BOOK REVIEWS.

A Digest of the Nova Scotia Common Law, Equity, ViceAdmiralty and Election Reports; with notes of many unreported cases and of cases appealed to the Privy Council and Supreme Court of Canada from Nova Scotia. Containing also Rules of Court and an Index of the Imperial, Dominion and Nova Scotia Statutes, referred to in the Reports, with the notes and comments thereon. By FRED. T. CONGDON, B.A., LL.B., Barrister-at-Law. Toronto:

Carswell & Co. 1890.

Nova Scotia has now its first digest, thanks to the labours of Mr. Congdon. One of the reasons, probably, why Provincial decisions are not more frequently cited is the want of a guide to them. In Ontario we have ample digests. New Brunswick has produced a digest, and now Nova Scotia is up to date. Manitoba and British Columbia have such a small number of volumes of reports that digests are not yet essentials. It is consequently possible now to get a bird's-eye view, so to speak, of all the Provincial decisions down to date.

The value of a digest can only be tested by experiment. If you can find what you want, it is good; if you cannot, it is of no use. The arrangement of Congdon's Digest seems to be good. Setting a few artificial wants as a test we have found them satisfied on a reference to the digest. The typography is good, though the principal headings might have been in larger type, the sub-headings are more than abundantly clear.

The compiler has given the reference to the head notes in the Occasional Notes of the Canadian Law Times in every Nova Scotia case therein noted as well as a reference to the Nova Scotia Reports; so that those who take the Times will have some use for the digest, and those who resort to the digest will not always be disappointed if they have the Times but have not the Nova Scotia Reports.

A feature of the work is the compilation of Statutes which have been the subject of judicial decisions, under the heading of "Statutes, Imperial, Dominion, and Nova Scotia." It is a pity that the "Words and Phrases,"

so commonly defined in the cases were not similarly collected. But perhaps there are none.

The Law of Bills of Exchange and Promissory Notes being an annotation of "The Bills of Exchange Act, 1890," by EDWARD H. SMYTHE, LL.D., one of Her Majesty's counsel. Toronto: The J. E. Bryant Co. Limited. 1891.

Dr. Symthe has given us all the English cases on the English Bills of Exchange Act, allotted to their respective places in the notes to the Canadian Act, without attempting to enlarge upon the law of bills and notes generally, that being left in the hands of the text writers. The book will be of great general use not only to lawyers but also to bankers and mercantile men.

A Hand Book for Magistrates, in relation to Summary Convictions and Orders and Indictable Offences. By HoN. THOMAS H. MCGUIRE, one of the Justices of the Supreme Court of the North-West Territories. Toronto: Carswell & Co. 1890.

Mr. Justice McGuire sketches from commencement to finish the course which should be pursued by a magistrate in cases coming before him. Further than the elements of the magistrate's duties he does not profess to go; but the book gives clear and explicit directions supported by authority for the magistrate's guidance. An unique feature of the book is the introduction of tables of procedure which would have been of more use if they had been larger. Being rather compressed in space they appear rather complicated to the lay mind of the ordinary magistrate.

Digest of Insurance Cases, embracing the decisions of the Supreme and Circuit Courts of the United States, &c., &c. Reference to annotated insurance cases and leading articles in law journals on insurance. For the year ending October 31, 1890. By JOHN A. FINCH, of the Indianapolis Bar. Indianapolis: The Rough Notes Co. 1890.

This is an annual digest of insurance cases which is published under the supervision of Mr. Finch and forms a compact and ready book of reference to current insurance law.

THE

CANADIAN LAW TIMES.

"THAT

MARCH, 1891.

MERCANTILE PREFERENCES.

'HAT decision" says Osler, J.A., speaking of the judgment of the Supreme Court of Canada in the very recent case of Molsons' Bank v. Halter, where an alleged preferential transfer was attacked, "is a remarkable illustration of the difficulty in which the Legislature not unfrequently finds itself in endeavouring to uproot a fixed judicial view. That it has tried to change the law, no one who knows anything of the course of legislation and the demands of the mercantile community in this Province can doubt. It seems, however, to have failed to express itself intelligibly, since the result of all its efforts is nil" (a).

What is the "fixed judicial view" of preferences that the Legislature has endeavoured to uproot, and what have been the steps taken and their results? To attempt to shortly answer these questions is the object of this article, and to thus perhaps afford some slight aid in dealing with a species of transaction very frequently met with in actual practice.

to

It must be always borne in mind that preferences of creditors are not by the common law in themselves open objection, and it is only in so far as statutory invalidity has been decreed against it that a transaction can be successfully attacked, merely because a creditor is thereby preferred. Preferences are not interfered with by the

(a) Gibbons v. McDonald, 18 A.R.

VOL. XI. C.L.T.

6

Statute of Elizabeth, and leaving out of view Bankruptcy and Insolvency enactments, the Acts that it is necessary to refer to are few. The earliest provision on the subject was contained in Sections 18 and 19 of 22 Vict. cap. 96: "An Act for abolishing arrest in Civil Actions in certain cases and for the prevention and more effectual punishment of fraud." In the C. S. U. C. these sections appear as Sections 17 and 18 of Chapter 26: "An Act respecting Relief of Insolvent Debtors" under the Sub-title "Fraudulent Preference," and are then carried into the Revision of 1877, with some slight changes of a merely verbal nature and constitute Chapter 118: "An Act respecting the Fraudulent Preference of Creditors by persons in insolvent circumstances." It will be observed that the element of "fraud" seems to be present to the legislative view throughout.

Section 1 of R. S. O. cap. 118 deals with preferences by means of confession of judgment, cognovit actionem, etc.; a form of preference not illiberally taken advantage of before the days of the "Act to abolish priority among execution creditors" (the Creditors' Relief Act), but not of importance while that Act remains on the Statute book and escapes judicial emasculation. Moreover, no attempts have been made to improve upon this section, and its construction is reasonably clear (b).

It is as to section 2, and its amendments, that difficulty has arisen. It is as follows:-"In case any person, being at the time in insolvent circumstances or unable to pay his debts in full, or knowing himself to be on the eve of insolvency, makes or causes to be made any gift, conveyance, assignment or transfer of any of his goods, chattels or effects, or delivers or makes over, or causes to be delivered or made over, any bills, bonds, notes or other securities or property, with intent to defeat or delay the creditors of such person, or with intent to give one or more of the creditors of such person a preference over his other

(b) See Macdonald v. Crombie, 2 O. R. 243; 10 A. R. 92; 11 S. C. R. 107; Martin v. McAlpine, 8 A. R. 675; Heaman v. Seale, 29 Gr. 278; King v. Duncan, 29 Gr. 113; Turner v. Lucas, 1 O. R. 623.

creditors, or over any one or more of such creditors, every such gift, conveyance, assignment, transfer or delivery shall be null and void as against the creditors of such person; but nothing herein contained shall invalidate or make void any deed of assignment made and executed by any debtor for the purpose of paying and satisfying rateably and proportionably, and without preference or priority, all the creditors of such debtor their just debts; and nothing herein contained shall invalidate or make void any bona fide sale of goods in the ordinary course of trade or calling to innocent purchasers."

Upon the repeal of the Insolvent Act the aid of this section was once more invoked, but by the construction given. to it only very plain cases of fraudulent preference could be defeated under its provisions, and its beneficial effect was but slight. It was firmly settled, after some wavering of opinion (c), that to come within the section there had to be shown-and by affirmative evidence or controlling circumstantial evidence-not only an intent by the insolvent debtor to give the preference, but also a concurrence in that intent on the part of the creditor (d), and the usefulness of the section was still further impaired by (to use the language of Boyd, C.) "the absurd length to which the doctrine of pressure was carried," and by the indulgence shown to debtors of sufficiently sanguine temperament to believe (on oath) that by "staving off" a claim with security they would be able to extricate themselves from their difficulties (e).

Very soon after the repeal of the Insolvent Act it was held by Ferguson, J., (f) that "the doctrine of pressure which obtained before the insolvent laws now occupies the

(c) Ivey v. Knox, 8 O. R. 635.

(d) Burns v. McKay, 10 O. R. 167, affirmed in appeal but not reported; Lancey v. Burns, 10 O. R. 167 (n.); McLean v. Garland, 13 S. C. R. 366; Hepburn v. Park, 6 O. R. 472; McRoberts v. Steinoff, 11 O. R. 369 ; Fradenburg v. Haskins, 12 A. R. 257; Lewis v. Brown, 10 A. R. 639.

(e) Long v. Hancock, 7 O. R. 154; 12 A. R. 137; 12 S. C. R. 532; Segsworth v. Meriden Silver Plating Co., 3 O. R. 413; Stuart v. Tremaine, 3 O. R. 190; Kalus v. Hergert, 1 A. R. 75.

(f) Brayley v. Ellis, 1 O. R. 119.