She, by will made by her under a power vested in her by a settlement, bequeathed to her husband part of her interest in the business, together with the household goods and certain life insurance included in the settlement, and made him her executor. There were also other bequests. The will did not contain any charge for debts or funeral expenses, and the estate was insufficient. The husband paid the funeral expenses, and the question raised was, should he be permitted to retain the amount so paid out of the estate. Chitty, J., said it was true that the law cast upon the husband the duty of burying his wife, but did not on that account cast upon him the duty of doing so at his own expense always. In most cases the husband takes all his wife's personal property by reducing it into possession during her lifetime. To call upon him to bury her out of his own money in a case like the present, where the wife exercised her power of appointment, and made the property general assets for her creditors, but omitted to mention her funeral expenses, would be too hard. But the common law rule was not based upon the fact that the husband took his wife's personal property by reducing it into possession. If it were, the law would impose the liability upon the husband alone. It, however, imposes a corresponding duty upon the widow to bury her husband: Chapple v. Cooper, 13 L. J. Ex. 286; Eversley on Domestic Relations, p. 283.

In re McMyn has been followed in Ontario in two cases. The first is Re Gibbons, 31 O. R. 252. There a wife had died intestate leaving property. Shortly after her death, the husband, who was said to be insolvent, disappeared, and his whereabouts were not known. A relative of the deceased paid the funeral expenses, and claimed repayment from the administrator of her estate. Rose, J., said that the sole question was whether a friend who had buried her should bear the expense, or whether it should come out of her estate, and he ordered it out of the estate That case decides nothing more than that the wife's separate estate is liable for her funeral expenses when the husband is insolvent, and might well be supported on the principle of Chapple v. Cooper, supra.

In Wallace v. Handley, 16 O. W. R. 475, the other Ontario case relied upon by the administrator, the facts were these. The wife had died intestate and childless, holding a lot in the city of Buffalo, in the State of New York, as

trustee for her husband. By the New York law, the lot in the ordinary course of distribution, passed to her father, by whom it was sold. The husband, who had paid her funeral expenses, sued the father to recover the value of the lot. Sir John Boyd held that the land could not be followed, but that the husband was entitled to be recouped out of the proceeds of its sale for the amount he had expended for funeral expenses. The property in that case was not the wife's separate estate, but belonged to the husband.

In re Sea, 1 W. L. R. 460, Duff, J,. then of British Columbia, held that the husband, administrator of his wife's estate, was not entitled to charge against the estate the expenses of his wife's funeral. He said that the husband's duty to bury his dead wife at his own charge is not based upon nor incidental to the marital proprietary right, but is founded on the marriage relation itself. He also held that the Married Women's Property Acts made no difference.

In the United States the decisions are not entirely consistent. In some of the States, such as Massachusetts, Ohio, and Rhode Island, there are statutes making the funeral expenses a first charge upon the property of the deceased, and in these States it is held by the Courts that the wife's estate is liable. In New York a different rule prevails, but whether or not it is based upon any statute, I am not in a position to say. In the other States, where there is no legislation, the common law rule of England prevails, and it is held that, whether or not the wife dies possessed of separate estate, the husband is liable for her funeral expenses, and, if he is administrator, he is not entitled to charge the expenses of her funeral as part of the expenses of the estate: Kenyon v. Brightwell, 1 Am. & Eng. Ann. Cas. 169, and Re Waesch, 166 Pa. St. 204.

The wife may charge her separate estate with her funeral expenses, as was done in Willeter v. Dobie, supra, in which case the surviving husband who had paid them would have a right to be recouped out of her estate. But, unless she has done so, or such expenses are by statute made a charge upon her estate, the husband cannot, as the law stands, retain out of her estate in his hands moneys which he has spent in discharge of a legal obligation which the common law imposes on him, since no one excepting the wife, by her own contract, can fasten a charge upon her separate estate: 15 Am & Eng. Encyc, of Law, p. 880. I

am not satisfied that Chitty, J., in In re McMyn, intended to lay down any different principle. If he did, he has departed from the principle of the common law as declared by a long series of previous cases, and should not therefore be followed.

The appeal should be dismissed with costs.

MANITOBA.

ROBSON, J.

MARCH 3RD, 1911.

TRIAL.

BANK OF MONTREAL v. TUDHOPE.

Chose in Action-Assignment-Notice-Bank Act-Right of Assignees Subject to Set-off-Mutual Dealings-Accounting-Settlement-Bona Fides.

By a written agreement of the 18th January, 1909, made between the S. manufacturing company and the defendants, the S. company appointed the defendants their agents for the sale of implements, and supplied the defendants with implements for sale, and the defendants made sales and received therefor moneys and securities. The S. company borrowed money from the plaintiffs, a banking corporation, upon the security of their manufactured implements, including those supplied to the defendants, and the plaintiff's claimed the implements supplied to the defendants and an account of the proceeds of the sales thereof. The plaintiffs claimed under their securities and an assignment made by the S. company, pursuant to the Bank Act, dated the 5th October, 1909, though the securities existed before that date. There were mutual dealings between the defendants and the S. company: the defendants sold buggies to the S. company. The state of accounts between them on the 1st January, 1909, was that there was a balance against the S. company of $695.46; and on the 27th October, 1909, there was a balance of $1,389.08 due to the defendants, and a settlement of accounts between the defendants and the S. company was made on that day at that sum. The plaintiffs, by virtue of their securities and assignment, asserted a right to an account of the S. company's goods, as under the agency contract, and irrespective of any debt of the S. company to the defendants for buggies. By letter of the 19th October, 1909, the defendants were notified of the plaintiffs' claims, and a demand was made for an accounting to the plaintiffs:

Held, that the defendants had a right to insist upon a mutual accounting between themselves and the S. company, and therein to set off, against the value of the implements disposed of by them (the defendants), their demand for the goods sold to the S. company, and that this right could not be intercepted and destroyed by the assignment by the S. company to the plaintiffs or notice thereof; and that the settlement of the 27th October, 1909, truly

set out the accounts and was carried out in accord with the previous dealings and understandings of the parties.

The equitable right of set-off is allowed as against an assignment, wherever a debt arising between the original parties subsequently to the notice of assignment, and then sought to be set off, results from matters connected with the debt assigned.

Action to enforce a lien upon certain implements for advances made by the plaintiffs; and for an account.

J. F. Kilgour, for the plaintiffs.

R. M. Dennistoun, K.C., and D. A. Stacpoole, for the defendants.

ROBSON, J.-This action was commenced on the 13th July, 1910. The plaintiff's set up that, by written agreement dated the 18th January, 1909, made between the Sylvester Manufacturing Company Limited and the defendants, the Sylvester company appointed the defendants their agents for the sale of implements and such other goods as might be supplied by the Sylvester company to the defendants from time to time; that, pursuant to such agreement, the Sylvester company supplied the defendants with certain goods for sale by them; that the defendants, as such agents, made sales of such goods and thereby received. moneys, notes, contracts, and securities. The plaintiffs say that the Sylvester company, being wholesale manufacturers of implements of the kind referred to in the agreement mentioned, including the identical implements supplied to the defendants as aforesaid, borrowed money from the plaintiffs upon the security of the same, under the Bank Act, and that the implements so supplied and proceeds of sales were and are, therefore, the property of the plaintiffs. The plaintiff's further say that, by writing dated the 5th October, 1909, the Sylvester company assigned to the plaintiffs all the implements so supplied by them to the defendants and all moneys, the proceeds of the sales thereof, and all securities for money and choses in action relating thereto in the hands of the defendants or any other person. And the plaintiffs say that the defendants have never accounted to the plaintiffs in respect of these matters. The plaintiff's claim an account and judgment according as shall thereupon be found.

The agreement of the 18th January, 1909, by which the Sylvester company appointed the defendants their agents at Winnipeg, was proved and put in evidence by the plain

tiffs. The plaintiffs adduced certain documents purporting to be securities under the Bank Act granted to them by the Sylvester company, covering goods manufactured by them, and an assignment from that company to the plaintiffs of the nature above described.

The defendants contested the authority for the execution of the securities. The plaintiffs assert that the due execution of these documents is admitted on the pleadings.

From the evidence it appeared that mutual dealings between the defendants and the Sylvester company had taken place continuously for a considerable period prior to the matters now in question. The defendants had acted as distributing agents at Winnipeg of Sylvester machinery. The defendants made sales from time to time out of the

stock placed with them by the Sylvester company The defendants had sold to the Sylvester company from time to 'time buggies and ploughs.

The state of accounts between them was that on the 1st January, 1909, there was a balance against the Sylvester company of $695.46.

On the 3rd February, 1909, being subsequently to the agency agreement, R. Sylvester, president of the Sylvester company, and H. F. Anderson, representing the defendants, met and discussed business matters. The version of the conversation put forward by Anderson is, that an agreement was then reached between him and Sylvester that the defendants were to supply the Sylvester company with certain goods, and the Sylvester company were to supply the defendants with others, and accounts were to be set off at the end of the season. Sylvester, called as a witness by the defendants, said that Anderson wanted to sell buggies to the Sylvester company, and he, Sylvester, describes the arrangement thus: "I said, "If you will take drills at wholesale prices in exchange for those buggies, I will give you an order.' He said, 'I will do that.'" Sylvester says that that completed the transaction; that he would not have done it any other way, as he did not want to increase the liabilities of his company.

A letter of the Sylvester company to the defendants, dated the 23rd March, 1909, mentioning this arrangement, was tendered in evidence by the defendants. I expressed doubt as to its admissibility. But that letter would be ad