We were very much pressed with the argument that the statute must be so construed as to except from its remedial effect, all cases of injury arising from the negligence of a fellow servant, on the ground that the legislature could not be supposed, without express words, to have intended to alter the rule of the common law. And the rule, said by Endlich on Statutes, p. 174, now to have assumed the form of dogma in the United States, that all statutes in derogation of the common law, or out of the course of the common law, are to be strictly construed, was invoked. A number of decisions in the Courts of the United States, were also cited in support of that doctrine; but no decision of any English Court was brought to our attention; nor is there any such rule laid down in English books of authority. I confess I am unable to see any sound principle on which such a rule can be rested; and in The Warkworth, 9 P. D. 20, Butt, J., said, that the fact that an Act of Parliament interfered with common law rights, was no reason why it should be construed differently from any other Act. See also the observations of Lord Tenterden in Gale v. Laurie, 5 B. & C. at p. 164. I think that is the sound rule, and that the Act in question is not to be read so as to exclude from its beneficial provisions the case of injury arising from the negligence of a fellow servant. The appellants also made a great point of the answer of the jury, to the question whether the plaintiff had notice or knowledge, or ought to have had notice or knowledge, that the frog was not packed, the answer being, “ We believe he did not have notice, and should have had notice." If we suppose the jury to have kept in mind the learned Judge's charge, then we must suppose, I think, they meant to say that unless he had shut his eyes, he would have seen that the frog was unpacked. But that question was referred to by the learned Judge in the early part of a some what lengthy charge, and I cannot be sure that the jury Judgment. did recollect what he said. On the other hand, the form MACLENNAN of the question itself, was somewhat calculated to suggest the other meaning. But if we take the meaning contended for by the defendants, I do not see that it helps them, in view of the finding that he did not have notice. If, in fact, he had not notice, it is, in my judgment, utterly immaterial how powerful the circumstances were which should, as it were, have compelled him to see that the frog was unpacked, so long as he owed no duty to the company to observe whether it was packed or not. If it had appeared that he was the person whose duty it was to pack the frog, or to see that it was done, then the finding, in the sense contended for, would be material; but no such duty was suggested, nor was that the sense in which the learned Judge submitted the question to the jury. I think the appeal should be dismissed. Appeal dismissed with costs. J.A. Statement. HALL V. PRITTIE. Assignment Equitable assignment-Chose in action—Bills of exchange. One E., who had a contract with the defendant for certain carpenter's work, gave to the plaintiff an order on the defendant in the following form : "Please pay to H. the sum of $138.40 for flooring supplied to your buildings on D. road, and charge to my account. Held, that this was not an equitable assignment, but a bill of exchange, and that in the absence of written acceptance by her, the defendant was not liable. Judgment of the County Court of York reversed. THIS was an appeal from the judgment of the County Court of the County of York. A builder named Edward Eyrie, who had a contract to build certain houses for the defendant, gave to the plaintiffs, who were lumber dealers in Toronto, the following order : MRS. J. PRITTIE— TORONTO, November 26th. Please pay to William Hall & Son the sum of $138.40 for flooring supplied to your buildings on Dovercourt Road, and charge the same to me. The plaintiffs brought an action against the defendant to recover the amount referred to in this order and some other amounts, and the action was tried before McDouGALL, Co. J., at Toronto on the 4th of December, 1889, when judgment was delivered in favour of the plaintiff on the ground that the order in question was a good equitable assignment of the moneys referred to therein. The evidence shewed that the order in question had been brought to the notice of the defendant or her agent, but it had not been accepted by her in writing, and there was a conflict of evidence as to whether there had been any oral acceptance or promise to pay. There was also a conflict of evidence as to whether after the date of the order and after the order had been brought to the notice of the defendant there were any moneys payable under the contract by the defendant to Eyrie. It was shewn that mechanics' liens Statement. were filed against the property, and that shortly after the date of the order Eyrie made an assignment for the benefit of his creditors and left the contract unfinished. The defendant contended that Eyrie had been paid before the date of the order more than was in the result due to him. An appeal by the defendant from the judgment of the County Court came on to be heard before this Court (HAGARTY, C. J. O., BURTON, OSLER, and MACLENNAN, JJ. A.) on the 13th of March, 1890. R. S. Neville, for the appellant. May 13th, 1890. BURTON, J. A.: This case has been treated by all parties apparently in the Court below as an equitable assignment by Eyrie to the plaintiff of a portion of the moneys payable or to become payable under his contract with the defendant and if that could have been made out I should have entertained no doubt upon the evidence that the decision of the learned Judge below was correct. It was a well known doctrine in equity long before the Judicature Acts or our own Act in reference to assignments of choses in action, that a debt was assignable in equity and binding upon the debtor upon notice. But it would be a most dangerous extension of that doctrine to apply it to a mere order for the payment of money or a bill of exchange, which this instrument in question is. It is in this form: [The learned Judge read the order and continued :] There is nothing whatever upon the face of this instrument to indicate that it was intended as an assignment of any portion of the debt secured and payable under the contract, the words " for flooring, etc.," merely point to the consideration existing between Eyrie and the plaintiffsequivalent to the words frequently found in similar docu BURTON Judgment. ments, "for value received,"--and the other words, "and charge to my account," though superfluous, are the words usually found in a draft or bill of exchange, and do not by any means indicate that the payment of the money to the bearer of the draft was to be made from any particular fund, but a direction to the drawee to charge the money to him. But even if the words of this document had gone to the extent of saying," and charge the same to account of moneys payable under my contract with you," I should still hold that it could not be treated as an equitable. assignment of any portion of that debt. The rule itself is perfectly clear that if these or similar words are used merely to designate the fund out of which the drawer may reimburse himself, or as a mere reference in the draft to the fund to call his attention to his means of reimbursement, then it is nothing more nor less than a direction, and the document is a bill of exchange. If on the contrary they are used to limit the payment or make the order itself payable only out of a particular fund, then the order is not a bill of exchange. There can be no question that the document in question in this case has all the essential elements of a bill of exchange, and if so it is equally clear that it cannot be treated as an equitable assignment. The distinction, I think, is very clear. If the order had. been to pay to the plaintiff $138.40 from moneys due or to become due under the contract, there would be a clear intimation to the defendant that to that extent the contractor had parted with his interest in the moneys accruing under the contract, and the defendant after that notice would deal with his original creditor at his peril. It may even in such a case appear hard to impose such an obligation upon people unacquainted with this rule of equity, and I quite agree with the opinions of those learned Judges who have held that the rule should not be extended; but it would be imposing a very serious additional responsibility upon persons engaged in business if a mere draft for the payment of money, which it was open to the |