Knight sold about $84,700 worth, and paid over about half to the plaintiff, on order of defendant, directing him to pay all to plaintiff.

Plaintiff insists that he has nothing to do with Knight, who was employed by defendant, and that the latter must bear the loss on Knight's default.

According to Knight's testimony, the Macdougall raft came into his hands in the spring of 1879; the last shipments and sales were about August and September, 1881.

In October, 1881, plaintiff, with defendant, had an interview with Knight, and received an account from him.

An account dated 22nd November, 1881, at page 58, shows account sales of the timber limits; and the account due defendant, about $58,000, was presented on behalf of plaintiff.

It was given to defendant, and plaintiff wrote at foot, "The above account does not include and is made without prejudice to the money payable by Fraser to Bell as assignee of the balance of raft timber sold by Fraser through the agency of Knight."

Mr. Gormully was acting for plaintiff. It seems to have been understood between them that Mr. Gormully should endeavor to get the money from Knight, on the understanding that his doing so should not prejudice their right to look therefor to defendant.

It does not seem that the defendant's solicitor specially agreed to anything as to ultimate liability.

25th November, 1881, Fraser wrote letter (Ex. E, p. 59) to Knight, authorizing him to pay all moneys to Bell, the plaintiff, arising from sales of any timber that was or is in his hands belonging to J. L. McDougall's estate.

29th November (Ex. F) Gormully wrote to Knight, enclosing copies of the authority, and asking for the money. Knight replies 1st December (Ex. H) that he will remit in a few days.

Gormully also writes to defendant, stating that he had asked immediate payment from Knight, but that plaintiff held defendant responsible.

Knight paid plaintiff $4,500 on account, on this authority from defendant.

The residue is the amount in dispute. This suit was commenced 14th February, 1882.

The learned Judge held, on the evidence, that "the defendant was justified in employing an agent or broker at Quebec for the sale of this timber, and entrusting to him the property and purchase money arising from the sale, as was done, and that defendant was not guilty of negligence in the selection of Knight & Co. as such agents or brokers, and I am of the opinion that defendant is not liable to make good the loss above mentioned."

The justice of the case is, in my opinion, clearly with defendant, and I hope there is no rigid rule of law to render him liable.

Defendant was certainly a trustee for sale of this timber when it reached his hands at Quebec. The original trusts are explicitly set out in the agreement with the Macdougalls. of May, 1877. He appears to have dealt with it in every way as a prudent man would have dealt with his own property.

He trusted Knight largely with his own property, as well as with this timber. The evidence warrants the conclusion that Knight was a man in good standing, credit, and character.

The employment of such an agent as Knight appears. to have been a reasonable and proper proceeding, especially for a person living in Westmeath, up the Ottawa River.

The learned Judge relied largely on the statement of the law so fully laid down in Speight v. Gaunt, 22 Ch. D. 727.

If defendant be not liable to any larger measure of responsibility than the unpaid trustee in that well reasoned case, his defence is clear.

I feel great difficulty in agreeing with the argument that he stands in any less defensible position.

The trust was to sell the timber for cash or on credit. Had he sold it on credit to Knight, then a man of good standing, it could hardly be said that he would be liable.

On a trust like this, where the trustee, whether acting gratuitously, or interested, as he was, in the result of the sales, it is not easy to see why a larger measure of liability should be held to apply in the one case more than the other. In defendant's position he was interested more especially in making the most he could of the trust property.

Even if he were in the position of a mortgagee in possession, he would only be answerable, as Lord Westbury puts it in Parkinson v. Hanbury, L. R. 2 H. L. 1, 15: “It is undoubtedly settled in the Courts of equity, that if a mortgagee, in that character, enters into receipt of the rents and profits, he will be bound to account, not only for what he has received, but for what, without wilful default, he might have received."

The case is very full on this head: 2 Fisher on Mortgages 948, sec. 1530 et seq..

I think the learned Judge was right in holding in defendant's favour.

"In

The other branch of the case raises a curious question. For some unexplained reason the defendant paid into Court the sum of $4,300. His defence states, par. 9: case this honourable Court should be of opinion that the defendant is still liable for the payment of the balance of the money mentioned in the next preceding paragraph, the defendant now brings into Court, ready to be given to the plaintiff, the sum of $4,300, and states that the same is sufficient to pay in full all claims of the plaintiff in respect of the balance of the moneys received by the said A. F. A. Knight, mentioned in the seventh paragraph of this statement of defence, and of all interest thereon, and of all damages for non-payment thereof, or for omission to credit the same on the defendant's claim, pursuant to the deed set out in the seventh paragraph of the plaintiff's statement of claim."

Defendant's solicitor swears that he was instructed by counsel, and believed, that the limitations expressed in said statement of defence were sufficient in fact to prevent the payment of the money to plaintiff in case the Court should be of opinion that the defendant was not liable, and that notice was given to the accountant not to pay out any moneys in the suit.

I have had the advantage of reading my brother Osler's judgment on this branch, and agree with the views expressed by him.

There was only one way in which this money could have been paid into Court, viz., under the rule, except by some express direction given by the Court.

On the receipt and præcipe it is stated to be under the rule. We are told these words were added in the accountant's office. It matters little by whom the receipt was taken in that form. The parties paying had full notice it was so expressed to be paid, and before the trial it is admitted by defendant's solicitor that he was aware the plaintiff had taken the money out.

When defendant was aware of the money being taken out of Court, he should have applied with reasonable promptitude to the Court to correct any proved mistake. He should not, with this knowledge, have allowed the case to go to hearing.

I am unable to see any substantial difference between the expression, "in case the Court be of opinion the defendant is still liable, &c.," and such words as " without admitting any liability," "lest contrary to what the defendant believes and contends," and " if by reason of any wrongful act of defendant, his servants, &c., the plaintiff sustained damages," &c., &c.

as,

When the person paying says, "if contrary to what he contends," must it not mean as here in substance the same "if in the opinion of the Court, &c ?" Is it not in both cases, as it were, "I am contending that I am not liable, but, if the Court think I am, then I pay the money into Court, &c.?"

As Brett, M.R., says, in Wheeler v. United Telephone Co., 13 Q. B. D. 597, 613: "Whatever the exact form of the defence may be in words, the substance of it is, that the money is paid into Court, and the defence is pleaded as an alternative defence, which means that if the defendant fails in the other defences which he has set up, this is his defence to the action."

And as Bowen, L. J., says (p. 613):

"If this were not so the defence would be incomprehensible, for why should anyone pay money into Court when he can gain nothing by it?"

Here the money is paid into Court "to the credit of the plaintiff and the accountant of the High Court of Justice." The defence says that it is sufficient to pay all claims of plaintiff in respect of the balance of moneys received by Knight, and of all interest thereon and damages for nonpayment.

It is conceded that the interest was calculated up to 6th April, 1882, when it was paid into Court "ready to be given to the plaintiff."

If it were merely designed to abide the decision of the Court, which might not be ascertained for another year, the sum paid in could not be in full of a specific sum, and interest, and all damages for non-payment.

It must be borne in mind that this is not a motion to correct an error. It is an appeal from a judgment refusing to order a return of the money as a result of the general decision in defendant's favour.

The Rules of 1884, adopted in England, provide distinctly for payments of this character. See the case of Savage v. Payne, Re Lord Stamford, 33 W. R. 909. Our early adoption of these rules would seem very advisable.

BURTON, J. A.-Upon the defendant's appeal, I find myself unable to agree in the conclusion arrived at by the learned Chief Justice and my brother Osler. The question now raised is not decided by any of the cases in England or Ireland to which we have been referred, although there are dicta, and especially of Lord Justice Bowen, in Goutard v. Carr, 13 Q. B. D. 598n, which would seem to bear out the contention of the plaintiff.

In none of those cases did the point now before us come up for decision. The case nearest to it is that in the Irish Courts, Coughlan v. Morris, 6 L. R. Irish 405, but the language of the plea was different. The Court there held that the prefatory words of the plea, "lest, contrary 2-VOL. XII A.R.