice, embodying the objections as to the course of the umpire and arbitrator L., the same having come to light on cross-examination, and there being strong reason for apprehending that the award was not a fair award.-In re Lawson and Hutchinson, 19 C. R. 84. DOWER-MORTGAGE.

Where a wife joins in a mortgage, and, on the death of the husband, there are not sufficient assets for the payment of all his debts, the widow is not entitled to have the mortgage debt paid in full out of the assets, to the prejudice of creditors.-Baker v. Dawbarn, 19

C. R. 113.

INFANTS-PAST MAINTENANCE.

It is for the discretion of the Court, in view

of all the circumstances, whether to allow for past maintenance out of the corpus of an infant's estate not intended by a testator to be 80 applied.

A farmer, by his will, gave to his widow his goods and chattels absolutely; also an annuity; and the use of his homestead and other real estate during her widowhood; she married again, and claimed to be paid for the past maintenance of the testator's children from the time of his death, out of the corpus of the estate devised to them at twenty-one and otherwise. The Court, on further directions, refused to allow the claim.-Edwards v. Durgen, 19 C. R. 101.

LEASE-CONTRACT FOR WORK PARTLY EXECUTED-
SPECIFIC PERFORMANCE.

Equity, now-a-days, does not, as a general rule, enforce specifically a contract between a landholder and a builder for the erection of a house or the like; but specific performance of agreements to execute works is enforced in cases where the plaintiff shows, what the Court considers to be, a sufficient ground of equity to entitle him to that relief.

A bill alleged that the plaintiff contracted with the defendants to lease to them certain lands, and to erect thereon for their use a stone building of a specified size according to plans and specifications furnished by the defendants; that accordingly the plaintiff had expended $4,000 on the building, under the superintendence of the defendants, and according to plans furnished by them; that he had done everything for which the defendants had given directions; and that the defendants had accepted the building and taken possession of part of it; but it appeared that the machinery was not completed in all respects:

Held, that the allegations of the bill, if proved, would entitle the plaintiff to relief.[STRONG, V. C., dissenting.]-Colton v. Rookledge, 19 C. R. 121.

PARTNERSHIP-INTEREST-COMMISSION.

In the absence of a special custom or an agreement, interest is not usually allowable to a partner on advances of capital made by him to the partnership, or for partnership purposes.

Where parties entered into an agreement that they should purchase goods on joint account, and at the joint risk, and that one of the parties should furnish the funds in the first instance, it was held that interest could not be charged on the funds so furnished.

In such a case a firm in Canada was to advance the funds, and the goods were to be

consigned for sale to their firm in Liverpool, which went by a different name:

Held, that they could not charge commission on their sales.-Jardine v. Hope, 19 C. R. 76. PARTNERSHIP-SEPARATE ESTATE.

The rule in Equity, as well as in Bankruptcy, is, that the separate estate of a partner is to be applied first in discharge of his separate debts; and, in applying this rule, money paid by co-partners on a liability created by the fraud of the partner towards them, is treated as a separate debt, provable and payable pari passu with the other separate creditors of such partner, in case of his death, insolvent.

The mere liability so fraudulently created cannot be proved against the separate estate as a debt until the liability is paid, or until something equivalent to payment takes place. Where the fraud was in the use of the partnership name on bills, the other partners becoming insolvent, the holders of the bills proved them against the partnership estate; the assignee, in a suit for administering the separate estate of the guilty partner, claimed to prove the amount against the separate estate; but the Master restricted the proof to the expected dividend from the partnership estate and the separate estate of the surviving partners; and the Court held that the assignee was not entitled to prove for a larger sum.-Baker v. Dawbarn, 19 C. R. 113.

TENDER.

A tender of mortgage money with a statement that the party tendering did not consider that the amount tendered was due, and that the other would thereafter be compelled to repay the excess, was held not to have been invalidated by this statement.

A tender to the holder of a mortgage (who claimed a larger sum) with a condition that the mortgage, on the sum tendered being accepted, should be given up, was held bad, as being a conditional tender.-Peers v. Allen, 19 C. R. 98.

ADMINISTRATION SUIT-EXAMINATION-COSTS.

If in an administration suit fraud is charged in the pleadings, it may be proper for defendants to examine the plaintiff thereupon in order to disprove the charge, even though they succeed in the objection that a proceeding by bill was not necessary.

In examinations de bene esse if the evidence is not used and the witnesses are within reach of subpoena, the costs of the examination should not be allowed. Where the evidence is material and is used, the costs become costs in the cause.-McMillan v. McMillan, 8 L.J. N.S. 285.

ONTARIO REPORTS.

COMMON PLEAS.

THE QUEEN V. GOODMAN.

Criminal law--Attempt at arson -Evidence.

On an indictment for attempt to commit arson, the evidence showed that one W., under the direction of the prisoner, after so arranging a blanket, saturated with oil, that if the flame were communicated to it, the building would have caught fire, lighted a match, held it till it was burning well, and then put it down to within an inch or two of the blanket, when the match went out, the flame not having touched the blanket: Held, that the prisoner was properly convicted, under 32 & 33 Vict., ch. 22, sec. 12, of an attempt to commit arson. [22 C. P. 338.] The prisoner was tried at the last Spring Assizes, at Hamilton, before S. Richards, Q. C., ander an indictment containing two counts; the first, charging that one Francis Waters, unlawfully, and maliciously, did attempt feloniously, unlawfully and maliciously to set fire to a certain dwelling-house, by then and there saturating a blanket with coal oil, and placing it against said dwelling-house, and sprinkling coal oil upon the doors and sides thereof, and attempting to apply a burning match to said oil, said house being at the time inhabited.

The second count charged that the prisoner, before the commission of the said felony, did feloniously and maliciously incite, move, procure, aid, counsel, hire, and command said Waters, the felony in manner and form aforesaid to do and commit, against, &c.

The evidence showed that Waters, after arranging under prisoner's directions the saturated blanket, lighted a match, and held it in his fingers till it was burning well, and then put it down towards the blanket, and got it within an inch or two of the blanket when the match went out, the blaze not touching the blanket, and he throwing away the match, and leaving without making any second attempt.

At the conclusion of this evidence prisoner's counsel objected that the evidence of a felony having been committed by Waters was insufficient; that sec. 12, of ch. 22, of 32 & 33 Vict., required an overt act to complete the offence under that section; that the overt act must be of such a nature as to be capable of setting fire to the building, and that at most Waters' act was only an attempt to commit an overt act.

The learned Queen's Counsel overruled the objection, but reserved the question for the consideration of this Court, and he charged the jury that if they believed Waters poured the oil against the building, and also placed the pieces of blanket saturated with oil on the sills of the doors, and that while at the front door he lighted the match, and while so lighted stooped down to apply it to the oil, intending then to set fire to the oil in the saturated blanket, and thereby to set fire to the house, and was in the act of placing the burning match against the oil, and had reached within an inch or two of it, when the light went out, as he had stated in his evidence-then that these acts constitute a sufficient attempt and overt act within sec. 12, of ch. 22, although the match, while in a flame or burning, never touched the oil or blanket, and although no fire was actually communicated to the oil or blanket.

The Attorney General, for the Crown, contended that the charge was fully sustained by the evidence, and the case brought within the 12th sec. of ch. 22, 32 & 33 Vict. He referred to Regina v. Taylor, 1 F. & F. 511; Regina v. Esmonde, 26 U. C. 152 Regina v. Bain, 9 Cox 98.

Robertson, contra, contended that it was not such an overt act, within the meaning of the Statute, as would render the prisoner liable to be convicted.

HAGARTY, C. J., delivered the judgment of the Court.

The fact of Waters going away, or ceasing further action after the match went out (not by any act or will of his), seems to put the matter just as if he had been interrupted, or was seized by a peace officer at the moment.

It seems to me the attempt was complete, as an attempt, at that moment, and no change of mind or intention, on prisoner's part, can alter its character.

I see no objection to the charge. There was no doubt the combustible matter was so arranged that if the flame were communicated to it, the building would have caught fire, and the full crime of arson been complete. It would be a reproach to the law if such acts as were here proved do not constitute an overt act towards the commission of arson.

In Regina v. Cheeseman (L. & C. 145), Blackburn, J., says: "There is no doubt a difference between the preparation antecedent to an offence, and the actual attempt. But if the actual transaction has commenced which would have ended in the crime, if not interrupted, there is clearly an attempt to commit the crime. Then, applying that principle to this case, it is clear that the transaction which would have ended in the crime of larceny had commenced here."

Regina v. Taylor (1 F. & F. 512). The prisoner was indicted for that he by a certain overt act, (s.c) by then and there lighting a certain match, &c., near to a certain stack of corn, &c., unlawfully, maliciously, and feloniously, did attempt to set fire to said stack, &c. Prisoner called at prosecutor's house and applied for work; on refusal he asked for money, and on being again refused threatened to burn up the prosecutor. He was watched and seen to go to the stack, kneel down close to it, and strike a match; but seeing he was watched, he blew it out and went away. The stack was not at all burned. Pollock, C. B., told the jury that "If they thought the prisoner intended to set fire to the stack, and that he would have done so had he not been interrupted, in his opinion this was in law a sufficient attempt to set fire to the stack." After stating that buying a box of matches, with intent to set fire to a house, would not be sufficient, he adds: "The act must be one immediately and directly tending to the execution of the principal crime, and committed under such circumstances that he has the power of carrying his intention into execution." The jury found that they were not satisfied that prisoner intended to set fire to the stack, but they thought he intended to extort

Mr. Crooks, Q. C., and Mr. Kennedy for the plaintiff.

Mr. Blake, Q.C., for defendant Walker.

SPRAGGE, V. C.-It is clear from the evidence, particularly that of Walker, that it was apparent to Converse and to J. T. Lamb, that the effect of the giving of the ante-dated note, and of the legal proceedings to be taken upon it, would be to close the business of Lamb--to put him in insolvency, unless he, Lamb, could obtain aid from some other quarter. It was the intention of Converse to get execution in as short a time as possible, in order to be before ether creditors; and the evidence of Mr. Walker, the solicitor of Converse & Co., would lead to the inference that Lamb facilitated this passively, and was anxious, if he could, to facilitate it actively; but Mr. Lamb's letter to Converse & Co., of 4th July, 1865, scarcely supports this. The peculiar course taken by Walker was his own idea, in order to conceal the proceedings from other creditors; but Converse, though not aware of the mode intended by his attorney to gain priority, was anxious that such steps should be taken as would give his firm priority. His anger at the deception which he alleged, and Lamb admitted, had been practised upon him, as to the advance of $1,000 being obtained by representation as to real security, may have been the reason for the course he took. He at least suspected, if he did not know, that Lamb was in a precarious position, perhaps on the eve of insolvency, and his leading object was to secure the debt of his firm, and that at the expense of other creditors, if necessary.

In order to effect this he brought pressure to bear upon J. T. Lamb, sufficient, under the English cases, to make his act not a voluntary act; unless the proper conclusion is, that although there was pressure, still the giving of the antedated note was not really the result of the pressure, but in order to give a fraudulent preference: Cook v Pritchard, 6 Scott, N. R. 34. The evidence of this is that above adverted to. I think it shows that he gave the note under pressure; and further, that having given it, his desire was that Converse & Co. should thereby

obtain a preference. Whether he still apprehended the possibility of criminal proceedings being taken, as threatened by Converse, or from any other reason, he was anxious that they should obtain execution in priority to other creditors. The principle upon which, in England, pressure is held to be material, is this: prima facie, a payment by one in so hopeless a state of insolvency that his payment is to be looked upon as made in contemplation of bankruptcy; or a delivery of goods or other effects by a debtor in that position, is a fraudulent preference-the preference is presumed to be made in order to defeat the Bankrupt Laws: and the effect of the payment or other act of the insolvent, being under the pressure of the creditor, is to rebut the presumption that would otherwise arise: Bills v. Smith, 6 B. & S 321. It must of course appear that the pressure is real, not a feigned contrivance between the creditor and debtor, to wear the appearance of pressure, while the real desire and intention is to give a preference.

The circumstance that in this case the note was ante-dated, and that some of the notes which it was given to cover were not yet due, is some evidence of fraudulent preference; but it is not conclusive: Strachan v. Barton, 11 Ex 647, and there are other cases to the same point. It would seem too, from the evidence, that it was not a case where preference was given before the expiry of credit, but that the notes still current were renewals of notes given for payment of goods. Converse, too, was in a condition to dictate terms to Lamb, and availed himself of his position to insist upon that which enabled him to take immediate proceedings against his debtor. It appears further that Lamb did not consider his insolvency inevitable: he still clung to the hope of being able to continue his business: he hoped for "outside aid" and asked and obtained from Converse a promise of a further supply of goods, to a small extent, upon security, in order to make up his stock. Under these circumstances, I think it would be held in England that a preference given by a debtor to his cre litor, was not a fraudulent preference.

This act of J. T. Lamb, if it be void, must be so under the Indigent Debtors' Act. 22 Vic. ch. 96, or under the Insolvency Act of 1864. It was decided in Young v. Christie, 7 Grant, 312, that allowing judgment to go by default in an action, and defeuding another, the effect being to enable the one creditor to recover judgment before the other, is not a preference which is avoided by the former act.

Sub

Then as to the Insolvency Act of 1861. section 3 is the clause that bears upon this case. It avoids "all contracts or conveyances made, and acts done by a debtor fraudulently to impede, obstruct or delay his creditors in their remedies against him, or with intent to defraud his creditors or any of them, and so made, done, and intended, with the knowledge of the person contracting or acting with the debtor, and which have the effect of impeding, obstructing or delaying the creditors in their remedies, or of injuring them or any of them."

In Newton v. The Ontario Bank, 13 Grant, 652, I thought that this sub-section does not apply to a preference given by a debtor to one creditor over another. Upon the hearing of that case upon appeal (15 Grant, 283,) my brother

Wilson expressed the opinion that the sub-section applies to dealing not only by an insolvent with strangers, but to his dealings with a creditor. Assuming, for the sake of argument, that my learned brother is right, and that the giving of the ante-dated note, and leaving the action upon it undefended, while pleas were put in to actions by other creditors, are "acts" within subsection 3, there still remains the question whether it can be carried higher in favor of creditors disappointed by the act of the debtor, than a fraudulent preference under the English Bankruptcy Law; or rather a preference which would be held fraudulent but for the circumstance that it was obtained from the debtor by pressure exercised upon the debtor. If, in England, presgure by the creditor is held to rebut the presumption of fraudulent intent, which would otherwise arise, I do not see how, cousistently with English decisions, we can hold that pressure has not the same effect under our Insolvency law.

I

I think, as I have already intimated, that what was done was the result of pressure. think that the debtor would have avoided what he did, if he had felt that he could do so; and that he did what was demanded of him in order to escape the consequences threatened by Converse, that his motive was to escape those consequences, not with any fraudulent object of preferring Converse & Co. I think the presumption of fraud is fairly rebutted.

It may well be doubted whether it should be in the power of a creditor, by the exercise of pressure upon his debtor, to obtain for himself a preference over other creditors; but while a fraudulent intent is made necessary in order to avoid such preference, anything that is sufficient to rebut what would, prima facie, be a fraudulent intent, is necessarily receivable with that view. It is a logical consequence from the state of the law. I regret to have to give effect to it in this case, but in my view of the law I cannot avoid it. Some question is made as to the bona fides of the debt for which the judgment was recovered. I agree that if a note was given advisedly and willingly for a larger sum than was really due, in order to the recovery of judgment for more than the true debt. it would be void under the Statute of Elizabeth; but I do not think that the plaintiff has established such a case.

The plaintiff's bill must be dismissed, and with costs. I may add in justification of the assignee, that it appears to have been a fair case for the institution of a suit for the benefit of the estate. There was insolvency and a preference which, supposing it to be within the act, as my brother Wilson takes it to be, would have been sufficient hut for the pressure which is shown by the evidence for the defence.

IN CHANCERY-MASTER'S OFFICE.

RE MCMORRIS. Dower.

A widow who has barred her dower in a mortgage, given by the husband for his own debt, is entitled to have the mortgage paid off by the husband's assets. If she claim dower merely out of the equity of redemption, she has priority over creditors, but if out of the corpus of the property, she is postponed to them. On a sale of the lands, as soon as the debts of the husband are

paid, she takes precedence over the heir and volunteers, claiming under the husband, and becomes absolutely entitled to her rights as dowress in the balance of the proceeds. Sheppard v. Sheppard, 14 Grant, 174, noticed. [May, 1872, Mr. Boyd.]

In this case land mortgaged by the testator was ordered to be sold, and by consent of the widow her rights as dowress were to be ascertained in the Master's office. She also claimed dower in lands for the purchase of which her husband had been in treaty with the Crown. Mr. Holmested for the widow.

Mr. Mc Williams for the legatees.

MR. BOYD.-The widow's position in equity seems to be this: having barred her dower in a mortgage in fee given by her husband for his own debt, he covenanting to pay it, she surviving her husband is, in one aspect, in the position of surety for the debt, and can claim that the mortgage should be paid out of the husband's assets, so as to relieve her estate in the land. If she claims dower, merely out of the equity of redemption, that would be given her of course in priority to creditors, but if, as here, she claims dower out of the whole corpus of the mortgaged land, then she cannot do this to the prejudice of creditors. According to the decisious of this court, general creditors would have the right to marshall the mortgage debt upon the land mortgaged to the prejudice of the widow's dower. But after payment of creditors her rights as dowress accrue absolutely to a life estate in one-third of the lands mortgaged or of the proceeds of the sale thereof. When the mortgage is paid out of the testator's assets, as in this case, by a sale of the lands, it is equivalent to a payment by the testator himself, so far as the dowress is concerned. Had the mortgage been redeemed by the heir out of his own moneys, questions of contribution by the widow would have arisen, which do not arise in the present case. The wife simply bars her dower with a view to secure the debt due by her husband; when that debt is paid by the husband's estate, she is remitted, as against the heir and volunteers claiming under the husband, to her full rights as dowress in the whole estate mortgaged. Sheppard v. Sheppard. 14 Grant, p. 174, and the passage from Park cited with approval therein are authorities for these positions. I do not regard this case as over-ruled save in so far as it decides that creditors are to be postponed till dower is paid out of the mortgaged estate, see White v. Bastedo, 15 Gr. 546, and Thorpe v. Richards, ibid, 403. I do not see upon what principle her claims to dower should be postponed to the legatees in the will named, and indeed by the decree, on further directions, they are only to be paid after the satisfaction of all other claims. As to arrears she can only have these upon contributing one-third of the interest on the mortgage debt since the death to the time of the sale.

Craig v. Templeton, 8 Gr. 483, goes to the limit of the law, and that case cannot be extended to meet the present, where the right to a patent was cancelled in the testator's life, and by a mere act of grace was it given to his child afterwards.