PATTERSON J.-The findings of the jury in this case must, in my opinion, be taken to conclude the defendant upon the merits. King, the debtor, was evidently insolvent in the opinion of the jury, who say that he was commercially insolvent, but considered that he was generally solvent-a distinction which is not unintelligible as made in this and some other cases, but is, I fancy, fitted to sometimes mislead-and that, by the sale to the plaintiff, he made himself generally insolvent. King was a person in insolvent circumstances or unable to pay his debts in full within the meaning of the Statute (ch. 10, Statutes of British Columbia of 1880). He made the sale with intent to prefer some of his creditors. But Davies, the purchaser, bought for himself alone, and out and out, not intending that any particular creditor of King should be preferred, and in what was, as far as Davies was concerned, in the ordinary course of business, though the jury do not say, and could not say, that the sale by King was a sale in the ordinary course of business. Under these circumstances, the Chief Justice, Sir Matthew B. Begbie, acted on the rule applied by this court to the construction of cognate statutes of Ontario and Manitoba in holding that the sale was not avoided by the statute. I struggled against that construction in this court as I had done in the Ontario Court of Appeal, but it is now settled. Sir Matthew B. Begbie, who tried an interpleader issue between Davies and the creditors of King, called Turner, Beeton & Co. respecting goods seized on an execution, and which may have been some of the same goods now in question, or may not-I am not sure that the fact is brought out very precisely-held that, under the evidence and findings on that issue, the goods then in question were not the goods of Davies as against Turner, Beeton & Co. I have carefully read the able judgment delivered in 21-SUP. CT. CAS. 1893 DAVIES v. MCMILLAN. Patterson J. 1893 DAVIES v. MCMILLAN. Patterson J. that case, and I do not doubt that it disposed of the issue correctly. But I see no sufficient ground for holding, as the appellant invites us to hold, that the validity of invalidity of the sale to Davies of the entire stock of goods was determined by that judgment. I have looked among the materials before us for a copy of the interpleader order or issue in the case of Turner, Beeton & Co., but have not found a copy. I assume that the issue was in the same form as that in the action of the Bank of British Columbia, which is printed at page 140 of the case, the question being, Whether, at the time of the seizure by the sheriff, the property seized was the property of the claimant as against the execution creditor? I am of opinion that we should allow the appeal. Appeal allowed and the judgment of the trial judge restored with costs. Solicitor for the appellant: Charles Wilson. Solicitors for the respondent: Drake, Jackson & Helmc ken. NOTE. On the 29th January, 1894, a petition by the respondent to Her Majesty in Council for leave to appeal from the judgment of the Supreme Court of Canada was granted, but the appeal was never prosecuted. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Partnership-Dissolution-New partnership by continuing partner A firm consisting of two persons dissolved partnership, the retiring partner receiving a number of promissory notes in payment of his share in the business which notes he indorsed to the plaintiff H. The continuing partner of the firm afterwards entered into a partnership with the defendants and transferred to the new firm all the assets of his business, his liabilities, including the above mentioned promissory notes, being assumed by the co-partnership and charged against him. The new firm paid two of the notes and interest on others, and made a proposal for an extension of time to pay the whole which was not entertained. Held, reversing the decision of the Court of Appeal (17 Ont. App. R. 456, sub-nomine Henderson v. Killey) and of the Divisional Court (14 O.R. 137), Fournier, J., dissenting, that the agreement between the continuing partner and the defendants did not make the defendants trustees of the former's property for the payment of his liabilities, and the act of the defendants in pay. ing some of the notes did not amount to a novation as it was proved that plaintiff had obtained and still held a judgment against the maker and indorser of the notes in an action thereon and there was no consideration for such novation. *PRESENT:-Sir W. J. Ritchie C.J., and Fournier, Taschereau, Gwynne and Patterson JJ. 1889 APPEAL from a decision of the Court of Appeal for Ontario(a), on equal division in opinion, dismissing an HENDERSON. appeal from a judgment of the Queen's Bench Division (b), OSBORNE v. which reversed the judgment at the trial of Cameron C.J., in favour of the defendants, the Osbornes, and directing judgment to be entered against the said defendants with costs. The plaintiff by her statement of claim alleged that on or about 14th November, 1881, the defendants, Killey and Muirhead, who had been carrying on business as iron founders under the name of J. H. Killey & Co., dissolved partnership, and said Killey gave his promissory notes for $8,000 in all to Muirhead in settlement of Muirhead's share in said business of J. H. Killey & Co., and said Killey thereafter carried on the business of J. H. Killey. & Co.; that Muirhead indorsed the notes to the plaintiff before they respectively fell due, and the same were at maturity duly presented for payment and were dishonoured by Killey, of which Muirhead had due notice; that Muirhead had not appeared, and final judgment had been signed against him for the amount of said notes and interest; that, on or about 29th February, 1884, defendants Osborne (W.), Killey and Osborne (R. B.), entered into a certain agreement under seal, whereby they mutually agreed to enter into copartnership from that date as iron founders, etc., under the name of the Osborne-Killey Manufacturing Co., said partnership to continue until a joint stock company should be formed; that said Killey was then possessed of the assets, property and good-will of the business of J. H. Killey & Co., which he agreed to transfer and deliver over to said new partnership as his contribution to the capital thereof, and said Osbornes (W. and R. B.) agreed to transfer and deliver over to said new co-partnership, as their contribution to the capital thereof, the foundry, plant, ships and pro (a) 17 Ont. App. R. 456, sub-nomine Henderson v. Killey. (b) 14 O.R. 137. 1889 .0. perty appurtenant thereto, then recently rented or purchased by said Osborne (W.); and it was further provided OSBORNE by said agreement that all liabilities of J. H. Killey & Co. HENDERSON. were to be assumed by said new co-partnership and charged against said Killey; that defendants Osborne (W.), Killey and Osborne (R. B.) formed said partnership, and paid certain of the liabilities of said J. H. Killey & Co. they had agreed to pay, and defendants agreed to pay and discharge said notes, and paid interest on one of said notes, and said defendants offered, if extension of time were given, to pay said notes at the rate of one hundred dollars ($100) per month; that by reason of the promises of defendants plaintiff forbore to bring an action on said notes heretofore; that defendants refused to pay any of said notes, which were all unpaid except $60 interest for two years on one of said notes paid June 17th, 1884. Plaintiff alleged that all times had elapsed and all acts had been done necessary to entitle plaintiff to be paid said notes and interest by defendants, and before action brought plaintiff demanded payment of said notes and interest, but received no reply to such demand; that if defendants, forming said firm of The Osborne-Killey Manufacturing Co. were not proved to be liable as debtors to plaintiff under the circumstances thereinbefore set forth plaintiff charged, in the alternative, that defendants duly received the assets of said Killey and deducted said debt of plaintiff therefrom, and took credit therefor as a liability assumed to be paid by them; and plaintiff charged that defendants, in refusing to pay plaintiff said debt, were colluding to defraud her, and so to arrange the accounts of said partnership that they might be relieved as between themselves from said liability; and plaintiff claimed that under the circumstances thereinbefore pleaded defendants were estopped from denying their indebtedness to plaintiff, and that in any event plaintiff was entitled to judgment for the amount against defendant Killey, and to a order restraining defendants from parting with the assets set apart to provide for said debt or from |