that part of them of which actual delivery was made; but I am not without doubt. The implied agency of one partner to bind the others in matters connected with the carrying on of the partnership business will not support an act the effect of which is to put an end to the business altogether. Authorities for this proposition are quoted in Cameron v. Stevenson, 12 C. P. 389, which was cited to me. Here it may not not be necessary to rely upon the implication of agency, because Macaulay expressly authorized the assignment. I do not suppose that one partner can bind his co-partner by the execution of an instrument, or by any other act outside of the scope of his agency as partner, unless authorized in some way which would be effectual if they were not partners. His authority must, I apprehend be derived from one source or the other, that is to say, either from the partnership agency, or from express delegation; and in the latter case I am not prepared to say that the existence of the partnership counts for anything. But while the assignment may not, properly speaking, be the deed of Macaulay, there was the actual delivery of the goods in the warehouse of the firm, which was sufficient to pass the property in those goods, and which could well be made by an agent whose authority was given only by word of mouth. My doubt is concerning the other goods which were in Saunders's warehouse, and the equity of redemption in which was a valuable asset. I have some doubts also of the validity of the transfer of Macaulay's interest in the book accounts. They differ from the debt which was in question in Howell v. McFarland, 2 A. R. 31, in the circumstance that they formed part of the transfer which put an end to the business, and which was therefore outside of the ordinary partnership agency. But part of Macaulay's assets consisted of his separate personal property, of which no delivery was made, and part was real estate.

I do not think any of this separate property passed under the deed of 11th July. The result of this is, that while the intent in making the deed is averred to have been to delay some creditors by removing the property

beyond the reach of their executions, it cannot be said that, so far at least as Macaulay is concerned, this deed of assignment was made and executed for the purpose of paying all his creditors their just debts, ratably and proportionably.

My opinion of the matter, as touching Macaulay, may be thus repeated: He intended by the assignment to delay some of his creditors; therefore it is prima facie bad. It is not saved by the proviso, because part of the property was not assigned for the benefit of the creditors; and because, even if the goods actually delivered passed by the delivery, that would be a transfer not saved by the proviso, which applies only to deeds of assignment.

Then, reverting to the first objection which I discussed, the inclination of my opinion being, as I have explained, against the sufficiency of the added clause to take this deed out of the decision in Mills v. Kerr, I think my proper course is to hold the entire assignment invalid.

I adopt this conclusion with the feeling that the case will bear more discussion, but that the defendants are entitled to the benefit of my opinion, and that the burden of further proceedings ought to fall upon the plaintiff.

If it is proper for me to adjudicate as to the costs of the issue, I give costs to the defendants.

The learned Judge entered his finding as follows: “I find that the goods within mentioned were not, at the time of the delivery of the within mentioned writ to the sheriff, the property of the plaintiff Henry E. Nelles, as against the defendants Maltby and Middleton, as execution creditors; and I adjudge the costs of this issue and trial to the defendants, if it is my duty to adjudicate upon the said costs."

At the Michaelmas sittings, Gibbons, for the plaintiff, moved on notice, to set aside the verdict and judgment for the defendant and to enter judgment for the plaintiff, on the grounds that the verdict and judgment are contrary to law and the evidence, and to the weight of evidence.

During the same sittings, December 5, 1883, Gibbons,

supported the motion. The assignment sufficiently provided for the due distribution of the joint and several estates of the partners amongst the respective creditors: and it follows the words of the statute: R. S. O. ch. 118, sec. 2. The assignment says that the distribution is to be according to law; that is, as a Court of Equity would distribute it, namely in due course of administration among the joint and several creditors of the partnership and of the respective partners according to the nature of the estate. The fact of the assignors allowing certain creditors to get judgment before the assignment was executed cannot make the assignment bad. The most that could be urged is, that the judgments so recovered were fraudulent and should be set aside; there is nothing in the statute to prevent a debtor allowing his creditors to get judgment. To hold the assignment bad in such a case would be to defeat the very object of the statute, and to prevent the general body of creditors from getting anything. The assignment was duly executed. The authority given by Macaulay to McNab to execute for him was sufficient; but is it were necessary to do so Macaulay ratified McNab's act on his return. The mere fact of assigning only part of the debtors' property cannot render the assignment invalid. The creditors' rights as to the property not assigned remains subject to the ordinary process of law. The non-registration of the deed of assignment cannot affect the creditors. The neglect to do so was the fault of the assignee, and not of the creditors, and the creditors cannot be held responsible for the neglect of the assignee to do his duty. The second assignment was duly registered, and was so registered before the execution issued. He referred to McMaster v. Garland, 8 A. R. 1; Feehan v. Bank of Toronto, 10 C. P. 32; Maulson v. Commercial Bank, 17 U. C. R. 30; Foster v. Smith, 13 U. C. R. 243; Burton v. Bellhouse, 20 U. C. R. 60.

Street, Q.C., contra. As to the form of the assignment, according to Mills v. Kerr, 32 C. P. 68, 7 A. R. 769, the assignment would be invalid as not providing for the 35-VOL. V O.R.

separate creditors. In the later case of Badenach v. Slater, 8 A. R. 402, where the separate creditors were provided for, the assignments were held good. The words relied on here, that the distribution between the partnership and separate creditors was to be "according to law," does not assist the matter. There is no recognized mode provided by law for distribution by an assignee. The only way in which there can be a distribution according to law is, when legal proceedings are taken for the administration of the estate, and this cannot apply to an assignee: Ex parte Ruffin 6 Ves. 119; Burrill on Assignments, p. 298, 350; Kirby v. Schoonmaker, 3 Barb. Ch. R. 46. Every deed is prima facie assumed to delay creditors, and the onus is on the person who supports the deed to shew that it comes within the Act. The deed is also bad because it put the whole of the assets into one fund, and provides for the payment of the assignee out of such fund, instead of providing that the expenses of the realization and distribution of the partnership and separate assets shall be chargeable on the particular estate on which they are incurred; and also because it does not provide that the partnership and separate debts shall be payable out of the partnership and separate assets respectively. The fact also of the debtors allowing certain favoured creditors to obtain judgment, whereby the great bulk of the estate was swept away and only a small amount left for the general body of creditors, invalidated the assignment. The deed was never properly executed by the debtors. The mere verbal authority given by Macaulay to his partner to execute for him is not sufficient. The authority to execute a deed must be by a deed, and clearly an assignment to execute a deed would not pass the land. The warehouse goods were never taken possession of by the assignee. He did not take the proper steps to obtain possession. Then all the property was not assigned; the assignment must be of the whole of the estate. The deed should have been registered. The statute requires registration, and it is immaterial whose the neglect is. He referred to Short

V. Ruttan, 12 U. C. R. 79; Burrill on Assignments, p. 586; Richardson v. Gray. 29 U. C. R. 360.

February 9, 1884. WILSON, C. J. WILSON, C. J.-The only two objections taken by the defendant which were supported by the learned Judge at the trial were the first and fifth. The first was, that the words the rights of partnership creditors and private creditors, mentioned in the assignment "having due regard to and distributing the same as between them according to law," did not provide for the due administration of the estate, joint and several, of the respective partners among the joint and several creditors of the partnership, and of the respective partners, as the same should in a due course of administration be applied, but left the separate creditors of the respective partners wholly unprovided for, and therefore the assignment was not a valid conveyance under the R. S. O. ch. 118, sec. 2, because it was not in its terms made "for the purpose of paying and satisfying ratably and proportionably and without preference or priority all the creditors of the debtors their just debts.”

The words referred to being part of the deed must be given effect to, if it is possible to do so. The intent of the parties must, if it can, be ascertained, and the instrument be construed accordingly; and such a construction will be put upon the words as will give effect to the intention of the parties, as will support the instrument rather than defeat it.

The three grantors were merchants in partnership. They grant all their joint and separate estate for the payment of "all the creditors of the parties of the first part," having regard, &c.

The grant of the joint and separate estate indicates that the parties intended to provide for creditors upon the joint and separate estate. The words all their estate in one part of the grant point to a grant of the joint estate rather to a grant of the separate estates of the grantors being assigned. But these are not the only words to be con