they declared they owed $4,819, and that this writ of attachment was still pending. The defendants prayed, therefore, that the attachment in the present cause be declared null.

The plaintiffs demurred to the contestation on the ground that contestants did not allege that they had been ordered to pay the sum admitted to be due, or that they had deposited it in the hands of the Treasurer of the Province, under 36 Vict. c. 5, and 36 Vict. c. 14.

The Court maintained the plaintiff's answerin-law and dismissed the contestation, remarking that the existence of a prior attachment at the suit of another plaintiff was no bar to the attachment in the present case.

tial compliance with the .Act will free the debtor no doubt. There is abundant authority · for that; but on the other hand there is a case in the Upper Canada Law Journal, Robson v. Warren, cited in the note to this section in Edgar & Chrysler's Insolvent Act of 1875, that where the plaintiff was incorrectly named, and gave evidence that he had not been notified of the proceedings in insolvency, the debtor was held not to be discharged. That is not precisely the case here, I think, because, probably, the plaintiffs were aware of the insolvency; but there are numerous other cases reported, and the substances of all of them is that the defendant must clearly bring the case within the

Counsel for plaintiff cited Duvernay and conditions of exemption. Now I am far from Dessaulles, 4 L. C. R., 142.

Ivan Wotherspoon for plaintiff.

L. O. Loranger for defendant.

Montreal, March 30, 1878.
JOHNSON, J.

DUHAMEL et al. v. PAYETTE.
Insolvent Act-Claim not properly inventoried.
Held, where an insolvent who was indebted to "Du-
hamel, Rainville & Rainville," merely put the name
"Duhamel in his list of debts, without specifying
any amount, that he was not discharged from the
claim by obtaining his discharge under the Act.

This was an action to recover the amount of an account due to a firm of lawyers by a client. The latter pleaded that he had obtained his discharge as an insolvent, and that the amount sued for was included in the list of his debts to the knowledge of the plaintiffs.

JOHNSON, J. The only question is whether the terms of the 61st section of the Act of 1875 have been complied with. That section discharges from all debts that are mentioned or set forth in the statement of his affairs exhibited at the first meeting of his creditors, or which are shown in any supplementary list furnished by the insolvent previous to such discharge, and in time to permit the creditors therein mentioned obtaining the same dividend as other creditors upon his estate, or which appear by any claim subsequently furnished to the assignee." The list of creditors with the certificate of the assignee of the 27th November, 1877, contains the name "Duhamel," but without mentioning any amount. The name of the creditors was Duhamel, Rainville & Rainville." A substan

being satisfied that he has done so. There has
never been any claim made by the plaintiffs or
by any one of them. The register gives no
amount, and no name of the real creditors. The
subsequent certificate of the name Duhamel'
with avocat' after it in the list of creditors, is
not only at variance with the first certificate,
but throws no light as to when the word
'avocat' was put there. The letter about Pap-
ineau's claim does not touch this one at all, and
is not written by the insolvent, and I should
have to strain the law to say that defendant can
bar the plaintiffs' claim without more attention
on his part to what the law held him to.
Judgment for amount demanded.

Duhamel & Co. for plaintiffs.
De Lorimier & Co. for defendant.

LEPAGE V. WYLIE.

Slander-Aggravation by Unfounded Plea. JOHNSON, J. The plaintiff is the widow of the late Mr. John Brothers, who died on the 8th of January, 1877, and on the 4th of August ensuing she gave birth to a child. The defendant is charged with having, on two occasions in July, said that her husband was not the father of the child, and is summoned here in an action of damages for slander in so saying. He pleads that the allegations of the action are false, and adds, very unjustifiably, as it turns out, that the sole object of the action is to extort money, and that the plaintiff repeatedly tried to get a loan of money from him before she brought her action, and meeting with a refusal, threatened to sue, and

actually brought a groundless action. The discontinuance filed by the plaintiff, and the proof is direct and positive by two witnesses-judment granted acte of it merely, without disSexton and Doolan. Now, this appears, I must missing the action as to him, and gave the say, to me, a very serious business. The plain- costs of contestation subsequent to the confestiff is proved to be a most respectable person.sion against the plaintiff. Campbell afterwards The defendant himself, when called as witness, admits it. It was attempted to show that the damages ought to be small, on the ground that she was not a person of susceptible feelings. The proof showed that she kept a boarding honse and saloon frequented by captains of Upper Canada steamers; and she is, happily for her, a brave, outspoken woman, fitted to fight the battle of life in her bereaved position. But it would be a grievous wrong to her to infer that the evidence points to any impropriety of life of a nature to blunt her feelings. I understand the witnesses to speak in a sense exactly the reverse of this. Well, the defend- | ant meets Sexton, and afterwards Doolan, and says this thing, I must say not only with brutal plainness, but adds: "Some say it is Creelman's; some say it is mine." Now, it struck me that though this was very coarse, it might not have been intended as malignant, and I asked that question of the witnesses, and they said there was nothing jocular about it at all; and it is simply impossible to tell this woman, under the circumstances, when she comes here for justice, that she is to submit to such an outrage-whether originated or only repeated makes no sort of difference. Therefore, she is, in the very nature of things, entitled to damages, and substantial damages, for the defendant has not contented himself with simply denying the thing, nor with admitting and apologizing for it; but he has wantonly added what he has been utterly unable to prove, viz., that her object was extortion.

Judgment for plaintiff $200, with costs of action as instituted.

Lefebvre & Co. for plaintiff.
Doutre & Co. for defendant.

LATOUR V. CAMPBELL. Costs-Distraction-Art. 482 C.C. P. JOHNSON, J. Judgment was rendered in this -case in April, 1875, condemning John Parker to pay $20 damages, for which he and his codefendant Campbell had confessed judgment; but as to Campbell himself there had been a

issued execution against the plaintiff for his costs, and was met by a judgment which the plaintiff held against him for a larger amount Thereupon Campbell, or rather his attorneys, inscribe the case now for final judgment upon the discontinuance, and ask for distraction of costs in their favor. The court holds that the defendant at present inscribing and moving for distraction is wrong in both of those proceedings. By article 482 C. P. the attorney has not an incontestable right to distraction of his costs, unless he moves for it on or before the day on which judgment is given. After that if he wants it, the opposite party must have notice. Here the notice has been given, and the plaintiff produces the judgment against Campbell. This is surely a good answer to the pretension that he ought to be made to pay anything due by him to Campbell of less amount. Then as to the inscription. There is no necessity for inscribing at all. By Art. 450 the discontinuance of which acte was granted in the judgment was a discontinuance in the express terms of the law, that is, on payment of costs, and acte was given of that, and it was executory, and in fact was executed. After acquiescing in that judgment in this manner, it is clearly too late to come in and change the right of the plaintiff under his judgment against Campbell. Both the motion and the inscription are therefore dismissed with

costs.

JONES V. SHEA et al.

Advances for Speculative Purposes. JOHNSON, J. The plaintiff's action is to recover $111.46. He was employed by the defendants to negotiate divers purchases of pork in the Chicago market through a firm there. The defendants plead that all their dealings with the plaintiff were gambling transactions on margin-no property passingspeculations not on merchandize, but on the price of merchandize; at least, that is what I gather from the plea, and the argument made in support of it; but it must be confessed that the language of the plea itself is rather singular. It says that "the only transactions which

LAWRENCE, J. It is quite difficult in actions of this character, to precisely draw the line between those cases in which the plaintiff is entitled to relief and those in which relief should be denied. The decisions are conflict-form, "and exclusive patentee" in an exactly ing, and many of them irreconcilable, but in this case, after fully considering the evidence, I am of the opinion that the plaintiffs are entitled to a portion at least of the relief which the complaint demands.

similar curved line, nor does it rest only with the general resemblance of the outer wrappers: The papers in which the defendant's pins are stuck bear also a very great similarity; they are as like as can be to the papers in which the plaintiff's pins are stuck."

Then, after stating that he agrees that there must be an intent to deceive the public, the vice-chancellor holds that the defendants, both in the outer and inner wrapper, made a palpable imitation, with the intent to deceive the public, and he accordingly restrained them. I have referred to this case at length because it

seems to me to be peculiarly in point, but there
are several authorities in our own courts which
uphold the same doctrine. In Williams v.
Spence, 25 How. Pr. Rep. 307, Monell, J., says:
"The only question to be determined therefore
in this case is whether the labels, devices and
handbills used by the defendants, as set forth in
the complaint, are calculated to, and do, de-
ceive the public into the belief that the soap
that they are selling is the soap made and sold
by the plaintiffs.
The oral evidence,
that the labels, devices and hand-bills used by

the defendants are calculated to deceive the

public also preponderates, and an inspection of the respective labels, devices and hand-bills satisfies me that the public would be readily deceived and purchase the defendant's soap under the belief that they were purchasing plaintiff's."

make an article as nearly as possible resembling that manufactured by the plaintiffs, and to put it off upon the public as the same article."

I am also satisfied that it was the intention of the defendant, in adopting the blue and tinfoil wrappers, and in printing on them the directions for use in language so closely resembling that employed by the plaintiffs, to impose upon the public and to lead purchasers to believe that in purchasing the defendant's article they were in fact obtaining the sapolio of the plaintiffs. In this connection the wonderful similarity of the color of the inside of the tinfoil wrapper, used by the defendant, with that used by the plaintiff, should not be forgotten. The whole case, to my mind, shows an intention on the part of the defendant to avail himself of the reputation which the plaintiffs had acquired in the market for their sapolio, by their enterprise and ability and by the large expenditures which they had made in bringing the sapolio to the attention of the public.

It appears that the plaintiffs have been for many years engaged in manufacturing sapolio, that the article has acquired a great reputation, and that the plaintiffs have expended very large sums of money in advertising. The evidence shows that the defendant, after analyzing a cake of sapolio, and ascertaining how it was made, set about making an article similar in

In Lea v. Wolf, 13 Abbott (N. S.), 391, Mr. Justice Ingraham says: "The color of the paper, the words used, and the general appearance of the words when used, show an evident design to give a representation of those used by the plaintiffs. It is impossible to adopt any conclusion other than that the intent was to lead purchasers, from the general appearance of the article, to suppose that it was the original Worcestershire sauce which they were buying." See also Cook v. Starkweather, 18 Abbott (N. S.), 292. And in Lockwood v. Bostwick, 2 Daly, 521, it was held, "that a party will be restrained by in-character, color and appearance to that of the junction from using a label as a trade-mark, plaintiffs. This he may possibly have a right resembling an existing one in size, form, color, to do, but when the court finds that the defendwords and symbols, though in many respects ant, after having possessed himself of the different, if it is apparent that the design of the secret of the manufacture of the plaintiffs, has imitation was to depart from the other sufficiently to in addition coined a name much resembling constitute a difference when compared, and yet not sapolio, in appearance, and which he admits is so much so that the difference would be detected by a fancy name, having no particular derivation an ordinary purchaser unless his attention was par- or signification, and has then proceeded to ticularly called to it, and he had a very perfect encase his cakes of saphia in wrappers also recollection of the other trade-mark." And in closely resembling the plaintiffs', both in their Kinney v. Busch, 16 Am. L. Reg. (N. S.) 597, external and internal appearance, as to color, Mr. Justice Van Brunt says: "A careful in- size, and partially as to inscription and direcspection of the labels in question shows beyond tions for use, the court has in my judgment the a doubt that those of the defendant were power to interfere, and should exercise its adopted in order to deceive the public into power. It is claimed that the plaintiffs cannot supposing when they purchased the cigarettes have an exclusive right to use tin foil or ultra of the defendant's manufacture they were pur- marine blue colored paper, in putting up their chasing those of the plaintiffs. I am satisfied article, as such paper is much used for ordinary from the evidence in this case that the intention commercial purposes. This is true, but the of the defendant has been from the first to, cases cited show that the courts will interfere