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CO
WITH Rl
OF
/V^'?.
A TREATISE
ON
THE CANADIAN LAW OF
CONDITIONAL SALES
OF CHATTELS,
AND OF
CHATTEL LIENS,
WITH REFERENCES TO THE STATUTES OF THE PROVINCES
OF ONTARIO, NOVA SCOTIA. BRITISH COLUMBIA.
MANITOBA, QUEBEC, NEW BRUNSWICK,
PRINCE EDWARD ISLAND AND THE
NORTH-WEST TERRITORIES,
BY
W. J. TREMEEAR
OF THE TORONTO BAR.
TORONTO:
Canada Law Book Company,
1899.
T7^
Entered according to Act of the Parliament of Canada, in the year one
thousand eight hundred and ninety-nine, by R. R. Cromarty, at the Depart-
ment of Agriculture.
TABLE OF CONTENTS.
ClIAlTKR I.
Contracts of Conditionai, Sai.k.
PAUR
Conditional Sale clefined i
Nature of conditional sale i
Conditional sale distin<j^uished from chattel mort-
R'lRc 4
Stipulation for lien 5
Hire-purchase contracts 7
The bailment 7
Contract to be in writini; 7
Household furniture 10
Time of siijnature by bailee 11
Reservation of property in chattels 11
Fixtures to realty 13
Fixtures in Ontario .....' '4
Fixtures in New Brunswick 15
Fixtures in Quebec 16
Lien notes, question of negotiability 17
Limit.ition of actions on conditional sale contracts. 19
Acknowledgment in writing 19
Sales under suspensive condition in Quebec .... 20
ClIAI'TER H.
Conditional Sale Registrations.
Registration or filing in British Columbia
Manitoba
22
24
vi
TAIII.K (>l (((MINTS.
it
Rej^istratiop or filiiij^^ in New Rriinswick 25
Xortli West 'I'crritorics. 27
" Nova Scotia 28
" Ontario iiiulcr C'oiuli-
tional Sales Act,... 36
Kcj^istratioii in Ontario whttre conditional sale of
nuTchanclise to a tracl(,'r for rc-sale 40
Rej^istration or filinj; in Prince luivvard island . . 42
Chattel defined 45
Reservation of right ^)( possession as well as
rijjfht of property 45
Conditional sale o( share in chattel 47
' Manufactured <;oods.' meaninj^ of 4S
Time for re<,nstration 50
Answerinj4 encjuiry by |)roposed purchaser, etc. . 51
Territorial jurisdiction as to registration 52
ClIAI'TKK III.
TiiK Conditional X'kndor.
Copy of aj^reement Uj be left with vendee 54
Liability for defecte: 54
Conditional sales with charj^e on land 54
Statutory registration in Manitoba 55
Destruction of chattel 56
Insurance 56
Vendor to supply information 59
Re-takin<jj possession 63
Entry by force 65
Concurrent remedies for price 69
Recission of contract 71
Re-sale by conditional vendor 72
Re-registration on removal (N.W.T.) 7^
Re-registration on removal (Nova Scotia) 74
Renewal statement (N.W.T.) 74
Release and waiver 76
TAIll.l-; Ol' ( DNTENTS. VII
ClIAI'TKK I\'.
Tin-. CoNDiTioNAF- Vkndkk.
Bailments classiticcl 78
Form of tlie contract of conditional sale So
Contract form imclcr seal sij;necl by purchaser
only S5
Bailee's care of chattel So
kecission on default of conditional vendor S-
Ikeach of warranty SS
Tenant's fixtures 92
Kffect of re-takinjj^ the chattel 94
Jus tertii 95
Kejj^istration of discharjj^e (N.W'.T.) 96
Assault durin<j^ seizure of chattels 97
Fraudulent conversion by bailee 98
CllAl'TKR V.
RiciiTs OK TuiKi) Paktii'.s Ri:(;Aki)iN(". Conditional
Sali;s.
On wronji^ful sale by conditional vendee 99
(Jn failure to affix name and address to chattel . . 102
Subsecjuent purchasers 103
Creditors of vendee 106
Registration as notice i 10
Estoppel 112
Vendor registering a mechanic's lien 114
Vendor's election making a conditional sale an
absolute one 115
Rights of third parties where chattel affixed to
realty 116
Fixtures in Ontario 119
" New Brunswick 1 20
VIII
TAUI.K Ol (((NTK.NTS.
I'lirchasiT rnmi onulitional vnulcc Hritish
C'(iliiinl)ia
Contract in llclhy v. Matllu"i\.'s
I'liriliasc from coiulitional vciuIl-c N. \V. Tcrri-
lorics
I'lirchasf from conditional vciulrt' Manitoha . . .
Creditors ami sul)sc<|iu'nt purchasers Nova
Scotia
ClIAI'TI.U \'I.
CiIATH:!, I.II.NS CiKMiUAI.I.V.
I 2 I
127
I2S
I 2Q
'3'
Liens, j^cncral or specific. . . . ,
I^(|iiital)Ie liens ,
Statutory liens
I''vidence of j^^eneral lien
l''vidence of s|)ecific lien
Care of chattel under lien
Where lien allowed ,
" " denied
Lien of finder of lost chattel
Stolen j)roperty
Waiver ami forfeiture of liens.
Liens in Province of Ouehec.
;>4
36
36
:■>!
39
39
141
142
144
46
14S
CnAi'Tik V'll.
Si:lm:k's Lif.n iok Pkk k.
Rights of unpaid seller 152
When the property passes 1 54
Transfer under Factors' Act, Ontario 157
Pledyfe by vendor in possession (B.C., N.W.T.
and Man.) 1 59
Passinjjf of property, ascertainment of intention. . 161
Sale on approval 1 63
Implied warranty of title 163
k<- Si
kese
Waix
Sale
Keve
Ware
TAItl.F, OK rONTENTS. ix
Rc-sale hy vciulnr 1O5
Roscrviiij; rij^ht ol* dispnsal 166
Waiver of vciulor's lien 168
Sale of C.cMuls Acts (IVC. NAV/I*. ami Man.)... 171
Rc'vcndication ami |)rcffrt'iuc(Oue.) 17S
Warehouse receipts (Out.) 179
ClIAI'TIH VIM.
StoI'I'ach: in TkANsnr.
Stoppaj^a- in transitu tlelined 1.S2
Insolvency of l)uyer 1S3
The transit 183
Where hill of lailinj,^ assigned 187
(ioods in hoiul 189
Parties entitled to the rij^ht 191
Under what comlitions 192
Notice to carrier 194
Wroni^ful refusal of carrier to deliver 196
Re-sale of stopped j^oods 196
Waiver 197
Sale of (ioods Acts (lie, N.W.T. and Man.).. 198
Transfer of bill of ladiiin' (Ont.) 203
(N.S.) 204
chai'ti'.k ix.
Factors' Likns.
I'* actor has a jj^eneral lien 205
Actual possession necessary 206
Notice of ownership of third parties 207
I'actor s assijifnee for creditors 207
Control of consijjjnor 207
Purchasing aj^^ent 208
Where consignor not the owner 209
Waiver of lien 209
Factors' Act (N.S.) 211
TAIIM-: •>! •MMKNTH,
('lIM'II K X.
Lii;\s i(»i< W Aui iiDisiNc; ani» W'liAKK.vtii;.
\\'art:hnuscman's lien
Carrier as a warcluniscinan
Warehouse receipts for pcfrolci'in (< )iu.)
\\'hart'iii;4;cr's lien
Waiver
ClIAI'TKK XI.
Limns m Caukikks.
Carrier lias a specific lien
Carri(;rs by water
Performance of contract
Lien imclerth(.' Railway Actof Canada
Separate consij^nnients
Refusal to pay freight
Connecting lines
Demurrage
Passengers' baggage
Waiver
212
314
2\h
ClIAITKR XII.
Woodmkn's Likns and Likns fou TiMiii.k Duf
218
2 19
222
225
225
226
229
230
23«
IVoperty in growing timber
Woodmen's lien in Ontario
" " British Columbia
•• " " New Brunswick .
•• " " Manitoba
•• " " Ontario
" " (Quebec
Timber dues, British Columbia . . . .
Ontario
Liens for tolls, Ontario
s.
233
235
236
240
241
243
251
253
255
257
I
Wai^
V
T.Mil.l. or «nNTtNTS.
XI
ICxiH'iisr «)f breaking' liinln'r jams (< )»U.) 259
Clearing iiucrmixrd lo^s (Om.) 2(ti
S«'|»aralin<4 iiUcrinixcd lo^s (Out.) 2()2
Tiinluir (Irivcrs' li«'ns ( N. H. ) 204
ClIAI'TKU XIII.
Lii:ns <)!• Innk';i;i'i;i<s and hoAUDiNii Housk Ki:i tkus.
Iniik(M'|>('r's lini 265
I'^xlcMi of lien 267
Licii f)f hoartiiiij^^ lioiisc kei-por 2(k)
Knfi
orcciiKMi
tof 1
ICM
Innkeepers and boardini,^ liciise keepers (ii C).
•' ' " " (Man.)
Wai
(1 tl
It
1 1
t< It
It
1 1
tl It
It
«•
ver of lien . .
2;i
272
273
(N.W.T.) 276
(Ont.) . . . 266
(Que.)... 27S
279
ClIAI'TIR \\V.
LlllNS ON IIoKSIS AM) r^ATTI.i;.
Subject to what liens 2S1
V
ower o
f sal(
-•«.^
Waiver -'S4
Stable keeper's lien in Manitoba 2S6
N.W.T 2S8
Horse breeder's lien in Manitoba 290
' N.W.T 293
Cattle lien Act, British Columbia 295
Chapter XV.
Mr
\
OR K MEN S
LlENJ
Lien on chattel for work done thereon 297
Lien denied 300
Xtl TAIII.K ol" rONTKNTS.
Priority t)ver chattel niort,v;aijc 300
'iV'nnination aiul waivir of Vww 301
Statutory power of sale (Ontario) ^02
iU.C.) \o^
" " '• (N.W/r.) ;^o4
Jeweler's lien, New Brunswick 304
Thresher's statutory lien (N.W. T.) 306
" (Man.) 308
CHAPTIIK X\'i.
Lam)I,()Ri>'s Likn hv Pistrkss,
Nature of the rioht of distress 110
Lancllord's ilistress for rent 311
Distress after termination of tenancy 314
Distress hy laiulloril's executors 315
Distress of <4«hk1s frauilulently reinovetl 315
Itixeniptions 317
I^xemptions under Ontario statute 320
Lotlger's !:;<hh1s, ( )ntario 324
I'Orni of distress 325
I ioldini> possession 328
Inventory and notice of distress 329
^Xppraisenieni of gooils distrained 331
Sale " " " 332
Abandonnient. withdrawal or waiver 333
Distress for rent in British Colunihia 335
N.W. Territories 336
Nova Scotia [{i^y
Manitoba 340
" Quebec 343
CnAriKK W'll.
MdKTCACK.r's LlKN HV DiSTKKSS.
Distress by land mortgaj^ee 347
Attornment by mortgagor 347
TAIU.K OK tONTKNI'S. xlli
Termination of tenancy 350
License to distrain for interest 35 1
Mortj^aj^ee's power of distress, Ontario 352
* Manitoba ^54
• N.VV.T 354
Distress after notice of exercising power of sale. 355
AlM'KNIIIX.
Statutks Rklatin(; to Conpitionai, Sales ok
CHATTKl-S.
British Columbia 359
Manitoba 366
New Hrunswick 372
The North-West Territories 376
Nova Scotia , 384
Ontario 392
Prince I''dward Island 4CX)
Abell V.
Allen V.
Allen V.
Allen V.
Alsajfer
Alvorcl \
America
Anderso
Angleha
Angus V
Applemji
Appletor
Argentir
Argles V
Arians v
Armory '
Arnold v,
Artaza v
Artistic (
Ascher v
Atkyns v
Attack V.
Atty. Gei
Bagge V.
Baker v.
Baker v.
Ballard v
Bank of I
Bank of I
Bank of >
Bank of T
Bannister
CASES CITED.
Abell V. Craig (i8c)8) 34 C.L.J. 473
Allen V. Flicker 10 Ad. & E. 640 . .
Allen V.Smith 12 C.B.N. S. 638
Allen V. Wallace (1888) 21 N.S.R. 49, 53
Alsager v. St. Katherine's Dock Co. 14 M. & W. 794
Alvord V. Davenport 43 Vt. 30. . .
American Investment Co. v. Sexton 26 Ont. P 77
Anderson v. Henry (1898) 34 Can. Law Jour. 742
Anglehart v. Rathier 27 U.C.C.P. 97
Angus V. McLachlan 23 Ch. D. 330
Appleman v. Myre 74 Mich. 359 . .
Appleton V. Norwalk 53 Conn. 4
Argentine The (1889) 14 App. Cas. 519
Argles V. McMath 23 Ont. App. 44
Arians v. Brickley 65 Wis. 26
Armory v. Flynn 10 Johns (N.Y. ) 102
Arnold v. Playter, Waterous Co.'s Claim (1892) 22 Ont.
Artaza v. Smallpiece i Esp. 23
Artistic Color Co. Re 21 Ch. D. 510
Ascher v. G.T.R. 36 U.C.R. 609 . .
Atkyns v. Amber 2 Esp. N.P. 293
Attack V. Bramwell 32 L.J.Q.B. 146, 3 B. &^S. 520
Atty. Gen. v. Lorman 59 Mich. 157
Bagge V. Mawley 8 Exch. 641
Baker v. Dewey 15 Grant (Ont.) 668
Baker v. Tolles (N.H.) 36 Atl. Rep. 551
Ballard v. Burgett 40 N.Y. 314 . .
Bank of Bengal v. Pagan (1849) 7 Moo. P.C. 61
Bank of Hamilton v. Gillies (1899) 35 C.L.J. 468
Bank of N. W.S. v. O'Connor 14 A.C. 273
Bank of Nova Scotia v. Ward (1888) 21 N.S.R. 230
Bannister v. Hyde 2 E. & E. 627, 29 i^.J.Q.B. 141
90
332
268
1 1
220
272
116
329
326
139, 280
236
88
lOI
93
233. 299
142
i. 608 95
222
103
>9S
208
326
"9
333
«47
109
82, 100
III
«9
146
165
328
XVI
CASKS CITED.
Barnett v. Brandao 6 M. & G. 630
Barrow Ex p. 6 Ch. D. 783
Barry v. Longmore 1 2 Ad. & E. 639
Baumann v. Post 12 N.Y. Supp. 213
Beach's Appeal 58 Conn. 464
Beal V. South Devon Railway 3 H. & C. 337
Becherer v. Asher 23 Ont. App. 205
Beckett v. Tower Assets Co. (1891) i Q.B. 638
Beekman V. Jarvis 3 U.C.R. 280 ..
Benson v: Chapman 2 H. L. Cas. 696
Berkshire v. Moody 7 Cush. (Mass.) 417
Berndston v. Strang, L.R. 3 Ch. 588
Bethell v. Clark 20 Q.B.D. 617 . .
Beaven v. Waters 3 C & P. 520 . .
Bickle V. Beatty 17 U.C.R. 469 . .
Biddle v. Bond 6 B. & S. 225
Biddulph V. St John 2 Sch. & Lef. 521
Bigelow V. Heaton 4 Denio (N.Y.) 496
Bird V. Brown (1850) 4 Ex. 786 . .
Bishop V. Ware 3 Camp. 360
Black V. Coleman 29 U.C.C.P. 507
Black V. Rose 2 Moore P.C.N.S. 277
Blackburn v. Macdonald 6 U.C.C.P. 380
Blaiberg Ex p. 23 Ch. D. 254
Blake v. Nicholson 3 M. & S. 169
Blakemore v. Bristol & Exeter Ry. 8 E. & B. 1035
Bleaden v. Hancock (1829) M.&M. 465; 4 C.&P. 152
Bligh V. Davies 28 Beav. 211
Bloch V. Dowd (1897) 120 N.C R. 402 . .
Bloxam v. Saunders (1825) 4 B. & C. 941
Boardman v. Sill i Camp. N.P. 410 a . .
Bolton V. Lancashire Ry. (1866) L.R. 1 C.P. 331
Bonin v. Robertson, N.W.T. Rep. 89 (pt. 4)
Bowes V. Shand (1877) 2 App. Cas. 468
ao6
186
»37
3ia
88
00
208
Boyce v. McDonald (1893) 9 Man. R.
Law Times 57
Boyd V. Profaze 16 L.T.N.S. 432
Braddiciv v. Smith 2 Mo. & Sc. 131
3
50
221
266
182, 188
182, 186
138, 281, 282
35'
96
146
231
183, 192, 196, 200
221
327
219
141
103
,38
54
297, 298
210
77
'52. '53
148
170, 185
• 34. 52
'73
297 4 Western
46, 100
328
'35
Brasser
Brewer
Brilling
Bringioi
British
3
Broadwi
Brown \
Brown v
Browne
Brownlo
Bryant \
Buckley
Buffalo a
Bull V. F
Bonney \
Burgess
Burn V. I
Bush V. I
Byers v.
Byers v. .
Cahn V. 1
Campbell
Canada F
Carr v. L(
Carroll v.
Carter v.
Castellain
Chaplain
Chapman
Chase v. (
Chase v. ^
Cheesman
Chicago R
Christie v.
Churchwai
CASKS ( ITKI).
XVII
Brassert v. McEwen lo Ont. R. 179
Brewer v. Ford 54 Hun. (N.V.) 116
Brillin^'er v. Ambler (1897) 28 Ont. R. 368
Bringloe v. Morrlce i Mod. 210 ..
British Kmpire Shippinjj Co. v. Somes, K. B
353. 367 ; affirmed 8 H.L. Cas. 338
Broadvvood v. Granara 10 Ex. 417
Brown V. Glenn 16Q.B. 254
Brown v. Kough (1885) L.R. 29 Ch. D. (845) .
Browne v. Hare 4 H. & N. 822
Brownlow v. Keating 2 Ir. Eq. R. 243 ..
Bryant v. Wardell 2 Exch. 479
Buckley v. Furness 15 Wend. (N.Y.) 137
Buffalo and Lake Huron Ry. v. Gordon 16 U.C.R
Bull V. Faulkner 2 DeG. cS: S. 772
Bonney v. Poyntz 4 B & Ad. 568 . .
Burgess v. Boetefeur 7 M. & G. 494
Burn V. Brown 2 Stark 272
Bush V. Fry (1887) 15 Ont. R. 122
Byers v. Franklin 106 Mass. 131
Byers v. McMillan (1887) 15 Can. S.C.R. 194
Cabn V. Pocketts Co. (1899) 1 Q.B. 643 . .
Campbell v. Mersey Dock Co. 14 C.B.N.S. 412
Canada Permanent v. Merchants Bank, 3 Man. R
Carr v. London & N. W. Ry. L.R. 10 C.P. 307
Carroll v. Beard 27 Ont. R. 349 . .
Carter v. Long 26 Can. S.C.R. 430
Castellain v. Thompson 13 C.B.N.S. 105
Chaplain v. Levy 9 Ex. 673
Chapman v. Allen, Cro. Car. 271
Chase v. Corcoran 107 Mass. 286
Chase v. Westmore 5 M. & S. 180
Cheesman v. Exall 6 Ex. 341
Chicago Ry. v. Jenkins 103 111. 588
Christie v. Burnett 10 Ont. R.
Churchward v. Johnson (1889) 54 J. P. 326
182
7»
312
80
&
E.
283
104,
28!
2>3
368
326
141, 208
167
147
87, 100
.87
'47. 231
J 39
169
61
206
'58
49
299
202
155
'3
113
6
209
•38
61
141
143
10
3.
112,
142,
225, 298
96
230
152
3'9
XVlll
CASKS (in; I).
Cito, The, L.R. 7 P.D. 5 .
City Maiik v. Harrow 5 App. C'as, (164 . . ()()
Citizens' Bank v. Nantucket Steamboat Company (1841)
2Story(U.S.C.C.)53
Claritljje v. South Staflfortlshire (1H91) i (J.H. 4^2
Clark V. Gaskarth 8 Taunt. 431 . .
Clark V. (Ireat Western Rv. « I'. C. P. H)i
Clarkson v. Attorney (leneral ( H)(p) i() Ont. App. 202
Clementson v. (l.T.R. 42 U.C.R. 263
Clowes V. Huf^hes L R. 5 Kxeh. 160
Coates V. Railton (> H. & C. 42 .
Cochrane V. Rymill 27 VV.R. 776
Cockburn v. Imperial Lumber Co. (Sup. Ct. of Canada,
October, iS()9, reversinj^ 26 Ont. App. icj, and
allirmin^ judj^jment of Rose, J., 26 Ont. App. 20)
Cof^^s V. Bernard i Smith's L.C. Hlh cd. H)9, 2 I a!.
Rayni, 917 . .
Cole V. Blake, Peake's Rep. 179 ••
Cole V. Nines (Md.) 32 I..R.A. 455
Cole V. North Western Bank (1H75) L.R. 10 C.P. 354
Commercial Bank v. Heilbronner 108 N.V. 439
Comstock V. McCracken 53 Mich. 123
Cook V. Travis 20 N.V. 400
Coombs, Re, 4 Kx. 889
Cooper, Ex p., (1879) 11 Ch.D. 68
Cooper V. Willomatt i C.B. 672 , .
Copland V. Stein 8 T.R. 199
Copeland v. Hamilton (1893) 9 Man. R. 143
Corlies V. Gardner 2 Hall (N.Y.) 345
Cory V. Thomas Iron Works Co., L. R. 3 Q.B. 181
Cotter V. Bank of England 3 Mo. & Sc. 180
Correrio v. Lynch 65 Cal. 273
Combe, Re, 24 Gr. (Ont.) 519
Cousineau v. The Williams Manufacturing Co. (1897) 11
Que. S.C. 389
Couture v. McKay (1889) 6 Man. Rep. 273 183, 187
Cowell V. Simpson 16 Ves. Jr. 275 .. 211
Cowper V. Andrews, Hobart K.B. 42 .. . .. 298
221
'05
80
3 '9
206
142
188. H)5
35'
i«5
101
261
78, 281
147
95
99. '25
J08
299
110
139
169, 186, 196, 219
79, 87, 100
207
. . 90, 91
71
89
I
ys
49
232
21
'
Crabtrc
Crawcii
Crawfi>
Crawsh
Crooks
Cuddy 1
Cull V.
Cuming
Cummir
Cundy \
Cunninu
S
Curtis V
Curtis V
Curtis V,
Cusack '
Dakin v.
Daney v
Hanks, I
Darke v.
narlingti
I^avenpo
Havies v
Davison
Dawson
Dean v. I
Delaney '
Dempsey
Dewar v.
DeWolf \
Dibble V.
Dick V. V^
Dickie v.
Dickensor
Dimock v
Dirks V. E
Discher v.
CASKS cni-.l*.
XIX
Crabtrce v. Robinson 15 y.H.D. ;\\ 2
Crawcour, ICx p., gC'h.D. 419
Crawford v. I'MnJIay iH Clr. (Out.) 51
Crawshay v. Homfray 4 1^ 8c AIJ. 50
t'rooks V. Allan 5 g.H.D. .^H
Cuddy v. Kamin tj ^ue. S.C 32 . .
Cull V. Roberts (iHyS) 28 Ont.R. 5(>i
Ciiminj^ V. Hrown 9 ICast 5o()
Cuinniin^'s v. Harris 3 \'t. 244
Ciindy V. Lindsay 3 App. Cas. 459
Cunnint'liam v. Hedj;:c u App. I)iv. (N'.\'.) 212,42 N
Supp. 549
Curtis V.Jones, Howard's App. (N.V.) 137
Curtis V. Lymon 24 \'t. t,^H
Curtis V. Williamson, L.R. 10 Q.H. 57
Cusack V. Robinson (iSOi) 30 L.J. (J. B. 2O4
Dakin v. Oxley 13 C.B.N.S. 646 . .
Daney v. Lewis 18 I'.C.R. 30
Danks, Lx p., 2 DeCl. ^L & (1. 936
Darke v. Williamson 25 Heav. 622
Darlinf^ton v. Chamberlain 120 111. 585
Davenport v. Kinj,--, W.\. (1883) 133
Davies v. .Aston i C.B. 746
Davison v. Mulcahy 7 R. & Cl.N.S. 209
Dawson v. Cliolmeley 13 L.J.Q.B j^^
Dean v. Keate, 3 Camp. 4
Delaney v. Wallis 14 L.R. Ir. 31
Dempsey v. Carson 11 U.C.C.F. 462
Dewar v. Mallory 27 Gr. (Ont.) t^cj^
DeWolf v. Howland 2 I'aine (U.S.C.C.) 356
Dibble v. Bowater 2 K.& B. 564, 22 L.J.Q.B. 396
Dick v. Winkler (1899) 35 Can. L. J. 652 311, 313
Dickie v. Dunn (1887) i N.W.T. Rep. 2 (part L)
Dickenson v. Shee 4 Esp. 67
Dimock v. Miller (1897) 30 N.S.R. 74 • ■
Dirks V. Richards 6 Jur. 562, Car. &. M. 626
Discher v. Canada Permanent (1889) 18 Ont.R. 273
V.
Ml.
326
I
«4
221
344
88
188
2«3
104
67
297
1 12
114
'74
221
92
146
141
207
5'
318
301
271
79
lOI
147, 302
93
209, 2: 1
3>7
3'4.
355
164
146
334
148
xx
TASKS (Hi; I).
54. »55
275
Dixon V. Halilvvin 5 Kast, 1H6
Dixon, ICx p., 4 Ch. D, 133
Dixon V. N'ates (1H33) 5 B. & Ad, 313 152,
Doe d. Wilkinson v. lloodior 10 Q. B. 957
Domett V. Beckford 5 B. iS: Ad. 521
Dominion Bank v. Davidson n Out. App. 92
Dominion Bank v. Wij^i^^ins (1H94) Jn Ont. App
.Donald V. Sucklin^^ L.R. 1 g.B. 5H5
Doorman v. Jenkins 2 A. & K. 25(1
Doyle V. Lasher, 16 I'.C.CM'. j(\^
Drinkwater v. Goodwin i H. Cowp. 251
Drury v. Harvey 126 Mass. 519
Dudley v. Henderson (iSSh) 3 .Man. R. 472
Dunn v. Beau (1H97) 11 Que. S.C. 538 . .
IHirgy Cement Co. v. O'Brien 123 Mass. 12
Durr v. Replogle lO; Pa. 347 (NY.) 116
Dyer v. Grand Trunk Ry 42 \'t. 441
Dyer v. Munday ( 1895) 1 Q. B. 742, 67 L.J.Q.B. 448
186
ao8
166, 196
220
106
18, 19
86
78
33
208
65
288
279
187
7«
323
65. 97. 98
«54.
Kagleton v. Gutteridge 1 1 M. W. 465 . . . . . . 328
Katon v. Cook 32 Vt. 58 ... .. ... 193, 198
Edjjerly V. VVhalen 106 Mass. 307 ,. ,. .. 141
Edwards v. Brewer 2 M. & VV. 375 . . . . 182
Kdwick V. Hawkes 18 Ch. D. 199 .. .. .. 65
Eichholz V. Bannister 17 C.B.N. S. 708 .. .. .. 164
KIdridge V. Stacey 15 C.B.N. S. 458 ., .. 326
Ellis V. Hunt 3 T. R. 464 . . . . . . 193
Emerson v. Niagara Navigation Co. (1883) 2 Ont. R. 528 230
Energie, The, L. R. 6 I'. E. 306 .. .. .. .. 220
Engelhardt Co. v. Benjamin, 5 App. Dlv. (N.V.) 475, 39
N.Y. Supp. 31 . .. .. .... 300
Erskine v. Adeane 8 Ch. App. 764 . . . . . . 299
Esnouf V. Gurney 4 B.C.R. 144 .. .. .. .. 107
Evans v.Judkins 4 Camp. 156 .. ,, .. .. 147
Faith V. East India Co. 4 B. & Aid. 630
Farlinger v. McDonald 45 U.C.R. 233 . .
Farewell v. Jameson (1896) 26 Can. S.C.R. 588
216, 221, 222
105
322
CASKS CITKI).
XXI
Felse V. Wray 3 l-last ii^ • • '541 '♦>^.
Fenn v. Hittleslono 7 Kxcli. is,3, 479
I'isher v. Merwin 1 Daly N.V. 234
Fitch V. Ncwburry 40 Am. Dec. 33, i Donj^. (
Fitchctt V. Canary 38 N.\'. Siipp. 471) . .
Fleiiry v. Tufts 25 III. App. 101 . .
Foisy V. Houghton (1898) u tjuc. S.C. 521
Forristal v. McDonalil (1883) 9 Can. S.C.R. 12
Forsyth v. Hcauprc (i8()7) 10 ^ue. S.C. 311
l"\>rth V. Simpson, 13 (J. H. Mo. .
Foster v. Colby 3 H. iV \. 705
Frank v. Berryman (1894) 3 B.C.R. 506
Franklin v. Hosier 4 B iV .'\l. 341
Francis v. Cockrell, L.R. 5 (J. B. 184
Fraser v. McFatridj^o 13 N.S.R 28
Fraser v. VV ut I.,. R. 7 Eq. 64
Fra/ee v. Moffalt 20 Blatch. (I'.S.) 267 .
French v. Bombcrnard (k) L.T. (Fnj^f.) 49
Frick V. Hilliard 95 \. Car. 117 ..
Friswcll V. Kinjf 15 Sim. 191
Frith V. Forbes 32 L.J. Ch. 10, 4 DeC.. F. & J
Frye v. Mulligan (1885) 10 Ont. R. 509 . .
Fuentes v. Montis (1868) L.R. 3 C.P. 268
Fuller Hx. p. 16 Ch. I). 617
Gainsborough v. Watcombe 54 I.J. Ch. 991
L.T. 116
Galbraith v. Fortune 10 U.C.C.P. icjg ..
Gardner v. Tudor 8 Pick. (Mass.) 205
Giblin v. McMullen, L R. 2 P.C. 317
Giles V. Grover 6 Bligh, N.S. 436
Gillespie v. Doherty (1898) 12 Que. S.C. 536
Gilman v. Elton 23 R.R. 567
Glascott V. Day 5 Esp. 48
Globe V. Wright 106 Mass. 207 . .
Godts V. Rose (1855) 17 C.B. 229
Goodman v. Harvey (1836) 4 .\. & E. 870
Gordon v. Silber 25 Q. B. D. 491
172, un,
U)j, 11)3
87, UK)
I
Mich.) 1 227
285
88
340
2 3. W
345
281,282
2 JO
271
138, 297
282
333
180
49
4
6
140
. 409 . . 208
88, 8(,, 9!
.S8
140
; 33 i''"k'-
III
3' 3
'«3
7«
80
179
317
■47
30'
'34
i .
1 1 1
268
XXII
r.Nsi's ( iTi.i).
(uisliiK' V. Dunbar, _^j N.H.K. ;^J5
liou^fh V. VV\uhI (iHt)4) I ^.H. 71.1
dolclill},' ICx. p. 13 I'll. I). «)3H
(Jrace v. Clinch 4 Q.li. (n/i
llra>,'j; V. UrDwn 44 Mo. 157
(Irahani v. Smith .'7 IMAM'. 1 . .
(Irani v. McMillan 10 I'.C" tM'. 5.V)
(Iravt's I'llcvator C'n. v. C'allanan 1 i .\|
301, 4^ N.\'. Siipp. ()30
dray v. C'arr, I.. R. cj y. M. 52 J
(iray v. C'haniborhiin 4 Car. tS: I'. 2(k>
(Iray v. Curry (iHcjo) jj N.S.K. jhi
(Iray V. Stait 11 (J.M.I). f)6S
(iroat Northern v. SwaHield, I- R. () l*'x.
Great Western v. Crouch 3 H. & N. 1S3
Greaves v. Ashlin (1S13) 3 Canip. 4^6
Green v. Farmer 4 IUut. jj2i
Green v. Humphreys j6 Ch. I^. 474
Gre^or v. Styker 2 Denio (N.^'.) 6j8
Grice v. Richardson (1S77) 3 .App. Cas. 31
(jrifTm v. McKenzio 4O U.C.R. 93
Griffin v. Scott 2 Ld. Raym 1424
Griffiths V. Perry i !•:. & IC. 6H0 . .
Grinnel v. Cook 3 Hill (N.V.) 4S5
Guest V. Diack, (1897) 29 N.S.R. 504 33 (
(iuimond v. Belan^er, ^3 N.B. R. 589
Gunn V. Holckow (1875) L.R. 10 Ch. App
Gurney v. Behrend 3 K. & B. 622
C.R. 174
Haggart v. Town of Brampton (1898) 28
Hall V. Grand Trunk 34 I'. C.R. 517
Hall V. Pike, 100 Mass. 495
Hall Co. V. Hazlitt ( 1885) 1 1 Ont. App. 749
Halsted v. McCormick {1840) Rob. & Jos
Hamilton v. Buck 36 Me. 536
Hamilton Mfg. Co. v. Knight (1898) 5 B.C.R. 391
Hammond v. Anderson i B. ^^ P. N.R. 69
Hammond v. Barclay 2 East 227
. I)i
.V
(N.V
•53
L. J. 497
;oi
.)
76, 117
Ont. Dig. 1087
.14. ?>i
"7
188
61
310
189
V3
4
aaa
«39
3"
315
aa6
226
.^8
•37. 298
20
2()7
•74
'05
33a
170
281
108
241
172
188, 193
•4
330
266
118
327
336
88
169, 186
206
170,
30,
I .\M> t lll.l'.
XXIII
Hammoiul v. Daniclson i3h Mass. j»)4 .
HaiK'ock V. Austin 14 I'.H.N.S. 1)^4
ilardi^Mi) v. (iralutm 1 I an. (.'r. C'a». 4.^7
Harkncss v. Russell 1 iH I'.S. frCy}
llarpolle v. Carroll J7 Onl. R. J4()
Harris v. Canada I'ormanoni (iH(»S) ^4 Can. Law
JIarris v. Pustin 1 N.W.T. Rep. (>, (part 4)
Hartley v. Hitchcock 1 Stark 41)8
Harlle> V. Jarvis 7 I'.C.R. 545 ..
Hartvanft v. \Vie>,'maiin ui U.S. Ut^
Hascler v. I.cirnnne 5 C.U.N.S. 5^0
Hawkes v. Dunn (iS^i) 1 Tyrvvh. 41^;
Hayward v. (l. T. R. }2 L C.R. T^i)i
Heap V. Barton li C.B. a; ^
Helby v. Matthews (iS'.,;;) A.C. 471, 64
4^>5 2, 87, I J
Hewison v. lluthrie 2 Hinj;. N.C. 755
Heywood v. Potter i Kl. iV l\\. 439
Hi^'j^ins V. Hretherton 5 C. & P. 2
Hin^'ston v. VVendt 1 Q.li.D. j^dj
Hiscox V. iJreenwood 4 I'lsp. 174.
Hittinjfcr V. VVestford 135 Mass. 262
Hobbs V. Ontario Loan & Debenture Co (iSc^o)
S.C.R. 4H3
Hobson V. Gorringe (1897) 1 Ch. 182
Hodjfson V. Loy 3 T. R. 440
Hoj^'aboom v. Graydon, 26 Ont. R. 298, 31 C.L.J
Holden v. Clancy 58 Barb. (N.V.) 590
Holtis V. Claridffe 4 Taunt. 807
Holly V. Huggeford 8 Pick. (Mass.) 76
Hooper v. Ker 76 L.T. (Kng.) 307
Hope V. White 22 U.C.C.P. 5
Houghton V. Matthews 3 B. & P. 485
Houlditch V. Desanges 2 Stark. 337
Howard v. Tucker i Barn. & Ad. 712
Howe Mjichine Co. v. Willie 85 III. 333
Howell V. Alport 12 U.C.C.P. 375
Hubbard v. Bliss, 12 Allen (Mass.) 690
Jour
..J.Q
• J.
3«».
J17.
B.
127.
140,
8 Can
34H.
100
349.
"7.
i3«.
300
3J"
97
100
335
3J'
67
270
3>«»
49
3.^5
•7-'
2«»0
93
128
'47
49
230
221
300
49
350
118
i()8
32
49
140
210
4
320
205
168
232
88
189
73
XXIV
CASUS riTlh.
IIuvIhom v. (iran^or 5 M. Ik Aid. J7
lliiirman v. VValtcrluuiNo { iNi^o) ii) i)nl. K. |H(>
Hull Kopos C'o. V. Ailams (1X4)5) (>s I. J. O'*- ■
Hunt V. JdIuisimi i»> N.N'. J7«»
lliiMNcy V. I'hriNtk' <| ICast, .) ^.^
llutcliCH V. CuNU 'riircshin^' Much. Co.
HiiUhiii^N V. Nunes 1 Moo. I'.C. J4.)
MutihinjfN V. NVcHiern Ky. 71 Am. Dec. 156
lluth V. Lamport i<»(J.H.I>, 7.^«),.
Mutton V. Warner (iHyt) 1 .M & W. 475
ao7
. 2iyj, »()H, J7€»
14 : ••• >
I Ml
•».!"
aai
•7.1
Miirrii
'y
Imperial Uank v. I.oiulon i\: St. Katharine's Dock Co
(1H77) 5 Ch. D. 1.(5 i.iS, 154,
Imperial Loan J^ Investment C'o. v. Clement, Ke Coiilte
1 1 Man. K. 4jN
Imperial Loan N: Investment I'o. v. Clement, Ki
(i8»)7) 1 1 Man. R. 145
Ireland v. Livin^'ston, L.K. 5 II. I.. ,V)5 ■'
Jackson v. Cummins 5 M. it VV. 34J
Jackson K\ p. 14 Ch. D. "jUt
Jacobs V. Harbach (iHHf)) 3 'limes I.. Rep. 410
Jacobs V. Latour 5 Uinj,'. 130
Jacubeck v. Hewitt 61 Wis. qfj . .
Jarvis v. Rojfers 15 Mass. ^?()«)
Jenkyns v. Usborne (1H44) M. & (I. 678 . .
John V.Jenkins i Cr. & M. 227
Johnson v. Campbell uo Mass. 449
Johnson v. Credit Lyonnais L, R. 3 C. P. D. 32
Johnson v. Upham (iH5()) 2 K & li. 250 . .
Joliffe V. Baker II (J.M.D. 253 .. ' ..
Jones V. Hiernstein (1H99) i (,). H. 470
Jones V. Karl 37 Cal. 630, 99 Am. Dec. 338
Jones V. Gordon (1877) 2 App. Cas. 016 . .
Jones V. Jones (1841) 8 M. & VV. 431
Jones V. Tarlton 6 Jur. 349, 9 M. & W. 675
Jones V. Thurloe 8 Mod. 172
Jones V. Tower Furnishing Co. 6 Morrell Bank. R. 193
72, loa
349
M9
191
39. '4"
347
163
4H. "7'
236
210
17J
3'7
206
•59
328
89
329
>95
III
196
148
279
4
3«.
Kalhli'n
Kecli'i
Kelsey
Kemp
Kenilai
Keiulid
Kent V.
Kerbv
t ASKS I HI n.
xyv
Joyce V. SwanM (1H04) 17 iMl.N.S. H4
JuilHon V. l^th(.>riJ^'c 1 I romp. & M. 74,^
Kiiihlccn The, I.K. 4 Ad. jim)
Kcelcr V. Merrill, «> Out. .Npp. i.^j
KcUoy V. Rojfcrs _^j r.C".(. .1'. 0J4
Kemp V. I'iiik 7 App. i'ixu. 57.^
Kcmlall V. lMt/^'t•ralU Ji I'.l'.U. 5H5
Kciulall V. MarHhall 11 (J.M.I). .»5«)
1.1H,
109, iHH, n>5,
iHj. 1H4, iS
.">•
PP
Kent V. Liverpool & l.omlon Ins. I'o (i8M)), .»() Iiul. j(»7
Kcrby v. C'lapp, 15 App. Div. (N.N'.) .;7 ; 44 N.\'. Su
no
Kerby v. Harding h i'lxch. J^
Kerr v. t'an. Hk. of t'ommerce, 4 Ont. R
Ketllewcll v. \Vatst)n (iHH^) j() C'h. I), y
Kcvan v. C'rawforJ «» t'h. I), jm . .
Kieley v. Morrison (iH<)j) J4 N'.S.K. _^J7
Kimberley v. I'atchin itj N.N'. ,^.^o
Kinloch v. Craij; .; T.K. lit)
Kin).; v. Indian (.'0. 1 1 C'lisli. (.Mass.) j^^i
Kin^rsman V. Kin^'si^ian ^.H.D. in .
Kirchhort'ery v. I'lement, 1 1 .Man. U. 4(H)
Kirciiner v. Venus li Moo. P.C 361
Kirkliam v. Attenboroiij,'h (iH»)7) 1 ^. H. 201
Jour. 141, 1.^ T. L. K. i,;i
Klinck V. Ontario Industrial Loan Co. (188K) 16
S62 .. ...
Kline v. Comstock 67 Wis. 47 ;
Knapp V. Hailey 79 Me. i()5
Kru^fer v. Wilcock, .Ambl. 252
Lainj; v. Ontario Loan tt Savinjfs Co. 46 I'.C.R
I.amond v. Davall (1847) (> Q.\i. 1030. ih I
136
Lancaster v. Kve 5 C.B.N. S. 717. .
Lane v. Cotton 1 Salk R. 17
Lane v. Old Colony Ry. 14 Gray (Mass.) 143
Lan^lioff V. Hoyer 9 Que. S.C. 21O
Langley v. Meir (1898) 25 Ont. App. 372, 33 C.L.J. 467
41 Sol.
Ont. R.
•«»7
28J
jji
'4
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'47
l8()
4-»
1 1
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1 1 1
141
'5.S
206
298
90
(K,
220
350. 35'.
.1.S6
236
. ■
1 10
•:>7.
210
114..
352
J.n.K.
94, 178,
197
"7
...
282
"5
345
J. 467
3^i
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XXVlll
CASES lITEI).
D. 20
Murthinson v. Patterson 19 Out. App. 188
Martin v. Hutchinson 21 Ont. R. 38S
Martindale v. Smith (1841) i Q.B. 386 . .
Marsh v. Union Pacific 3 McCrary R. (U.S.) 236, 9 Ked
R. 875
Mason v. Bickle (1878) 2 Ont. App. 291
Mason v. Johnson 27 U.C.C.P. 208
Mason v. Redpnth 39 U.C.R. 157
Matthews v. Gibbs 3 El. & El. 282
May V. Severs 24 U.C.CP. 39(1
Mayer v. Grand Trunk Ry. U.C.C.P. 238
Merchant Banking Co. v. Phivnix Steel Co. 5 Ch
Merchants* Bank v. Dunlop 8 Man. R. 623
Merchants' Express v. Morton 15 Grant (Ont.) 274
Metcalfe v. Brittania 2 Q.B.I). 423
Meux V.Jacobs L. R. 7 .A.L. 490 . .
Milburn v. Milburn 4 U.C.R. 179
Miles Ex. parte { 1885) 15 Q.B.D. 39
Miles V. Gorton 2 Cromp. & M. 504
Miller v. Imperial Loan & Investment Co. (1896)
R- 247
Miller v. Jones 66 Barb. (N.Y.) 148
Miller v. Lea 2 Can. Cr. Cas. 282
Miller v. Miller 17 U.C.C.P. 226
Milloy v. Grand Trunk Ry. (1894) 21 Ont. App. 404,
5^
3'^ 327
152. 167
226
II, 76, 100, 112, 113
76, 100
194
221
218
'69.175
'9
146
220
92
301
184, 186
75. 197
II M
in.
354
169
97
320
213, 218
Mirabitav. Imperial Ottoman Bank (1878) 3 Ex. D. 164, 172, 154
Moffatt V. Bateman, L.R". 3 P.C. 115 79
Mohr V. Boston & .Albany Ry. 106 Mass. 67 . . . . 191
Moline M. & S. Co. v. Walter A. Wood Mowing & R.
Mach. Co (Neb.) 69 N.W. Rep. 405 206
Moore v, Hitchcock 4 Wend. (N.Y.) 292 298
Morgan v. Griffith L. R. 6 Ex. 70 . . 299
Morgan Envelope Co. v. Boustead 7 Ont. R. 697 . . 198
Morison v. Gray (1824) 2 Bing 260 . . 172
Morley v. Attenborough 3 Ex. 500 . . 164, 165
Morse v. Williams 3 Esp. 418 .. .. .. 137
Mors-le-BIanch v. Wilson L. R. 8C.A. 227 .. .. 231
Morton v.Bank of Montreal (1897 N.W.T.) 18 Can. L.T. 157 61
Morton
Moss v.
Moss v.
Mullett
Mulliner
Nagle V.
Nargett
Nash V.
Naylor v
Nesbitt
Nevills 1
Newcom
Newson
Nicholsoi
Nicliolsoi
Nicolls V.
Nordeme
Nordhein
Northami
North Cei
Novello V
Nuttall V.
Oakes v. '.
Oakford v
Orchard v
Ockenden
Odell Ex ]
Ogg V. Sh
Oliver v. \
Opperman
O'Rourke
Ornstein v
Osborne v
Parker v. ^
Parkinson
(ASKS CITKI).
XXIX
Morton v. Woods, L.R. 3 g.B. ()58
Moss V. tlaHlmore i Poiijf. 279 . .
Moss V. Sweet {1851) i(> Q.H. 493, «5 Jur. 536
Mullett V. Mason, L. R. 1 C.P. 550
Miilliner v. Florence 3 (;}. H.D. 4H4 •
Na^le V. McKeeters 97 N.V. 196
Narjjett v. Nias 2.S I..J.g.H. 143 . .
Nash V. Lucas, L. R. 2 (J. H. 500
Naylor V. Man^-los i l-lsp. 109
Nesbitt Kx. p. 2 Sch. & Lef. 279
Nevills V. Ballard i Can. Cr. Cas. 434
Nevvcombe v. Anderson (1886),
349
347
162
89
137, 2b8, 279
206
318
326
•37. 215
140
97
I Ont. R. 665, 682
265, 266, 267, 269, 270
Newson v. Thornton 6 East 17 . . , . . . 183, 192
Nicholson v. Chapman 2 H. Bl. 254 ,. .. .. 142
Nicholson v. Harper (1895) 2 Ch, 415 . . . . . . 160
NicoUs V. Duncan (1854) 11 U.C.R. 332 .. 283
Nordemeyer V. Loescher i Hilton (N.V.) 499 .. .. 229
Nordheinier V. Robinson, 2 Ont. App. 305 .. 11, 76, 100
Northampton v. Smith (1846) 11 Mete. (Mass.) 394 , . 51
North Central v. Manchester 13 A.C. 554, 567 . . 5
Novello v-.Toogood (1823) 25 R.R. 507 ; 318
Nuttall V. Staunton 4 B. & C. 51 .. 314
Oakes v. Moore 24 Me. 214 . . ... . . 233
Oakford v. Drake 2 K. & F. 494 . . . . . . " 192
Orchard V. Rackstraw 9 C.B. 698 .. .. 282
Ockenden Kx p. i .Atk. 235 .. .. 138
Odell Ex p. 10 Ch. D. 76 4
Ogg V. Shuter (1875) i C.P.D. 47 1O6
Oliver v. Woodman 66 Me. 54 . . . . 233, 236
Opperman v. Smith 4 D. & Ry. 33 . . . . . . 317
O'Rourke v. Hadcock 1 14 N.Y. 541 . . 64
Ornstein v. Alexandra (1895) 12 Times L.R. 128 162
Osborne v. Piano Mfg. Co. (Neb.) 70 N. W. Rep. 1 124 . . 4
Parker V. Williams 77 Me. 418 236
Parkinson v. Potter (1885) 16 Q.B.D. 152 . . 318
XXX
CASKS cnKI).
Partiiiffton v. Woodcock A & K. 690 . .
Parry v. Duncan 7 Hing. 243
Passaic v. Hoffman (1871) 3 Daly (N.V.) 512
Paton V. Ciirrie 19 U.C.R. 3H8
Patten v. Union Pacific Rf. 29 l*"etl. Rep. 590
Patrick v. Colarick 3 M. & W. 483
Patterson v. Delorme (1891) 7 Man. R. 594
Patterson v. King 27 Ont. R. 56 . .
Patten v. Thompson 5 M. iV S. 350
Patten v. Union Pacific 29 Fed. Rep. 590
Peacey v. Ovas 26 U.C.C.P. 464 . .
Pearson v. Dawson (1858) K. B. & K. 448
Peck V. Powell 11 Can. S.C.R. 494
Pej^ff V. Starr (1892) 23 Ont. R. 83
Penton v. Grand Trunk Ry. (1871) 28 U.C.R. 367
Perez v. .\lsop 3 V. & F. 188
Perkins v. Crobben {1898) 39 L.R..\. 815
Peuclien v. Imperial Bank (1890) 20 Ont. R. 325
Pharmaceutical Society v. London ( 1880) 5 App. Cas. 8
Phelps V. Comber ( 1885 ) L. R. 29 Ch. D. 81
13^' '4'. '82,
Phillips V. Gibbons 5 W. R. 527 ...
Philphott V. Lehain 35 L.T. (Kng-.) 855 . .
Phillips V. Rodie 15 Fast 547
Pierce v. Sweet t;^ Pa. St. 151
Piy-fjott V. Birtles i M. & W. 441 . .
Pinkerton v. Woodward, 33 Cal. 557
Pinnock v. Harrison (1838) 3 M. & W. 532
Pitt V. Shaw 4 B. & Ad. 206
Plaice V. Allcock 4 F. & F. 1074 . .
Plaxton V. Barrie (1899) 33 Can, Law Jour. 611 (Ont.) 331,
Poison V. Degeer (1886) 12 Ont. R. 275 .. . . 12, 116,
Potts V. N.Y. & N.E. Ry. 131 Mass. 455
Preston v. Neale 12 Gray (Mass.) 222 .. .. 142,
Priestly v. F'ernie 3 H. & C. 677 . .
Prouguey v. Gurney 36 U.C.R. 53, 37 U.C.R. 347
Pugh V. Arton L.R. 8 Ex. 626
Pugh V. Wylde 2 R. & C. (Nova Scotia) 177 . .
347
3'7
42
162
227
64
3
3«'
'«3
228
327
176
35^'
3"
230
219
70
' 52
201, 208
332
221
299
3«8
266
302
332
136
355
119
194
143
114
93
93
167
F'ulver '
Purtle \
Queen,
Queen,
2
Queen,
Rait V. I
Raleigh
Rand v.
Rachael
Readhea
Rees V,
Reeside '
R. V. Bei
R. V. Frt
R. V. Go
R. V. Ho
R. V. Hu
R. V. Jus
R. V. Pik
R. V. Shr
Sm
Soi
R. V
R. V
R. V. Wh
Reid V. C
Reilly V.
Renald v.
Reynolds
Richards
Richardsc
Richardsc
Ridgely v,
River Sta'
Roberts v
Robertson
Robey V, (
CASKS CITKl).
XXXI
Pulver V. \'erex 9 U.C.C.P. 270 . .
Turtle V. Heney (1896) 33 N.B.R. 607
32^)
13. 77. "6
Qiieon, The v. Fraser 2 R. & C. (Nova Scotia) 431
Queen, The v. Holling'sworth (i8qq) 2 Can. Cr. Ca
291 "47
Queen, The v. Pike (1898) 2 Can. Cr. Cas. 314
Rait V. Mitchell 4 Camp. 146
Raleifjh v. Atkinson
Rand v. \'auj,'han i N.C. 767
Rachael v. Hurt i C. & K. 325 . .
Readhcad v. Midland L.R. 4 Q.H. 379 ..
Rees V. McKeown (1882) 7 Ont. App. 521
Reeside The (1837) 2 Summer (U.S.) 567
R. V. Berkshire 2U W.R. 798
R. V. Kraser 2 R. & C. (Nova Scotia) 431
R. V. Goldsmith 12 Cox C.C. 594. .
R. V. Uollingsworth (1899) 2 Can. Cr. Cas. 59
R. V. Humphrey i McClel. & V. 173
R. V. Justic: . etc., 18 Q.B.D. 314
R. V. Pike (1898) 2 Can. Cr. Cas. 314
R. V. Shropshire 8 A & K. 173
R. V. Smith 12 Cox C.C. 597
R. V. South Devon Ry. 15 Q.B. 1043
R. V. Wheeler 2 B. & Aid. 349
Reid V. Creighton 24 Can. Ji.C.R. 69, 31 C.L.J. 274
Reilly v. Mclllmurray (1898) 29 Ont. R. 167
Repaid v. Walker 8 U.C.C.P, 37
Reynolds v. Roxburgh {1886) 10 Ont. R. 649
Richards v. Symons 8 Q.B. 90
Richardson v. Goss 3 B. & P. 119
Richardson v. Twining 2 N.S. D. 281
Ridgely v. Inglehart 3 Bland Ch. (Md.) 540
River Stave Co. v. Sill 12 Ont. R. 557
Roberts v. 'iank of Toronto (1894) 21 Ont. App, 629
Robertson, Re, 9 Ch, D, 419
Robey v. Oilier (1872) L.R, 7 Ch, 695 . ,
142
271, 280
170
208
316
l(^
282
2(X)
>73
61
142
146
'47
215
146
73
146
139
48
30
282, 285
216, 217
87
169, 285
215
190
'34
52
298
7
141
U'H
i
XXXII
(ASKS < ITKI).
2 P.C
Robins v. Gray (1895) 2 Q.H. 501
Robinson v. Waddinffton 15 Q. B. 753
Robson V. Kemp 4 Ksp. 233
Roden v. I'^lyton h C.H. 427
Rodj^'er V. Comptoir d'Kscompte de Paris L. R.
393
Roe V. R' ,jer 2(> U.C.C.P. 76
Roffey V. Henderson 17 Q. B. 574. .
Ro^'ers v. Devitt (iHy4) 25 Ont. R. S4
Rojjers v. Humphreys 4 A. ft IC. 299
Rogers v. Lambert (1H91) i Q.B. 318
Rosevear Kx p. 1 1 Ch. D. 560
Ross V. Hurteau (1H90) 18 Can. S.C.R. 713
Ross, Re, 3 Ont. Pr. 394 . .
Roiindwood Colliery Co., Re, (1897) i Ch. 373
Royal Canadian Bank v. Kelly 22 U.C.C.P. 279
Rumohr v. Marx, 19 Can. Law Jour. 10
Rushforth v. Hadfield 6 Kast 519 . . 136, 137,
Russell, Re, (1871) 12 Kq. 78
Ryan v. Shilock 7 Kxch. 72
Salomons v. Nissen 2 T.R. 674
Sands v. Taylor 5 Johns. 395
Savill V. Barchard 4 Msp. 53
Sawyer v. Baskerville (1891) lo Man. R. 652
Sawyer v. Pringle (1891) 18 Ont. App. 218
Scarfe v. Morgan 4 M. & W. 271
Searle v. Laverick, L. R. 9Q. B. 122
Seath V. Moore (1886) 11 App. Cas. 350
Scarth v. Ontario Power and Flat Co. 24 Ont. R
Schmidt v. Blood 9 Wend. (N.Y.) 268 . .
Schotsnians v. Lane. & York. Ry. Co. (1867) L
App. 332
Scott V. Newington i Moo. & R. 252
Scott V. Buckley 16 L.T.N. S. 573 . .
Scott V. Mercer (Iowa) 67 N.W. Rep. 108
Scrivener v. Great Northern (1871) 19 W.R. 388
Shane Ex. p. 29 Sol. Jour. 70.
267, 268
207
332
1 88
329
93
'54
347
96
186
157
142
3«"
352
73
218, 299
1 1 1
326
•56,
188
72
137
7'. 72
, 68, 71, 72, 95
148, 210, 281
. . 86, 282
'55
446 94
217
R. 2 Ch.
166, 182, 185
139
326
. . 282
170, 176
5
CASKS < ITi:i).
XXXIII
Sliannon v. O'Brien ,^4 Can. Law Jour. 421
Shauj^hnessy v. Lewis 1 v' Mass. ,^55
Shaw V. Kaler i(j6 Mass. 44H
SheartI v. Noran (lH^)^)) 30 Out. R. <)iS, 35 C.L.J. 417
Shielis V. HIaci<burne, 1 IL Bl. 158
Sherbrooi<e, Kx p., 2 C\\. D. 481) . .
Shepherd v. Bristol & Kxeter Ry., L.R. 3 Kx. 189
Shepherd v. Harrison (1871) L.R. 5 H.L. 116
Short V. Riittan, 12 T.C.R. 79
Shiiey V. I'nited States 2 U.S. 73
Shiiltz V. Reddick 43 U.C.R. 155
Siffken v. Wray (1805) 6 Kast 371
Sills V. Bickford 26 lirant (Ont.) 512
Simpson v. Hartopp, VVilles Rep. 512 . .
Simpson v. Hewitt 39 U.C.R. 610
Sims V. Bradford 12 Lea (Tenn.) 434
Singer v. McLeod, 20 X.S.R. 341
Singer Mfg. Co. v. Clark 5 Kx. D. 37 . .
Singer Mfg. Co. v. Converse (Colo.) 47 Pac. Rep. 264
Skinner v. Upshaw 2 Ld. Raym. 752 . .
Slubery v. Hey ward 2 H. Bl. 504
Small V. Moates 9 Bing. 574
Smart v. Sandars 5 C.B. 895
Smith V. Wright 6 H. & N. 821
Soblomsten, The, L.R i Ad. 293
Sodergren v. Flight 6 East 622 . .
Somes V. British Co. 8 H.L.C. 338 . .
Southall, Ex p., 12 Jur. 576
Soper V. Brown 4 U.C.O.S. 103 . .
Southam Re 19 Ch. D. 169
Spartali v. Benecke (1850) 10 C.B. 212 . .
Spoars V. Hartley 3 Esp. 81
Speer v. Evans 47 Pa. St. 141
Stamford Banking Co. v. Smith (1892) i Q.B. 765
Stapleton Ex parte (1879) 10 Ch. D. 586 . .
State v. Easton Ry. Co. 36 N.J. Law 184 . .
Steadman v. Hockley 15 M. & W. 553 . .
Sterling, Ex p. 16 Ves. 258
3-'«
50
298
89, 101
7P
167
'43
33'
192
2 lb
3'7
335
294
34. 52
100
106
218
169
222
208
334
220
225
'39
'39
313
61
'75
'37. 215
112
16
'65, 197
51
138. 297
' 140
XXXIV
( ASES ( ITKI).
Stt'vcus V. Hiller 25 Ch. D. 31
Stevenson v. HIakelock i M. &: S. 533 . .
Stevenson v. Rice 24 U.C.C.I'. 245 . .
Stevens v. Robins 12 Mass. 1H3 . .
Stickney v. Allen 10 (Iray (Mass.) 352 . .
Steinman v. VV'ilkins 42 Am. Dec. 254 . .
St. Louis Ry. v. Knight 122 U.S. 79 . .
Storms V. Smith 137 Mass. 201 . .
StoveUI V. Hiij^hes (1811) 14 Kast 308 . .
Strathy v. Crooks 6 U.C.O.S. 587
Strohmenj,'er V. Attenboroiijfh 11 Times L. R .
Simholf v. Alford 3 M. it W. 248
Sun IJfe v. Taylor (1893) q Man. R. 89 . .
Sutherland v. Mannix (1892) 8 Man. R. 541 . . 46
Swan V. North British 2 H. & C. 182 . .
Syeds v. Hay, 4 T. R. 2fx}
Symmes v. Frazier 6 Mass. 344 . .
Tamvaco v. Simpson, L. R. 1 C.P. 363 . .
Tanner v. Scovell 14 M. & W. 28 . .
Tanner v. Smart 6 B. & C". 603 . .
Taylor v. Caldwell (1863) 3 B. & S. 826. .
Taylorson v. Peters 7 Ad. & E. 1 10
Temple v. Nicholson (1881) Cassels S.C. Dig.
Tennant v. Bell 9 Q.B. 684
Tennant v. Union Bank (1894) App. Cas. 31
Terry v. Bamberger 44 Conn. 558 . .
Terwilliger v. Beals 6 Lans. (N.V.) 403 . .
Tew V. Toronto (1898) 30 Ont. R. 76, 35 C.L.J. 112
Thomas v. Evans 10 East, loi
Thomas v. Jennings 75 L.T. Rep. 274 . .
Thomas v. Kelly 13 App. Cas. 506 . .
Thompson v. Lacy, 3 B. & Aid. 283 . .
Thompson v. Veale, 74 Eng. L. T. 130 . .
Threfall v. Borwick, L.R. 10 Q.B. 210 . .
Thwaites v. Wilding 12 Q.B. D. 4
Tigress, The, (1863) 32 L. J. Adm. 97 153, 192, 193
Tomlinson v. Consolidated Credit 24 Q.B.D. 135
Tomlinson v. Morris 12 Ont. R. 311
137, 208
Tooke V.
140
Traders'
100
Travis v.
210
Trent v.
298
Troop v
212, 217
Trottier
-''3
Re
212
Trust & I
•75. '7*^
07c
^n
Tufts V. (
'2J
Tuffts v. I
269
Turriff v.
•4
Tyson v. (
, 47. 'o<'
11-
United St
United Sti
-'.■>
•4.^
\'alpy V. C
2^^2
VanCaste*.
169
Vertue v. ^
20
V'ineberg \
45
N'irginia v
314
Vulcan Iro
67
R-5
62
181, 252
Wait V. Ba
207
Wait v. Gr
21 1
Wallace v.
3^3
Wallace v. ^
146, 147
Walker v.
93
30
Walker, R<
Walker v.
265
Walling v.
. 2, 126
Warner v.
265, 268
Waterous v
Que.
Waterous v
194. >96
Waterous v
316
27 Cc
88, 91
i
(ASKS ( ITKI).
xxxv
Tooke V. Hollinjjworth j; T. R. J15
Trailers' Hank v. Hrowii (iHHt)) iH Out. R. 430. .
Travis v. Thompson .^7 Harb. (N'.N'.) J34 . .
Trent v. Hunt (> Kxch. 14 . . . .
Troop V Hart 7 Can. S.l'.R. 51 j
'IVottier v. Rod River Transportation Co. (1.S70) Man
Rep. temp. Wood J55
Trust & Koan Co. v. Lawrason (1H82) 10 Can. S.C.R
'»79
Tufts V. liiroux (iS<)S) 12 ^ue. S.C. 5,v' • •
Tuffts V. Mottasliod J() I'.C.C.P. 5.VJ
Turriff V. Mcllugli (iHSy) 1 N.W.'i". Rep. lu (part I)
Tyson v. Cox, T. iV R. 395
United States v. Hathaway 4 Wall. (C.S.) 404
United States v. Tobacco 5 Ben. (U.S.) 129 . .
Valpy V. Oakeley 16 Q.H. 041 169
VanCasteel v. Booker (1H48) 2 l^x. 691 . . . . . . 185
Vertue v. Jewell 4 Camp. 31 . . . . . . . . 183
Vineberjf v. (irand Trunk Ry. (1886) 13 Ont. .App. 93. . 231
Virj^'inia v. Kroft 25 Mo. 67 . . . . . . ., 229
Vulcan Iron Works Co. v. Rapid City Co. (1884)9 Man.
K. 577 114, 116, 119
.H7.
»*)3
64
32()
210
-'-'7
3? "2
21
100
164
i«)9
40
48
Wait V. Baker {1848) 2 Ex. 1 167
Wait V. Green 36 N.V. 556 82
Wallace v. Fraser 2 Can. S.C.R. 522 . . . . . . 333
Wallace v.Woodgate i C. & P. 575, R. & M. 193 169, 231, 285
Walker v. Birch 6 T.R. 258 205
Walker, Re, 68 Eng-. L.T. 517 . . 140
Walker v. Hyman i Ont. App. 345 114
Walling v. Potter, 35 Conn. 183 263
Warner v. Don, 26 Can. S.C.R. 388 31
Waterous v. Cascapedia Pulp & Lumber Co. (1898) 13
Que. S.C. 315 • . . . . 21
Waterous v. Henry (1884) 2 Man. R. 169 . . . . 119
Waterous v. Hochelaga Bank 5 Que. Q.B. 125 ; affirmed
27 Can. S.C.R. 406 . . . . . . 20, 119
X\XVI
C ASKS t ITKn,
Wjitcr»)us V. McCann (iHc)4) ji Ont. App. ^Hd , . 56,
VValcrmis v. Prat I (iH»)«)) yt Out. K, 5.?H
WateroiiN v. Wilson 1 1 Man. R. jm5
Watson V. Anderton 1 H. & .\d. 45<) . .
Watson, I'lx. p., 5 Ih. I). 35
Watson. Ko. J5 ^). H. I). J7
Watson V. Sample (iH<)()) 12 Man, R. 373
Watts V, Sweeney IJ7 liul. 116, aft N.K. Rt'p. ()Ho
Webber v. C'oj;swell (1H77) 2 Can. S.C".R. 15
Weeks V. (iooJe (> f.H.N.S. .V)7
Welch V. Spier (Iowa) 72 N.W. Rep 54H
Wesbrook v. Willoii>,'hby (iH*)^) 10 Man. R. <m)o
Welden v. (lould 3 ICsp. 2()H
Wentworth v. Day 3 .Met. (Mass.) 352 . .
Wentworlli v. Oiithwaite idM. X' W. 4,V»
WestCield v. (ireat Western 52 I. .J. (J.H. 27^
Western Millinj,'- Co. v. Darke (1H94) 2 N'.W.T. Rep.
Weslwood V. C'owne 1 Stark. 172
West/inthus, Re, 5 B. & Ad. H17 . .
Wettlaufer v. Scott (1H93) 20 Ont. App. f)52 Ho, H
Weymouth v. Boyer 1 \'es. Jr. 4M)
Wheeler v. Jacobs 2 Misc. Rep. (N.^^) 236
Wheeler v. NIcols 32 Me. 233
White V. Oakes 88 Me. 367, 34 .\tl. Rep. 175
White V. Smith {1895) 28 N.S.R. 3 . .
White V. Smith 44 N.J. I.. 105
Whimsell v. (liffard (18831 3 Ont. R. i . .
White, Kx parte, (1870) 21 W.R. 463, L.R. 6 Ch. App
397 ' • .
Whitehead v. Anderson (1842) 9 M. & W. 318
Wilds V. Smith 2 Ont. App. 8
Wiley V. Smith 1 Ont. App. 179, 195 ; 2 V."an S.C.R.
Wiliard V. White 56 Hun (N.V.) 581
Williams v. Grey 23 U.C.C.P. 561
Williams v. Leonard 26 Can. S.C.R. 406
Willis V. Sweet 20 N.S.R. 449
Willoughby, Ex p., 16 Ch. D. 604 . .
Wilson V. Guyton 8 Gill (Md.) 213
H5, H(.
69
9b
186
20, J)8
.V"
2<>7
148
'55
'"5
>M
'4.'»
182
I 7. 47
188
'"3, 114
207
95
66
()(», 71
300
329. 3^*
103
'85. "95
189
187, 189
207
301
1.38
143
< ASKS < rTKI>.
XXXVII
VVilnon V. Kymcr i M. it S. 157
Wilson V. \i),'hlin^'iilt' S (J. M. u)^ . .
Winks V. Iliissall (> M. ^: i\ ^-jj
WisinT V. Ociunpati^h 71 N.N', ii.^ , .
Woll V. IIoiif;h J J Kans. «>5'>
Woiul V. Chaplin i.; N.V. ^tni
Wood V. Picrson 45 Mich, ^l^, 7 N'.W. Rep. HHH
Woods V. Kankin iH I'.t.C'.i'. 44
Woolaslon v. SlaOord 15 C'.H. .'7H . .
Wyatt V. Hank of Toronto, H r.l'.C'.P- 104
Xenos V. WiL-kham (iHHr)) L.U. j H.I.. j«/i
N'orktf V. (itfnaii>.,'h 2 I,d. Rayni. HC»(> . .
J|(>, J21,
III)
144
«5
3ic>, .jHj
'43.
i' ( i ■
Al»l>KNnA.
pa(,'o 71, footnote (<)f>), for 'Out. R.' read ' Out. App'.
P"K^' «M» footnote (4H), for ' afVirinin^' ' rcail ' allirnicd '.
paj^o ii<>, line a, (or 'o\\'\i\^' rcail 'owning''.
pajfc i.?i, rofcroncc number (1 rH), luUI the follovvinj,' : —
The UiHieiilty ahove referred to has been obviated by a
statute passed in Manitoba while this work was in presM
(Stat. .Man. iHyc), c. .V>)> cxcmptinj,' conditional sales
from the operation of sec. .24 (j), of the Sales of (ioods
Act of Manitoba, see .\ppendix, pa^e ,^70.
paj.je I ^^3, line 3, for ' section 9 ' read ' section 10'.
pa},'e 141, line 15, for ' bill of lading' read ' bill of exchanj,'e '.
pa^'e 174, line i-s, for " terms ' read ' term '.
pajfe 174), line'13, for 'conditions' re^d 'condition'.
page 2t)i, line () from fool of paj^e, for * y months ' read ' one
year (Stat. Man. iHc/j, c. 8, s. 3}'.
Con
of a chi
the thin
thing sc
a condit
not wit hi
depend
buyer, s
vested ii
Natl
sample v
if inferic
ditionai
purchase
the owne
they sha
certain i
title and
with libei
any insta
Contt
iiauduien
justice or
perty be ^
of the p
where it
(i) Centu
(2) Fishet
(3) Exp.
CHAPTKR I.
Contracts ok C<^NmTio\.\L Sam;.
Conditional Sale Defined.— A conditional sale
of a chattel is a sale in which the transfer of title to
the thing sold, or the purchaser's right to retain the
thing sold, is made dependent upon the i)erformance of
a condition. It is a sale the binding effect of which,
notwithstanding delivery of the thing sold, is made to
depend on due payment, or other performance, by the
buyer, so that meanwhile the title or ownership is not
vested in him (i).
Nature of Conditional Sale. A sale of goods by
sample with an agreement that they may be exchanged
if inferior, is, in the wider sense of the term, a con-
ditional sale (2). So also is an agreement for the
purchase of furniture on the " hire system, " whereby
the owner of the goods leases them on the terms that
they shall become the jiroperty of the hirer, when
certain instalments have been paid, and reserves the
title and property in the goods until that has been done,
with liberty to seize them on default of the hirer to pay
any instalment (3).
Contracts of conditional sale, when free from any
iiaudulent intent, are not repugnant to any principle of
justice or equity, even though possession of the pro-
perty be given to the proposed purchaser. The intent
of the parties will be recognized, and sanctioned,
where it is not contrary to the policy of the law.
(i) Century Diet.
(2) Fisher \, Memiin : Daly N.Y. 234.
(3) Ex p. Crawcour 9 Ch. D. 419.
2 (ONDITIoNAI, SALKS
Where no fraiitl is iiUeiuU.Hl. but the honest pur-
pose of the parties is that the ventlee shall not have
the ownership of the floods until he has paid for them,
there is no j^eneral principle of law to prevent the
purpose of the parties from having effect (4).
if the hirino- agreement, althous^h it reserves the
property in the j^oods, provides that the hiring shall
continue until the whole purchase price is paid in
rentals, or otheiwise compels the hirer to carry out the
l)urchase, the contract is an "agreement to buy'' the
goods (5), but if the hirer is empowered to terminate
the hiring at any time by delivering up the chattel
without being liable for any further payments beyond
the sums then ciue, then the contract is not an agree-
ment to buy (6).
Where M. ao^reed to manufacture and furnish to
the joint account of himself and K. a cjuantity of staves
to be loaded in cars at a railway station by a day
named, and by the terms of the agreemxint the staves
were to be considered at all times, whether marked or
not, the property of K. as security for advances, it
was held that the staves became K.'s property as soon
as made, and never were the property of M. nor
subject to seizure at the instance of INI.'s creditors (7).
And where crude oil was consigned to a refiner on
the express agreement that no property in the oil
should pass until he made certain payments, and the
refiner sold the oil before making such payments and
without the knowledge of the true ownei; it was held
that, although such subsequent purchasers were pur-
chasers for value from the refiner in the belief that he
(4) Harkncss v. Russell u8 U.S. 663.
(5) Hull Ropes Co. v. Adams {\^^^) 65 L.J. (^).B. 114; Lee v.
Butler {\?,cf^) 2 (^.B. 318; Thompson v. I'^ealc 73 L.T. (Eng.) 130.
(6) Helby v. Mattheivs (1895) A.C. 471.
(7) Kelsey v. Rogers 32 U.C.C.P. 624.
AM) ( llATTi;i. I. MAS. T,
was thu owner and entitled to sell the oil, the true
owner was entitled to recover the price of the oil from
them, he havin«»' retained the property in the oil, and
not havin«4 done anything to estop him from maintain-
in;4' his rij^ht of ownership, and the refiner not having-
been entrusted with the goods to sell or deal with
them (8).
F'rtH|uently the evidence of the conditional sale is
an order sij^nied by the vendee obtained on the solicita-
tion of the vendor's agent, and containing stij)ulations
reserving the right of property to the vendors, with a
power to retake possession upon default either in the
payment of the price or of certain instalments thereof,
or in regard to other provisos calculated to ensure the
proper care and protection of the chattel sold.
If the order for the article which is the subject of a
proposed conditional sale provides that the same is not
binding on the company to which it is addressed and
by whose agent it is obtained, until received and
ratified by the comjjany, it remains open for the com-
pany's acceptance for a reasonable time unless it is
withdrawn by the party signing it, and when that
reasonable time has elapsed, without any notice of its
acceptance having been given to him, the party order-
ing is entitled to assume that the company do not
intend to accept it, and he need not notify it of his with
drawal of same (9).
The seller in a conditional contract of sale under
which the buyer was permitted to sell the goods in
course of trade and use the proceeds in the purchase
of other goods for his stock will, however, acquire no
title to the latter goods so purchased (10).
(8) ForristaH. McDonald {\%^i) 9 Can. S.C.R.I12.
(9) Patterson v. Delorine (1891) 7 Man. R. 594.
(10) Baker v. Tolles (N.H.) 36 Atl. Rep. 551.
r i
4 ( ONIHTION.M, SAI.KS
Hut a contract by which one person expressly
ajjrees to pay for all twine shipped to him under the
contract by the other party, and make a settlement
with the latter no later than a specified date and pay
interest on any balance then due, the title to the twine
to remain in the seller until paid for, is a conditional
and not an absolute sale (i i).
Hut it would seem that a conditional contract to
furnish the material for and construct an elevator is
one for work done rather than a contract for the
conditional sale of goods and chattels ( 12).
Distinguished from Chattel Mortgage. — in order
to ascertain whether an aLjreement is such an assur-
ance of chattels as comes within a statuK; requirinj^-
bills of sale and chattel mortgages to be filed of record,
the court may go outside the form of the document
and encjuire into the circumstances to see whether or
not the document represents the real transaction
between the parties {13).
So where a money lender takes an absolute trans-
fer of certain goods and immediately lets the goods,
by an agreement of hiring and conditional sale, to the
borrowers from whom he had obtained the transfer, the
transaction may be considered as an agreement of
loan upon the security of the goods (14).
And where the owner of certain furniture desired
to raise a loan upon same without the publicity of the
(11) Osborne v. Piano Mfg. Co. (Xeb.) 70 N.W. Rep. 1124.
(12) Graves Elevator Co. v. Callanan 11 App. Div. (N.Y.)3oi,
42 N.Y. Supp. 930.
(13) Re Watson 25 Q.B.D. 27.
(14) Russell on Hire Purchase 17 ; Hooper v. Ker 76 L T. (Eng.)
307 ; Phillips V. Gihbcns 5 W.R. 527 ; Ex p. Odell 10 Ch. D. 76;
French v. Bombernard 60 L.T. (Eng.) 49 ; Jones v. Tower Furnish-
ing Co. , 6 Morrell Bank. R. 193.
I i
regist
from
the f(
delivt
to the
of hir
action
right (
(juentl
way 01
chattel
Hu
and di
goods
transac
make
terms t
system
of pure
Th(
into by
ment, a
device 1
evade i
and otl
hiring a
a bill of
and as )
Stipi
of certa
(15) Jie
(16) Ex
(17) No
(18) Ma
Co. (1891)
ANI> (HATTKI- I.IKNS.
■
^;!
registration of a bill of sale, and the lender or |)ersoii
from whom the money was obtained went throiii^h
the form of purchasinj^ the furniture and takinj^
delivery thereof, and on the same day let the furniture
to the other at an advanced price upon an agreement
of hire and conditional sale, it was held that the trans-
action was in fact one of loan, and not a sale with a
ri*;ht of repurchase, and that the contract was. conse-
quently, to be considered either as a bill of sah.' by
way of mort<i[age, or as a license to take possession of
chattels as security for a debt (15).
Hut if there are in fact two bona fide and separate
and distinct transactions, one of absolute sale of the
goods and the other of hiring and conditional sale, the
transaction is valid in that form (16). And it will
make no difference that the goods were sold on the
terms that the seller should repurchase it on the "hire
system " ; for a contract of sale, coupled with an oj)tion
of purchase, differs entirely from a mortgage ( 1 7).
The real nature of the transaction may be encjuired
into by oral evidence, beyond the mere hiring agree-
ment, and if it be shewn that the latter is merely a
device for giving security for a loan in a manner to
evade a statute requiring registration of bills of sale
and other transfers by way of security, the written
hiring agreement will be treated as being in law such
a bill of sale or transfer for the purposes of the statute,
and as void for non-compliance therewith (18).
Stipulation for Lien. — An agreement for the sale
of certain machinery and other goods, contained a
(15) Re Watson 25 Q.B.D. 27.
(16) Ex p. Shane 29 Sol. Jour. 70.
(17) North Centrals. Manchester 13 A. C. 554, 567.
(18) Madellw. ThaHnas (iSgi) 1 Q.B. 2x0; Beckett v. Torver Assets
Cb. (1891) I Q.B. 638(C.A.)
< ()M»I I K^NAI, SAI.KS
provision tluit. until iIk; balance of the purchase money
should he fully paid, thi; vendor shoukl have a " ven-
dor's lien " on thi; j^oods for such balance, ami that
no actual delivery of such property should be made,
nor should possession be jjarted with, until such bal-
ance and interest should \n-. full)' paid. After the sale
the \'eiulee took possession of the; i^oods, and subse-
(|uentl\". with tht; assent (jf the \end(*r, who surrendered
a former lease, tlu; defendants leased to the vendee the
premises upon which the i^oods were situated. .After-
wards, and while the balance of the purchase money
was still unpaid, the defendants distrained for rent
upon the jjjoods in (|ui!Stion. It was held, that the
transaction in ([uestion amounted tu an executory
aj^reement to sell the chattels mentioned, the transfer
of pro|)erty in them l)eing conditional upon payment
t the price ; that the r<.;t(Mition of possession by the
vendor was intended as security for the payment of
tht price, and that beiiiLj the case, the stii)ulation that
iheiL shorld be a " vendor's lien " for the [)rice should
be read out of the contract as mere surplusage, because
with the retention of jxjssession provided for, there
was no reason for the existence of the lien ; and that
onlv the interest of the tenant in the uoods could be
distrained on (19).
And where a note given for the purchase of ma-
chinery provided that it should be a " lien " upon the
machinery until paid in full at maturity, at which time
the projierty should, on default, be at the disposal of
the vendors, the transaction was held to be a mortgage,
and not a conditional sale, the reservation of the lien
being inconsistent with the retention of the title by
the vendors (20).
(19) Carroll \. Beanf 2-j Ont. R, 349.
(20) J^rici' V. //tlliarfi ij^ N. Car. 117.
Hir
mad(.', t
able in
shall b(
lotallin)
until all
chattels
are hin
the hin
chattels
than th(
The
the |)ro|
vendee,
delivere
e\'idenc<
bailmen
althougl
by its te
vendor,
actual vi
Cont
Columbi
chattels,
possessit
ship the
payment
in writin
right of
mortgage
notice of
considers
(21) i?d-.
(22) Jfes
AND ( ll.\TTi:i, MKN>. 7
Hire-purchase Contracts. — Where a coiuraci is
made. uiuU-r which chatu-ls arc liircd al a rciilal pay-
al)lc in "msialiiKMUs. hut with the provisf) tiiat the hirer
sliall Ikicomu' the owiut on payiii.!^' rental instalments
totalUn^ the price agreed upon lor th(! i^oods, and that,
until all the instalments are paid, the property in the
chattels sh.dl remain in the person from whom th(;y
are hireil, such an a_L>;r(!ement is effectual to pre\ent
the hirer from ac(|uiring any titU; or property in the
chattels by virtue of payments made amounting to less
than the sum agreed upon (21).
The Bailment. I he bailment is the d(;liv(;ry of
the property intended to be sold by the \endor to the
vendee, and is com|)lete when the property is so
delivered. The receipt note is simply th(> written
evidence or statement of the coiulitions on which the
bailment was made, or is intended to be made ; and
alth(jugh the right to jxjssessioii, as well as the title, is
by its terms retained and reser\'ed to the conditional
vendor, there is a bailment if the vendee receives the
actual visible possession (22).
Contract to be in Writing. — By statute in Hritish
Columbia, the bailment, or conditional purchase of
chattels, made U|)on a condition under which the
j)ossession of the chattel passes without any owner-
ship therein being acquired by the bailee until the
j)ayment of the purchase money, must be 'evidenced'
in writing, or it will be invalid to reserve the bailor's
right of property as against subsequent purchasers or
mortgagees from the bailee acquiring the same without
notice of the bailor's title, and in good faith for valuable
consideration ; and such writing must have been
(21) Re Robertson 9 Ch. D. 419.
(22) Western Milling Co. v. Darke (181^4) 2 N W.T. Rep. 34, 46.
8
< ONKITInXAl, SALES
a'..t
signed by the bailee or coiulilional purchaser, or his
a«ein(2 3).
And a co|)y of the receipt-note, hire receipt, order or
other instrument providinj^^ for a conditional sale, must
be left with the bailee by the bailor, at the time of th(!
execution of the instrument or within 20 days there-
after (24).
in Manitoba a bailment of "manufactured goods
or chattels," where the condition of the bailment is
such that the possession of the chattel should pass
without any ownership being acquinid by the bailee,
is invalid unless it is evidenced in writing, signed by
the j)erson so obtaining possession of the chattel (25).
A New Brunswick statute makes a similar provi-
sion in regard to bailments of manufactured goods,
upon conditional sales in that Province (26), and it
further provides, in terms identical with the British
Columbia Act, that the bailor shall leave with the
bailee a copy of the instrument by which a lien on the
chattel is retained, or which provides for a conditional
sale, either at the time of the execution of the instru-
ment, or within 20 days thereafter (27).
In the North-West Territories if it be a condition of
the bailment that the right of property or right of pos-
session, in whole or in part, shall remain in the bailor,
notwithstanding that the actual possessi»)n of the
goods passes to the bailee, but it is intended that the
property in the goods shall eventually pass to the
bailee on payment of purchase money in whole or in
part, or on the performance of some condition by the
■J
bailee
such
any j)
consit
execu
' bailn
is in
this e
is of
The
that t
the g(
know I
In
thesa
medial
ued cl
the pr
for a :
t'
(23) R.S.B.C. 1897, c. 169, s. 2.'5.
(24) R.S.B.C, 1897, c. 169, s. 31.
(25) R.S.Nf. 1891, c. 87, s. 2.
(26) Stat. N.B. 1899, c. 12, s. I ; see Appendix.
(27) Stat. N.B. 1899, c. 12, s. 4.
A\I> CIIATTKI, I.IKNS. 9
bailet". llii; bailor will not hv. \n'.rmh\.vx\ t<> set up any
such ri}j;ht of |jro|H'rty or rij^ht of possession as a^jainst
any purchaser or mortgajj^ee in i^ood f.iilh for valuable
consideration from the bailee, or as a^^ainst jucl;4;nients,
executions or attachments aj^ainst thi; bailee, unless the
'bailment with such agreement, proviso or contlition '
is in writing signed by the bailee or his agent : but
this enactment applies only where the sale or bailment
is of goods of the value of $15 and upwards (2S).
The North-West Territories' Ordinance alst) re(|uires
that the writing shall contain such a description of
the goods that the same may be readily and easily
known and distinguished.
In Nova Scotia every hiring, lease or bargain for
the sale of personal chattels, accompanied by an im-
mediate delivery and followed by an actual and contin-
ued change of posession, whereby it is agreed that
the property in the chattel, or in case of a bargain
for a sale of same a lien thereon for the price or any
{ran thereof, shall remain in the person letting to
lire, the lessor or bargainor, until the payment in full
of the hire, rental or price agreed upon by future pay-
ments or otherwise, shall be by instrument in writing
and be signed by the parties thereto, or by their
agents duly authorized, in writing (29).
In that Province it is therefore necessary that the
writing be signed both by the bailor and the bailee.
If signed by an agent on behalf of either, a copy of
his written authority must be attached to the instru-
ment. The instrument must also set forth fully, by
recital or otherwise, {a) the terms, nature, and effect
of such hiring, lease or bargain for sale, {h) the pro-
perty or lien remaining in the person letting to hire,
(28) Con. Ordinances N.W.T., 1898, c. 44, s. i.
(29) Acts of N.S. 1899, c. 28, s. 8.
lo
( nNIH llnNAI, >.\l.i;s
{() llic lessor or l)iirjn;iinor. and ((/ ) the ainoimi payahlt:
llicrcuiuK r, wlu'tlicr cxprt'ssi'tl as hire, rcni, pria- or
ollurvvist! (,;o).
In Ontario, and also in Prince I'.dward Island, a
l)ailnieni ol' " manuraclured j^oods or chattels", otluT
than household riirnitiire. niad(; upon a condition under
which the possession ol tile chattel passes without any
ownership therein heinn iic(|uired hy the hailee until
ihc payment ol the purchase or consideration money
or some stipulated part thereof, must he evidenced in
wriliiiL^. si;j;ned hy the l)ailt!e or his a;4(MU ; otherwise
it will he in\alitl as aj^ainst suhse(|U( nt purchasers, or
morli,;a|4('es from the hailiH' acijuirini; the chattel for
valuahle considc-ration, and in j^ood faith, without notict;
(A' the hailor's claim thereto (.>i)-
TIk; hailor must also k^ave with the haiUte, at the
time of the e.Ni'Cution of the? instrument, or within
twenty days thereafter, a copy of the; same (32).
Exception of Household Furniture. — l*ian< )s, organs,
or other musical instruments, are not exempt from the
Conditional Sales Acts of Ontario and IVince lulward
Island. The ( )ntario Statute makes an exci;ption of
household furniture "other than pia.nos orj^ans, or
other musical instruments ", while the Prince lulward
Island statute enacts that such ate not included in the
terms " household furniture" (33).
The term " household furniture " is restricted in
meaniiiL; to such articles of furniture and ornaments as
are necessary for, and are provided for the occu[)ation
of, and li\ini( in the house, according to the condition
(30) Acts of N.S. 1891;, C.28, s. 8.
(31) R.S.O. i8()7, c. 141;, s. I and 2; Stat. P.E.I. 1896, c. 6,
s. I and 6.
(32) R.S.O. 1897, c. 149, s. 5 ; Stat. F.E.I. 1896, c. 6. s. 8.
(33) R.S.O. 1897, c. 149, s. 2; Stat. P.E.I. 1896, c. 6, s. 6.
,\N'i> ciiMirr. i.ii:n«..
II
and inraiis ttf ilic oicup.mts and ariiihs c/iiyi/iiu
i^i'iii'ris, and dors noi incliidr a srvvin;^ mat liinc t>r .i
lihrary. sfirntilic instriinu-nts, l)illiai*d taldc. lawn ten-
nis sv\, ;4iins, tishin;4 j^car, or llu' like (.VJ): '"'*
ranj^cs and healers are held to he e.\eni|>l under an
exieptiun lit " housellold j^nods " (,;5).
Time of Signature by Bailee. — It a li( n. n<.ie, nr
a'^reeinent, purportinj^ to reserve title, is ohiained fnun
the \'end«'e after a hari^ain of absolute sale, and as a
means of securing the |)aynient of the price or a part
thereof, it is suhjeet to the statutes relating' to re^n's-
tration of hills of sale and chattel niorti^aj^es, and
re;4istration under the Conditional Sales Act would
not protect the vitndor, the title having already passed
to the vendee, on the; har^ain of ahsolute saKr (.>^i).
'I'o transfiT such title hack a^ain to the vendor ther<i"
must h(! either an actual ilelixcr)' up of possession tt>
him. or the makinjjf and rei.;istration of a hill of sale,
otherwise the transaction would l)e voidable at th(r
instance' of execution creditors, or purchasers for value,
under the liills of Sale Act. So where a chattel was
sold and delivered between the parti(!S. and sonn- se\cn
months after such delivery a lien note was sii^iied by
the vendee for a balance due the vendor on the transac-
tion, it was held that th(; lien note was invalid, as to
third parties ac(|uiring the chattel (37).
Reservation of Property. The construction of a
document evidencing; a conditional sale, is for tlu' court,
and not for the jury (38).
(34) Alien V. ll'ai/ace {i%2,^) 21 N.S.R. 49, 53.
(35) Kerdy v. Clapp, 15 App. Div. (N.V.) 37 ; 44 N.V. Siipp. 116.
(36) Mason v. Bickle (1878) 2 Ont. App. 291, 296.
(37)6:<///a«/v. i»/<'//<'//(i898), 18C.L.T. 199.
(38) Nordheimer v. Robinson, 2 Ont. App. 305.
M
13
Ct>M>IIU)N \l. SAI.IH
111 /'('/>('// \. /\;v«'''' (30) ilu' roiitr.nt was in tlir
ft>ll(»winj4 tnnn :
'I'oHoNlo, {,/titf).
'Jo //'///. /W.u'Pl c" r<)., 7oron/o :
" I'liMSf shi|> ti) luy niltlrosH as sooti as possible f'r<tin roroiit »
" tlif lollowinn in.ii limcH as prr pru cs uKriril iipini (lu-rc Vollowcil
" an ciuiincratioii ot the artnlcs with the [)rires of each). 'iVrrns,
"$J35 to l)c allowed lor my portahlc cnniiif and lioilcr '' ■>. Ii. .it
*' Sunilfrlaiid, and .ffijs to lie paid at the tnne »)f shipnj
*• And I hereby a^ree that if this machinery is not hettu^ lor l»y
"cash and notes nl'('ordin^ to the aliovo teims of sale, within
" twenty days after date of shi|»ment, then tlu whole ninoiint shall
" Itt'coiiic due ; aiul I further a);ree not to 1 ountermand this orcJvr,
"and until payment in full of the purchase money, this machinery
" shall he at my risk, and I will insure in your favor for an amount
" suHiiient at all tunes to (over your interest therein, and on
"ilemandwill assij^n and deliver to you the policy ol insurance,
"and the title thereof shall not pass from you; and I will
" not sell or remove any of this machinery from my premises
" without your consent in writing; so to do ; and in case of default
" of any of the payments or provisions of this order, you are at
" liberty, without [irocess of law, to enter upon my premises .unl
" take down and remove the said machinery ; and I hereby a^;ree
"to delivci the said machinery to you in like gooti order and
" (ondilion as received (subject to ordinary wear and ti.ar) ; and I
" hereby waive all claims for dama^es, and will pay the nenses
"of such removal, and I hereby tleclare that the ^"U)^
" end)odies all ihe agreements made iMjtween us in irm,
"and that "any note or notes, or other se<urity givci. / me
" to you for this indebtedness shall be collateral thereto."
It was held that, althoii^li from the confiisttl
arraiiu;eiiH.'iU of thi; stipulation in tht: order there was
room for conteiuioii that tlie word " titU; applied to
the policy of insurance and not to the machinery, that
the docunient should be interpreted by all its parts,
and that by the whole tenor of tht; instrunv-nt the
word title was referable to the machine-ry, and that tlu;
property therein was effectually reserved to th«;
vendor till paid for (40).
(39) Po/soH V. Dr,(;fe/ (1886) 12 Ont. R. 275.
(40) Poison V, De^^ecr (1886) 12 Ont. R. 275, 280.
k
r
of a
across
I
w
" th<' '
" the
" pass
" inti'H
TI
Montrc
wick tv
draft bi
\cn(l<'«
of the
of the
was III)
|)art (if
and veil
to the s
cepted ij
held thai
cif'iU. an
for valiK
upon the
d<;al(!r, a
ordinary
Fixtu
to the la
considert
are such
part of tl
were so i
ceased to
(41) Pur
(42) Cttu
ANt» < KMTI r f M N>,
•3
In a nrt'iu Nj.'W Mriinswitk casr ihr oniv ''vitlencf
of a n'scrv.iliini ol' i)ro|)rriy w.is a ilaiisr primtnl
across the siiil) rml of a ilrafl as follows :
" rh<' rxprrss condilions of >,air and imrchasr of
" thf vrhiilfs for whiih thr <lrafi is ;;iv«M. i> such thai
"the titU'. ow'M(Tshi|), or ri^^lu of possr>sion. iloi-s iii>t
'* iwiHh from llif said Co. muil thi^ draft and
" nUtrrcsl is paid in full."
Ihr vrndors, who were carria;.4«' nianiif.irliin'rs at
Monirral. h.ul shippid lo ihr vcmhc in \«'w Mrinis-
vvi( k two \va;;ons, and dn-w on him for tlu* |»ri(«'. the
draft form ha\ in;; ihcrron tin- words nu'iuioncd ; ihr
vrndci' accepted the ilraft in that form, hut resold one
<»f the wajjfons to a hona tide pun hastr without notiie
of till' want nf title, ,ind afterwards died, .md tlu-ri!
was no ••\id«'nce that the nrservatioii of title was a
part of the orii^inal arr.uj^M'meni hctwecn the vendor
and vt'iulee, or that the latt«!r's attention had heen called
to the special printed clause oi ih<' draft when he ac-
cepted it (4 I). The .Suprenv < ourtof New Mrunswick
helil that the «:videijceof title in th<; v<Mulors was insufti-
ci(!nt, aiul that to recover against an innocent purchaser
for value strict proof is re«|uired. the onus of which is
upon the vendor, where the sale is hya manufacturer to a
dtsiltrr, and is to all appearances a transaction in the
ordinary course of husiness.
Fixtures to Realty. — ArticU^s not otherwise attached
to the land than hy their own wei^dit. are not to he
considered as part of the lantl. unless the circumstances
are such as to shew that they were intended to he
part of the land, and the onus of sht;winjn that they
were so intended is on those who assert that they have
ceased to he chattels (42).
(41) P/tr/Zf V. Iff ney ii»i)6) 33 N.M.R. 607.
(42) Ciitiada Permanent \. Merchants Hank, 3 Man. R. 285.
14
< oNhl I H»NAI. sAI.I S
I lir piiiposrs tuwhii'h prnnisrs li.ixc Ih«'ii ;i|t|>li<<l
should l»' n'l^.irdrd in tlrcidin^ whiil may have Ixrn
(Ik- ohjcri ni the .iiiticxalioi) ol iiion'mMc arliclis in
p«'i in.tncnl striulun's with a view lo ascntaininj^
wIuiIk r t»r nni tlicy thcrcliy hccoin*' lixluics incoipor
att'd with the ri<'t'lv)ld (.| ;).
In the altsciuc ol cvidcn**' of a (nniraiy inlcntinn,
niaihincs altiNcii to llic Tn't'liold nicnly lor the purpose
ol slrad)'in^ them, and used for ihc piM|)osc ol a
ni uuiiailminj^ l)usin<'ss lor which the IVrchoid is
oi'(iipi»'d, hccoinc |)arl of die freehold excn though
ihe mode of allixini; th<'m is such ihal th«\ can easily
he lieiached wilhout injury to the machines or to the
fre<hold ; hut similar pieces of machines standinj^ on
the lre(;hoKi, but not allixed except by heltinj; for
motive power, ri'lain the characl<'r of chattels uoiwilh
staiuiin<' that the work don*; l>v them is an essenti.d
pr(»cess in the manufacture to which the frt^thold is
devott:d (44).
Will a fastenin*' hv cleats affixed to tin; huildinu
only and not affixed to the machine except by beiiiLj
placed close against it, is not an altixinin of the machine
at all, and is not sufficient in itself to make the machine
a part of the realty (45).
A statute i)assed in Ontario in iSg-, and now
consoliilaled with the ( )ntario Conditional Sales Act,
R.S.O., 1S97. c. I4t). enacts, as to that province, that
where any ;'('(v/.v or cluittch siibjcc/ to the provisions of
the Conditional Sales Act are affixed to an\ realty
without the lOiisciif in j\.'ri////!^>- of the owner of thi;
K'
khIs or chattels, such uoods and chattels shall not-
(4^^) //it^i,\t,'tir/ V. '/'(>h'» of Ihampton (i8y8) 28 S.C. K. 174.
(44) l.ov^bottom V. />V;v r l,.R. 5 ().\\. 12^^; Sun Life v. Taylor
('8^3) 9 Man. R. 89 ; Kccfer v. Met rill (t Out. App. 132 cliscusbed.
(43) Suu l.<fe\. Taylor (iSi;^) 9 Man. R. 89, loi ; Oaufords.
J'iihllav 1 8 dr. ^i.
WD • MATH I, I.IKNS.
15
',
vvithsiimdin;^ " n'lii.iiii so siil)j«( l" ; l)iil llic "»wii«r ol
sue li rr;ilt\, or any |nir(.lias«r, or any morin-i,^''" <>r
other iii(:iiinl)rat)r<r on suci) realty, shall lia\c the
ri^ht, as against the inainilaclunr, Imilor or \«ii(|(»r ol
sill h ^oods or chattels, or aii\ |)ersoii ( laiinin^ through
or uiuler lh(;in to retain the ^oods and chattels upon
|>a) inent ot the amount due and owiii^ thereon. It is
only hy nlerenci; to tin; latter part ol the ena( tinent
that it is made to appe.ir thai the ri^^hts of the owner
of the realty are iiU<nd(!d to he altecte-d. I he Act is,
e.\(;(;pt as to this add<Ml s(M:lion, one for the proi(;( lion
of pJTsons olh<:r than tlio bailor as aj^ainsl his claim,
and does not enlari^c his ri^^hts, and for the statute 10
simply mal<(! chatKfIs affixed to the realty still suhjecl
to its provisions would not, it is suhmilted, ha\e thf!
effect of pn;servin^ to tlu* hailor a j)r()p<:rty in them of
which he had de|)rived himself l»y a cons«MU. wheih«r
written or verhal, and wh<;ther indicated hy his (onducl
or otherwise. 'I"h(! context, how(;ver, seems to indi-
cate that the inl(rntion of tlui Le}^islalure was that the
chatt(,'l so atUK-'xetl should n^main subject to the claim
of the conditional vendor, uidess ih(! latter has waived
lh(t saiiK* in wrilinu. I he clause is retn»a(.tiv«r, and
applies as well to transactions lM;lor(; it was p.isse(
(1897) as to transactions th<;reafter.
d
liy
a statuK; passec
1 in \.
ew nrunswick m 1 '^99
k
62 Vict., N.h , c. 114, it was enacted that when* any
l^oods or chattels ha\'e been sold or bailed under any
receipt note, hire receipt or other instrument by which
it is agreed that no owm;rship therein shall b(; ac(|uire({
l)y the purchaser or bail(;e until the j)aym(MU of the
purciiase or considt-ration moiu^y. or some stipulated
part ther(.!of, and such i^oods or chattels are affixed to
any realty without the t onsen f in wrifini^ iti the* owner
of the tj^oods or chattels, such goods and chalt»ls shall
not be or become part of the realty, but shall oiuinue
181
i6
CONDITIONAI, SAI.LS
to be aiul n.-main personal property ; and the rights of
the owner thereof are declared not to be in any way
altered or affected by such goods or chattels being so
affixed to the realty, except that the owner of the
realty. <)r mortgaj^ee. or other incumbrancer of the
realty or a purchaser of the same is given the right to
retain the chattel as against the manufacturer. bai)or
or vendor, and as against any person claiming through
or under him. upon payment of the amount due and
owing thereon. The enactment is retroactive, and
applies to past as well as to future transactions, and
exce|)ts only from its operation litigation pending at
the time it was passed (April 28. 1S99).
Fixtures in Quebec. — If. the vendor himself affixes,
or becomes a party to the affixing of the chattel to the
fr(;ehold. the chattel will become an immovable by
destination, and an attempted reservation of title there-
of, or a license to remove the same, will not be effectual
as against a third party entitled to the realty.
In Leonard v. Jhiszrr/ (58), the facts wt^re as fol-
lows : B., the defendant, was the owner of a mill,
and sold the same in 1891, with right of redemption
(re)Ni'n' ) to one Desmarais. A few days after the sale
n. ordered from the plaintiff an engine and boiler to be
built, and they were delivered to him and placed in
the mill, at the beginning of November. Time was
given for payment, and it was agreed that H. should
give notes indorsed by his brother for the price. The
contract contained this clause :
" It is distinctly understood and agreed that the property in the
"goods so to be furnished by you (Leonard) to me (Hoisvert) is
" not to pass to me until you are fully paid the price Jor same, and
" that the notes so to be given are to be held by you as collateral
"security in respect of such purchase money. If default l)e made
' in the payment of said notes, or if the said goods are attempted
(58) Leonard \. Boisvert (iScfj) 10 Que. S.C. 343.
"toll
•'any
"the
" cred
a.
posses
boiler,
I )esmi
Mme.
whom
tri'i'iidi
It was
with a
propert
ferred
that ih
right to
mcnt h;
persona
proceed
right of
sale. 1 1
had ma
passed t
had a su
a rcnivn
tion the
g^one he
the mill (
tion, thei
Lien
Exchans*
*' an unc
" person
" to pay
(S9) Leon
AND CI1ATTI.I. I.IKNS.
17
"to l)e disposed of by me, or are seized in execution in respect of
" any del)t due by me, then you are at lilierty to take possession of .
" the goods, and resell the same by public auction or private sale,
"crediting me with the proceeds only, less all expenses."
li., notwithstanding the sale a ri'mcn', remained in
possession of the mill, as well as of the engine and
boiler, until June. 1S9,;. when he left the country.
Desmarais then took possession anil st)ld the whole to
Mme. Hamel, who resold it to the defendant P., from
whom th(^ plaintiff causetl to he seized by saisie-
rci'iiidnatioii the engine and boiliTon Nov. 26th, 1894.
it was held that the contract in <|uesti<>n was not a sale
with a suspensive condition as to the transfer of
l)roperty. but a sale pure anil sim|)le, which had trans-
ferred to W. the property in the engine and boiler ;
that the stipulation that the plaintiff should have a
right to take back the things sold in case of non-pay-
ment had. at most, only the effect of giving him a
personal right against H. to take them back v/ith legal
proceedings, but diil not subordinate the transfer of the
right of property to the jjayment of the whole price of
sale. In placing the engine and boiler in the mill, H.
had made them immovable by destination and they
passed to the defendant V. by the sale of the mill. H,
had a sufficient interest in the mill, in spite of the sale
a rcmvn' which he had made, to immobilize by destina-
tion the engine and boiler, and though his interest was
gone he would still be deemed to have placed them in
the mill on account of the owner, and the immobiliza-
tion, therefore, would be valid (59).
Lien Note — Negotiability. — The Canadian Rills of
Exchange Act, 1890, defines a promissory note as
*' an unconditional promise in writing made by one
" person to another signed by the maker, engaging
*' to pay on demand or at a fixed or deti^rminable
(59) Leonards. Botsvert (i^q',) 10 (^ue. S.C. 343.
iS
( ONDITIONAI, SAI.KS
■ Hffi
'fiitun! timt; a sum certain, in nionry, to or to ilic
"order ot a specifuitl pt^rson or to hearer' (46).
An instrument in tii(; form of a |)romissory note
^iven for j)art of tile price of an article, with the acideii
condition "tiiat tiie m\v. and rij^ht to tlie possession of
" tile property for vviiich tiiis note is j^iveii sliali remain
" in the |)ayees until this note is paid, " is not a
promissory note or nej^otiabie instrument, and a iraiis-
fere'e takes it subject to any dc^fenci' available betwetjii
the original parties ; for such a condition imports that
unless th(! maker i^cts th(; property with a t^ood title at
the date of maturity, he could not be re(|uin;tl to
l>'i>M47).
i'hc; liills of I''xchani4e Act contains a special pro-
vision (sub-section 3 of section S2) that a note is not
invalid by rtsison only that it contains also a pleilj^e of
collateral security with authority io sell or ilisposi;
thereof.
In a recent Manitoba case the instruments sued on
contained the usual provisions of a promissory note;
with additional provisions to the effect that the title,
ownershij) and property for which they were given
should not pass from the payees until payment in full,
that if the notes wen: not i)aid at maturity tht; vendors
might take possession of the machinery for which they
were given and sell the same at |)ublic or private sale,
the proceeds, less the expenses, to be applied on the
notes, and that such action should be without prejudice
to the right of the vendors to forthwith collect the
balance remaining unpaid. The Court of Oueen's
Bench of that Province held that the instruments could
not be ri;garded as negotiable promissory notes because,
firstly, the added provisions c|ualified the absolute and
(46) (1890) S3 Vic. (('"an.) c. 33, s. 82.
(47) Dominion Bank v. Wigsu^^ (1894) 21 Out. App. 275.
uticon
not 1)1
matur
S(!C()nc
uiiwar
i^xclia
l)e tre;i
author
on a
affcctec
acc{;ler
his real
Sta
edness.
<litional
ot limii
authori/
express
terms tl
s;u-ilv to
the
ditional,
debt can
entitled
a prom is
IVon
conditior
VV^atson
them toil
(48) Ban
chants Ban
(49) J^on
(50) Wat.
(51) Stah
AND (IIATTKI. MENS.
19
iiiicoiulitional promises to pay. as ihv. vciulors niijrht
tH)t 1)0 in a position to give title to the property at
m iturity which th(r makers would be; (Mititltnl if), and,
sttconilly. the aildetl provisions wert: matt(!rs e iuir(.'lv
iiiivvarrant(!d hy sub-sec. 3 of sec. (S2 of ilu; Hills of
ICxcliang'e Act (Can.). i.Sqo, as tliey could in no sense
be treated as ni(;r(;ly a pledi^x; ol collateral security with
authority to sell or dispost; thereof (4S).
lint the negotiability of a promissory not<-' gixcn
on a conditional sale of goods will, however, not Ix-
affected by clauses under which the linu; of pa\ nient is
acceleral(!d in certain events, as on the maker s(;lling
his r(.'al estate, or pr(;|)aring to K'ave the Province (49).
Statute of Limitations Acknowledgment of Indebt-
edness, rhe liability for the purchase price on a con-
ditional sale will In; kept good as against the statute
of limitations, if th(; conditional V(Mulee, or his duly
authorized ag(MU signs a writing. <Mth(.'r containing an
express promise to j)ay the debt, or being in such
terms that an unconditional |)romise to pay is ntices-
sarily to be imj)lied (50).
The acknowledgm(!nl must bi; absolute; and uncon-
ditional, and om; from which the promise to pay the
debt can be inferred, and must be made to somc^ one
entitled to receive payment of th(.* debt, and to whom
a promise to pay could be presumed (51).
Promissory notes for $'/^ each were givt.'n by a
conditional vendee of a machine to th(; vendors. The
Watson Manufacturing Co.. and were endorsed b\-
th!::n to a corporation named The John Watson Manu-
(4H) Ban/c of Hamillou v. ai//ics {i^v^c,) 35 (". L.j. 468; Mtr-
chitiits Bank v. Diinhp 9 M.in. K. 623, not followed.
(49) Dominion Hank v. ll'iggins {iS()^) 21 Out. App. 275.
(50) Watson V. Sani/>/c (i^ijij) 12 Maii.R.375 ; 9("ieo. I\'.(linp.)c. 14.
(51) Stamford Banking Co. v. Smith (1892) i Q.B. 765.
CONDITIONAI, SALES
facturini^ Co.. Limile^l. On instructions from the
latter, a collection ajjjent ti(!ma!uleil payment from the
conclition.il vendee of an account claimeil as due the
" Watson Manufacturinj^ Co.." made up of the amount
of the two notes so «;iven. The maker of the notes
r(;pli<'d that the ctimpany had retaken the machine; and
sold it for $70 or $75. and added. " therefore, I can-
" not see that this is an honest debt ; the binder was
" sold to a gooil man, ant! I cannot see that I owe the
" firm for anythinjjf hut the last note and intcn's/ on //."
It was held that this was a sufticient acknowU.'donKMU
of an indel)t(;dness for the note last dut;. from which
a promises to pay is implied by law (52), and that the
cori>orati()n, on whose behalf tin; collection aj^ent
was in fact actinj^, was entitled to the benefit of the
ackiiowledi^meiit (53).
Suspensive Condition— Quebec Law. — An aj,^ree-
ment for the sale of machiiu;ry on condition that,
though delivered to the j)urchaser. the seller shall
retain the ownership until the full price is paid, is a
valid agrei-'inent under Ouebec law, and tht; right
of pro[)erty is transferred to and vested in the pur-
chaser only upon such payment being made. In order
to regain possession the sellt^r must pay back or
tender what has been jKiid on account of the price
unless the agreement provides that the same shall be
forfeited as damages for non performance. (54)
In a recent case the facts were as follows : -C.
was in possession of a sewing machine of the \\^ Co.
under a sale with a suspensive condition that ihe com-
pany should have a right to take it back on failure by
(52) Tatitier v. Smart 6 B. & C. 603 ; Green v. HumphreySy 26
Ch. D. 474-
(53) Wations. Sample {i?>i)()) 12 .Man. R. 375.
(54) IVateroiis Engine IVorks Co. v. Hochelaga Hank 5 Que.
(^.H. 125 ; Affirmed by Supreme Court of Canada, 27 Can. S.C.R. 406.
C. to
giv(! ti
to k(!e
the pr
by scu
for th
nrfu.sal
compai
the .sar
|>aid u
n.'sponi
(effect t
illegal.
Wh
shall re
shall I
revendi
the con
maintai
money 1
The
article d
tory con
article,
purchase
or in e.\(
return ol
before c
judiciall)
article re
no evide
a presur
accordinj
(55) Cou
Que. S.C.
(56: Tuf,
Ml) Wai
Co. (1898) :
AM) ( II \l lEl. LII.NS.
C. to mak(! all tin; payinciits. Vhv. contract did ni»t
j^ivc thi! company the rii^lu. in cast; of r«'\<'ndicati<»n,
to keep tlv |)aynuMUs made. C. owchI a l»alan(«' on
tin: price; and the company rev(;ndicat(;d the machine*
by sa/s/i' riiriK^ication, but refused to reimburse C.
for the paxnients already made. Because of this
refusal C. opposed the seizure ; it was helil that the
company had no rij^ht to s(;i/e the machine without at
the same timi; tenderin;^ to C. the sums which he had
paid upon the price of sale, and it was therefore
responsibU; for the violence employed by th<; bailiM t<>
<;ffect the seizure which under the circumst.iiices was
illegal. (55) , .
Where an article is sold with the condition that it
shall remain the {property of th(; vendor until the price
shall be fully paid, and the V(;ndor subsecpiently
revendicates the thing sold for non-compliance with
the conditions of the contract, such action cannot be
maintained unless the |)laintiff tenders therewith the
money received on account of the price (56).
The return of money, received as part price of an
article delivered under a contract of sale with a resolu-
tory condition, is necessary prior to revendicating such
article. But if the article, through the fault of the
purchaser, has been deteriorated for an amount equal to
or in excess of that part of the price alr(;ady paid, no
return of such part price can be demanded or re(|uired
before or when the revendication of such article is
judicially made. The fact that the deterioration of the
article reduces its valut; to a large extt;nt. there being
no evidence as to how such article was cared for, raises
a presumption of fault on the part of the purchase
according to circumstances (57).
(55) Cousineau \. The Williams Maniifactuiin^ Co. (1897) 11
(^ue. S.C. 389.
(56; Tufts V. 6'/>^w:>:(i898) 12, (Jue. .S.C. 530.
(57) Waterous Engine Works Co. v. Cascapedia Pulp e^' I.iimher
Cb. (1898) 13 gue. S.C. 315.
CIIAPri'K II.
CuNhlTloNAI. S.M.K Kl.cilsTUAIIONS.
British Columbia. — Hy siaiuH' in iliis province a
true copy of liir rccciptnotc. hire receipt, oriler, or
oilier insinnnenl evitlencinj^ a conditional sale of
cliallels in iJrilisli ("olinnbia must he tiled not later than
2 1 da\ s alter the deli\'ery of the j^oods or of tin; Inst
portion thereof to the conditional purchaser in the
pro|)er oHue for registration of a hill of sale affecting
property situate at the place wlu.'rt! the conditional
purchaser resides ( i ),
Ihe reL;istration offices for hills of sale are as
follows :
I'dr the County of Victoria, the office of the
Registrar of the County Court at Victoria ;
I'or lUv. County of Nanaimo. the office of the
Keoistrar of the County Court at Nanaimo ;
I'Or the C\)uiity of V^uicouvtT, the offjct; of the
Registrar of the Coimty Court at V^uicouver ;
l'"or the County of Westminster, the offict; of the
ke.;isirar of the County Court at New \Vestminst(;r ;
I'or the County of Cariboo, the office of the
keoistrar of the County Court at Clinton ;
I^'or the Countv of Yale, the office of the Registrar
of the (bounty Court at Kamloops ;
I'or that portion of Kootenay County being the
territory covered by the Slocan Riding of West
Kootenay h'lectoral District, the office of the Registrar
of the County Court at Kaslo ;
For that portion of Kootenay County being the
territory covered by the Nelson Riding of W^est
(i) R.S.B.C. 1897, c. 169, s. 25.
Kouti
of the
I',
ti.'rritn
Koote
Kei^isl
I'n
the te
Koote
( ourt
l<o
office
Revls
rill
at ion li
in Col
difleren
mentioi
Ini
or cond
se(|U(rnt
uilhout
The sia
variance
which h
This. h.
apply a^
he liniitt
instance?
the clasi
/.<■. sub>
notice in
(--) Stat.
(3) 62 V
(4) R.S.
\M» ( ii\rni. INNS.
2.^
Kootciiiiy IJrctor.il Disiricl, the olVicc of ihc U«'^isii;ir
<it the ('(»iini\ Court ;il Nelson ;
I'fir ilial portion of Kootcna) C.'oinitN Ixinj^ tlu*
territory coM-nd l)y the Kossland Kidinj^ of West
Kooteiiay I Sectoral District, the oKice ol the
Kei^istrar of ih<- Comity Court at Kossland ;
l''or that portion of tin* County ol KooHiiay hein-^
the lerritor)' covered hy the South Kidin;^ ol Mast
Kootenay I'dectoral I )islri(t, the olVice of th«- County
Court k(!<'istrar at l*"ort Steeple ;
1<
or the reniaind<'r of tin- Counts' ol'KootenaN , the
ot'f'ice ol tile Registrar of the County Court at
KcNcistoke (2).
riiese districts art; subject to subdivision or alter-
ation Ironi lime to time hy tlu; Lieut(.'nant (io\«rnor
in Council who may proviile lor registration in a
ditferent district or at a tiifferent place from any above
mentioned {t,).
In default of filini; as the Act re(|uir(rs, the bailment
or conditional purchasi; will be invalid as aji^ainst snb
se(|U(;nt pin*chasers or mort,!4anr(;cs of the chattels
N\ ilhoul notice in j^ood faith for valuable; consideration.
The statute further declares that in the event of anv
\arianc(;
bet
ween tli(; oriL^mal docum<;nt anc
d the
CO
py
which has l)(;en filed the copy filed shall prevail (4).
This, however, can hardly have b(;en inttMuU'd to
apply as between tlie partu;s to tlu; contract and may
be limited in its ojjeration so as to appU only at the
instance; and for the b(Miefit of persons comiiii,^ within
the class for whose protection the; filinLi is intended.
/.<. subsecjuent purchasers or mort^a^ees without
notice in liood faith for valuable consideration.
(2) Stat. H.C. (1899) 62 Vict, c. 7, s. 2.
(3) 62 Vict. (H.C.) 1899, c. 7, s. 2.
(4) R S. B.C. 1897, c. 169. s. 30.
i^
24
( n\|»ITln\ \|. sAI.I.S
Manitoba. In this proviiur ihrre is no provisi*)!!
for ri'^isi(,'rin^ conditional salo contracts ; Imt in tlu'
cast; of " maniifaclurcd " j^oods or chattels tlur n-ccipt-
notc. hire rcccnpt or order j^ivcn by the bailee, where
tile condition of bailment is such that tlu; possession of
the chattel should pass without any ()vvnership therein
beinj,' ac(|uir»!d i)y th(; baile-e. will be invalid unless such
ji^oods or chattels have the manufacturer's name «)r
some other distinj^iiishinjL; name, painted, |)rinted or
stamp(;d thereon or otherwise plainly attached thert'to
at the time ttie bailment is (Mitertnl -nto ; and the
bailment itself will be invalid unless evidenc<'d by a
writinj^ signed by the bailee (5). Hut the manufacturer
and his ai^xMits are l)y statute recjuired to furnish forth-
with on ap|)lication to any applicant full information
resjHictin^ the balance due on any manufactured j^oods
or chattels coming' within the Lien Notes Act (Man.)
iUKJ tlitt terms of payment of such balance (6). And
any manufacturer or aj^ent refusin*^ or nejrlectin.n to
furnish such information when asktnl for is liable to a
hue of not less than $10 nor more than $50 <>n
conviction before a justice of the peace (7).
These statutory provisions are such as to constitute
the manufacturer in one sense a registrar of conditional
sale contracts made by himself and comings within the
limitations of the Lien Notes Act. for he is bound to
furnish, without remuneration, the information men-
tioned in the Act to atiy applicant forthwith on
application. The words, "full information respectinj^
the balance due" and "the terms of |)ayment of such
balance," would seem in this connection to include a
statement as to whether or not the right of property in
ih(; c
that
whel
the
I'ffeci
Ii
(5) The Lien Notes Act (Man.), R.S.M. 1891, c. 87, s. 2.
(6) R.S..\r. 1891, c. 87, s. 3.
(7) R.S.M. 1891, c. 87,8. 3.
'1'
\M> < iiAiiii, i.irss.
tlu' chattel was in fact rcscrvt'il ami in what Inrin. so
that till! t^iu|iiir('r may lur ciiahlcil t«> jiul^j;*' l<»r* liiins«ll'
wlu'lhcr or not tlir property has passed and whether
th«.' balance claimed hy the nianufaciunr is or is not
(itfectually made a i:harj;e upon the chattel itself.
It would seem that the manufacturer, if himsf^lf
the vendor, will he protected if h«' afti\«s some
"distinj^fuishinJ.f" namtr «»ther than his own. .\ "dis-
tinj^uishiii};" name would include the nanie of the
retailer or agj'iit throuj^h whom the snoods are sold,
and of whom en(|uiry could be made as to the tilhr
thtrreto. Aiul althouj^h the manufacturer has been
paid for the chattel, it is submitted that tin- purchas<rr
from him or any subse(|uent owner sellinjj; upon a
conditional sale f^eed do no more than se<' that the
manufacturc-Ts namt; or som<! oth(,'r distin^aiishin^
name is on thi! chatti^l. If th(; manufacturers nam(?
remains on the article, any intendinj,^ purchaser may
from en(|uiry from him trace the title, the object of the
statute; biMnjjf to furnish a means of information distinct
from the person holdinjj; possession of the chaite!. if
the manufacturer's name is not affixed to it aiul it is
being sold by a person other than the manufacturer
upon a conditional sale cimtract. such person may. of
course, affix his own name as a "tlistinguishin;;' name
in compliance with the Act.
New Brunswick. In this province the statute as
to registration of conditional sale contracts follows
closely that of Ontario, and only "manufactured " goods
and chattels are within its provisions. Mere default
in registering operates only in aid of subse(|uent pur-
chasers or mortgagees (<S) and cannot be taken advan-
tage of by execution creditors ; but any creditor of the
(8) Stat. N.B. 1899, <•• '2, s. I.
IF
96
• uMMTInNM s\|,|,H
li.iilcc «ir <»th(i- iiiftn'strtl ptTSHf) in.iy cumprl tlir lilif)^
l>\ th<> li.iilnr ut ,( sworn st.ilt-inciu nl the .tiiuunu
rctn.iinin:^ diic on the uidrr.
I'lu' niamilaiiurtr or It.iilor in»<tr.ul of rrj^istrrinj^
t)u; coiitr.tct has ilic allrrnaiivr ol having his nariu; aiul
Mrrss priuti'd, p.iinltui, siaiM|uil or <n^ravr«l on thr
at
I'MatU'l or otherwise* plainly attached thereto, at the
lime poss<'ssion is ^^ix'en to lh<' hail»'<' (<;).
Il the niaiuilailiin'r s name and .nKh-ess is not
I
ilacfil
f ih
on llur arlicU' a r«»py <»! the wrilinj^ evHlciu inj;
the hiilmeiit must Im- liled with th«' Kej^isirarol I )«'eds
ol the county in wliich tiir hailee or coiuhtioiial piir
chaser resided at the time of die haihnt lit or conditional
purchasi\ 'I'lic tiim* hmitetl lor lilinj; is lo days Iro
in
the (Nccutioi) of tlU" receipt note, hire r«'i<ipt. order or
other instrument exidencinL; lh«' haihnent or ciuuHlional
sale i^iven to seturi- the purchase m<Miey or a part
llierettl ( lo).
l*ro\ision is maile that a clerical error whicii does
not dislead <»r an error in an immaterial or non <'ssential
part ol the c()|)y f'lletl shall not invalidate tlw I'llinin ( ii ).
I'he maiuilacturer, bailor or \<-ndor is also hound,
if a " credit«)r or inten-steil person " demaiuls the same,
to lile with the Registrar within 20 days from the
niakini; ol'the tlemaiul.a sworn statement ol the amount
due on any receipt-note, hirt; receipt, or order i^iNrn
upon a conditional sale of a chattel ; and on his lailurc
lo do so all rights accruing so him under the receipt
note, etc., will be rorfeiled as against the creililor or
interested person making the demand {12).
It would seem that the tilin'' of the sworn statement
(y) Stat. N.H. 1899, c. 1 2, s. 1.
(10) Stat. N.n. 189*;, c. 12, s. 2.
(11) Stat. N.H. i8(;(>, c. 12, s. ,v
(12) Stat. N.H. i8«>y, c. 12, s. 5
AM» I II \ I I I I I II N*.. j;
in iiMswcr to a (liinaixl is ( nin|>iilsiii-\ in .ill ilurt!
tl.issrs (il c.iscs :
{(t) \\ hrrr tin- v«Mulor's ii.unr is stam|i«Ml upon llu-
i:hall«l in lifii «.!' rr^Msln m^ ;
{/>) Wluif the ri <ri|il notr. rtc. is (ilrd ; and
(/ ) \\ lirtc tin- n.inu- is not attixcd .ind llir i«r(i|»t-
iioti* is not lilid.
It inav ln' ijoiihicd wlwiliir thi- words " ii'>lits
tU'cniiNi^ iiiidrr " ihr n'i:«i|it-noif. vu , inclndr tin* liLiht
oj* |»io|>«'riy nttiimif i)\' re'siTVo! in tjn- lontract. I In*
rij^lit of |)ro|K:rty upon a comlitional sale docs not |)ass
to the idiulition.il vcndc*- at all, even inoincntariU ;
and it ijocs not. tlnTrlnrr. in thr striiirst srnsr ol the
uord accriir under, or arise iVoin. the rjccipt-notr.
The rij.{lit ol propert) accrmrd when the vendor liou^hl
the <hatt«'). and the res<rvation of that rii^ht in tin-
receipt note is inerel) for the purpose of e\ idencin;^ tin*
f.ict that he has not parted w ith such rij^hl. An example
of a rii^hl "accruin;4" uiujer the reicipt note or order
is the license usually i^ranted l)\' the bailee to the bailor
to enter upon the bailee's premises in case of default
lor the purpose of reino\ in^ tin* chattel. Jtul a perusal
of llui whoh; statute; seems to inal«* it plain that in this
connection tin; word "accruinj;" should liaNca wider
meaninj4 and will include the rij^ht of property reserved,
and that the " rij^hts accruinj^ ' which will he forfeited
lor non-compliance with its provisions are the rii^hts
accruing to the haitoi\ alth()U}.(h the statute omits to
stale it explicitly.
North West Territories. In the Territories a writ-
ing signed by the bailee or his agent and containing
such a description of the goods, the subj<'ct of th(; b.iil-
ment, that the same mav be reaililv and easily distin-
guished, is recjuired in order to eflectually reserve to
the bailor any right of j)roperty or right of possession
r
2S
t <»\hl 1 ItiN \|, SAI.IIS
u
rcsi'ivcil upon a loiulilioiial salt' uf j4;<»n(ls of tlif iw/uf
t $15 or n\(r. as ai^ainsi a |)iirtliascr or inoiij^aj^tc
from tlio bailee in ^ood tailh lor valuable coiisider.ition,
or as against iiuluinu'iUs. «\etiilions or attachineius
aj^ainst lh« h.iiiee ( 1 ^^). Aiul tlie writiiij^ or a true copy
ihereol imisl l>e re^isien'd in the ottui; ol the Kej^is-
lrali«)n Clerk lor chatltl morlj^aj^es in the tlistriel wirliin
vvhieli the eomlitional purthaser resides, verilied hy tlur
attulavit ol the seller or bailor or his ai^cnt statinj; that
the writinj; or cops truly sets forth the aj^reenieiit
between the j)arties ami that the aoreenienl th«'rein set
forth is bona Tule and not to protect the i;(»oils in
(|iiesti«)n ajjjainsl the ereilit«)rs of the buyer or bail<«'
( 14). The rei^istration nuist be elfetted within ;(i days
of the sali: or bailment, and if the j^ooils art; delixeretl
in another rejj^istralion district than that within which
the buyer resides or if they are removed to another
rej^istration district then the writing or a true copy
accompanied by the bailor s affidavit must be rei^isiered
also in the rei^istration district in which the delivery of
the jj;(^«hIs takes |)lace or into which they are removed
as the case nviiy be. Such additional registration must
be made within ;o tiavs t)f such delivery or removal
(•5).
the p
the p
the p.
Upoi)
lease
Nova Scotia. In the Province of Nova Scotia
conditional sale agreements must be in writini; and
nuist be fileil in the registry of deeds for the rej^istra-
tion district in vhich the personal chattels are at the
time the instrument is executetl, loj^cther with an
affidavit of either the bailor or the bailee.
I'he new Act of 1 Sc)() is based upon .section 3 of
(13) Con. Ord. N.U'.T. i8»>S. c. 44, s. i.
(14) Con. Ord. N.W. T. i8y8, c. 44, s. 2.
(15) Con. Ord. N.W.T. i8«j8, c. 44, s. 2.
Wh (IIAIIII. Ill Ns.
2C)
llic Kcvisi'd All "lor llic pn'vcniinn of traiuls on
Cn'ilitors l)y st-crt'l hills of saK* " ( ih) as ainnultd in
iSSOaiul iS(); (17). I)iil in a form siiuf tonsiiU'raMy
chanj^cd. Tlu' Hills of Sale Ail iSiji) (iS) appli's
lo all hirinj^s, lrast!s or l)ari;ains for sriling jK-rsonal
chatlcis whrrcby it is agrt'cil
(a) ihal tlu' properly in llic personal ihallels, or
(/>) in case of a bargain for sale, a lien lliereon for
ihe jiriie ihereof or any poriion ihereof shall remain in
le person U-llini^ lo hire
ihe li
essor or hargamor unlil
ihe paymeni in full of ihe hire, renlal or priic as^reeil
upon hy fuliire paymenls or oiherwise. if the hirinj^,
)aP4<iin is aceompanied 'ty an immeiliate
u\ is followed l)V an a^ . lal and loniinued
ease o
r I
(h'liverv am
ihanL^c of possession ( K)). Ihe insirunuiu must set
forth fullv l>v recital t»r oiherwise. the terms, nature
and effecl of the hars^.un and the 'property or lien
remainiiii; in the harj^ainor and the amount p.iy.ihle
thereunder, whether ex|)ressed as hire, rent, price or
«»lh<'rwise (20). The section does not appU lo a simple
harj^.iin for hirinj^ under which the lessee in no event
can ohlain the properly and ownership «»f ihi' chattels
lured, as the statute implies that the hirini; referred
lo is one in which the rii;ht of properly is reserved
only until the |)aymeni in full of the hire or rental (21 ).
And tlu^ statute doi^s not appK' if the hire aj^reement
instead of stipuhiling for a rijjjht of the hirer lo hecome
the owner of the particular chattel hiretl, provides ih.it
on completion ol the paymenls mi'iuioiied in the con
(if») U.S. N.S. 5th series 1SS4. <■. i,.'.
(17) N.S. I^ws i88ri. «•. 3^. s. 1 ; N.S. Laws iS»j;, c 40, s. 1.
(18) N.S. Laws i8i)i), c. 28. in luri-e only from tlale of proclamation
in the Koya/ Hitzittf.
(i<>) N.S. Xawh i88»>, c. 28, s. 8(1).
(ao) N.S. kiws 1899, c. 28, s. 8 (2).
(21) Lnvis V. Denton, 19 N.S. K. 235.
;o
I (»M>ri loN.M, SAI.Ks
tract, the liircr shall receive a chattel of thi- same
kiiul ('([ual ill value thereto (22). The coiulitional
sale contract must be sinnetl by i>oth th<; bars^aiiior
aiul the barL,'aiiiee. and if executed by an a<^cnt on
beh.df of either of them the assent's authority must be in
writing and a copy attached to the contract (2;).
in order to complete.* the security by havin;; the
contract tiled in the land Registry, it must be 'accom-
panied ' by the affidavit of <•////(•;' of the parties thereto.
siatmj.;:
{(i) That such instrument sets for the ttrrms. nature
and effect of such hirinj^. lease or bargain for sale, and
the property or lien remaining in the person letting to
hire, the lessor or bargainor, and the amount j)ayable
thereunder ;
(/>) that such instrument is executed in good faith
an«l for th*: express |)urpost; of securing to ihr. person
letting to hire, the K;ssor. or the bargainor the pa\ tneiu
at the time and imder the terms set out in th<' instru-
m«MU. of the amount payabK' thereunder (24).
Tht! form of the aflidavit should b(; in strict com-
pliance with the statute, and the language of the
atildavit should follow the langtiage of the statute (25).
rh«* affuli.vit of an agent or attorney of one of the
contractiiig |)arties is proper only in case the contract
its(;lf was signed by sucii agent for his principal, and
in case a copy of the ag(;nt's writte'ii authority to do so
is attached thereto; and tht;n the atitulavit must also
include a statement that the agent or attorney making
the same "has a personal knowledgt,' of the matters
?
.^"
(32) (iufst\. DiiiiA', (1897) 53 ('. I,.|. 497.
(23) N'.S. Laws 1S99, c. 28, s. S.
(24) N.S. Laws 1899, c. 28, s. 8 (3).
(25) AV/V/v. Cn-ii^/itott, 24 Can. S.C.R. ^19,31 ('. I .L 374; Thomaa
V. t^illy, 13 App. ("as. 506.
AND ( IIATIKI. I.IKNS.
;>i
cU'postnl to " (26). 'riuM;.\|)r('ssi()ii " personal cli.iltcls"
is tleclared by tin; Act to mean goods, ("iiniiturc, liMurcs
and other articles capablt: ot coniphue transfer hy
delivery, and shall not include chattel interests in rm]
(estate, nor shares nor interests in the stock. I'lnuls or
securities of any government, nor in tht; capit.il or
propt-rty of any incorj)orated or joint stock conipan\.
nor choses in action (27); aiul in this connection the
term " fixturts" reefers only to such articles as arc not
made a permanent portion of the land, and of which
deli\<!ry may he made as chattels without the commis-
sion of a tortious act to separate th(,'m from the
freehold (2S). The vvortls "accompanied by an
imnK.'diate delivery and followed by an actual and
continueil change of possession" which are here applied
to the hiring, lease or bargain for the saK; of personal
chattels, are also used in the ( )ntario Chattel Mortgage
Act in respect of mortgages and sales of chattels, but
uiuler the last mentioned statute, registration is
re(|uired in the corri'lative case of a sale or mortgage //o/
accompanied by an immediate delivery and followed
by an actual and continued chang(i of possession (2g).
The tiTm has had a statutory definition in Ontario since
1894 so far as rt^lates to bills of sale and chattel mort-
gages. I.e. such change of possession as is open antl
reasonably sufficient to afford public notice thereof
(30), a defmition which is wider than the iiit(;rpretation
which was theretofore given to it. liut a reference to
the prior decisions under that statutt; will be of value
in determihiiig the <.'\act meaning and limitations of
(2O) N.S. I-aws i8ij9, c. 28, s. 11 (2).
(27) N.S. Laws iSyi;, c. 28, s. 2.
{28) mvner\. Don, 26 (an. S.C.R. 388.
(29) R.S.O. 1897, c. 148, s. 2 and 6.
(30) R.S.O. 1897, c. 148, s. 39.
I ,
( M
.1 H
' ^
;>2
(ONDITlMNAI. SAI.KS
the phraseology used in the Nova Scotia Act. The
underlying principle ot both statutes is the same, i.e.
that where the owner of chattels places another person
in possession of the same fuul allows the latter to use
them as his own to all appearances, the person so
entrusted will be considert'd the owner thereof so far
as is necessary for the protection of his creditors, or of
purcha.iersor mortgagees of the article from him, unless
the real owner gives notice of his cfaim in such a
manner that the prospective creditor or mortgagee
may ascertain the particulars of it by searching the
public rec(jrds. In order to determine whether or not
the delivery is an 'immediate' one and wh(!ther the
change of possession is 'actual and continued' within
the nn'aning of the statute the nature of the goods and
their locality and the kind of delivery of which they
are capable are to be considered (31). The actual
change of possession need not be a transfer of posses-
sion to the condition vendee in person, nor to his
agent acting for him in the negotiation of the condit-
ional sale, but may be to a bailee or carrier for such
vendee (32).
A sale of household furniture by a married woman
to her husband residing with her in the house in which
the furniture was situate and in use, was held to be a
sale not accomjjanied by an actual and continued change
of possession {;^Tf) ; and it would therefore seem that a
amditional sale under like circumstances would not be
within the Nova Scotia Act, and would be valid with-
out registration, and it would not even be necessary
that it should be evidenced in writing. There is an
(31) McMaster \. Garland, 8 Ont. App. i.
. (32) McMaster v. Garland, 31 U/'.Cr. 320, 8 Ont. App. i ;
McPartland s. Read, 11 Allen (Mass.) 231; Wheeler v. Nicols,
32 Me. 233.
(33) Hogabootn v. Graydon, 26 Ont. R. 298, 31 C.L.J. 100.
^-\
actUci
good
and t
gOOlJ!
neccs
the bi
self 01
.somet
e(jui\;
transfi
goods
on the
chaser
contini
of the
If
complii
goods (
or barii
statute
, (")
bargam
(39).
The
the con
(34) AV;
Moore, 57
(35) She
(36) Doy
(37) N.S
(38) Secj
(39) Sec.
ANIt ( IIATTi;i, I.IKNS.
.i.>
actual aiul continued chaiijifc of posst'ssioii on a sale of
goods in a slioj) if the parties check over the goods,
ami the vendor d(;livers the key to the buyer and the
goods are kept locked up in the huilchng, and it is not
lU'Ct'ssary tluit the goods sliouUl l)e removed or that
the l)uyer should remain in physical possession by him-
self or someone on his behalf (34) There must be
something more than a symbolical tlelivery or its
e(|uivalent, and a marking of the goods with the
transferee's mark will not constitute it (35) ; and if the
goods are se|)arated from other goods of the same kind
on the vendor's i)remises, and markt.'d with the jur-
chaser's mark the change of |)()ssession 's not actual or
coiuinuetl so long as the ventlor remains in possession
of the premises (36).
If the statutory re(|uirement as to filing be not
complietl with, the agreement that the property in the
goods or that a lien thereon shall remain in the bailor
or bargainor becomes null antl voiil bv virtue of the
statute as against
(a) The creditors of the hirer. lessee, or bargainee
(/;) Bona fide purchasers from the hirer, lessee, or
bargainee (3S);
(r) Mortgagees of the hirer, lessee or bargainee
I he operation of the statute is upon the validity of
the contract rather than upon the remedy for its
(34) AV/r V. Ca». Bk. of Commerce, 4 Out. R. 652 ; McMartin v.
Moore, 57 U.C.C". 1'. 397.
(35) Shorty. Ruttan, 12 U.C.R. 79.
(36) Doyle s. Lasher, 16 U. C.C.I'. 263.
(37) N.S. Laws 1899, c. 28, s. 8 (4).
(38) Sees. 2 and 8 (4).
(39) Sec. 8 (4).
It:
rr
34
( (»M»II InNAI, s\l.i;S
('nlniTi'iiicin, and il will ihcrclorc lia\ i- no appliraiioii
to a foiuract inailc out of the iVoxiiuc coiucriiiiij^
chattels also out of the IVovincc at the time the con-
trait is niailc (40); and a roiulitional sale loiuract
made in anoilu-r l'ro\iiui' or jurisdiction lonccrninin
chattels also there will not come under this Act. if the
laws in force at the place where the parlies and th<-
chattels are have been complied with, alihouj^h the
chattels are sul)se(|uentlN remo\'etl into No\a Scotia
(41). Vhv statute does not in express terms transfer
tin- propertN in the j^oods from the ori_L;inal bargainor
who has failed to comply with the statute to the
creditor, purchaser, or mort|na,!j;t'e of the hirer, lessee,
or I)arj4ainee. or to the hirer himself, hut it has the
effect of strikinjn out of the contract, so far as con-
cerns such "creditors, purchasers and mort;4a,!4"ees." an\
part of same reserxinin property in the chattel. As
hetween the parties ihemselves the contract remains
\alid. and if the conditional vi-nilor resumes j)osses-
sioii before the conditional veiulee has incurred the
debt with the creditor who attacks the xcndor's claim,
or before the vendee has sold or mort_i;a^ed the
chattel, he will be enabled to hokl it althouj^h tlu-
contract is not filed.
The expression "purchasers" is declared by the .\ct
to mean bona fide purchasers (42). and to incluck' the
assignee of thi- oraii/or under the indii^ent Debtors'
Act. the official assignee or an assii^nee for the "general
benelit of creilitors. I'he \endee upon a conditional
sale is not. strictiv sneakin"'", a "'>rantor," but l)\
reference to section c; of the Act it will be foimd that
Ir;
(40) Sitigcr V. McLfOif, 20 N.S. R, 341.
(41) Sitii^rr V. Mi/.iVi/, 20 N..S.R. 341; Boniti v. Robertson,
N.W'.'I". Kep. 8y (pt. 4); iioslitic v. Diitidat, 32N.I5. K. 325.
(42) Sec. 2.
.\M> « ii\rn;i, i.ii;\s.
.v"^
till- iciin "inranlor ' is applii'il tn ilu' cxt'iuiioti ol.i hill
nf sale "or other instriiincnt, " and st-tiion 2 ;^i\cs a
statnlors incaninj^ to the term "hill of sale" which
a|)|U'ars to IcaNt- no "other instruineiu" suhjett to the
statute and to whiih the latter term lould have
relerenee hut a londitional sale contract. It is. there-
fore, suhniittecl. althoui^h the matter is not tree Irom
doiiht, that an assi^^iiee ol a hailee upon a conditional
sale. apj)ointi(l imder the lndis.;('nt Hehtors' Ail, or an
oMicial assii^nee, t>r an assij^nee
lor tl
le ''cneral henellt
ol creditors, is a "|)urchaser" within the meaninj^ of
the statute.
The statutor\ di'linition of the term "creditors" as
I(
mcUKlm!4 constahles ami otiier persons le\ \ mn on
or seizin}^ under process of law "personal chattels co
m-
lowcNcr. se<'m h\ its
])nse(l m a hill 01 sale would
terms not to ajJpK to the case of a londiiional sale
aj^reemeiU. .\s to the latter, the same distinction pre
xaili'd umler the prior law. for the persons who could
take adxantaj^i- of the noii-rei^istralion under it of a
conditional sale contract were "creditors and suhse
(|uent purchasers and mortjuances" (44), while the
failure to file a hill of sale enured to the henelit of the
assii^nee of the i^rantor under the provisions of chapter
I iS K..S.\..S.. or for the ^icneral henelit of his creditors,
hona fide j)urchasers. execution creditors, shc-riffs and
con
stahlc
es and other persons le\\inm" on or sei/iiij
the
propert) comprised in a ///// of sa/c under proci-ss of
law (45).
Assuming; then that the term "ii^rantor" in section
c; applies to the hailee who executes an insn;ument «)f
conditional sale, it will he necessar\ . if such hailee is
not a resident of \ova Scotia and the chattels are per-
(44) R.S.N. S. 18S4, c. 92, s. 3 ; iSSr,, r. 32, s. i ;
(45) K.S.N.S. 18S4, c. 92, s. I ; 1886, c. 32, s. 2.
1893, c. 40, S. I.
3^>
roNKlTloN.U, SAI.liS
inaiiciilK removed from llie re-nsiralioii distriit ii»
wliich iliey were at the lime of the execution of siuh
iiistriimeiu to another re^^istration distriit in the
I'rovint'e. hefore the payment and (hsihars^c of the
bailor's elaim, that a lopy of the same and of the
affidavits and iloeuments relatin*' thereto. certitK'd l)V
the Kej^istrar in whose rei^istry the\ were first tiled,
should he filed in the rei^istry of deeds for the rej^istra-
tion distriit to which they have heen removed. Ihis
re-filini; is re(|uire(l to he made within two months
from the time of such removal, and a failure to comply
with this j)rovision will render the instrument null ami
\ oid as aj^ainst creditors or purchasers (4O).
Ontario. I he ( )ntario .\ct respectinj; Conditional
.Sales of chattels, now chaptiT 149 of the ke\iseil
Statutes of ( )ntario, was passed hy thi' lA-j^islature in
iSSS. and came into force Januars 1st. 1 SSg. It
re(|uires that hailments of certain chattels shall he
evidenced in writing and that the writing;' he sijL^nied l)y
the bailee or his aj^ent in all cases where the C()ndition
of the hailment is such that the possession of the
chattel passes without any ownership therein heitij^
ac(|uireil hy the hailee until the pa\ inent of the
purchase money or consiileration mone) or some
stipulateil part thereof. These words in themselves
inilicate what is commonly known as a "conditional
sale." a term which, as applied to «,^ooils. has now
become a distinctive one to indicate such a transaction
to the exclusion of contracts of sale maile upon con-
ditions of "a different class. In the wider sense of the
term, and apart fVom the more limited sense in which
It is now used, a conditional sale would include a sale
made uj)on any condition, whether it related to the
(46) N.S. Laws 1891;, c. 28, s. 9.
\M> ( II.MTr.l, MKNS.
.V
witlilioldinj; of ibf ri^ln nl' propcri) or iini..iiul in this
wider sense a contrail of sale under whiili the
pniperiy passes, hut upon an aj^reenient tliat the
vendor mas repurihase at a stated pruc within a
limited tinie. is soinetiines termed a conditional sale.
Ihe a|)plii'ation ot the statute is in terms limin-d
to "manutaetured" jj-oods or chattels, and the term
:hattel
\N
ill in this connection refer onl\ to such
chattels as could he the suhject of a hailment such as
the statute contemplates. /.<•.. where the possession is
^.jiven to the hailee upon a hailment conditioned that
he is to ac(|uire no ownership in the chattel until a
future time, ami then onl\ upon payinv; his purchase
money {47). Household furniture, other than pian
( )S,
)ted
orj^^ans, or other musical instruments, are e.\ce|
from the o|)eration of the Act (4S). The hailor or
vendor may. as an alternative to rej^istration, affix his
name and address to the chattel prior to or at the time
of delivering' possession to the hailee (4(>).
'I he name to he afifixetl is that of the (onditional
vendor or person reserving' a rij^ht of prn|)(riy in the
chattel, and if the manufarturc-r has partetl with his
proj)ert\ thtTein the fact that such maiuifai turer s
name aiul address was painted on the chattel will not
protect another person who has ao(|uired the chattel
and contracted for a conditional sale of the- same-
If
the hailor's name ')e not "painted, printed, stamped or
enj;raved" on the challel. or "otherwise plainly
attached thereto," a copy of the receipt note, hire
receijn. order for the chattel, or (»ther instrument
cviclencini^ the hailment and oiven to secure j)urchase
money, mi
1st lie tiled with the Ck;rl< of the ( "ountv
(47) R.S.O. i8(j7, c. 149, s. I.
(48) Sec. 2.
(41;) R.S.O. 1897, c. 141^, s. I.
' \\
3«
iiiM'lllnNAI SAMS
( nlirl til (he (uiiMlN ill wilit ll iIh' li.lilcr Ml ( Mjlililiiill.ll
|>lll« ll.lsrt- icsitlcd ,11 tile lillH' . i| lll( l).lillllrlll i )| ( i tn
(liliiin.il |)iin li.isc. Ilic tinir liinitnl Im .11* I) liliii<4 is
h ' il,i\ s hum ll)» lime n| llic rstiiilinii 1 1| I lie |tt <i| d
1)1 tie ni insii'iiJMciil v;i\('ii to sci iii'<' till |)iirrli.is<' inntii'V
«ir
|>.iri
.IIIK
(S"). A il
ciu .ll trior NS Mil
h .1
nc. III i|
iiiislcid, or .III error in .111 iinin.iicri.il ur iioti rssiiiii.il
|i.iri III ihr(ii|i\ lilcil, will iiot iii\ .iliil.ilc llii- liliiii', or
ill ■.lro\ it-, cllcti (SI). Tin- < lirU o| ihr ( miiiu
< out I wiili whom siu ll .» lilinv^ is m.ulc, miisi |»ro|irrlN
cllli'l' it ill .III ill(l('\ hook jo Ik kr|)| lor llial |itir|iosr,
wliiili lom'tlicr with the iiisiruiiH-nt (ilctl, is o|i(ii (o
|iiil)li( ins|)i'(-tioii on |i,i\inriit o| .1 Ire ol Tim' (tnts jor
«'.u h sr ir( h III rrs|ic(i o| .m\ iiisiniincii
t (5 J). ll th
li.iili !• or roiitlilioii.il |nii(li.is<'r ifsitlfs .u ihc liiMf ol
thf h.iilmt'iit or t t»iiilition.il piirch.ist' 111 .111 imor^Miii/ttl
Icrritori.il ilisiriit, ihf insniiinciit must l»f lilcti with
thf (,01111 ("IfiU with whom .1 ih.ititl inori;4.i«4f or .1
hill ol s.ilc is lor thf tinif hiiiii; rt't|iiiittl to hf lihtl ( s;>).
I
or thf ilisiricts t>
r Ai
!j<»in.i.
II
iiiiitifr
|{
IN or
N
ipissiiii; thf pl.uc ol rfi^isttiitioii is thf ollicc ol the
I >istriil ( oiirl (.'lerls
I
I" thf thstriils ol r.irrN Soiiiul or K.iiiu Ki\»r
I
It-rk o
thf pj.irf ol rfi^^islnuioii is ilif t)iricf ol' thf (
llu' iiisi |)i\ision (."t)iirl ol thf tlisiritt.
l''or thf provisitnial Count) ol I l.ililnirtt>n thf nj^is-
Iralion must he in.ulc with thf Ch-rk t>r the I'irst
i>i\ision Court lor llalibiirion .il Mindtn.
l''or ilu' ilistriil ol" M.initt)iilin the lilinj; must Ik;
in. ulf with thf I )fpuly Cli-rk for Manitoulin at (iore
May (54).
(50) R.S.O. 1897,0. 141), s. 2.
<5n Siv. 4.
(5;) Ser. 4-
(5^^) R.S.O. i8t>7, c. 141;, s. 3(1).
(54) R.S.O. 1807, 0. 148, s. 15.
\Mi • II \ I I I I Ml Vs.
I ln' IMmIii I In ,itl,|( li tin li.itnr .111(1 .Ml<lt«ss nr to
(onlMiii) will) iIh ,ilii'ni,iii\ t i,\ rcMisir.itioii will iiiv.ili
tl.llr llir rr(ii|»| liolc, liil*' l<Mi|»t < »i Midir ,is .Ij^.lillst
siilts»t|iiriil |Mil( li.isfl', <»l llinilJ4.i;;»'«s |i»r V.lJil.lMr
< •MIsiilrtMlJitii willlolll IIDtirr ill ^uiid l.iltll ( vSI'
III)' iM.iinil.ii iiiDr, li.iilnr or Miidor is ImmiikI lu
liiiiiisli williiii s •l.iys .ilKr (Iciniiid lull iiifonii.itinti
l'rs|M'( liM;4 tll«- .illiMlilit iliK' )i|- iil)|t.ii<l nil ,iii\ lli.inill.K
tllD-il rlMlt'is (nil)ili^ willljll rlw s(it|)r(i| the < 'til
(litioM.il S.ili>, A(|, in;iii\ |nn|)n,t(| |nir( |),is« r hnin tin'
< MiidiiiniMl \ciid(«- n|- to ,m\ (iiImi- ' intf rrsU'd |(irs(iii '
ill .iiiswrr In ,111 i'iii|iiii's in.idc, .md to st.ii)' ili'- trnns
o| |i,i\ ini'iit o| till- ;iM)oiiMl (It li.il.iiK (' due or iiiip.iid ( s^>^'
K' person so si;^iiin^ in.i)' do so l»\ letter or per ifui
ri
ills lint if tile elli|llir\ l»e li\ letter lie lllllsl '^\\f H
n.iiiie .Hid |i(isl oIIkc .iddress to whit h ,i repK iikin' lie
sent, .ind il w ill in sik li casf lie siiIIk ieiit il the repl\
l^ivinj.; ihe re<|iiisiie inrorm.ilion lie ^i\(ii l»\ re;.;isli;red
Idler deposited ill the post oIIk c within li\c days,
addressed to ihe appli( aiil .il his proper posi oMicc
ddress or. il the name .ind address ol .mother person
ii.is I.
en i^iscn to whom .i reply m.i\' lie sent, then it
may lie addressed lo siuh other person ( 57). it wdiild
thus .ippear to he optional with the vendor whether or
not he wi
II I
iirnis
h tl
le intorination to ansdiie other
th.m the en(|iiirer himsell. A rdiis.il or ne^^lei t to
lurnish the inlormation asked lor and whi(h the st.itiite
hinds the hailor to sii|>ply will make him lialilc to a Imk;
not to (exceed $50, recovcralile on summar\ conviction
liefore a I'olicc Maj.{istrate, Stipendiary Magistrate, or
two justices of lh(; peace, hut with a rij^^hl ol appeal by
the person convicted to the Judj^e of the ( ouniy Court
(55) R.S.O. iS(;7, c. i4<^, s. I.
(56) Sec. 0(1).
(57) '"^ec. 7.
•I
^^
• ••M»lllt»N M. s\l.l>
witlnuit .1 jury (.S^^). Ilii-rc is im |)it)visiuii in ()iii,iiiii
l«>i (he n* ri);is'i'.iiinii nt the hire ii(<-i|it or ( iHulitioii.il
H«ilr ( iinir.ict ii|i«>n (Ix* ninnx.il nl ihf ^nmls III .uiiiiIh r
cntinty **r n'i;isir.itii>i) (li\isinn, aiitl .1 |ti'i»|Mis« d
|Mir( li.iscr ti'nin ihr pi rsnii in |Hi<.srssiun ttl .t in.uui-
(.iilund I li.iiii'l nuisl .isiiri.iin .i^ Ix-st lie (.in wli.il
I'ounix tlir origin. il pnn Immi ii|inn .1 < onditiiin.il s.ilr
i«'siil«'«l in at thr linir nrsmli nri^in.il pun li.isr.
Sales of merchandise to a trader for re-sale.
Ontario. ( nndiiion.il s.ilcs ni.i«lc oi " men h.uulisr
lo .1 'tr.iiirr or ntiur person l<>r tlw purpnsr , ol rr s.ilr
iit (he (oursc nt hnsiness .irc sulijrti In the ()n(.iriii
( 'onditinn.il S.il«'s Art it tlu' intrrh.uulisc mnsists «»f
' nMiuir.Ktiircd ' ]L»noils «)r tli.itirls siiltjrct til its provi-
sions (5(»). Ami. i»» iMsr the inc'rtlMndisc dors not
consist ol ni.tniit.utincd ;^oods ,ind (battels to uhith
the Condition. d S.iles Ait would appK, the .ii^rei inent
1)1 conditional s.de nuist still l>e registered untler the
Ontario hills of S.ile A< t. U.S.O. iS(>7. i. i.pS. s. \\.
That seition i-naits .is lollows :
41. -(1) In e.ise of" an .ii^r«'enn'nt lor the sale or
transfer «>! inerih.indise ol any kind to .1 tr.ider or
other person \nr the purpose ol resah* hy him in the
eoiirse ol hnsiness, the possession to pass to such
trader or other person. i)iit not the absolute ownership
iMUil certain payments are niaile or other eonsithrations
satisfied. an\ such pro\ ision as to ownership shall as
aijainst creditors, inortj^ai^ees or purchasers he \(»id.
and the sale or transfer shall be ileeiued to have betn
absolute unless
(</) Vhv. aijreenu'nt is in wriliii}^. sI<^Mied i)y th«'
)arties
to ih
e agreement or their aut'iUs, aiu
d
(5S) Sec. 6.
(5«>) R.S.O. i8(J7, 0. 148, s. 41 (4); R.S.O. iStj;, c. i4«;, ss. 1, 2.
>M> • M MM I I II \s.
41
(/') lulrss siu h wrilin;; nr .1 <lii|tli( .>!«■
(I I
Vt-rilicil \ty n.llll is liliil in (lie ullin' nl |||«' < nllll'y
('i)iirt ( Irrk nt till' (Miini) or iiniun nt 1 itiiniiis ur in
iIh- |in)|H't' nlliic in .1 distrit t in wliirh the i^immU .nr
sitii.it<- .It the titn*- <»l making tlw .i^^rn intiil, .nnl .ils*»
in the ul(i( r nl (lie < i>uni\ ( Oiirl ( l«-rk nf tin- (unnly
or iniion ol ntiintirs nr in tin- |irii|Mr otluc in .1
district in wl)i« h swt I) tr.iiirr nr mlirr prrsnn nsi«Ns .it
the liinr nl' n).ikin<4 llu- .i^^ncnw-nt, sik li lilin;; in In*
witllin live (|,i\ s ol lin- «lrji\rr\ nl pnssrssinn m| .mv
ol" [\\f j^onds iiiKJrr tln' .i^^niinrnt.
A (nnditinn.il sale nl hnusrhnjd lurnitiir*- in. id) in
.1 trailrr Inr piirjinsrs nl ri- s.ilr in tin- tmirsr n| Imsi-
ncss, will (nini* within sriiinii .( 1 nl ih«- Mills nl Sale
.Act and must !>«• tiled within 5 days nl the d<li\< r\ it(
pnssrssinn nl" iii/y nl the i^onds iind«r the .i^^nt n)«nt
(Oo). riir persons as to whom the transOr will l»y
virtue of the statute he deemed in have heen .ihsnliite
ir nnl duly liled, and lor whose protection the statute
was passed, .ire the 'creditors, mort^a;;ees nr pun h.is-
ers' nl nr iVnin the i:nnditinnal \endee. And .in
aj^reemint lhnu;;h sij^netl and tiled will not .illet:!
purchases rn»m the 'trader nr nther persnn in the
usual course ol" his hiisiness (Oi).
In the H'rritorial districts of Miiskoka. N'ipis-
sin^, Alj^oma. Ihunder hay and Kainy ki\er the
a^'rei'iiu
nt shall he liled in the ortlc*- ol" \ac ( lerk of
the Peace in the district, and in the districts of I'arry
Sound and Manitoulin in thi; office of the re^^istrar of
«U'<'ds for lh«; district; Provided that if a Clerk of the
JN.'ace shall he appointed for the district of Parry
Sound or the district ttf Manitoulin then any aL:re(!-
menl rt;(|uirin^ there-after to be hied in such district
((to) R.S.O. i8<j7, c. 148, s. 41.
(61) R.S.O. 1 897, c. 148, s. 41 (3).
I
I 1 >\ |.| I I. i\ M , \| I
.ll.lll l« tlli'il Ml lllr otllir tt| Mit It ( |i I K III llir
r
.1.. (
M • >
|ti t)\ iMoii I', Ml. nil Itti i('i|Mii 11)^; llir \)'tiiltii', III
i<i\i ntli •nn.iiii Ml lo pi ii|iir.t il |iiiri Ii.imi ', iti t .im ■. ol
'. ill". Ik II ,11 In . W llli ll ill) lint I niMi' W lllllll iIh' < dIH III lull
.ll S.ili ■. \i I l<nl wllh ll .lit iii|Miiri| III III' 1 1 iM'.Iri rtj
IMIiIci Millt'M I I III lvS(> t ll.i|itri I |.^^ I III'. DMii'.
'.l>>M MUl-.l l<r rtiM'>itl(-iril .1 '.)'i ll HIS ilrli'i I ill lllr rii.ii I
Mil Ml. ,1 ill It I t wliiili wmiM ll.lVC liri'll .iSiHiltil ll till'
« l.iil'.r ll.lll lirrii lir.rllt'il Ml lllr < i tlldll loil.ll S.ilrs \i I
IM'.li .III 111 111 tllr Hill'. Ill S.ilr ,\i t
lllr In iM mrl I li.iMili-.c is it'.ii.ilU . it lii >l iiliiv ri '.,ill\ ,
Innili'il ti> iIhiI'','. iIi.iI .iir m iliii.ii il\ l)iiii^;lil .itul miIiI m
.Mr I Mill 11,11 il\ tlir Miliji'i I'. Ill n Mil Miri t r .ititl ll.lll ll ('* ;).
ll .i>\ri . .ill llli>s«' llllil;;'. ulliill IMri i ll.iMl'. '.rll, rillirr
l»\ \\ hi>lr>.,ilr i»i III. III. .1'. i||\ iMMitl', ll.ililvN.M r,
;.Minriir'., iliM'.;-., rti , |(>|) I'l 1 1\ i.ii »ir. tl,iil\ -.nld in
in.irkrl, .Mill IliMM'-., i.illlr .iilil llirl .iir iml mmi.iIIn'
inrluilril Ml llir Iriiii " iiiri rll.illili'.r,' .illil rr.ilt\ is
Mr\ri nil liulril , tlir wniil »i»M\r\s tllr itir.i i»l priMili
,ilt\ u-
.1 I
>\ inrli ll.iMls III llir lOiiisr n| ll.ulr, .iiul l-
llsii.ilU ,i|»|)liril III |Mi>|)rll\ wlliill ll.is liol Nrl l<',lil|r«l
thr h MuU ol ihr iiMiMimrr ('\s). It tlors not .i|>|il\ t(»
inrir r\ iiliMU'r of \ .ihir, .is .i ilotr, .i policN 1 1| illsiilMlK c,
.1 bill i>t Kulilli^, .liul llir lil\»', .llthiuii^ll siiinr n| llirsr
.\\c sKinrliinrs lioii^lll .ilul •■.nld ((id).
Prince Edward Island. ^ iMuliiion.il siilrs ol "iniin
nl.\vMiiic'ir l;iii>i1s or ih.uirls .nc fninircd 1))' si, unit' to
(t'O I ///-■.'.■« /'.;vv \. .\,i<:,'!ii'cif Stiitin/'iUit i\>inf<,iriv (i.S.|i) i
StiMv .r. S. r, r.l 5;: /\r>.y,ti. \. Hi\ihnau (1.S71) ; l)aly(N.\'.)
SI.
Houvioi s i .;\w l>ut
^05) I'lt M^t'ifir C::\ (iSSi^. u I'ihI. Koi), 41 ;.
((><>> Cifizt-fts' /»,/'/v V. .V(/'////i Vr/ (1841) i Story (I'.S,) 53.
\M> I M \ I I M I II \S.
I
III I \ nil III III III willing' .i;mi<iI Ii\ iIm Ii.hIi • m In,
.I'MIlt III .ill I .1,1 '. wIm'M ill! iMllillllnji III ll|i li.illllli III
r. .Ill li lli.il till- |Mt', ,«",', lull III ihr I li.ilii I |i,i . ,1 , wmIihiiI
.iii\ •lV^ III I '.lii|i ill) Hill III III
' ,11 iiiiri I
I l.\ ill! I.,.l|l
lllllll till' |i.l\llli||| III till |iM|ill,i,i III I nil .|i|i I ,ll|i III
llliilH \ III MillH .t||)lll,lli'i| |i,lll till M III ('•/) , lillt liull .1'
Imlil llltllitllli' |i' M lll'.K I' I i| |li,llli I',, I il ''.III , .lll'l lllllll
llill',11 ,ll lll'.tl illlirilt'.) I . I'M Imlril linill llli ' i| n I .i I !• il i • i|
llli' .l.ltlltr (OK). I III' ,\i I 1. .Illlll.il III I'll III t'l ill, it
III lull I' III < )|||,|| ill ,|||i| I . ill ".i;;iM-<l |iil lil< |i|iiti I linil
III •.iili'.i'ijiii'iil |iiii< Im'.i'I', III iii(iil;i.ijM'i' . Ill lli»' I li.ill' I
Jul \.lll|l- .Mill III IMlillI l.lltll I I.IIIIIIH" liljlli'l llli I'll!
ilitimi.il |Miiili,iMr willimil iiulni' ul llii 'li|iil in In ,
III |i' I 'ii>) I III' iii,iiiiii,ii 1 1 lll'l III 1 1. 1 ill II III "i,i,i| , ( I llli ill'.'
willliii I lie Alt 1 1, 1'. I wii iiii'llinil . <t|ti II III liiiii tu |iriiti I I
hi'. I l.iiiM III |iiii|ii'ily ill till- ;'iiiii|'.. II .1 ivi'il until |i,i\
innil III till- |iiiirli.i'.i' |ii il I-. I I
I' 111. IV ii.K '• III . II, line
,iiiil , lllllll",'. |i;iiiit«'i|, '.Liiniii'il III I'lijM.iV'i'l nil ill'
ili.ilti'l III iitlii I wi'.i- |il.iiiily ;ilt;M Im'I iIm I'tn, ,ni'l Im
ill ill til, It I ,1'.!' Ill- Itl'iiti-i till ill I i'",il il tn III . r l.n
III,
|iiii\iilri| III' llli iii. Ill ". lull inloniMtiiiii within i ; 'l.i\'.
,iltrr i|i'in,iiii| til ,iiiy |)ro|)ii<.f-il |iiii( li;i .'r ol tin- .ittirji-
III" tn ,iii\ niliir " iiitrii'sird |)i'is()ii ' I .i . ,i | HI" .oil li;iv iii'.^
;iii iiiliiT'.l nl whi< Il till' hivv l;il<«"i i o^;ni/,iiii »• in tli'-
( iMiilitiini.il \rii(li'c's ri^lit III |)iir( Ims*- or <''|iiity in ih'-
t h.ttti'i. Iiistcjid (»r h;iviii}4 hi'^ ii.imic ;iltix''fl, whirr
such iiHixiiij^ is |)r;i('li< ;ilili', in the maiiii'r r«'f|iiir<i| hy
(he siMliitc, llic in;iiiiira( tiii<-r or bailor may 111'- with
the i'rothoiiotary or i)'*|)iily I'rotlionoiary of ih':
< oimf\ ill which tin- l»aili-(! or (ondilional jjiin h,r-.'r
ri'siilcs al tlu' tiiiK- of tin- l)ailiin-iit or conrjitiona! |>iir
chase, a copy «»l the receipt iioK;, hire receipt, or'ler or
»py
(^7) Stat. I '.K.I I Hi/., r. r., s. I.
(^>,S) .Stat. i'.E.I. i«i/i, c. 6, s. U.
(fu;) Stat. i'.K. I. i8i/., c. f), s. I.
■\\
I mM»| llnN \|, s \|.i s
th
•ll
othrr mstrimu'nt i^ini'M l«» sciiirc th<' piinli.isr uioiwy
.uul «\ itlfiu inj4 llic hiiilmcnl •»!■ coiulititMiiil sale (70).
I In- lilin)4 iiuisi he cllriird in ilu' |)n»i)<'r oMiic wiiliin
10 il.iys iVdin llir (•\«tiilion »•( a n-ciipt iiolf. hirr
rcci'ipl. t '•.•, II the ili.illrl Ix- of .1 k nd ii|><)n or i(»
u hiili ii is iin|)r.ulif.il>lc to "|)aint. prinl. si. imp, ciij^r.iNr
or otlu'iw isc pi.iiniy .ili.uh llu' hailors naiiH' .iiul
.uMnss. tile liliiio ol a copy «)! tlu' (lotiiin«iil «'\ i«l(ii( iiii^
tlic i>.(ilin('Mt is the omIv inctiiod under which the liailor
w
r
ill l)c srcurrtl as to his claim ol prop<'rt\ in the l;<
X M Is.
lu- m.miilactiircr
hail*
or «)r vendor is hoiitnl to i rmsli
tl
le
inlormaiioM to any interested p<'rson it , ow.
t( rms ol p.i\ inent and the h.ilance unpaid on any man
ulaiturei
I }4»)od
s and chattels \vi
th tl
le exi-eptloii
hel
(ire
stal«d ol InuisehoKl lurniture hut not e\ce|»iin|jj musit il
instruments; and tile application ma\ he made eith< r
person. ilK or lt\ letter .md in the l.itter case must he
I
ac
companied with return post.ij^e lor a rej^i^'er't
reply (71). A relusal (»r nej^lect will not onl\ I :\ iIn
h.iilor li.ihle to .1 line on summary conviction heiore
twc» justices of the peace, or a stipendi.iry or poliic
ma-'i^tiMie. hut will disc-ntitlc
tl
le
uerson s(» m <!«
tault
to .un heiielit ol his lien in the |)roperty in (|uesti()n
{J 2). ( Oupliil as it is with .1 mone\ penallx imposed
as lor .1 (|uasi-criminal ollence, it is suhmitled that this
pr»»vision ol lorleilure of the henelit of the lien (a term
hii'h Irom the context must mean the rij^ht of property
w
ll
reser\('il), will apply as an .idditional punishment, aiu
tiy he taken .uKanta^c ol' l)\ the condition.il |)urch.is-
m
er himself (m* hx an
) j)erson haxinj^ an interest in or
cl.iim upon the chaitel wln-ther or not such person h
the en(|uirer. or a|)|)licant lor the information.
(70) St.lt.
iSijf)
(71 ) S-.it. 1'. !•:. I. i.Sg(>, c. (I, s«. 2 and
(72) St.it. I'.K. 1. i.S(K), <:. '). s. 2.
AMI (MM II I. Ill \s.
45
Chattel Defined. I In- wnr«l "cIijuk
t l>
IIU
IikIj's ;my
(rcihdid
'^)H'(U's ui projH'ity not hcini^ real cstalc m
(7;,). and may n Irr ritlur in a challrl pcistmal ur to a
(hand real, Iml in s(alut«'s n'rcnin^ to < liallrls wliic I1
lie llic siilijcri ol a hailincnt the in(-anin<^ ol llic trrrn
i , nr« (ss.irily r<'slri(U'«l to clialtcls |KisnnaI and tu siii li
ai'liclcs nl iliat tU'sij^nalion as ina) Im- ilic siil)j<( i n| a
Kailnicnt. (hallcls |M'rs<>nal ate ihini^s niovcahN'
\vhi( h iua\ Ih' anin-.\rd t»» or attend anl on the persim
III the nwner and carried alxMil with iiiin troin oik;
|>ari ol the world tt> another, siu I1 as animals, house-
hold sliill, money, jewels, Lirain, i^armenls and
everything; <'lse that can he put in motion and tr.ms
teri<»l from place to plan- {J\).
Ilailnu'iit is the i^eneral name applied to a class of
lontracts of which lh<' common element consists in lh«;
deli\tr\ hy one |)ers()n (the hailor) to anoth(-r person
(the hailee) of the poss"ssion of chattels eitiler to he
ilelivered 1))' tin" hailee to a third pers(»n or to he re-
(1( livered to the hailor when the purpose; of th<;
i>ailinent is at an end ; it may conler on the hailee a
s])ecial prop(,'rly or int(;r(;st in the chattel hy which he-
has a ri^lu to r(;tain possession of it for a time as
ai^amst his
hail
or.
n
Hess
lie
larties oth«;rwisc
stipulate hy their contract. th(-' i)ailee will he excused
from the p<'rformaiice of his promise to re-deliver the;
( hatlel if it hccomes impossihh; to do so h«'cause it has
|)erish('d, unless such impossihility arises from the fault
of the hailee (75).
Right to possession reserved as well as right of
property. It has lM;en h(;ld inuler tht; Manitoba lai-ii
Notes Act (76) that a |)romiss()ry note which provided
(73) 2 Kent Coin. 342,
(74) 2 HI. Com. 3«7.
(75) T,iv/or V. Calihvell (iS-i^) 3 11. iV S. S26.
(76) Men Notes Act, R..S. .\I. i8i>i, c. S7.
46
tnM»|l|n\\|, sM.ls
If
ihal llu' //;'/// to tlu' pnssrssion nl ihc properly (nr
Nvhiili llic note is j^ivi'H shall n'inain in tin* vendor, did
nni t nine wilhin llie Act. lor ihe latter was hy its
terms limited lo rases "when; the condition ol the
•■ h.iilnu'nt is such that the /'^'.s.w.v.v/c// should jiass
"without any ownership therein hein^; ac«|uired hy the
" hailee,' and ht'cause the Act further pro\id<'d that no
such hailnieni shall he \alid unless it l»e e\ idenced in
writing sit^ned l»y the person then A//'///;' /y(>.'>siss/i>// til
the chattel (77). Ihe ilocunient was in the lollowinj^
r» >rni :
"$i5_Voo. Winnipeg, Aii^;. 14, iS()i.
" Si\ moiillis alUr date I |)r()misf to pay to U' or orcUr .11
"the I'laiik ol -, \\ iimipcL;, tlic suin ol $is.? witl> interest at X per
" «eiil. per aiiiuiin till paitl, lor value rereiveil.
" It is ilistiuitly uutlerstootl aiui agreed tiial the title ownership
" rigiu ol property and rij^ht ol" possession of and in the property for
"whu h tile witlun note is j^iven shall remain in the vendor or holder
"of this note until this note shall l)e fully paid, antl in lonsideration
" ol ereiht being given me 1 hereby waive all rights (as to this ilehl)
" to the exemption from sei/uto or sale under execution of any lands,
"goods, or chattels that wouUI otherwise he exempt, and that are
" now and will he in my possession, the goods for which this note is
"given being om. bla«k mare, Ciwendoline, rising S years.
"(Signed) W. H. M .
"(Signed) !•". W. K .'
The Court of ( jueeii's Bench of Maintoba held
that the note was neither a receipt note, hire receipt,
or an onler for a chattel uiuler tin; Manitoha Ait (7S);
Mr. Justice l)ul)uc in that cas(; said : " It is true that
"the bailee was .illowed to take the mare and use her.
" hut as he aj^reed und(M* his sii^iiature Jiat notwith-
" standing th-it kind of r/(' fiic/c) deliverx'. the ri^lu of
" possession was not to he in him. but shouki r(.'main
" in th(! veiulor or holder of the document, hi; must be
"bound by his aor(;e;nent. and wh(;n he baroaiiu^d for
(77) R.S.M. iS^i, c. S7, s. 2.
(78) Stitluilaud V. Mantii.w .S Man. R. 541 ; foMowed by Dubuc,
J., in /nncr v. M<. Donald, 4 Western Law Times, 57.
ih.
" tra
siv
cin
for
and
( "oui
possi
is sill
conta
deli\«
\oril
on th
01
WD I IIAI I II. 1.11 Ns.
47
"the sair of ilic inan* to tin- (liMfiulaiit he coulil imi
•' liMHsinil lo his harjuaiiUT a sii|)«rinr nr iii'iir cmcm
'• sivt' ri^lu th.in In* pnssrssrd liimsrlf. unless iinilcr
" cinumstaiucs sprcialK cniiirinplaHKl and piuNiclcd
"for l)y siatiiiory riiactnunt. "
I'hc report of" iIk; casr docs not sliow wIhiIkt
llicn- 'was aiu cvidj-ncr dial tin- Nrndcc had lakcn
|)oss('ssi<)ii ol or was lo lia\<' possession ol the ( liaiu-l.
aii<l lliis (in iiinslance is relerred to l>y ihr .Supreme
Court ol the North West I'erritories as ha\ in<4
possihly inlliMMiced the coiulusioii arrixcd at i~().) It
is sMl)initted, howescr, tliat the heit<'r doctrine is that
contaiiK'd in the opinion ol Mr. Justice W <linore in
d( li\(rin;4 the jiid|L;in<MU of the .Supreme ( durt ol the
North W est rerritori<-s (So) wh«'re he thus commer.ts
on the (hscussion in Sn//iir/and w Alannix (Si ).
" If the Court ofC hKcn's liench ol" .Manitoha intend-
•' ed to decich; lliat, notwithst;'ndin!Li ill"' possession
"ma)' ha\'e passed to the \cndee, hecause the note
" provided that llie ri;^ln of possession should remain in
"the vendor, no possession passed to the \«Midee. and
" til ere fore the note was not within thv- ;\( t, I must
" state with the V(;r\ j^nsilest r(;sp(ut that I do not avri-e
" with the (Knision. I think that />ossissioii is one thiiiL;.
"and a ris^/if of /possession is (|uite another. It the
" V(Mid(.'e has th<; actual visible possession it is none the
fc
)f
(h
less such a |)ossession ij(;cause a torm ot words says
that the /v";'/// of possession is in som<'one t-lse" (S2).
Share in Chattel. A coiulitional sale ot" an
undi\'ided share in a chatt(rl if accompani(,'d l)\ deli\'ery
of possession of the chattel itself woukl stM.-m to be
(71;) IVrs/rrfi .\fi//iti)r Co. v. A/;/.r ( iS(;4) 2 N.W. T. Ktp. .^, 45.
(80) H'fs/ini Milliiii^ Co. v. /A//v(v ( 1 894 ) 2 N W. T. Kep. 34, 4O.
(«i) 8 Man. Kep. 541.
(82) Western Mi/liiijr Co. v. Durke (iSu4) 2 N.W.'I'. Rep. 34, 4^1.
i
4-^
M»M»iri(i\.\I. SAI.I.S
wiiliiii tin* ( )nlario Ail; iln- owiicrsliip which ihi:
t(Hi(h"li<m;il vcmlcc is to ;u(|uin' at a I'lilun' linu! on
payinnii nl" the piirchasc money m'vi\ not \n; tht* coni-
plctj' owncrsliip. iht* uoi^ils of the staliili- lu'iiig "tif/y
owiurship" («S,^).
Manufactured Goods. I he word "inaiuifaiiurcd"
indicates .,onuiliiii!4 of a corporeal and substantial
nature soniethini^ that can he made hy man from tin;
matters suljjected to Ilis art and skill ; or at the least
s(!nv new mode of employint; practically his art anil
skill, is re(|uired to satisfy the word. I'he word
"manufacture" has heen generall) unilerstood to
denote either a thinLj made which is useful for its own
sake, and Miulihli; as such, as a medicine, a stove, :i
telescope and many others; or to mean an engine or
instrument or some part of an engine or instrunuMit to
he emploNt'd either in the makint; <>f some previously
known article, or in some other useful purpose, as a
stockinjjf frame. «)r a steam engine for raisinj^- water
from mines; or it may. perhaps, ext(M\d also to a nuw
process to he carried on hy known implements or
elements actinj; upon known substances and ultimately
producinjT some other known substance but proilucinjjf
it in a cheapcT or m<»re expeditious manner or of a
better or more useful kind ; no mere philosophical or
abstract principle can answer to the word "manufac-
tures" (S4). • Manufactureil j^oods" means ^ooils the
manufacture of which is completed so that the j^ood.s
are in a c»)nililion to Ih> sold, and so that all that i\ccds
ti> be lione if a purchaser asks for ihem is to deliver
them (!^5). An article is as much one of manufacture
(8.^) R. S.O. iSg;, c. 149, s. i.
(84) a: v. ir/i-f/fr 2 B. X: Aid. 34*^ per .\bbott. C. J.
(85) rt/ife(/ Siah'sv. Tohaca. 5 Hen. (U.S.) 129.
and
patt(
ture"
or in
(|uest
mam
AM» <ii\rn;i, LiiNs.
4^>
and of trad«* whether it he maiiiifarturecl ami sold as a
|)attern or for actual use (S6). The won! "manufac-
ture" seems to imply a proceeilinj^ wherein the ohject
or intention of tht; process is to product* the artich; in
(|uestion. The n^siduum or refuse of various kinds of
manufactories is m(»re or less valuahhr for certain
purpose's, and may he anti often is th<! subject of sale,
hut it is not expected that the skill and attention of the
manufacturer is to he devoti-d to the (|uality of the
refuse material ; this is not th»! ohject of the process
and its (|uality is wholly suhordinatiN and disregarded
when attention to it would inti^rfere with the most
profitable mode or material to be used in the process
which is the main object of the manufacturer (S7).
Pirewootl is not a "manufacturetl article" (SS) nor is
hay, for chanj^c of namt; and manipulation do not
necessarily constitute manufacture (Sc)) nor ice cut and
st(jr(!d when; produced without artificial means (90).
Hut timber split into staves is "manufactured" (qi).
\Vh«Mi the term " manufactured " is applieil to a
commodity the <|iiestion arises, has it been removed
from its character of raw matetrial, and consideration
must be jjjiven to the acce|)tation in which the term
" manufactured " is used amon^ dealers in the trade
as applied to the j)articul-»r article. MarbU; cut into
blocks for convtMii(Mic(; of transportation is in const:-
(|uence considered not to be "manufactured" (92).
(86) /f,-}7vooti\. PotUr i Kl. iHj 111. 439.
(H7) Holden V. Chvuy 58 Harb. (N.Y.) s^o.
(88) Correrio v. Lynch 65 Cal. 273.
(80) Frazee v. Mojffilt 20 HIatch. (U.S.) 267.
(90) fiirrs V. Franklin 106 Mass. 131 ; Hittingfr \. Westford \y^
Mass. 262 ; l)ut see Atty. Gen. v. Lornian 59 Mich. 157.
(91) United States v. Ifathaiiay 4 Wall. (U.S.) 404.
(92) Hartvan/t \. IViej^mann 121 U.S. 615.
r
50
<<iMUTH>N\l. sM.ls
Time for Registration. I'Ih' ii"u* l«>r filing is
' witliin n> iliiys Inun ihr «'\(( iilioii ' of i\\r. rccciiu
\u)U\ <ic., uucKt llic (>marit> C niuiitioiial Salrs Acl.
ami 'wilhiii 5 tiays of the tlflivcry of posscrssion of
any of tin* goods' in tascs of sales of nicnhantlisc to
trailers for r«'-sale in eases not within the last men-
tioned Art luit coming within section 41 of the
Ontario hills of Sale Art ((>;,).
In Ontario it has been provided Ity statute that if
the last (lav of the linn* liinit(;d falls upon a Sundav or
a statutory holiday, the filing may he efftrted on the
next juridiial tlay, or day next following the holida\
and not luring a Sunday or other holiday, ami the time
s<» limited will extemi to such following day (04) ; and
similar enactments are in force in most of the other
Provinces (95). I'Ik* first ilay of the 10 tiays (or 5
clays as the case may he) is to he excludeil in com
)Utms'
the t
ime (9^^) ; "within" a stated numlx-r of
days excludes the first «lay and inclutles the last (07 I.
The pn^sumption of law is that a'l instrument was
executetl upon the ilay of its date hut this may he
rebutu'd (98).
Sundays and holidays coming within the ten days
are to he counted, suhii;ct to the statutory provision
before mentioned (99).
(9.?) R.S.O. 1897, c. 148, s. 41 (1^).
(94) R.S.O. 1897, c. I, s. 8 (16) and (171 ; R.S.O. 1897. c. 148, .s. 30.
(95 R.S.n.c:. 1897, c. I, s. 10(19); Con. Orel. N.W.T. 1898 c. 1.
s. 8 (21); Sup. Ct. Act of Nova Scotia R.S.N.S. 5th series Order
IX. r. 3.
(96) McLean v. Pinker ton 7 Ont. A pp. 490.
(97) McDonald v. Vinette (1883) 58 Wis. 620.
(98) lieekman v. Jarvis 3 U.C.R. 280 ; Khaughnessy v. Leitis 130
>rass. 355.
(99) McLean v. Pinkerton 7 Ont. App. 490.
AMI • I Ml II III Ns.
5»
Enquiry by proposed purchaser or other interested
person. I In* t»rm * oilier inu-nsicd imtsou ' rn»i|ilr(l
as it is wilh the wt'nU 'proposed piin h.iser which
|)re(-c(|e it, would seem m t to ineliide the ( onditinn.il
\(>nde<- hiinseir as a persoi, entitled to make a demand
tor information under the st.Uiile, hut, il another person
who is entitled to make ih • demaml is rehiseil the
inlormation, the lanj^uaj^e ol the statute appears to
di'ilare a torleitnre ol the hem lit of the lii-n without
anv limitation as to anv ilass of persons or (Jtlur
reslriitions llurreon. The term iiUeresied person.' as
applied to a witness, indicates such relation to the
matt<'r in issut; as creates a liability to pec uniary ;4ain
or loss from the (;venl of the suit ( too). I'he phrase
■' persons interest«'d " as applied to real estate has hecn
said to inchuh; not only the person in whom is \<sied
the lei^^al tith-, l)ut also other individuals haviiijn sonu-
independent rij^ht or interest tinrein not amounting to
an actual lej^al estate, such as an <'as<nu'ni of a rij^ht
of way, inchoate rii^hts of dower or curtesy, or encum-
hrances, such as l)y jud^nuMits or mort^a<4<'S, which
arc charj^cs or liens on the l(;^al (;statt; (loi).
Incumbrancers upon tli«t shar(*s of jmtsoiis entitled
in common to real estate are " parlies interested " in
the property ( 102).
The inter(!st('d " person
ate or politic, and will include
of a person (103).
The word " person " may, apart from statutory
(Miactment, include a corporation as a jx^rson in law. as
may he a hody corpor-
ihe leijal repres(Mitati\ es
(100) Northampton v. iV«/M (1846) 11 Mete. (Mass.) 394.
(loi) State V. Easton Ry. Co. 36 N.J. I^w 184.
(102) Davenports. King, W.N. (1883) 133.
(103) Interpretation Act, R.S.O. 1897, c. i, s. 8(13); K.S. B.C.
1897, c. I, s. 10(14); R.S.M. 1891, c. 78, s. 8 (/«).
»>
IH
58 ( MNmnoNAI, S.M.K.S
W(>ll as a natural |)<>rsoii. although in its popular sense
and ordinary use it do«'s not extend so far (104).
I.ord Selborne, L.C, thus enunciated the ruU; of
interpretation : "If a statute provide that no per-
" son shall do a particular act except on a particular
" condition, it is />rinKt facie natural and reasonable
"(unless ih<'re he stuneihinjj; in the context or in th(r
" manifest ohject of the statute, or in the nature (»f the
*• suhject-inatter to exclude that construction) to und<'r-
" stand the lej^islature as intending such persons as,
" by the use of the proper means, may he ahle to
•' fulfil the condition, and not to thos*- who, thouj^di
"called 'persons' in law, have no capacity to do so
*'at any time, by any means, or imder any circ iim-
*' stances whatsoever " (105).
Ap|)lyin<,^ that rule there seems t(» be no doubt
that an interested corporation would be includeil as an
interi^sted person, apart from the Interpretation Acts.
Territorial Jurisdiction. — 'I'he law of the province
in which the j^uods are situate when conditionally sold
will jjfov(!rn as to rej^isir.ition re(|uiri;ments. althouj^h
the parties reside «'lsevvh( re (loO); but the law of the
place of contract governs as to the construction of the
contract.
If property be conditionally sold in om? province
and be situate therein, i compliance with the recoril-
ing statute of that province will entitle the vendor to
enforce his claim thereto in another |)rovinct! to which
the goods are afterwards removeil by the vendee (107),
(104) Pharmaifulititl Society v. Lotn/on (i83o) 5 App. ('as. 857.
(105) Pharmaceutical \. London (1880) 5 App. Cas. at p. 862,
(106) River Stave Ck v. Sill 13 Out. R. 557 ; Marthinson v. Pat-
terson i9 0nt. App. 188.
(loj) Gosline v. Dunbar y ,^2 N. H.R. 325; Sin^'er Machine Co.
V. McLeod 20 N.S.R. 341 . Banin v. Robertson i N.W.T. Rep. pt. 4,
p. 89.
AND CMATTH. I II N^.
53
imli'ss tin- laws til llx- prnviuci' into which thi* ^^mikIs
an* rnnnvctl m.»k»s spcci.il provision lo lh<' (ontrary,
tr.jjf., for n'-rrj;islration within a liinit»'«l linir .ilirr iht!
goods enter that proviiur, or a disiri* t lh<r«o('.
kr-r«'j;istration is at prcs«'nl liniitctl to cast-s of
removal Inun one district in a province to another
district in the same province, and no provision has
Imm'H made compellinj; re-re^isir.ilion in the provinc(r
to which jjjoods ar<! removed ol a condiiion.il s.ile
contract mad«' in another province Ixlore the removal
of th«' chattels therefrom.
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
I.I
I
Li|28 |25
^ Uii 12.2
£ |i£ 12.0
1.25 III 1.4
— 6"
|:
IJ4
V
?y*
7:
V
Sciences
Corporatian
23 WfST MAIN STRKT
WIBSTill,N.Y. 14S80
(716)t73-4S03
CHAPTER III.
TlIK CoNDITIONAI- VkNDOR.
Leaving copy of agreement with vendee. — Under
the laws of Ontario, iiritish Columbia, New Brunswick,
and Prince Kdward Island, a copy of the receipt-note,
hire receipt, order, or other instrument by which a lien
on the chattel is retained, or which provides for its
conditional sale, must be left by the manufacturer,
bailor or vendor, with the bailee or conditional vendee
"a^ the time of the execution of the instrument or
w :h; ' 20 days thereafter" (i).
7J^b?'ity for defects. — The gratuitous lender of a
clia't'. uist be taken to lend for the purpose of a
ben.. <l use by the borrower; the borrower is there-
fore iK)f responsible for reasonable wear and tear, but
he is for nej^lijj^ence. for misuse and for gross want .-^f
skill in the use. On the other hand, as the lender
lends for beneficial use. he is responsible for defects in
the chattel, with reference to the use for which he
knows the loan is accepted, of which he is aware, and
owing to which directly the borrower is injured (2).
There is an implied guarantee on the part of a person
letting out a chattel on hire that it is suitable for the
purpose for which such chattel is ordinarily used (3).
Conditional sales with charge on land. — Not infre-
quently a contract of conditional sale contains a clause
(i) R.S.O. 1897, c. 149, s. s; R.S.B C. 1897, c. 169, s. 31 ; Stat.
N.IJ. 1899, c. 12, s. 4; Stat. P. E.I. 1896, c. 6, s. 8.
(2) Blakemore v. Bristol <^ Exeter Ry. 8 E. &: B. 1035 ; Smith's
L.C., loth ed. 229.
(3) Beven on Negligence, 501.
AND CIIATTEI, LIENS.
55
whereby the bailee charj^es his real estate with the
price of the article. In the province of Manitoba,
however, there is a statutory prohibition aj^ainst the
registration against lands, of any lien notes, hire
receipts, orders for chattels, or documents, or in.stru-
ments, which contain as a p<jrtion thereof or have
annexed thereto or endorsed thereon an order, con-
tract or agreement for the purchase or delivery of any
chattel or chattels, and the Registrar must refuse to
receive the same (4).
if, however, by inadvertence or mistake such a
document should be recorded, its registration will be
a nullity (5). The Act applies from and after March
iith, 1893, and also j)revents the filing of a caveat
under the Manitoba Real Property Act, if such caveat
refers to or is founded upon any charge of lands
embodied in a lien note, hire receipt, order for chattels
or conditional sale contract (6).
By a subsequent statute (7) passed to remove
doubts as to the operation and effect of the Act of
1893. it was further declared that every lien note, hire
receipt, order for chattels, or document or instrument,
the registration of which is prohibited by that Act, shall
be absolutely null and void so far as the same purports
to affect land, as against any person or corporation
claiming an interest or estate in lands under a regis-
tered instrument ; and that no notice actual or con-
structive to the per.'.on claiming under such registered
instrument shall avail to the contrary, but that such
notice shall be " void and of no effect whatever" (8).
(4) 56 Vict. (Man) 1893, c. 17, s. i, 2.
(5) Sec. 3.
(6) Sec. I (2).
(7) Stat. Man. 1894, c. 14.
(8) Stat. Man. 1894, c. 14, sees, i and 2.
56
(ONDirinNAl. sAl.l S
Destruction of Chattel. — Where from ilu; naiurf of
the coiiir let il appears ilial the parties imisl, from tht;
l)eoinniii<4. have Uiiown that it could not he fiilfilKxl
unless, when the time for the fuKihnent of the contract
arrived, some particular specified thini^ continued to
exist, so that, when enterinj^ into the contract, they
must ha\c contemplated such continuin}; (;xistence as
the foundation of what was to be done; then, in the
absence of any express or implied warranty that the
thing shall exist, the contract is not to be construed
as a positive contract, but as subject to an implied
condition that the parties shall be excused, in case,
before' brtiach, performance becomes impossil)Ie from
the perishino of the thing without ilefault of the con-
tractor (9). So, if the contract provides that the
property is to remain in the vendors, and that they
may resunu- possession not only for default in payment,
but in case the cont it.onal \ende(! leaves thi* machine,
the subject-matter ol the conditional purchase, unpro-
tected, or in case any of his representations as to his
financial standing are imtrue. or in case for any other
good cause the conditional vendors desire to resume
possession, such cannot propt,*rly be called a 'contract
of sale,' but is an executory agreement for a future
sale on performance of certain conditions ; and it may
well be assumed that it was naturally in the contem-
plation of the parties that the subject-matter of the
bargain should continue to exist (10).
Insurance. In U\i/croiis v. McCann{\\) certain
mill machinerv was sold under an agreement which
provided that a mortgage of the mill property was to
be given to the vendors by the purchasers as partial
(9) Taylor v. Caldwell, 3 B. iV: S. 833.
(10) Sawyer v. Pringle {i2<i)i) 18 Out. App. 218, 221.
(11) (1894) _'i Ont. App. 486.
AM) CIIArill, I.IKNS.
57
security for lUv. price, and it was also ajjrccd that the
inachiiUTy was not to form part of the real estate, hut
was to remain personal property, although attached to
the realty, and that it should remain personal prop<rty
until tin; full paymtrnt of tlu; price, and th<' property
thi^rein and title lher(;to was to rt'main in th(* vendors,
and not to pass to th(! proposed purchasers inuil such
pa)inent. I'ht; jjroposed purchasers had. und<;r th(;
agreemt:nt, the j)ossession antl us(* of th(.' machinery
until ilefault should he matle in the payment of the
l)rice. or somci part thereof, or of any oblijjjation givcMi
therefor, "hut at the |>urchasers' risk as to damaL't; or
destruction by fire or any other caust,*." Suhsecjuently,
the coiuliti(jnal purchasers mortj^aj^ed the reait\', in
pursuance of the contract, to the conditional vendors,
and therein covenanted, in the form j)r()vi(l(;d in the
Ontario Short Forms of Mortj^ages Act, to insun the
huildinj^s on the lands.
An insurance was ther(;upon effected in the name
of thi' millowners on the buildinjjf and machinerv, and
the loss made payable by the policies to the conditional
vendors : but the millowners placed a subse(|ueiii
insurance on them, payable to themselves, but j^ave no
notice of this cither to the conditional vendors or to
the companies carrying the j)rior insurance, by reason
of which the prior policies become void. A fire
occurred, and the last insuring company, whose policy
was in favour of the millowners alone, consented to
pay a sum at which the loss was adjusted. The con-
ditional vendors thereupon claimed payment of the
same as the land mortgagees, and by virtue of the
covenant for insurance contained in the mortgage.
The Court of Appeal of Ontario was equally divided
as to whether or not the conditional vendors were
entitled to the insurance moneys, and, in the result.
58
( ONimioNAI. S.M.I.S
tlur jiulomciu of Mr. Justice I''alc(Hil)ri(lj4o, liolclinj;
that th(;y vvcrt:; so (Mititlcd, was arfinncd (12).
Ilai^arty. C.J.O., and MacK'nnan, J. A., held that
the niaciiiiUM'v l)('caim; in law part of the frtnliold
subject to an a^^retMntMU hetween the owner of thi-
freehold and the vendors of the macliinery. tliat for
certain purposes as between tliemselv(;s it siioultl
remain ptMsonal propt.Tty ; tliat the machinery was
therefore, in law, nvA estate, but, in e(|uity, as betweiMi
the parties and by virtue of their agreement, it was to
be rej^ardetl as personal |)roperty; that tiie niorli^aj^c
and the covenant for insurance co\'er(;d the machinery,
and that it was immaterial that thi; parties iiad ajj[r(;eil
that, notwithstanding the mortgage, the property should
be regardt:d as personal prop(;rty, such agrecMnent
being only for a limit(;d |)urpose /.<•. to enable the
conditional \tMulors to take back the machinery and to
seNcr it if nec(;ssary from the land in order to secure
thtiir debt.
On the other hand, liurton. J. A., (now Chief Justice
of Ontario) antl Osier, j.A., held that tht; conditional
vendors of the machinery were not entitled to any
more of the insurance money than the amount adjusted
in resjject of the building ; diat the machinery being
by the agreement jiersonal proj)erty, the title to which
did not pass to the land mortgagors, it was not sub-
ject either to the mortgage or to the mortgage
covenant for insurance ; that the conditional v(,'ndors
were entitled to insure in their own name by virtue
of their reserved title but that they had no right to
the insurance which the conditional vendees were
justified in obtaining for themselves ; that the mort-
gage conferred on the vendors no right to insure
.the machinery, and that they did not have an
(12) Waterous Engine Works Co. v. iVirG/z/w (1894) 21 Out. .Xpp.
486.
AND ( IIA'IKI. I.IKNn.
59
(M|uiiy to iIk; insurance nioncvs in (iiicslion b(!causL' of
lh(.' insiirancf first <>l)taiiu'(l (which was tak(tn out in
the name of iht; mill owners as the parties insured and
not in the; name-' of the conditional vendors alone as
th(.'y were entitled to have made it) havin;^ luren
defeat(;d or lost by means of the mortgagors' act in
effectn»jjf subse(|ueiil insurance without the assent of
the prior insurers ( i.^).
Vendor to Supply Information. -If the bailment
takes place in Hritish Columbia, the bailor is bound by
a statute in forct; in that province to furnish to any
proposed purchaser or other interested |)erson, within
5 (la\'s, full information resp<;ctin;^ the amount or
balance due or unj)aid in respect of manufactured
chattels the subject of a conditional sale ( 14) ; and his
nei^lect to do so will make him liable to a fine; n(jt
exceediiij^ $50 on summary conviction before a stipen-
diary or polic(; maj^istrate or two justices of the
peace (15). If the encpiiry be 1)\ letter the informa-
tion should be supplitul by fro/s/crcc/ letter in reply,
and the d(>posit of the letter in th(,' post-office within
the 5 days sj)ecified, is, in that case, the statutory
e(|uivalent 01 furnishing the information within five
days ( 16).
In Ontario the vendor must also furnish informa-
tion withi'.i 5 days in answer to an er.(|uiry made by
any proposed purchaser or 'other interested j)erson' ;
the penalty for non-compliance being a fine not
exceeding $50, recoverable on summary conviction
(17). The justices of the peace or magistrate may,
(13) ll'aterous Co. v. McCatm (1894) 21 Ont. App. 486.
(14) R.S. H.C. 1897, c. 169, s. 26.
(15^ Sec. 26.
(16) Sec. 27.
(17) R.S.O. 1897, c. 149, s. 6.
6()
( <)M(|TI<»\AI, SAI.I.S
in th(Mi- tliscrt.'tion, <}n\rr that tlie clL-rciulaiu shall i)ay
to tlu; coinplainaiit such costs as to thcin seen rcasoii-
al)K', not l)t'in}4 iiiconsisit.'iit with the fees cstahlisluxl
by law to Ik; taken on proceedings before justices (i<S);
anil tlu' sums so allovvetl for costs shall be specifKxl in
the conviction or order, and shall be recoverable in
like manner as the ptMialty, and will exttMul to and
include thi; costs and charjj^es of distress and of commit-
ment and conveyinj4" the defendant to prison, but the
amount o( the latter costs must be ascertained and
stated in the; commitment (19).
The like proce(;dini;s may be taken for recoviTinn;
the penalty under the Ontario Act, as mij^ht be taken
under the Criminal Code of Canada had the offence
been under a Dominion statute (20).
If the complaint Ik; dismissed the majj^istratc may,
in his discretion, order that the prosecutor or com-
plainant shall pay to the defendjMit such costs as to the
magistrate seem reasonable, and as are consistent with
law (21); but such costs are recoverable only by
distress and sale of the goods and chattels of tht.' party
ordered to j)ay thi;m, and not by imprisonment (22).
There is a special right of a{)peal, however, from
the justices or magistrate to the County Court judge
of the county sitting without a jury (23).
The appeal lies only on behalf of the {)ers()n con-
victed, and is to be heard in Chan^bers, and is subject
to the procedure prescribed by the revised Act
respecting appeals to the County Court judg«;s (24).
V
atl
sil
til
(18) R.S.O. 1897, c. 90, s. 4.
(19) R.S.O. 1897, c. 90, s. 4 (3).
(20) R.S.O. 1897, c. 90, s. 2.
(21) R.S.O. 1897, c. 90, s. 4(2).
(22) Sec. 4(5).
(23) R.S.O. 1897, c. 149, s. 6(2).
(24) R.S.O. 1897,0.92.
AND (MATH:!. Ill N^.
6l
Thf appellant is rcMjuirccI to tlcposit wiili the con-
victiii}" justice the amount of the juMialty anil the costs,
and a further sum of $io, or with two sufficient
sureties to enter into a rec«)<^ni/ance before a justice of
the jx.'ace in a sum tlouhle the amount of thi; penalty,
and costs ordered to be paid, which rerogni/ance (25)
is to be conditioned duly to prosecute the appeal, and
to abide by and |)erf()rm the; order of the jutlj^e therc-
u|)on, anil to pay such costs as he may order (26).
in Manitoba the manufacturer and his aj^ents must
forthwithy on application, furnish to any applicant full
information respecting the balance <\\\v. on any manu-
factured j^oods the subject of a conditional sale agree-
ment (27). His neglect or refusal will lay him liable
to a fme of not more than $50 nor less than $10 on
summary conviction before a justice of the peace (28).
The word " forthwith " has not always the same
meaning. W here the act to be ilone; is juilicial and
discretionary, "forthwith" will mean "immediately"
(29) ; but as aj)plied to a contract or to the ordinary
transactions of life, it usually does not mean " imme-
diately," but "with all possible celerity " (30). it is to
be construed according to circumstances, but where
the act required to be done " forthwith " is one which
is capable of being done without any delay, no delay
can be permitted (31). in an action against an over-
(25) R.S.O. 1897, c. 92, Form i in schedule.
(26) Sec. 3(/;).
(27) R.S.M. 1891, c. 87, sec. 3.
(28) Sec. 3,
(29) Grace v. Clinch 4 Q.B. 6o5 ; Chaplin v. Levy 9 Ex. 673;
R. V. Berkshire 27 W.R. 798.
(30) Burgess v. Boetefeur 7 M. & (i. 494; Morton v. Bank of
Montreal (^x'ifjl N.W.T.) 18 Can. L.T. 157.
(31) Re Southam 19 Ch. D. 169, per Jessel, M.R.
d-'
I I tM'l I I" i\ \l
\l I
sr<'i loi nut v^ix ill^ .1 n)|i\ <)| .1 i.ilr " ii|miii «l«'ll).iiii|,
int'diwilli. ' ii w.is licM tliii ilir tunc was snt li .is ihr
jin'N nip^ht thinix icisitn.ilil)' i ;.').
In Nrw hi unsw i( k, on till' (|< inuiil III .Mi\ «ir<lii<ii
nl (he t •tnditinn.ll \rnilrc ni on lln' ilrin.ind nl .my
pcrsnii li,i\ jn<4 .11) intc K'st in the t li.iti)'! 01 in (lir
tninlilinn.ll xilltlrcs nv;lll ••! |»in(ll.isr tlinrnl, tin*
in.niMl.utiiici'. or t»tlirr It.iilor or vrmlor .is ilir < ,isr
in, IN III', iniisl lilr .1 sworn st.itnncnt o| liif .nnonnt
tliu' on iin\ sill It riTcipt note, liiic m cipt or ordrr (.;,;).
I h<' liliiiiL; is to lie in.ulc with tin- Kr«^isir;ir ol
|)('('ils ol the (-oiiniN in wliich ill*' li,iil<'<' or roiitlition.il
piirch.iscr rt'sidi'd ,it ilir linic ol th<' li.iilinmt or « on
ililion.il ihiicImsc {\.\), .ind nuisi lie «'llt'< ted within jo
d.iNs liom the m.ikiiii; ol the dcin.ind (.>5).
.\ r.iiliirc to lilc A stilcnu'iit .is the ,\( t r«'(|iiin's
will opcr.itc so .IS to lorlcil .ill rij^hls .k « riiiiij^ under
tl
U' HTi'ipl note, hire receipt, cn' order to the h.iilor. as
.ii;.iinsi th<' i'r«'dittir or intJ'rested person w
in.ulc tin- demind lor same (.;<>).
ho I
las
In Prince I'Mw.ird Island the miiniifactiirer, bailor
t>r
cnUor IS hy staliite re(|iiirei
I to I
iirmsh within 1 ^
days to any proposed piinhasi-r or other interested
person apph in^ thcrelor. lull inlormalion respecting
the amount or h.dancc due or unpaid on any mamitac
lurcil ooods ami chattels ol which a conditional sale
h.is been m ide. ami the terms ol" paynuMit ol such
amount or balance (.,7).
(.^2) Ttfinatit V. /W/«)Q.i{. 684.
(.U) '"^'at- N.H. iStji), c. 12. s. 5.
(35) Sec. 5.
(3()) Stat. N.n. iSw, f. 12, s. 5.
(37) Stat. I'.E.I. 1896, c. (), s. 2.
Wh < II s I 1 1 I I II \s.
f>.%
III « ,ist nt III', t) liis.il (II III ^l<'( t Ik <|i I .• i ill*' i •Hi
(lilion.il vt'iidui Imimmhs li.ilili i«i ,i Ihk imi ixrcrilin^
$S". "i> < •(ii\ i( linn litluii- ,1 '.liiMiHli.iry or |miIim
in.iy;istiMl«', III' iwii jiisii( «■. ut ilir pcKi'. wiili .1 ii'.'.lii
ol .i|i|i<',il li\ till- < iiiivii l«'il |>.irty to iIh' Sii|iii iih
(null n| (III- |iln\ illi <• ( ;.S), ||r will ,i|,m i |i ,«'||I It Ii
hiinsrll, |»y siK ll nliis.il ni iK^lril. In lli» ImImIiI nl
his lini nil ilir ( li.ilicls (;'>).
I Ik' iiii|iiit'\ lu.iy Ix' iii-mI'- '-itlicr ixi-snii.illy nr l«\
ri'^islciril lillrr, ,illi| ill llir l.llliT (.ISC llir |»nst oIIkc
« (I tilii .lie nl rfMislr.llinll .iiul the n.itli III ijji' |»ri Mill
wlin <|r|iosit((| tin- Irin-r. sli.ill lir |»riin.i I.M i«" (V i(|f IK -
nl til)' <l.l(<' .111(1 service nl the .i|i|)lir.ilinii {.\<)).
All ;i|»|)li(;ilinn l»y letter must ^^iv*' .1 ii.iin<' .hmI
pnsi nlliic .uMress, In whirl) ,\ reply may he sent, .iikI
|>nsl;i^e st;iin|)S siiITk ieiit tn pay the postage on ,1
r<'^istere(| reply, must he encinsed. It will he snlli
ei<'iit il the inlonnalinn whi( h the A( t (<»mpels iln
hail«ir tn liirnish is ^iv<'n hy reMistered letter deposited
in the pnst nllice within the 15 days. addresse<| in the
en<|iiinr at his prnper post ntlice addr«;ss. nr. where a
name and ad.lress is ^^iven as alnresaid, addressed tn
such p<rrsnn hy the name and al lint pnst nHicr as
Uiv<'n (41).
Re-taking possession, il the vf-ndnr exercise-, a
ri^ht ^iven him hy lh<; contract in take hack the
chattel tn mak(.* i^ond the default, such is in law a
rescission of the contract unl(!ss the contract cr. mains
some provision to th(! contrary (42).
(38) Stat. IM':.I. i8<A c. 6, s. 2.
(39) Sec. 2.
(40) Sec. 2.
(41) Sec. 3.
(42) Leanor v. McLaughlin (1S95) 32 f..R.A. 467, 165 I'a. 150.
'H
< n\|»mMN.\l, S.M.KS
ir iifiJ'i' ihr wholr |»rif«- is tlin', ilir viiulnr continues
t«) ri'ccive' |)a\ inrnts ami |MTinils llu- vrndrr to n-iain
possession, he must make a demand or|>a\i!i(rnt befort;
seizing the properly and terminating the contract (43).
It is ilu: common law rij^ht of a person whose chattels
are on the land <»(' another imder some arranj;ement
which has ended, to enter upon the land to resume
possession ol his ^oods, without thereby committing a
tr«;sj)ass (44).
V;here machinery was sold upon the terms
expn'ssetl in llur contract that " the title of and ri^ht
"to the possession of the property wherever it may
"be shall remain vested in (the vendor) and subject to
"his ord(;r until paid for in full," the vendor or his
assi^^Mis has the legal rij^ht on d(?faull to c;i.ier upon
th(! pr(!mist!s wher«r the |)roperiy is, in order U) resumtr
actual possession of the machim-ry, j^ivin;^ notice ami
using all care in so doing ; but it would lur illegal for
the vendor to take possession by force, and an injunc-
tion may properly be granted to restrain threatened
acts of force by the vendor, but the applicant may be
j)ut upon terms that he is not to interfere forcibly
with the rights of tin- vendor in respect to the
machinery (45).
Where the conditional vendee took the chattel sold
to a room hired by him in the house of a third person,
the latter having no knowledge that the vendee's title
was conditional, and upon default the vendor went to
the house in the absence of the vendee to remove the
chattel, and although requested by the wife of the
householder to wait until the return of the vendee,
refused to do so and pushing her aside entered the
(43) CRourke v. Hadcock 114 N. Y. 541.
(44) Patrick V. Colarick 3 M. & W. 483.
(45) Trader^ Bank v. Brown (1889) 18 Ont. R. 430.
\M) <n\Tiir r.iKNS.
^S
room and took i\\v. ch.iiti*! aw.iy, it was held tliat siicii
entry was nut rcasonaItU; and that the vendor was
liahlt; for an assault (46). IT a liailifi or (Mnployn-, in
tlu? coiirsr of rnnovinj^ a ihitlcl l)y forci* under the
rij;hl reserved hy the (ontrait. assaults a person, his
employer may ix* li.ihle in tlama}j;es for the assault;
for if an aj^ent aiiihori/ed to do a thinj; properly,
exceeds his authority hy d«)in;4 it improperly hut while
acting within the scope of his emp'oymeni, the mere
f.ict of the exci'ss of authority involving a criminal
act iloes not ahsolvc the ••mploycr or master from
liahiliiy (47).
it is fr«'(|uently provided in contracts oj condi-
tional sale that the vendor may, on default, hreak open
doors and hars. and otherwise »;nti;r hyltnc for the
purpose- of removing his j^oods. Whethei or not a
forcihle entry into a dwellinj,; houst* niert'lv for the
purpose of taking away furniture •■ other chruUtls
upon ;i hona fide; claim of title thertUo is ;■ " lorcihle
entry within th(! Criminal Cod(! of ('aii.idi (sec. S9)
was the (jutistion in a recent case before th<; Court of
(Jueen's liench for Manitol)a ; and it was h«:ld that it
was a mere trespass, and not a " forcihle entry" under
the. Code, although made contrary to the will of the
occu[)ant, and in a mannijr likely to cause a ht'each of
the peace (4S).
The court there held thnt to constitute a "forcible
entry" on land under the Oiminal Code, sec. 89, the
act of going upon the land must be done; with the
intention of taking possession of the land itself (49).
(46) Drury v. Hervey 126 Mass. 519.
(47) Dyers. Afi/nt/ay (iSt)$) . Q.M. 742.
(48) T/if Queen v. Pike {\^^%) 2 Can. Cr. Cas. 314.
(49) Ibid ; but see Rdwick v. Hawkes 18 Ch. D. 199 ; Dyer v.
Munday (1895) ' Q*^- 742-
m
<.;)
66
(ONDITInNAl. SAM.S
A selltir l)y cotiditioiial sale wh<i retakes the
property aiul retains it puts an end to the contract of
sale, aii.l cannot recoviT the purchase price (50).
An article sold on instalments by a so-called lease
retaining title until full payment is made can be
retaken on default without returninj^ the partial j)ay-
ments that have been rect;ived (5 1 ^
Two machines were sold undc.T lien notes j^iven to
the vendors, which contained the; following clauses:
"The title, ownersliip and right to the possession of the property
for which this note is given shall remain in A. Harris, Son «.V Com-
pany (Limited), until this note or any renewal thereof is fully paid ;
and if default is made, or should I sell or dispose of my landed
property, or if for any reason A. Harris, Son «Si Company (l-imited)
should consider this note insecure, they have full power to declare it
due and payable, even before maturity. I also waive all homestead
and exemption laws as to this debt."
Default having; been made in payment, the
vendor's a^ent seized the machines, and used one of
them on his own farm, and also all(jvved another pers(»n
to use it e'lsewhere and afterwards sued the condi-
tional vendee for the price, after i^ivino him notice
that the machines were at the agent's place, and that
the vendee was at liberty to remove them at any time.
It was found as a fact that the machines had been
injured or worn while in the agent's hands more than
they would have been with the exercise of reasonable
care. The Supreme Court of the North-West Terri-
tories held that the vendor was not entitled to recover
on the notes, and that the contract had become
rescinded, although there had been no re-sale (52).
Mr. Justice Wetmore in that case thus enunciates
the principles applicable : — " I am not prepared to
•' hold that the mere fact that the vendor when he
(50) mii/e V. Swi//i 28 N.S.R. 5.
(51) IV/u/e V. Oakes 88 Me. 367,. 34 Atl. Rep. 175.
(52) Harris v. Dusiin (1892) i N.W.T. Rep. 6 (part 4).
i
AM) CMATTII- I.IKNS.
67
" re-possessed himself of the article did so with the
" intention of seUinj; it, in itself would amount to a
"rescission of the contract, or would justify the buyer
" in treatinj^ it as a rescission, nor am I i)rei)ared to
" hold that the additional fact that he offered it for sale,
"or attempted to sell it, would amount to a rccission.
" if the vemlor wishes to hold the buyer to his agree-
" ment, and enforce his claim aL;ainst him for the j)rice,
' he has simply the right to hold the article, and he is
" bound to take care of it. The buyer has a right to
" insist {a) that the vendor shall not use it ; {d) that the
" vendor will not allow other persons to use it. antl (<)
" that the vendor shall take care of it" (53).
The natural increase of animals, the subject of a
conditional sale, will be subject to the terms of the
contract, and the title and property therein will
belong to the vendor in like manner as the title and
property in the animal sold (54).
I'he vendor in a conditional sale of chattels waives
default for nonpayment of the purchase price at
maturity by allowing the vendee to remain in poss<;s-
sion of the property and accepting a partial payment ;
and he cannot thereafter take possession of the property
without a prior demand upon the vendee for the pay-
ment of the balance (55).
Where it was provided, both in ti.e order for a
binder machine, and in the promissory notes given for
the price of same, that the property in the machine
was not to pass to the buyer until payment of the price
in full, and that on default in payment of either of the
notes the vendor should have the right to take posses-
(53) Harris v. Dusliti 1 N.W.T. Rep. 6, 11 (part 4); Richardson,
Macleod, Rouleau and McGuire, ]]. concurred with Wetmore, J.
(54) Temple \. iV/V//(;/jr<7«(i88i) Cassels S.C. Dig. 116.
(55) Cunningham v. Hedge 12 App. Div. (N.Y.) 212, 42 N.Y.
Supp. 549.
68
( ONDITIDNAI. SALKS
Ml'
sion of and soil the inachiiic. and the nott-s also con-
tained a clause that the proceeds of sale should " be
applied on the amount un|)aiil of the purchase price ".
it was held that the action of the vendors in re-takin<jf
the machine and selling' it diil not operate as a rescis-
sion of the contract. 1 he inference from the contract
is that the purchaser is to remain liable for the balance
of the purchase price after the proceetls of the re-sale
had been credited thereon, and not simply that the
amount realized should be credited on the damages
which the vendor would be entitled to recover against
the vendee for breach of contract (56).
But if there be no agreement, express or implied,
that the vendee shall be liable for anv balance, the
re-taking of the article by the vendors will constitute
a rescission of the contract (57).
In Ontario, British Columbia, New lirunswick and
Prince lulward Island, the bailor or conditional vendor
re-taking possession for breach of condition must
retain the goods for 20 davs, in order that the bailee or
his successor in interest, may redeem them within that
time, a privilege which the statutes of each of those
provinces declare may be exercised on payment of the
full amount ' then in arrear ', together with interest and
the actual costs and expenses of taking possession (58).
In the North- West Territories the seller or bailor
re-taking possession of the goods must retain the same
in his possession for at least 20 days ; i.e., 20 clear
days ; and the buyer, bailee, or any one claiming by or
through or under him may ' redeem the same upon
(56) Watson V. Sample (1899) 12 Man. R. 373.
(57) Sawyer v. Pringle, 18 Ont. App. 218.
(58) R.S.O. 1897, c. 149, s. 8 ; R.S.B.C. 1897, c. 169, s. 28 ; Stat.
N. B. 1899. c. 12, s. 6; Stat. P.E.I. 1896, c. 6, s. 4.
\\l> ( II.MTI.I. Ill \S.
69
paN im-iu of llic ainouiu actually due iIk.'r.'oii ami ihc
actual n»jct!.ssary fxpcnscs of lakin:^ possession ' (59).
Tilt! word ' r(!d(cin ' seems to be inapj)lical)le to
the recov<;ry of the chattel by the bailee, even if the
whole purcliase price b(; in arrc'ar. and alihoumh the
paynuMit made completes the sale and tht; right of
jjroperty pass(;s to him. it ap|)ears to be used in these
statut(;s in the collo(|uial sense of obtaiin'ni; back the
posstrssion and right of user ot the chattel. Ihe right
will arise on th(; payment of the full amount tlicu in
arrear, i.e , at the time of the actual payment within
the 20 ilay period, and may be demanded on payment
of such instalments only, of the purchase price;, as have
become due. together with the costs ami expenses.
Concurrent Remedies. There may be a right of
action, and the relation of debtor and creditor may
exist for the price of goods, although the property has
not passed, if the partitas have madt,' an agreement to
that effect (60).
The law tloes not favour the enforcenuMit of two
remedies, it recognizes the right of a j)arty to secure
his claim by as man\ securiti(.'s as he can get. but it
does not recogni/e his right to enforce more than one
to complete; satisfaction. if, therefore, the right is not
reserved to sue and collect the lien notes given for the
price, notwithstanding the re-taking of possession by
the vendors, such re taking will preclude an action for
the balance of the purchase price on the note, although
the latter provides that upon default the vendors " may
" commence suit upon the same, which shall not be a
"waiver of the \tMulor's title to* said property, and the
"same may be re-taken by them under this note or
(59) Con. Ord. N.U. T. 1898, c. 44, s. 7.
(60) Waterous v. Wilsott w Man. R... at p. 295; Kirchhoffer \.
Clement, \\ Man. K. 460.
4;-
w
70
CONDITIONAL .SAl.i:>
"any of said notes upon default thereon as herein-
"before provided."
The contract is to be interpreted in such case as
reserving the rij^ht to commence a suit, and as pr«)vidinjj^
that the suit should not be a waiver of the vendors' ri<^ht
to take the j)roperty, but not as reserving" any right of
action a/Zcr repossessing themselves of the j)r()perty.
The contract providt^d that in case of default and re-
taking of possession "all payments made and amounts
" collected shall be deemed to be payments for the
" use, wear and tear of the said j)roperty up to the
re-taking thereof." The vendors delayed for five
months after default before they rotook possession
and it was held that the fact that they did so so much
later than the time at which their right accrued, was
conclusive that iht;y deemed the prior payments
adequate for the use. wear and tear of the property up
to that time, and that they treated tiie property as at
that time of sufficient value to pay the balance of the
claim (61).
If tile vendor reserves a right to retake possession
upon a hire-purchase contract and receives at the time
that the contract is made a judgment bond executed
by the conditional purchaser conditioned for the pay-
ment of the rental instalments and as collateral security
therefor, he cannot enforce such bond after he has
rescinded the sale by taking possession (62). But
where the agreement gives the vendor the right both
to take judgment on confession and to reclaim the
property it would seem that the two remedies are not
•inconsistent, and the entry of judgment would not
operate as a satisfactHin. nor as an election of that
remedy and surrender of title to the vendee ; but even
(61) Perkins v. Groblcn (1898) 39 L.R.A. 815 (Mich. Sup. Ct.)
(62) Learior \. A/cZaug/i/tn (iSg$) 32 L.R. .'\. 467, 165 Pa. 150.
AND ( UATIi:!- I.IKNS.
71
then the judj^nncnt could not l)c enforced after the
j4()ods had been re-taken (63).
Where ^oods were sold at auction to be paid for by
approved notes and were delivered, but the purchaser
refused to give the notes, the sale and delivery were
held to be conditional, but the vendor iiad the right
on non-performance of the condition to treat the sale
as an ai)solute one and to sue at once for the price if
he so elected (64)
Rescission of Contract. — Ordinarily a conditional
sale is rescinded if the vendors avail themselves of a
power reserved by the contract to re-take or rt.-tain the
goods under certain contingencies (65). If, however,
the contract not only give the right to resume posses-
sion but to sell either with or without notice and to
credit the j)roposed purchas(;r with the j)roceeds real-
ized from the sale, leaving him expressly liable for an)'
difference between that and th(* contract |)rice, the
contract will not be rescinded by the re-taking of
possession and re-sale by the conditional vendors (66).
In Sawyer v. liaskcrvillc (67) the defendants had
signed a contract under seal agreeing to purchase from
the j)laintiffs certain machinery on credit, on the terms
that the property in the machines should not ])ass from
the vendors to the pro|)osed purchasers until full pay-
ment of the price and any obligation given therefor,
and the plaintiffs acce|)ted the order and furnished the
machinery as agreed. The defendants after a trial of
the machinery rejected it and refused to gi\e the
(6^) Durr v. Replos^le 167 I'a. 347 ; Breu-er v. Funi 54 Hun,
(N.Y.) 116.
(64) Cor lies v. Gardner 2 Hall (N.Y.) 345.
(65) IV/iife V. S»iif/i (1895) 28 N.S.R. 5.,
(66) Sawyer v. Prhigle (1891) 18 Ont. *Ki. 222.
(67) Saivyer v Baske/riik (1891) 10 .Nfan. R. 652.
1^
I (JNIMTIONAI. sAI.K.S
promissory notes provitlctl for in tlic contract. 'I'h<;
plaintiffs then rcsunicd possession of and si>l(l tlu;
machinery and creditetl the procettds on the orij;inai
purchase money. Tliey then filed a hill in e(|uity to
realize the balance of the purchase; monc^y out of the
land descrihed in the; order upon which the d(;f(!ndants
had \(\\v\\ a char^u.' for the indc.'btedness. The court
held that the plaintiffs had themselves rescinded the
contract, and that their remedy was limited to a claim
for damages for refusing to accept and pay for the
machinery ; and that they had no right of action for
the/r/Vv of the same whether they kept the machinery
or sold it, aiul as the charge was given upon the lands
only to s(!cure the j)urchase money it was no longer of
any effect (6<S).
Re-sale. Where the contract provides that the
vendors shall retain the property in the article sold,
and shall have the right to resume possession or re-
sell, and charge all expenses against and rec ver the
balance from the vendee, this does not, in the; absence
of any stipulation to that effect, give the vendors the
right to re-sell without notice to the vendee or his
assigns (69). That would be allowing them to fix the
measure of damages or the amount of the balance by
their own act without warning or notice to the party
interested. Such a sale may be impeached by shew-
ing that a greater sum could have been realized if it
had been properly sold after proper notice (70). The;
vendor may, u))on the vendee's default, exercise his
(68) Sawyer v, Baskennllc (1891) 10 Man. R. 652 : Sawyer v.
Priti^lc 18 Ont. App. 218 followed ; McLean v. Dunn 4 Ring. 77a
distinguished.
(69) Discher v. Canada Permanent {\'&&<)) 18 Ont. R. 27.3.
(70) Sands V. Taylor 5 Johns, v^i^ : Discher v. Canada J'er- ,■? /.'/
(1889) 18 Ont. R. 27.^.
AM) ( ii.\iii;i. i.ii:n>.
/ .■>
rij^lu to r(!-s('ll iIk; proixtrly without first liikiny actual
|)()ss(;ssion (71).
Special provision has hcen made by statute; in the
provinces of Ontario. lUitish CoUiniljia. \t:\v liruns-
vvick and Prince lulward Island, for j^ivinjj; a notice of
sale to the hailt.-e or to his succ(;ssor in interest, in case
the bailor retak(!s |)ossession. It a|)pli(;s only when
the purchase price undiT the contract of conditional
sale of th(! <>()oils or chatt<!ls was oritfinalK' more than
$30; in that case the ^oods may not be, legally sold
without 5 days' notice of the intended sale being first
given to the bailee or his successor in int(-'rest. The
notice may be j)ersonally served, or may, in the
al)S(Mice of the bailee or of his successor, as the case
may be, be left at the residence or Irist-known place of
abode in the i)rovince, or may be sent by registered
letter tleposited in the post office at h.'ast 7 da) s, i.e..
7 clear days (72) before the time when the said 5 days
will elapse, such letter to be atldressed to the bailee or
his succi!ssor in int(;rest at his last-known post-office
adilress in Canada (73). 'Ww. 5 days or th(! 7 (.la\'s. as
the case mav be. mav foim a part of the 20 davs
allowed by law as the period of delay for which the
bailor must retain the goods after taking possession
befort! he sells them.
Re-registration on removal. In the North-West
Territories, if the goods forming the subject of a con-
ditional sale are of the value of $15 or over at the time
of the bailment, and the same are removed from one
registration district to another, the receipt note or
(71) Hubbard v. Bliss, 12 Allen (Mass.) 590.
(72) Rumoht V. Marx, 19 ("an. Law Jour. 10; N. v. Shroffs hi re,
8 A. & E. 173.
(73) R. S. O. 1897, c. 149, s. 9 ; R. S. H. C. 1897, c. 169, s. 29;
Stat. N.B. 1899, c. 12, s. 7 ; Stat. I'.E 1. 1896, c. 6, s. 5.
74
< ()M)nir)NAI. SAI.I'.S
oilier vvrilinj^ cviclcncinj^f the l)ailnu'iU must he re-
registered within ,^o days of ^lie removal in the district
to which the j^oods are removed (74).
Under the Nova Scotia law of 1S99 (75) re-rej;is-
tration is recjuirt^d on a rtMiioval of tht: ^oods from one
rejj[i strati on district to another, only where; the removal
is permanent, and where the conditional vendee (the
Ljrantor of the reci.-ipt note J)r hire receipt) is not a
resident of Nova Scotia. A copy of the instrument
and of the affidavits and documents relating thereto.
C(;riified under the hand of the Registrar in whose
registry the same were; first fiU.'d, within 2 months
from the j)ermanent removal, in the registry of deeds
for the registration district to which the personal
chatt(;ls are rtjinoved, and. if this is neglectetl. the
instrimuMit will become null and void as against cr(;di-
tors of, or hona-fide purchasers from the conditional
\ciidee (76).
St;
Renewal Statement. In the North-West Terri-
tories, the bailor must, in order to keep gootl the
registration <jf his lien agreement, file with the regis-
tration clerk within 30 days next preceding the
e.xpiration of two years from the date of the original
registration, a renewal statement, verifietl by affidavit,
showing the amount still dut; to him for principal and
interest, if any, antl of all payments made on account,
and whether and to what extent the condition of the
bailment is still unperformed {77).
If it is desired to continue the registration for
more than one year from filinir of such renewal state-
(74) Con. Ord. N.W.T. iHyX, c. 44, s. 2.
(75) N.S. l^aws 1899. c. 28, s. ij.
(76) N.S. Laws 1899, c. 28, s. 9.
(77) Con. Ord. N.W.T. 1898. c. 44. s. 3.
AMI ( IIATTII IIINs.
75
inciu, a similar stali'iiicni must In- sworii to atul filctl
each yt'ar within tlic 30 clays ncM prcccchnj^ the
expiration of a year from the liliii;^ of the last renewal
statement (7.S).
In default of the filiiii^ in proper time of any
renewal statement re<|iiire(l by the statute*, the stiller
or bailor will not be permitted to sv.t up any rij^ht of
propertN or rij^ht of possession ir the t^oods as against
the creditors of the buNer or l)ail(;e. or an\ |)ur(h.:s« r
or mort}jfa)4<'e from him in j;ood faith for valuable
consideration ( 79).
The rtMU'wal stat(MiU'nt is made binding upon the
conditional \'eiulor as to an\ statement made by him
or by his aj^cni thercMU, and the l;()oi1s ant declared i)y
th(; staluK; to be liable to redemption, upon payjnent
of the amount actuall) 'due and owinjj^ ' in r(!spect
thereof, or upon performance of the coiulition of the
bailment by the buy(;r, bailee or an\- person claiming
by, throuj^h or under him (80) : and it is further
declared by the Act that the selU-r or bailor will
thereupon bi;come divested of his property and rijj;ht
of possession, if any (Si ).
The intention of the Act seems to recjuire that the
words 'actually due and ovvinii' should Ije construed
disjimctively : tht; amount r(;(|uired to be paid bi;fore
the vendor's right of propert) can be divestttd is not
only the amount aclually due, i.e.. accrued due and
then in arrear, but any other amount oivitig, an inten-
tion which, perhaps, might ha\e been better t'xpressed
had the word " or " been substituted for the word
"and" in the j)hrase {|uoted.
(78) Sec. 3.
(79) Con. Ord. N.W.T. 1898, c. 44. ,,
(80) Sec. 5.
(81) Ibid.
;6
CONDirinNAI. SAI.KS
I
If llu' seller or iKiilor. or his a^ent, makes any false
slatemeiu ill such a renewal siaKinent, he heroines
liable to .1 line not exceeiling $iik) on summary
conviction (S2).
Release and Waiver. I'he mere takinj^^ of a pro-
missory note lor the purpose of closin;^ an account is
tiot conclusive that it was taken in payment so as to
deprive the payees of the henelit of a coiulitional hire
rectiipt under which tiny retained a lien on tin: ch;ittel
until fully paid for (S^).
The discounting; of notes j^iven to him on a con-
ditional sale is not a waiver of the vendor's ri«;ht of
properly reservtnl to him under the contract (S4).
My an a<;reeinent signed l)y oiu; Johnson, he
acknowledged the nceipt of a piano on hire of $6.00
per month of a piano valued at $,,00. which he was
to pay to the parties from whom he hired it, if it w(.'re
(l<!Stroyetl or not returned to them on demand in *;()od
order. It was also agreed that he mij^ht purchase it
for $,>oo in two payments at futuri' tlales, but that,
until payment of the whole purchase money, it was to
remain their property on hirt; hy him. and. on default
in the punctual paymcMil of am- instalment or of the
monthly rental, |)()ssession mij^ht be resumed. After
a f)ayment had been made on account of the purchase
mcMiey, and the j^iviniL; of a land mortj^age as collateral
security for the balance, but under which the rights of
th(; conditional vendors under the ai;reement were
reserved, the vendors replevied the piano, and it was
held that they mit;ht legally do 80(85).
(82) Con. Ord. N.W.'I'. 189S, c. 44, s. 4.
(83) Nordheimer v. Robinson 2 ( )iit. App. ^r v
(84) Mason v. Bickle (1878) 2 Ont. App. 291, followed in Hall
Co. V. Hazlitt, 7 Ont. App. 749.
(85) Mason \. Johnson 27 U.C.C. I'. 208.
AND rilATIII. I.IKNS.
77
A. punhasctl ^^ooils from li. and ^.iw. an accep-
tance for llu; price. Across lln; enil of ihe acceptance
was printed tlie usual lien daiist; r«'serviii^ properly
in the vendor till paynunl. \Uv. acceptance was not
paid at maturity, and sul)se(|uent to maturity, A. sold
the ^oods to C, who purch.isinl for value without
notice. After the sale to C, H. sued A. on his accep-
tance. recoviTed judj^ment anil placed a //. /a in the
sheriffs hands, hut nothinj^ was realized on tlu: execu-
tion. In an action hy li. a^ linst (". for conversion, it
was held that the recovery of jud;^ment hy li. av;ainst
A. on the acceptance was an election to treat the con-
tract completed, anil passi-d tlu; property, and that h.
could not recover aj^ainst C. (S6).
Where a hicycle was the subject of a conditional
sale and the huyer hrouj^ht it hack to the vendor for
repair for which the huyer was to pay, it was held
that the vendor Wy jjjivinj^ up the hicycle after it was
rei)aire(l lost his lien for the price of the repairs, and
that on his sul)se(|uently ohtaininj^" possession of the
wheel upon the conditional sale contract, he could not
hold it as well for the price of the repairs as for the
balance of the jnirchase money (H7).
(86) J'i/r//e v. /ienfy 33 N.H.R. 607.
(87) JS/o£/i V. Douut {\%()^) 120 N.C.R. 402.
r!
cllAI'll-K l\'.
Till (.'<tM»llln\ \|, \'|;M>KI'.
a
I"
Bailments, ii.iiltnini^ were (li\'i(l('(l into si\ classes
l)y Lord I lull in his cvposition ol the law on thai
siil)jiTl coniaiiiril in llir Natiinj,' rasr dI' Coj^'^^s v.
/icntitn/ { I ). rh«sr ilassrs an* as toliows : —
1. Ih/^ositinii ; or .i naked haiiinent <»f '^oods, lo
Inr kt;|H lor the use of ihc h.iilor.
2. Loniiiiiu/iifiini , where i^ootjs or i hallels ihat are
iisriiil ar«' lenl lo ihe hailei; ;';vf//,v to Im- used by him.
.V l.ocatio ri'i : where j^oods ar«' lent to ihe l)ail«M'
to he used hy him tor hire.
4. / \uiiiini : pawn.
5. Loud to opcii> laiuiiili : where :^tto(ls are
delivered lo he tarried or someihin;^ lo he done ai)oiil
them, lor a reward to !)«• paid lo the l)ailee.
6. Maiidaliini : .1 delixcrx c>f nroods to somehody,
who is to carry liiem. or do someiliiny; ahoiit them,
Where the l)ailm«ni is without rewartl. in order
that th(! hailee may keep ihcfj^ootls for the I )ailor (//</<>-
si/iint), the hailee is ansvveral)le only lor his j^ross nej^li-
j^(Mice, and not for any ordinary neglect (2). Whether
\.\u\vv. has heen gross negligence; isa(|ut;stion forthe jury,
and the fact that the hailee look tlu* same care of th(!
article as he did of similar goods of his own will not
absolve him from liahilitv, if tht; care he look was not
such as a reasonahl*' man would ordinarily take of his
own (3).
(i) 2 Ld. Raym. 909; Smiths I..C., loth ed. 167.
(2) Coggs \. Bernard 2 Ld. Rayni. 909.
(3) Doorman \. Jenkins 2 A. \- K. 256; Gib/in v. Mc Mullen I,. K.
2 1>.C. 317.
dil
Vi
a
V
a
■•■(
AND illM IKI I. II NH.
"0
It. iiiiwcvfr. a in.tn ^r.ittiitoiisly iindcrt.ikis tn ilo
a thinj; m ihr Iksi mI" his skill. vvIuti- his Hiiua*"'»n or
prolrssinn is such as to iin|il) skill, an otnissiun ol that
skill will l»' impiii.ihU' to him as ^^ross n«'j;li;;«'iM <• (p.
I lu' lailiiri- to rM-rcisi' ri-asonahlr t.irr. skill .iiid
«lilij;«'tur, is j^ross lU'^^lii^nur. What is rr.»suM.»l»l«'
varies in the case ot a ^r.itiiituiis h.iilrc .tii'l (hat of
,1 h.iilrc lor hirr. l*'roin tin* (orinrr is r«Mson,il>lN
r.\|H rtrd siuli carr and dili^ciuc" as prrson-. nrdinariU
iisi' in iht'ir own allairs, and siu h skill .is hr has , Ironi
a haiit'*' for hir«' is rcasonahly «'\|n'(;t«'il lari* atiti dili
^t'licc. siu'h as art* cxrrcist'tl in ihr ordinars and |>rn|H'r
course of similar hnsiness to that in which he is
en^M;;cd (5).
Where ^roods an* lent tn the hailee- I'ur hire ^ /<»/<///('
?'<•/>. he is hound to use onlinary dili;;ence. i.e.. such
as a prudent mm would exercise; towanls his o>-, n {h).
A loan lor hire may l<e determined hy the o\\ ner if
the hailee wroiij^lully sells du- i^ouds (-).
(iross nej^lij^ence is the ahsence ot that iar«' whith
is ordinaril) to he expected from the avera;^e man ;
not, howt.'Ver, the averaj^c man ahsolutely taken irre-
spectively of capacity and experienc*' and forethou;,^lu.
hut lln' averajj^e man with reference to the particular
duties : and what the averaj^^e man will do with refer-
ence; to particular circumstance's is a llucluatiiiL; (|uantit\'
which has in (;ach case to he d<;termined (S). It is the-
determination of this within a wide ran^M' of jjossihili-
ties tha* <fives to ihe t(;rm " <;ross nes^linrcnce ' its
appareiu amhij^uity, now hringin^ certain acts within
(4) S/iiW/s V. Dlackbunw, i H. Bl. 15S.
(5) P.eal V. South Devon Kailumx 3 H. N: T. ,^^7 ; MoffatI v.
Hateman I..R. .? I'.C 115.
(6) Dean v. Keate^ 3 Camp. 4.
(7) Cooper V. Willomatt 1 C.H. 672.
(S) Heven on Negligence in Law, om-
80
0)M)ITION.\I. SAl,i:s
ii ■
I
its raiij^c now (•xcliMlin^ thnn arMtrarily at lirsi sij^ht,
yet really tK:ti'nniiU'tl by two factors, first, the nature
of the conlitleiice lu'slowetl ; secoiull)'. tlu; subject-
matter with refi'rence to which the coiifuleiice is
bestowed (9).
Where the bailment is one of leiulin*; ;'/v///.v (Co///-
niodatuni) the bailee is bound to use j^reat dilii^ence in
the proti^ction of the thinj; bailed anil will in; respons-
ible e> en for slight nej^li^enci; ; nor must he on any
account deviate from the conditions of the loan (10);
but if, whiU: the o(><>ds are in the custody of tlie bailee
they are injureil by the neoliniMict; oi a stranoi*r ami
without any nej^lij^ence on tin; part of the bailee tnen
the bailee is not liable to the bailor (11). I'- very
bailee has a general rit;ht of action against mere
wron»;cl()ers to the property while in his possession.
whetluT he has a special property therein t)r not,
bcjcause he is answerable over to the bailor ( 1 2). Any
person who has tin; legal possession of ooods, thouj^h
not the property, may maintain his action a*;ainst the
wron*;iloer ; ft)r a men? wronotloer camiot dispute the
title of the parly who is in possi'ssion of the «;cio<.ls,
without any color ot leji^al title (13).
Form of Contract. - Delivery accompanied by a
condition that title shall not pass until the fulfillment
of a condition will not alone constitute a sale ; it is a
bailment which will ripen into a sale only on the fulfill-
ment of the condition. An instrument in the following
form siji^ned by the comlitional i)urchas<'r was held (14)
(9) Ibid.
(10) 1 Smith's L.C. 10th ed. 190; Bringloe v. Morrice \ Mod. 210.
(11) Claridgev. South Staffordshire {i^c^i) \ Q.B. 422.
(12) Bacon's Abridgement.
(13) Giles V. Graver 6 Bligh, N.S. 436.
(14) Wettlaufer v. Scott (1893) 20 Ont. App. 652.
to
th
bi
foil
CO
th^
I'
fie
.l(
Wh (IIAIIi:i. I.IKNS.
8i
to l)c an " instruiiu'iu cviclfiiciiin the hailint'iit " wiihin
the; Ontario Conditional Sales Art which fiiacts that
l)aihnonts by " reccpt-notcs. hirc-rcct'ipts and onlrrs
for chattels" jjfiven by bailees of chattels, where the
conilition ol the bailnuMit is such that the possession of
the chattel shoiiUI pass without any (ownership therein
b(Miij^ ac(|iiireil by the baihn* until the payment of the
purchase or consideration money or some stipulated
|)art thereof, shall be valid as aijainst subse(|uent bona
ikle purchasers for \alue without notice unless evi-
denceti in writing signed by the bailee; or his agent :
U'oousiDCK, On r., Oci. 6, i860.
"On C/i- before the ist day of July, iSgi, for value rereived, I
" promise to pay to deor^e W., or l)earer, at his olVice in S — the
"sum of $68 with interest at per cent, per annum till due, and
"one per (Xiit. interest per month after due until jniid.
" 1 fiirlher a^ree to furnish security satisfactory to you, at anv
"time if requireil. If 1 fail to furnish such security when demaiul-
"ed, t)r if I make any default in payment, or should I dispose of
"my landed properly, you may then declare the whole price due
"and payable, and suit therefor may he immediately entered, tried
"and fmaliy disposed of in the court having jurisdiction where the
"head office of (1. W is located ; and you may retake posses-
"sion of the machine without process of law, and sell it l)y public
"or private sale, to pay the unpaid balance of the price whether
"due or not ; but the taking and selling of said mat'hine shall not
"relieve me of any lial)ility for any balance of the purchase price
"still impaid after such sale.
"Sul)ject to the aforesaid provisions I am to have possession and
" use of the machine at my own risk of damage or ilestruction from
"any cause whatever, l)ut the title thereto is not to pass to me until
"full payment of the price or any obi gation given therefor.
"These condi»'"ns and agreements are to contn)ue in force until
"the full paymeni of the price ami interest is made.
" 1 he:eby acknowledge having this day received a copy of this
" note.
(Signed) 1). M. S. "
Where the vendor intended to sell and deliver the
horse and to transfer the title to the buyer and to take
back from him security for the payment of the note in
the nature of a chattel mortgage, and a note was taken
for the price with a stij)ulation underwritten signed by
ii
^2
toNDiTioNAi. s.\:j:s
ihv purchast-r stalini^ iliat the seller " holds the horse
as her property imiil the note is paid," it was held that
the case was not one of conditional sale and there was
no effectual nsttrxation of propertv (15).
It would seem that a conditional sale contract for a
w.isj^oon and a pair of hob-sleij^hs will he siifficit;nil\
"evidenced in writinjj; sii^ned hy the bailee" if th«'
latter sij^ns lieu notes for the purchase money upon
lien note forms prepared for use on the sale of agricul-
tural im|)U'ments. and which refer to the article which
is the subject of the bailment as "the* machine ' (16).
No special form of words art.' nt;cessar\ to reserxe
the title in thi; chattel t<> the conditional vtmdor so
long as th<- written agreiMiient shows an intention of
the parties that the pro|)erty should not |)ass until full
|)ayment of the price.
The transaction frecjuentl) takes the form of .1
'lien note signed 1)\ the conditional purchast^r. a
tlocinntMit in the form of a promissory note payable to
the vendors or order, but having an additional clause
addeil as to the right of property. A common form
of this reservation clause on sales of agricultural
instruments is as follows : — "I'he title and right to \htt
"possession of the propt-rtv for which this nott- is
' given shall remain in the A — — Compain until this
" note or any renewal thereof is paid, and should I s«ll
"or disj)ose of my land or personal |)roperty all pay-
" ments shall be due and payable even before maturity
"of same, and the A Company may take posses-
" sion of the property."
Where the chattels consist of household goods a
' receipt-note.' or memorandum of the contract is more
commonly used. This is also signed by the purchaser,
(15) PVai/ V. Green 36 N.V. 556; explained in Ballard v. Biir-
,!,'•<'//, 40 N.Y., 314.
(16) Wettlaufer v. 5f<7// (1893) -o Ont. App. 652.
\M' < II \l I I I. Ill \
«5
an<l ii ('<'!»> of ^aiiu' <l<liv«r«(l lo him. A loriii ol a
weekly payiiu'iil coiuract is as lollows :
This (XTtitk's that I have purchased from The \\ I'lirniliirc
("ompany (l.imiletl), j^oods as per iiivoiic ciidorst'd licrcoii or
attained herctt), on ihi' terms followin;^ ; and lor whidi I a^rce t<t
pay$.... as follows •. $.... cash down and halance in weekly |)ay
nients 0!'$. each, from the dale hereof
It is exi)ressly aiireed that the property in and title to said goods
and to all other jioods which are in< Uidetl in the subject of conlrac'ts
which have been heretotore made, or may hereafter lie made by me
with the sail! company, shall not pass from the company until the
said sum of$ . is fully paid, and all the dues, terms and condi-
tions of this and otiier said contracts shall have been fully complied
with. The ( ompany may pay any rent .uid taxes due on [iremises
where said goods may l)e ancl such sums shall be forthwith payable
by me to tlvjm. ( )n default in any of the al)Ove payments, or if
goods shall be seized for rent or t.ixes. or if the rent of premises
where goods are shall be overdue, or if I shall al)andon, disMose. or
attempt to dispose of the same, or remove them from number ...
street in the city of without permission, the whole sum agreed
to be paid shall immediately i)ecome due and payable and my ri^^ht
lo jiossession of said goods shall cease, and all payments shall be
forfeited to the (ompany as reasonable compensation for injury to
and use of said goods and expense and trouble in regard to .same,
.Mid the company or its agents may, without legal process, enter u|)on
any premises and take |)ossession and remove said goods at any time
during the day or night, without being liable for an\ manner of tres
pass. And at the said i oinpanys option u|)on such seizure the said
company may either retain the goous, and tlie payments made there-
on shall be forfeited as above set forth : or the said company may
.sell the said goods by private sale, or otherwise, without any notice
to me, and may forthwith recover from me the balance of amount
I herein agree to pay together with expenses of seizure and .sale,
after giving credit for proceeds of sale, or the said company may
have said goods valued and retain same and may then forthwith
recover from me balance of said amount agreed to be paid together
with expenses of seizure and valuation, after giving credit with
amount of said valuation. .Should the company take possession of
said goods 1 shall have right to redeem same at any time within 20
days thereafter, only upon paying full l)alance of price, together with
any amount paid by company hereunder, and all charges and
expenses incurred l)y reason of taking j)ossession aforesaid. In the
event of seizure for rent I hereby authorize the said company on my
behalf to claim any of said goods as exempt by law from distress.
Any promissory notes or other securities given by me at any time
shall be collateral only hereto, and proceedings may be taken there-
on without in any way affecting or prejudicing this agreement.
And it is hereliy agreed that I having purchased other goods
III
I
S4
CONDITIONAI. SAI.KS
under contracts from the company, the company agree that sni long
as I pay $.. . to them that I shall not he recpiired to pay more.
But ui default in any of said payment all payments provided lor hy
said contracts shall immediately hecome due and payable. All pay-
ments made by me on this or any other contract may be applied and
appropriated by the company at any time upon any contracts
between us in such manner as they please, any directions of mine to
the contrary notwithstanding. Nothing herein shall affect the pro-
visions of any of said contracts, save as to the payments aforesaid.
Dated at , the
Signed in the presence of
day of
IdQ.
to th
e
The following form is specially applicable
conditional sale of a piano: —
Received from Messrs. A. & H. a octave, ..... finish,
upright piano, number , make , on hire at
dollars per month, |)ayable in advance, the said pianoforte being
valued at dollars, which sum 1 agree to pay in the event of
the said instrument being injured, destroyed, or not being returned
to Messrs. A. & B. on demand, free of expense, in good order,
reasonable wear excepted.
It is agreed that I may purchase the said pianoforte for the sum
of dollars, payable as follows , and
interest on unpaid principal at 6 per cent, per annum fmm date of
agreement. But, until the whole of the purchase money be paid, the
said pianoforte shall remain the property of Messrs. A. i\: B., on hire
by me, and shall not be removed from the premises where now
delivered, nor shall any attempt be made to remove the instrument
without the written consent of A. it B. And in default of the
punctual payment of any in.stalment of the said purchase money, at
the times above stated respectively, or at any time or times to which
the payment thereof, or any part thereof, may hereafter be extended,
or of the said monthly rental in advance, Messrs. A. & B , or their
agents, may, without rendering themselves liable to any action or
actions for so doing, enter upon the premises whtre the said piano-
forte may be, and resume possession thereof without any previous
demand, although a part of the purchase money may have been pa d,
or a note or notes, draft or drafts, given on account thereof, and
although the same may be then outstanding under discount, this
agreement for sale being conditional, and punctual payment being
essential to it; but in the event of the said pianoforte being so
assumed by them, and being returned in good order, any sum
received on account of the purchase money, beyond the amount due
for rent, and any expenses incurred in reference to the said instru-
ment or payments hereinunder, is to be repaid to me, and any notes
or drafts received on account of the purchase money are to be
ri
a I
AM) < ll.\ITi:i. l.ll'.NS.
H'
returned to mc at maturity. On payment in full of purchase money
and interest, no rent or hire is to he charged to me.
It is further agreed that this receipt and agreement cmiiotlies
the whole of the agreenjent between myself and Messrs. A. & U.
with respect to said juanoforte, and I hereby waive all verbal agree-
ments not embodied herein, and agree that 1 am not entitled to
receive credit at any time for any moneys which may be received bv
.Messrs. A. I't B. by the discour>t of any of the notes or drafts which
may have been taken by them on account of said |)urchase money.
Signature ,
Address ,
I hereby certify that the i)iano which I have received
from Messrs. A. iV M. has their name and address labelled and
printed upon it, and I also acknowledge to have this day received a
copy of the within agreement.
I )ate Signature
Contract form signed and sealed by proposed pur-
chaser.— A contract agreement sealed and delivered
by only one party which is subject to the a[)proval of
the other party cannot hv. revoked by the former
before the latter has had a reasonable time within
which to signify his assent (i 6). A promise made by
deed is at once binding and irrevocable. Fhe ordinary
rules of proposal and acceptance do not apply to
promises made by deed. The promise creates an
obligation which whenever it comes to the knowledge
of the other party affords a cause of action without any
other signification of his assent, and in the meantime
it is irrevocable. But if the promisee refuses his
assent when the promise comes to his knowledge, the
contract is avoided ([7). So where a contract form
was executed under seal by the person giving the
order for an engine to be shipped to him, but was
expres.sed to be subject to the approval of the company,
the other pan thereto, the signature being obtained
(16) Waterous v. FniU (iSgg) 30 Ont. R. 538.
(17) Xenos V. Wickham (1886) L.R. 2 H.L. 296, 323; Pollock on
Contracts, 6th ed. 7, 47.
■i!
>1
So
CnNDI rinSM. S\|.|s
!))• the latltr's a^cnl, wlin forwardcil tin- same to ilic
("otnpany, il was lu:lcl that tin; parly so signinj^ had no
ri^ht to cancel the coiuracl twelve tiays later. aitlKUij^h
it was not shewn that the work had lieeii theretofore
he^un on the en}.',ine, which had to lie specially
built ( I S).
m^
Bailee's care of chattel. I he ohlij^aiion to take
reasonable care of the thin^; entrusted to a bailee upon
a hiring involves in il an oblij^ation to take- rt^asonable
care that any building in which it is dep(»sited is in .i
proper state, so that the chattel nia\ be reasonabl) safe
in il(i9). iiut where a sheil was blown down by a
hi}4h wind and the chattel therein, the subject of the
bailment, was injured in const;(|uence, it was held that
the bailee, who had employed a careful and i'\pi;ri-
enced person to buiUl the shetl, was not liable for
ne!>li!>;ence on its bein<> sh(;wn that he had no know-
\vx\^v. of an)' nei^ligence on the part of the con-
tractor (20).
A misuser of property entrusted to <i bailee is not
ni'Ct^ssarily a conversion of it ; a distinction is lo be
tlrawn betwtteti those acts which are altogether repug-
nant U) the bailment (which are e(|ui\alent to the
conversion), and those acts which, though unauthor-
ized, are not so repugnant as by their mere existence
to operate as a disclaimer and a determination of the
holding (21).
Under an agreement of hire purchase, the hirer
may contract to keep and |)reser\e the chattel from
injury, including damage by tire, and to kee|) the
chattel in the hirer's ow n custt>dv at a stated address.
(18) IVakroiis v. yV.i// (1S99) 30 Out. K.- ii^-
(19) Beven on Negligence (1895) 957.
(30) Sfiir/r V. Laveikk L. R. 9(J.H. 12 J.
(21) Doualds. Suckliv^ I..R. 1 (^1!. 385, hi;.
AM> (IIAIIi;!, I.II.NS.
87
ami not to rcmovt: tlu* same, «»r |)<'nnii or suffer lh(r
satmr to !)(• rt'niovctl without the ovmht's |)r(;vious
i-oiisrnt in writiiij^ (22).
If the hirer of j^mhkIs under a hire-puichasj! a^aee-
inent wron<,d*ully sells them, or otherwise parts with
ihetn, the owner may tn.-at the hirinj; as therehy
(letermiiK.'d, (2,^), and the owner may sue the purchaser
or H'ceiver for their conversion, unl<;ss th«' latter has
purchased subject to and acUnowledginn the owikt's
rijjfht of property (24),
Unless hy the. contract a lar^^er measure of respon-
sihility is tak(Mi hy the hirer of a chattc^l. he is rc^fjuired
to use no more than ih.it dej^ree of dilijj^enct: which
prudent men use. that is. which the j^enerality of men
use. in kei;pin<^ their own j^oods of the same kind,
and if a boiler and enjuiiu' hired l)e destroyed by an
ex|)l()si()n not attributable to any nej^lij^eiice of the
hirtT. the latter is rt.'lieved from the p<;rformanci! of
his promise to return the article, and th«' contract of
hiriniL* is dissolved (25).
Rescission on Default of Conditional Vendor. — If
the vendor makes default in fulfillin^r his contract the
vendee may become entitled to rescind it. and to
recover the payments he has made. So where a
sewin}" machine was contracted to be conditionallv
sold, but instead of the kind selected .1 different
machine was delivered to the vendee, and on its provinj^
unsatisfactory the vendor promised to replace it by
another but failed tf) do so. and the vendor replevied
(22) Helbyw. Ma/Z/ifrvs {\i^^^) A.C. 471.
{2;^) Fenn v. Bittlestonc 7 Kxch. 152 : Bryant v. Wnydell 2 Exch.
479-
(24) Cooper V. IVillomatt i (!.H. 672: f.oeschma>i \. Macliiu 2
Stark. 311 ; Ex. p. Leslie 20 Ch. 1). 131.
(25) Reynolds v. Roxhurgh ( 1886) 10 Out. K. 649.
f ;
ss
(ONIM IION.M. ^M.ES
|i
ihc in;uhiiic tlclivcn-tl. il was held tli.il the v<iul<r
who liad ceased paNinj; any instalnunts. upon the
vendtd's defauh, was eiililled lo ncoNcr hack the
pa) nietits he had made (JO).
Where title is reserveil to llie vendor with th<' rij^hl
to retake possessicMi on tile venilee s ilelaiilt, the veii-
tli'o cannot hy retinnin<;. .)r ollerin;; to return the
property, relieve himself of lh<' liahiliiy lor the |)rice
The option is tin* vendor's, and llnr vendei; has no
option to return the propertx' on his own delaull (27).
i'he conditional Miidee cannot hasc the contract
rescinded for frauilulenl misrepresentation if. after dis
coverin!:^ same, he neitiier disaffirms the contract nor
offers to return the chattel (2S).
Breach of Warranty. A (onif^/ctcd sale of chattels
cannot he rescindetl for hreach of warranty and there
is no jurisdiction loonier re-deliver\' of the chattel (29).
In an action heiween vendor and purchaser for the
|)rice of a machine sold under a conditional sale, the
purchaser may shew that the machini^ was not as war-
ranted and so reiluc(; the claim hvthe difference lu'twei;!!
tht; valuta of the machine as warranli;d anil its actual
value (30).
Where the projjerty has not passed to the buyer
he may reject the? o()ods if they do not correspond in
(lualitv with the warranty, but it seems that there can
(26) Hinvf Mac/line Co. v. Willie 85 III. 333.
(27) Apf^leton V. Nonvalk 53 Conn. 4 ; Beaches Appeal 58 Conn.
464 ; Flcury v. Tufts 25 111. App. loi.
(28) Frye v. Millii^an (1885) 10 Ont. R. 509; Tomlinson v.
Morris 12 Ont. R. 311.
{2()) Ilawil/on Mfg. Co. v. Knight * \%i.)%) 5 B.C.R. 391.
(30) Tomlinson v. Morris 12 Ont. R. 311 ; Cull v. Rol>erts {i9i{)'&)
28 Ont. R. 591.
AMI I IIMIII. Ill NS.
89
!)(• 110 rctuvj'ry ol damiij^rs lor Nnath »»l .111 iinplic*)
warraniy iiiilil ihr |)r<)|)«ri) lias passed (.;i).
Tlir V('M(I«;('. on discovcrin^f llir hnac :h of warranty,
may rriiirn tin- arluir if ilic discov«r\ In* made wiihin
a rrasonaMc linn- alu-r its rccripi ; or il tin- lads war-
rant lu> may l>rin^ an action for drccit, in wliicli it must
he shewn, either that the derendant «lid not l)ehev<- the
statements made to he true, or that the sam<- wen;
matle reckN-ssly. ( )therwise the veixjee must first pay
for tlie articit; and then hrin^ her action for tlie hreach
of warranty, or, possihly, plead the hreach in answer
to an acti<ni for the price (.>2).
A company in 1^93 sold a hay press upon credit,
ami upon the terms that ihe properly should n'lnain in
them until payment. The contract was properly filed
und(;r s. 6 of 51 V^, c 19, now s. 3 of K.S.O., c. 149.
A few months afterwards the purchas<!r resold tin; press
to S., who had no knowh.'dj^e of th(; facts, and was told
that it was paid for and free from any lien. After S.
had used it for nearly four years, durinj; which the
orij^inal purchast:r had made some small paynunts on
account, the company sei/ed it in S.'s poss(;ssion
under the terms of the contract. It was then held that
S. was entitl(;d to rt;c()ver from his v(;ndor upon a
warranty of title, which he prov(;d. the value of the*
pn.'ss and the sum he. would have received beyond
(expenses upon contracts actually made to press hay
with the j)ress in (|uesti()n. and which h<! was in course
of executini» at the time of the sei/.urt;, the use of the
press in that way havin<; heen in the contemplation of
the j)laintiff's vendor at the time cjf the sale (33).
(31) Frye v. Miil/igau {i?>?>s,) 10 Out. R. 509.
(32) Frye v. Mil/isan {1885) 10 Ont. R. 509 ; Jo/iffe v. Baker
u Q.B.I). 255.
(33) Sheatd \. //<?/</// (1899) 30 Out. R. 618, 35 CI,. J. 417 (Street,
J.); The Ar):;entitu' \^ App. Cas. 519; Corv w Thomas Iron Works
Co. L.R. 3 Q.B; 181 ; and Mulletts. Mason\..'^. i CI'. 559 followed.
f
0«>
inMilTlnN.M, S.M.K.s
h ■
In .1 Kirnt M.iniloli.i ( .isc the thtriul.iiil ^avc \Ai
III)
lilts .1 wriiirn nrdir fur ;i stcond Itaixl htirsr powrr
Mtxl tlu'cshini^ in.uliiiii
ninnini^ onln-
ll
H' s.imr
t.l I
>r put in ^<hh
l)y piitlinj; in .1 s«'t nl jyliiuirr
spikes Tlir pricr was to In* $250. Attrr thr aicrpt
aiui-ol ihr nnlrr and the drlivcry nt the tnachinc, thr
set ol ('xlindcr spikes was put in, and plaintitts' aj^cnl
inatic several attempts to put the tuachinei y into ^tuul
runnini; order, l)Ut thlendant claiined I'le condition
was hroken and returned the machine. I'laintills then
sued lor the price ,i;^reed (tn. It was held that the
(otulilion of the sale was not satislu'd hy the putting
in ol the new spikes, hut that plaintills were hound to
put the machine int«) i^nod running onler (,^).
In Maniloha it is held that an action will lie lor
hreach ol Warranty iiehire the pr«>perty has passed and
that th«' cause of action arises at once just as in the
case of an ahsoluti; sale (.^SK '" Co/>tAt//(/ v. Ilaniilloit
(.;<>) the coiulilion of the a^rct'inent was that the
property in the horse, the sul»j«'cl of the contract, was
not to j)ass to defendant until pavment. The plain
hati
iliff
1)
sued upon a promissory noi«' j^iven to him hy
defendant under the agreement for the sale. I )efeiulant
hh-
.1 counter-claim
for I
)reac
h of
an alU
«:<'
d w;
ir-
rant) that the hors<' was sound. The horsi; was
tielivered to the deleiul.int and used by him for some
time, hut died liefori' the note was diu', fnun a cause
not C(»nnecteil with the unsoundness complained of.
The warranty was pro\t'tl ami a verdict for the defeiul-
ant (»n his counter-claim was upheld for the differenct;
hetween the value of llu* horse as it was when delivered,
an
ll what its value would then have been !f sound, it
was there held that the warrantv heinu <»l
soimdiuiss
(34) Ahtll V. Ov//c (1.S9S) s\ CM,..!. 47.V
(x,l) Copflauti \. //(/w///("/ hSi)^) I) Man. K. 14:
(36) I) Man. K. 143.
." S
AMI < II Mill l.ll'Ns.
91
It lh« iimInJii^^ nl the a^rccinrill, IXH .it tin- <l.ilr ol the
in.iKirity ol the notf, •iiid lii<- iiiisoiiiKliirss licjii^ sik h
.IS In impair \\\r iisrlillmss u( thr hnrsr Iruin thr time
<•( its (lrli\<iy In lh«' <l«'li'MilaiU. tlnrr was thru ,in
iinii)c(|iat<- hnai h nl tin* warr.tnt) .iiid iiiwniiliatr
(l.iinanr and ri^^hl nl action tlxTrlur in thr drirndaiit ;
.ind lh.it the priiu ipic nl decisinn in stich a case must
l»r the same v\h«thrr (he stihjrci ofih*' s.il<' rrin.iiiis in
cxisinicr ur nut (\y). Mr. jiisti<«' Killam said in his
iid^mcnl : " I hr ddcndant is .ihsoliitciy hmiiid upon
his Hnt«'. If thr artiilr sold \h' wholly drstroyrd so
as to Ih' incapahic of sale when the note is paid, the
defendant would suffer no further dama^re, an<l then,
■ iccordinj^ to the ar;;umeiu for the plaintiff, he (oiild
iKver have a cause of action for the greater pirt of
his claim. I'.ven if as in the Onl.irio cases ( ;S) there
were iin express ri)^ht to resell u|)on default and
credit the purchaser with the proceeds. th<'se pro(('(;ds
could not !)(• expected to he ,is lar^e as if the arti( le
were as vvarrant<'d. . Ihe purchaser should
recover as ;,^fneral damajj[es for the period of the
hailinent and for tin* proposetl sale to;^fellier, th<! same
amount as if there W(;re an imm«;diate sale. Vhv.
t()nsid(M*ation for the note is in part the hailment,
and in part th«' promise of the vendor to sell. This
latter promise is worth l(;ss than if the artici*' sold
were as warrant(;d. To treat the matter upon the
principN; of the plaintiffs' cont(;ntion would se«,'m to
involve tin; liahility of the purchaser for th(; whole
purchas<' money, while precludinj; him, fortiver in
many instanc<'s, from a ri^ht to recover for d<;fects
warranted aj^Nu'nst " (39). If the purchas(;r of a
(37) Co(>elan<i V. //iiw/7/on {iHi);^^) tj Man. K. 14,^
(^8) Fryf v. .\[illii^an 10 Ont. R. 509; 'J'om/itisoti \. Morris 12
Ont. R. .;ii.
{39) Cofte/ititi/ \. Ifiimilton (iH.;^) (> Man. R. 14;^, 146 (Killain |.) ;
Fryc \ . MiUii^iin 10 Ont. K. 509 and 7'om/ifisoti v. Morris 12 Ont
R. ?i I tlisiipprovcd.
i)2
• UMHIIUNAI, ^AI.HS
in.u hinc suM tiiithr a w.irrMtily imnidin^ lor a ilucc
»lays' H'st ihrnnl lo asirrl.iin ils al>ilil\ to liillil ilur
warranty, with a itrovisinn tli.it the time may l>c
cxtt'iulcd liy iniitiial cunsrnt, altt-r testing it accepts it
with a I lianj^i' in its arr.m^rnunt, rrlyin;^ mi his own
jml^nicnt that with sik h < han-^c it will suit his purpose
he will Im' iiahk' lor llu: piircii.»s<' price (40).
Tenant's Fixtures. As it rn(|iHntlN hanpcns thai
a tenant sells out his ( hatl<'ls, in( Imlin^ tra<ie lixtures.
upon a ctinditional sale a;;reenient, it is important to
consider the ri^jhl of remo\ al ol such lixlures as lu;
tween the landlord and the tenant.
A trade fixture <'7i7/<v/ liy the tenant and attached
to the Irec'hold becomes a part of the freehold, sul)j(;cl
to the rii^ht of the tenant to remctNC it if he does so
ill proper time (41 ) ; l>ul if the parties make a special
contract in variance of this rule, the contract will
^^overn (42).
The ri^^ht of a tenant to remove his trade fixtures
is so far I'onnected with the land that it may he
ileemed a ri^^ht or interest in it. and, if the tenant
transfers the rij^ht to another )»erson, a sul)se(|uent
voluntary act of surrender of the premises hefore the
expiry of his term will not defeat the purchaser's rij^ht
to enter and removi- tin m. As re;^^ards strangers who
were not |)artics or pri\ ies to the surrender, the estate
surrendered will in law he deemed to continue (4^^).
The rijj^ht must i)e exercised prior to the deter-
mination of his ten.mcy; and he cannot, after (|uittinj;
the premises and j^ivinj^ up the key, re-enter to sever
an
wi
He
sr
of
an
(40) Hutches s. J, L. Case Threshing Mach. Co. (Tex. (Hv. App.)
35 S. W. 60.
(41) Meuxs. Jacobs L. R. 7 H.l,. 490.
(42) Datiey v. Lewis 18 U.C. K. 30.
(43) J.ofi(ion &" Westminster \. /V</Xv f» ('. ll.N.S. ytjS.
\VI» • II Mill I.IINS.
0.^
and rc'inuvr the liMiircs. It. huwevcr. the tciiatit has,
with the (onscnt of the lamllnrtl, mnaiiictl in \nts
st'ssion alUT the «'X|>ir\ n( thr trrni. and he adnalK
severs and rfinmrs ihr tixiiins diirinj^ ihf unifintniNii
0/ /lis /iiu'/ii/ /<osMSsiiin, the trnant is rniilird to ihrin,
and ihcy iV^ not Ixuoinr th«' property «»!" thr laml
lord (.(.(): and he tnav. alter such removal, lawltiiiN
i'onlrad for a conditional salt- of thcin. I'he ri^ht
inav Ix- exercised l»\ tin- ij-nant, notwithstanding the
fact that he has committed an act of forfeiture of the
lease, if he remov«'s his tixtures Iw-fore jud^^meiil in
ejectment has l»een obtained a;;ainst them (45). I'he
tenant has n(» ri^ht to n-move his lixtun-s durinj,; the
time in which he is wronj^lully hoMin;; over(.tO).
W'lu n not removed durinj; the CiHitinuaiue of the
tenant y, the tenant's fixtures hecome on its expiration
pari of the fn-ehold, even thouj^h tlu'y are on the
premises hy tile parol consent of the l«'ssor : and
althou;^h such consent mii^lu ;;ive the tenant a rii^^hl of
action for the \alue of the fixtures a;;ainst the lessor
if he refused l<> permit their removal, it will ;..;ive no
ri^ht to enforce their removal or to recover damaj^^^cs
aj^jainst the morty;a|4('es of the realty (47).
If the lessor elects to re-('nier for a forfeiture, the
lesset! has the ri^j^ht, while he remains in p )ssession, to
remove fixtures put u|) hy him for the purposes of his
trade, and he will he allow(;(l a reasonable time after
such election, within which to do so(4S).
(44) Dewar v. Mallory 27 (Ir. (Out.) 30^ ; Proii^ufv v. Gurnev
36U.CR 53,37 IJ.f.k. 347.
(45) J'ugh V. Arton I..R. S Kx. 626.
(46) Leader v. Homnvooii 5 (.'.B.N.S. 546; Roffey v. Henderson
17 Q'l^- 574 ; Heap v. Barton 13 C.'.B. 274.
(47) Thomas v, Jennings 75 L.T. Kep. 274.
(48) Argles V. McMath 23 Ont. App. 44, atiiii m in g 2fi Ont. R. 2^4.
%
V
w
I ( i\ |i| I h '\ \l -Mis
A l«'asf |»rn\nl((| ih.ii ilir Icsscfs iiui^hi, tlmiiiv^
ihr iciiM, nci I m.u hiiuis ii|»iu ihc |tniiU'ir-., .\\u\ th.ti
stu li in.tt l\ui( r\ iMii;li( Ix rnunxrtl li\ ilitiu. I>ui ii>>i
M> .I'l lt> ii\|mr ihf ImiMiui; I l\r Ic.-.n allisi il ilu
iM.kt l)iii«'i \ , .111(1 Mtinr (iinc .itlnw.uds iM.ttIt an .isml;ii
IIK'MI ol llh^ |>lM|i('l(\ A\u\ {'\U{[^ lol iIk Iu lU'llI ol
nctlilMih I l\r Ic-.-.ois llicil ( let IctI lt> loilcil the
(rnil tiiiili'i .1 t laii-.r ill llu I(M-.('. i;i\ iiiv.; ihciii l!).il
|»iiviK'm' III » ,i-,r ilic iciiaiu mail*' an assivMiinnu loi
rit'diims, litii ilh \ |i('i iniucil a juiMtn who liati |>iii
t liasrti the in.K liiiu'i \ lioin the a'.Mi;ni'(' Im t icilitoi s
lo remain in |mss«",siiin >>l ilic |»rrn\iM"., anti nt«'i\ttl
Mill liMin Mit li imith.tscr until ll\(- laiin \atairil tin
|iirini'.«"., Iia\ I'lv; ilir inaeliiniiN ihru li \\a-> luKI
dial, uiiiln ill ;)i o\ ivioiis ol ilic Ira^i . llic niaklniK i\
t oMiiniK'J h> Ik' i liallrl |)lii|)ril\. all l)i >iit;li alllNcd. aiul
ihal llic '.ainc |>a'.'u»l as tlialitl^ ii> il\r a-.-.ivMui Ifi
tirtliiois, aiul lioin him to -<U( li pint liasri . anil thai
llic IdilciliiK nl ilir iciin ilul nol allrt l llir ii^lu to
t he |tio|tri t\ nol tliiin.'lu to i cinov r it \ lol
KHect ol Re taking tlw Chattel. 1 1 tin imojh ii\ m
llic !l;ooiI'. jia.sr'. at llic time ot tile (onti.ul to tin-
\(iul(i', liiil a iij^'Ju ol ir '„ilf 1-1 n^iivitl in ilrlaiilt ol
|ia\mrii; then llic vciulcc. on the delimit h.i|ip('nm>4
and tile riidit licinv^ t\fn isctl, innain-. liaMc loi the
im|)aid jtriic, or damavM". i'«|iial to the iiii|)aid |)iu( m
an aetion lor not .u rrpiinv^ ant! |>a\ in|L; lt>i the u;ooils( ^^ >)
I he ili'iiiiuiion hetween Muh a ease and oiu ol
tondi'.ioiial sale is that ihe \ endoi in the latlei is deal
iii'l; wilh his t»\\n |>ro|tert\ , and in the lormei he is
dealiiii^ wilh v^oods whith are no longer his hni his
\iiide»'s; and il the sale is \\roiiv;liil, the \ ende« has
his aelioii loi eoiueision ol the |»ro|»eit\. Init thi'
\\ I' I II \ I I I I I II \s.
W5
t olhlllloii.tl \rntlrr lo wlimn IIh |iiii|irilN li.i-' |m-<^((I
t.lll ll.Uc lln -^ut ll .lillnii, .niil it llu' \rlitloi i('>iilU('>
|ui^',»^'inm .iiitl rlttl-^, lo If itll. lilt t uiitliiinn.tl \tinltt
iM.u lir.ti llu- -i.iinc .Is an .ilMudnnincm nl ilii <•! u'iiliI
« onii.u I l)\ lii-i \ t'litlui ( -^ I I
li |>in\isioi) Is iM.itlc in llir tiinli.it I Im iisuniniv;
|»tf,'<issit>n in t.isf III tltl.nili .iiiti Itn it llim^ ilic
in.uhtnnN, l>iii n tltx-i //,>/ linilici |iiii\iili ih.n ihi
|>iiii li.isc iiumtx Is it> III' a|i|ili(tl /'^i' /,////,' tin wliai is
line, .iiitl ill. II ilic jtiiit li.ist IS ,ti(' III icni.nn ImIiIi I.h
llir ijillriciu ('. ill! n till' i« s.ilc III till' in.ulniii i\ h\ ilit
\ciitliMs tl('|Mivi's ilu'iu III lilt II t l.iiiw Im .ni\ |i.iii ul
llic |Mit t' .is .ii^.iinsi ilic t tiiiiliiiiui.tl |iiirt li.isi I .nul .1
|iiik;nu'nl n « <i\ cicil li\ ilu' vcnilms lu'liiit su( h k ..iIi
ii|itiii Utiles v;i\<'n Im llu |iiit( i.innm lu cnlmtiil
.ilhiw. litis (-,_•)
A |ii<iinis( itii'Mciitl lilt iinu Im ji.ivnuiu i>t .ui
insi.iinu III tliK mi .1 itiiitliiimi.il s.ilc m Ic.isi ul v>.iiit|',
li.is lu-cn lu'M III li« .1 vv.iivi'i ul lmli'iiiii« Itn ilt l.nili
wliiili will iMCXcnt .issci I iiiv; il lulmr ilu 1 \|iii.iiimi
III llu ( Mciuliil lime ( •>
I lu' \('iuli'( t.iiinnl H'ttivii limn llu \ 1 iiilm |i.i\
nu'iiis in.ulc li\ Inni wliuli wen sii|iul.ii( il in In
Ki.iiiU'il li\ llic vi'iiilm .Is I tiin|)i'nstiluui Im ilu iisi ul
llu- .u(ikl«- in i.i-it- ul ticl.nili. il il .i|)|u'.iis tli.ii ilu
|).i\ iiuiils ill) nul .nnmini in .in tinir.isun.ilili t iin)|ii n
s.iiim i^|).
liis tei'tii. I lu li.iili-i' t.in mil\ si'i ii|i lilt mil ul
.iiiollui. il lu il(-li'iitl-< ii|)un llu iii.;hl .nul inli .nul li\
(Sl^ .S.»/ii<< \ /''.</;,, (i.Si.il I. S Mill \|i|i "iS
(S.i) < '>•/'■ V. //tut^ (\\{\ ) .1-! I K A |^^.
(54) l\'ltrihi \ /.», .'/'I J Mist. Kr|i (\ \^ J <(i.
« hu K.
fHI
90
roNIHIKiNAI, SAI.I.S
[hv aiilhority nl' that person (ss)- \\ licrc th<' true
owiur has l»\ h'^al inocccdinMs ('oiniMllcd a (Iclivcry
to liimscir oj" the i;oo»ls hailed, such delivery is ;i
complete j list iluat ion lor nondelivery on ;u"(«)iinl of
the hailor \^(-)).
An aelual delivery to the true owner havinj; a ri^ht
to the possessi«>n on his demand is a instilication lor
till" haili'e. The hailee's eontraet is to do with the
property eommitted to him what his principal has
direeteil, to restore it or to aeeoimt lor it; anti hy
\ieldino to title paramount, he does account for il(57).
liul a bailee cannot avail himself of the /V/v A////
for the purpose of keepin|L; the property for himself,
even thoui^h the title he sets up is that of the true
owner {^i^).
Registration of Discharge N.W.T. i^y an Ortli-
nance ()asseil in iS();(5()), now chapter 44 of the
C'onsolidali'd Ordinances of iSqS, it is enacti'cl that the
seller or hailor shall, upon pa\ nient or tender of tlu*
amount dui' in resj)ect ol such j^ooils or performance
oi the comlitions of the bailment, sij^n antl ileliver to
any person ilemandin^ it a memorandum in writing,
statini^ that his claims against the i^oods are satisfied,
aiul such memorandum shall thereupon oj)erate to
divest the seller or hailor of any further interest or
right of possession, if any, in the go(xls(6o).
d
ll
(i^S) ^/V/'//'' V. Bot/i/ 6 H. \: S. 225; A'tNi^smtiti v. Kin):;stnan
ft Q.H.I). 122; /io^^i'tsx. /..im/i^r/ (i&i)i) 1 Q, H. 318.
(56) IViUsoti V. Atuierion \ \\. & Ad. 456.
(57) Clieesetnan v. j^lxall ft Ex. 341 ; Beveii on Negligence, 918.
(58) Heven on Negligence, 9i8(«).
(59) No. 39 of 1897, s. ft.
<6o) Con. Ord. N.W.T. 1898, c. 44, s. 6.
AMt < II \| III, ill \s.
07
Siuli a inciiKtiamliiin ina\ he rr^isirrcd in the
proprr <>f(i(«' Inr n';;isliatinn <»! cunditicmal sale a^rcc!-
nunts, if its cxcciilion is |uov<-«l l)\ ihc allidavit of an
altcslinj^ wilncss (f)i ).
Assault during Seizure of Chattels. M the (<>n
(lilionai imrcliascr or any other person he assaulted hy
the haililf or employee sent l»\ the vendor to re take
possession of the chattels, the vendor as well as the
assanltiiiL; party may Im; ntsponsihie in damaj^cs therefor,
if the assanltinj4 |)arty were a(lin}^ in tlur ordinary
eoiirse of his emplo\inent with the intention of doin^
wiiat he was ein|)Ioy«"d to do, and not for purposes of
his own. An act done hyan aj^cnt may he so criminal
that no jury would say that it could hav(.' heen done in
furtherance; of his master's husiiiess; hut if an a^cnt
who was aulliorized to do a thin;,^ properly, whil(;
actin<4 within tlie scope of his authority, exceeds his
authority hy doiiijn iIk; thiiij; improperly, the mere fact
of tin; exc(;ss of authority, involving a criminal act,
does not reli(.'V(,' the masK.-r from liahility (62).
if a charge of assault or l)att(;ry is pr(;ferr(;(l l>y or
on hehalf of the person a^i^rieved, and is tried sum-
marily hefore a justice of the peace upon a hearinj,^
upon the merits, the j)ayment of the fine or the; undcr-
j^oiiiLj of the; sentence imposed will release th(; person
convicted from any civil proceedinj^s for the- same
cause (63 ; and if the accusc-d is ac(|uitt(;d upon a
summary hearing" upon a complaiiU similarly laid ' hy
or on hehalf of the [)erson aj^^^^rieved,' the maj^istrate's
(61) Sec. 6.
(62) Dyer v. Miinday (1895) 1 Q. B. 742, 64 L.J.Q.H. 448.
(63) Cr m'nal Code ((.an.) sec. 866; ISleuills v. Jiallard i Can.
Cr. (Jas. 434; /fardii^iin v. Graham i (!an. Cr. Cas. 437 ; Miller v.
Lea 2 Can. (Jr. Cas. 282.
9S
COMin Ion \I. SAMS
certiUcate ot" dismissal will bar a claim for (lama<4<'s set
up in a civil action (64).
liiit it would seem that the summary conviction of
the hailifT for an assault committed while forcibly
removing" _L,^()ods under a conditional sale aj^reement.
and the paxinent of the tine imposed will not relieve
the employer from his liability to pay damaj^es for the
bailiff's wroni^ful act committed in furtherance of the
employer's business, and while actin*;' within the scope
of the employment (65).
Criminal Proceedings against Conditional Vendee.
— The statutory offence ot theft is committed bv a
bailee who fraudulenth and without colour of rijijht
converts the chattels to his own use or the use of any
person other than the owner {a) with intent to de|)rive
the owner or any person havin<j[ any special j)roperty
or interest therein, temjjorarily or absolutely of such
thinj;' or of such proi)ert\ or interest ; or [b) with intent
to pledjj^e the chattel or to deposit it as security; or
(r) with intent to i)art with it under a condition as to
its return, which the |)erson partinj^' with it ma\ be
unable to perform ; or \d) with intent to deal with the
chattel in such a manner that it cannot be restoreil in
the condition in which it was at the time of the
conversion (66).
The offence is complete, notwithstanding that the
chattel was at the time of the conversion in the lawful
possession of the person convertinti^(67).
(64) Criminal Code (Can. ) sec. 866.
(65) Dyer\. Munday (1895) i (^.B. 742.
(66) Criminal Code, sec. 305.
(67) Cr. Code (Can.) 305 {■},}.
CHAPTIIK \.
Ri(.iri> (ti TiiiKh l*.\urii> uicAkniM. COmii i ii>.\.\i.
Sai,i;s,
Wrongful sale by conditional vendee. At (< mi-
nion law a person in possession ot j^ooils could not
confer on another, either In sale or l)\ plediie. any
i)etter title to the j^oocls than he himself had. 'i"o this
n^eneral rule there was an exception of sales in market
overt, and an apj)arent exception when the person in
|)ossession had a title defeasible on account of fraud.
lUit the i^eneral rule was. that to make either a sale
or j)ledj4e valiti ajj^ainst the owner ot the t^oods sold
or pledi>etl. it must be shewn that the seller or ])ledoer
had authority from the owner to sell or pledge, as the
case mav be. If the owner of the ••oods had so actetl
as to clothe the seller or pledjL^er with apparent author-
ity to sell or pledy^e. he was at common law precludetl
as asjjainst those who were induced bona Jidc to act on
the faith of that apparent authority, and the result as
to them was the same as if he had realK i^iven it ( i ).
And where hides had been sent to a tanner near
Montreal to be tanned and re-shipped to the owner in
Enj^land. and the consitjnee. who in the course of his
business purchased hides and manufactured leather
out of them, pledi>^ed the hiiles so consij^ned for tan-
nin*!^, it was held that the pled^jee had no title ai^ainst
the true owner, and was liable for the value of the
hides which had been sold, althouj^^h the achance had
been made in sj^ood faith to the tanner (2).
(i) Cole V. N. Western Bank J..R. 10 CM'. 354, per Blackburn, J.,
followed 'vc\ Forristal s . A/eDona/ti [iSS^) g Can. .S.C.R. 12.
(2) City Bank v. Barrow 5 App. Ca.s. 664.
'■\i
■'1
F
loo
roNhl I IMNAI >.\l I ^
A person in whose |i(»ssessinn an ailii le has heen
plaei'd iMider a cnnlrail n( tnn(nii<»nal s,i|e resj-rxinn
pinpertN in llie vendor, cannot, apart iVoni statutor)
provisions, such as are contained in tile ( omhlional
.Sales Act. |L;i\(' a title to a third part) as .ii;ainsl the
conditional vendor or bailor (^;)-
Ordinarily, a /'<'//(/////<• purchaser. Ironi the condi
tion ol vendee, ac(|uires no heller title than such
vendee has{.j).
It the hirer of l;<»o(Is vvroni^lullv sell or otln'rvvise
part with iheni, the owner niav treat the hirini; as
terminated (5) ; and. e.\ce|)t where hv statute the
piM'chaser iVoin ihe hirer has ac(|uired a ri;..^hl of reten
tion heiause ol noncompliance with stalutorv pro-
vi-;'' lor registration ol the hiri- aj^reement. or
<>t! ' ' v(: ' the original owner ol the ''oods ma\ sue
th. |»iii. n.iser lor their conversion {h).
\\'here a |H'rson hired a sewing machine under a
hirt-pi 'ha iLireement and then pawned it, the
owner was hel'J ( nlitleil to recover the machine from
the pawnbroker (7).
An auctioneeer who teccives i^oods ajuainsl wliich
iheri" is a conditional sale lien hv which the propertv
is reserved to the vendor, and who sells the same
under instructions from the conditional vendee, is liable
to the real owner lor damaj'es for the conversion of
(l) ffin/cnrss v. A'ussf// 118 US. (»0;; StfTrnson v. Riif 24
U.r CM'. 245; Afasofi V. Johnson 27 C.C.C P. 20S ; Tiiffts v.
Moititsht-ii 21; U C".(M*. 53() ; Mason v. Hickle 2 Out. Anp. 291 ;
^oiiilu'imci V. Robinson 2 Ont. App. 305.
(4) Biiycf V. A/c D(>nii/(/ [iSi)^) 9 .Man. R. 297 ; liallariis. linr^elt
40 N.V. 314 approved.
(5) Ft'nn V. Bittleston 7 Exch. 152 ; Hryanl v. Waidell 2 ICxch.
479-
(6) Cooper v. Willomatt 1 C.B. 672; Loeschman v. Machiti 2
Stark. 311.
(7) Sifix^i-r A//g. Co. V. Clark ^ Ex. D. 37.
\\h ' II \ I I I I, III As.
lol
llic ;^nu(ls, .ililiuii|Lili ln' <li<l so l)<'lii'\int^ in •fj^tun] laitli
that the itci'sMii lidiii whrun lie rccci\('(l llicm was tin-
owner (S),
It) a nccnt < )iitario case ((>) tlic facts were, tliat tlic
conditional vendee made an alisoliitc sale ol a ha\ |)ress
to a third |tari\, who pnnhased in '^ikh\ laith, the
person h'oin whom lie hoiij^ht lia\inn represeim-d to
iiiin that it was paid lor and tree iVom aii\ lien, and the
conditional \(ndee continued lor some time afterwards
to maUe small pa\ments to the (»ri;;inal vendors.
When these pas ments were discontinued, the orii^inai
vendors lirst became aware tiial their \endee was no
ionj^er in p(»ssession of the hay press, and lhe\ s<i/e(l
it in the possession of the third part). The latt(;r
sue(| the original vendors and also the condilional
vendee from whom he had hou^hl, allei^iniL; as to th(.'
latter an express warrant) of title. Ihe contract
havinin heeii tlulv liletl under the Ontario ( 'onditional
Sal(is Act, the action was dismissed as to the ori^dnal
vendors, hut judninent was awardecl at^ainsi the con-
ditional vendee for hreach of warrant) of title. In
assessing' tlie damaj^cs with respect to the latter, it
was held that it was j)ro|)er to allow the plaintiff not only
the value of the ha) press hut also the sum he would
have received l)e)()nd exjx-nses upon t:oniracts, actually
made and in force at the time of the seizure, to press
hay with that particular hay press and in which he
was in course of executini^" at the time of the seizure,
because the coiulitional vendee knew when he sold to
the plaintiff that the press was to be used for the pur-
pose of pressing;" the ha) of different farmers by th(;
plaintiff for profit, and that arrangements would be
made with them in advance (to).
(8) Cochratti's.Nymill 2- W. R. 776; Delaney s. Wallis 14 L.R.
Ir. 31.
(9) Slieard s. Horan iSi^qi 30 Out. R. 618.
(10) Sheani \. IJoafi ( 1899 30 Out. R. 618 ; The Argentino (1889)
14 App. C"as. 519.
-i
I02
t ().\l>l riDN \l. SAI.I.>
Affixing name and address to chattel. Where the
lael that the inaiuifattiirer's or l)ail(»r's name and
adih'ess had heen painted. |)rinte(l. stani))ed. en;^ra\ed
or atlaihed to the rhattel. is relied on as a eoinpliance
with a foiulitional sale law. the plain intention of the
Acts ot the \ari«»iis proxinces in which that method is
permittetl seems to he that thi- paintini^ or stampin}^.
etc., shall he done in such a manner as would attract
the attention of a prol)id)le purchaser when inspectiiijn
the chattel, ami that the name and address should he
placed on the chattel in a permani-nt wax. The
statutes re(|uire that the name he plai)ily attached no
matter which of the methods prescrilx'd is ailoj)ted.
It is therefore suhmitted that to affix the name and
address 1)\ stamping the same on the chattel with ink
easil) erasetl, or to affix the name in an obscure part
of the chattel, where no one would he likely to look for
it. or to print or stamp the name in unreasonahK" small
characters, taking, into consideration the nature of the
chattel, would not he a compliance with the Act as
against a hona-fide |)urchaser or mort^ai^'ee who
examined the article, hut, hy reason of the circum-
stances mentioned, found no name or address thereon.
What is a ri-asonahle affixing.;' of the xendor's name
and address must depend upon the size and nature of
the chattel.
I'he time at which the statute makes it imi)erative
that thi' conditional x'endor's name ami address must
he on the chattel is the time xvhen possession is i^ixen
to the bailee ( i i ).
The bailor's duty as to the name and address, if
then complieil with, is not a continuing' one. and
he is not bound to prexent the bailee from ol)literatin}4-
the name stamped or jiainted on the article sold, or to
exercise anx' control oxer it in that resj)ect during the
'^ii) R.S.O. 1897. c. 149. s. I.
A\lt < IIAIIII l.ir.NS.
«o>^
ItailnuMit O^): inul the lien is nut lost it, without the
\('iulor"s (lircttioii or connivaiuc, the eomlitional pur-
thaser paints out or ohHterates tln' name and address
ol' the \'end(»r. whiili, at the time possession was t^iven
to the hailee. appear«'(l on the chattel either hy
hein^ painted tlu'reon or otherwise plain!) attached
thereto ( i^^).
Vendor's non-compliance with statute Rights of
subsequent purchasers. In the provinces of ( )ntario.
liritish C'oliimhia. New lirunswick and I'rince lulward
Island the non-compliance with tlu' re(|uirements olthe
Conditional Sales statute in\alidates the condition of the
hailment whereby the conditional \endor reserves the
property and title to the chattel, and under which he
mi^ht retalsc possession of same, as oQains/ sul)se<|uent
purchasers or morti^ances without notice, in iL^ood faith
for valuable consideration ( 14).
Ihe vendor's title is displaced onl\ to the extent
which is necessarx to j'ive effect to the claim of the
purchaser or mortj^ai^ee (15), and in the casi; of a
tnort^a|Lii'e llu' conditional vendor is entitled to any
henelhs remaining' after the mortn'aiice s claim is
satisfied." (16).
Subsequent purchasers without notice in good faith
for valuable consideration. A contlitional sale aj^ree-
ment. under sec. 41 of the Ontario iiills of Sale Act.
for the sale or transfer of ' merchandise' to a trader or
other person for the purpose of re-sale 1)\' him in the
i_i2 Wcttlaiifcr V. Scott ( iHo^i 20 Out. \\>\y. 652.
(13) Wettlaufer v. .SVt^// ( 1893; 20 (Jnt. App. 652.
(14) R.S.O. i8t>7, c. 149, .s. I ; R.S IJ.C. 1897, c. 160. s. 24; Stat.
N.B 1899, c. 12, s. I ; Stat. I'.E. I. 1896, c. 6, s. 1.
'151 Ex p. Blaibi'tj:^, 23 Ch. I). 254, 258.
( 161 Kc Artisti: Color Co. 21 Ch. 1 ). 510.
I04
( ()M»I I luN \1. NAI.KS
course (»r hiisincss. hut rcscrNint; the title or ownershln
to the vendor, will imi iiHeti purchases h-oin sucli
trader or person which are nuide in the usual course of
husiness ( I ").
hy the Ontario I'actors' Act (iS) any person may
contract lor the purchase of i^oods with an\ ((;'<;//
entrustetl with the possession thereof, or to whom the
same ma\ he consij^ned. and ma\ recei\(' and pa) for
the same to such aj^cnt ; and such contract and pay-
ment shall he I)indinj4 upon the owner of the <^n)ods
notwithstandinj; the purchaser has notice that he is
contractini* only with an a«'i'nt.
It is also enacted that the consideration necessary
for the validity of a pin"chase from an ajj^eiu entrusted
with the p()Ssession of jL^oods ma\ he either a payment
in cash or the delivery or transfer of other jj^oods, or in
part cash and in part the delivery or transfer of other
^oods (19).
To constitute a person an "ajL^ent " under that Act,
his empio) nient must correspond to that of some
known kinti of commercial aj^ent like the class of
factors. If not such a jn-rson, a pledjL^ee from him
could not successfully set up that the pledj^or was an
"auent entrusteil with the possession of ij^oods "
empowered l)y the I'actors' Act to pletljj^e them. (20)
The agent's husiness must be of that class which,
like the husiness of a factor, when carried to its lejj^iti-
mate result, would properly end in sellini^j or receiving
payment for <^()()ds. If such a person is 'entrusted.'
and is entrusted /// ///a/ capacity, then in the absence
(17) R.S.O. 1897, c. 148, s. 41 (3).
fi8) R.S.O. 1897, c. 150, s. 5.
(19) R.S.O. 1897, c. 150, s. 5.
(20") Bush V. Fry (1888) 15 Ont. K. \Z2.
\M» < II.MTII, III \s.
1"^
nl' l):ui faith on ihc part <>! tlu* plrdj^cc, the pledge is
j^ond (21).
It is Mot ill tile unlinarN loiirsc of an aj^rit ultiiral
iinplfiiu'iu ai^cnt s hiisincss to trade otT iinplcnunis lor
horses; and a sale made hy the aj^ciU ol a inathiiie
which he had himself |>urihased from the mimulae
turer on a (onditional sale contract, and on v\hich he
acce|)ts a horse in part payment is not hindinin upon
the owner ot the machine unless he has authorized such
a barter, or has ratified the same or taki-n the heiiefit
of the consideration |)aid to the ai4('ni(22). Mone\ or
anytliin}^ that hears a known value is a valuable con-
sideration (23).
A purchaser of j^oods in consideration of the
discharjjfe of a pre-i'xistin^ debt, is a purch;iser for
valuable consideration (24).
A landlord ma\ he a purchaser in j^ood faith from
his tenant under a sale from the latter to him. \)\
which he ac(|uires the chattels either in satisfaction of
or in part payment of his rent ; or uiuier a sale l)\ the
landlord's bailiff, actinia uikUt a warrant of distress
for the rent, if the tenant consc'iUs to the landlord
beinj^' a purchaser at such sale (25); but the ilisiress
must have been le_!jfall\ maile, otherwise the sale mii^ht
be treated as a conversion (26).
If a person purchases from the coiulitional xciulei-.
knowinjj^ where and from whom the chattel was j)ur-
chased by the latter, ami that it had been obtained on
credit, he is put upon en(|uiry to ascertain whether the
1 21) Ci/y Bank v. Barroiv 5 App. ('as. 678, per I51ackl)urii I.;
Jiush\. Fry (1887) 15 Out. K. 122.
(22) Wesbrook v. Willoii^hhy 1 1895) 10 Man. R. 6yo.
(23) Kevan v. O aw/onl G Ch. 1). 29.
(24) Williams v. Leonard o"' Sons, 26 ("an. S.C.R. 406.
(25) Farlin^er v. McDonald i,^ U.C.R. 233.
(26) Griffin v. McKcnzic ^U U.C.R. 93.
'\i
4d
|k)0
« MNIMIInN \| s M.I ^
\ fiidrc hati a('i|iiin-*l (he prnpcrtN in ihr t haticl ; and
il In- nrj^lcils In inakr <n<|iiir\ hr is not a ' hnna title
|»iir« liascr withoiii nntin' ' (j").
A |uin liascr ola srwinj^ ina« hinr innw nnr whom In-
knows In he in |H>ss(>ssi(in thcrml inxlrr a rondiiinnal
sale has siilVu itiit nniicj- ni tin- rights nl nrij^inal
\(>nd(>r to put him ti|i<in ini|iiirN, aUhnui^h the one linni
w hum he |uii'( hasrs tells him that she had («Hn|>lied
with the terms nl such i'<>nditii)nal sale ( jS).
Creditors of the conditional vendee. In iAsv nf
an .ii^reenunt lur tin* sale »>r transfer »•! men handise
nl' an\ kind under setiinn \\ nl tin- < >niarin Hills nl"
Sale Art In a trader nrnther p<"rsnn Inr the purpns*- nj
re sale l>\ him in the < nurse of luisiness. and ui\der
which such trailer j^els ihc pnsscssinn hut not the
ahsniule n\vn(*rship until certain pa\ nients are made nr
niher cnnsideralious satislied. an\ such prn\isinn as to
ownership is \nid, and the sale nr iransler deemed
ahsniule, as ajL^aiiist creditnis as well as against mnrl-
14 tjj[ees nr purchas«'rs Irnm the trader, unless the
ai.;reemeni is in writing and is liled, as li\ that Act is
reijuind (2(.)).
iWii creditnrs af the cnnditinnal vendee, in cases
cnminj4 und<r the ( nndiliniial Sales Act nl ( )ntario,
can ac(|uire no rij^lus superior to that of" the del»tor( v^).
And under the Conditional Sales Acts of New
HriMiswick, jiritish Columbia and i'rince lulvvarti
Island, creditors «)f" the conditional vendei' have no
better claim as^^ainst the chattels condilionallv sold
because of non-compliance therewith, the classes of
(27) Su//tt'r/(ini/ V, Manni'x i 18^2 1 8 Man. K. 541.
(28) Sif/ji,'f/ Mf^. Co. V. Converse ^V.o\o.\ 47 I'ac. Rep. 264.
(29) K.S.O. 1897, c. 148, s. 41 ( I).
(30") Domiuiofi luinkw Davidson 12 Ont. App. t>2.
If
AM> • tl M II f I II N»*.
i.>7
|Mr>MH> Inr whosr Itnirtit ihiisr statiilcs wrrr |wiss«il
IhIm^ liinittMl Id siil»s««|iM'nt |»»ir« hasrrs nr inori^^aj^ci'H
withniii nniur ii) Mntid lailli lur \.iliial»lc ( nnsi«li-rii-
lini) ( ;i ).
r.. jMin h.is«(| fiiniitiiir ill a tlwrllm^' huu'x-. and
altrrwanis lt\ mnnnraiKliiin in wrilini^ hind it lo lh«'
M'lltr A « rrditui i»( ihr lalUT ha\ iiiL; s<i/rd ii imdrr
• At ((iiiMii, an initr|>lra«l«r issiu* was irird ti> dturmiiU"
th*' title, and it was lirld that I'., was entitled m the
;4<".<K; and that il tiu snltseijiieni hirin;.^ had l»e<n a
KHurart i>(" s.ile and hin- (which it was nut), iis n«»n
HL;istfatiun wtMiM nut make it \nid as against I'Xfrii-
lioii creditors, whn are not |»nit«'(t<d l>\ the (ondi
luHial Sales law n( Ihitish < Mliind)ia ( ^J |.
In the Nnrth West rerrilnrics. il the ( onditional
sal( he ul i^nods ol the value n\' 'f j 5 or user. IHMI-
cuinpliance with the < )rdinance res|M(!ini4 hire nceipts
and cnndiirnnal sales(;^) will |>re\< ii the seller or
l»ailnr Ironi seiiin;; up his ri^ht ol propcriN or ri^hi o(
possession as against jiidi^incnts, executions or attach
nienis against the purchaser or hailc-e, unless the sale
or hailinent is in wrilini^, sii^n* I Ia the hailee or his
ai^ent. and is rej^istered in coni|)liance with the Ordi-
nance (;vO-
I'nder the No\a .Scotia Hills ol Sale Act ol iSc^c^.
the contract of conditional sale inusi he tiled pursuant
thereto ; otherwise the aj^reement that a lien lor the
|)rice, or tlie property in the personal chattels, shall
remain in the person letting to hire, the lessor or the
hari^ainor until the pasment in lull ol the hire, rental
or price aj^reed ujxtn, l)\ liiture pa) iiienis or otht^rwise,
(.V) ^'at. N. 15. iH«>y, r. 12, s. i : R.S.M.C. iHy;, c. 169, s. 25;
Stat. I'. K.I. i8c/), c. 6, s. I.
'32) Esnoufs, iiutney i^ H.C.k. 144.
(33, Con. Ord. N.W.'i". i«c;S, c. 44.
34. Con. OrcJ. N.W.T. iScjH, c 44, s. i.
io8
CONDI IK )NAI. SAM'S
will be null and voiil as against the creditors of the
person hiring or of the lessee or hars^ainee. as well as
aj^Minst purchasers or niorti^aj^ees from him (^^5).
The expression "creditors" in the last-mentioned
Act includes execution creditors, and sheriffs, con-
stables and other persons ievyinj^ or seizing" under
process of law personal chattels comj)rised in a bill of
sale (^^6).
S. obtained a piano from M.. under an aj^reement
in writiiiLj that S, shouki pa) rental therefor, for the
period of thirty months, at the rate of $10 per month,
ami that, on the completion of the pa\nients aj^reed
to be made, .S. should be entitletl to receive from M.
"one piano, etjual in value to the above-named piano,
with a receiptetl bill of sale thereof" The piano was
seized b\ the sheriff, under a writ of attachment a«'ainst
S.,asan absent or abscondinj^' debtor, and M. claimed the
ri»>;ht to resume possession of the j)iano, under provisions
in the a^jreement enabliiii; him to do so in such a case ;
it was held that, as there was nothiiij^' in the a<;reement
entitlinj^ .S., at the termination of the period of hirini^,
to the possession of the particular piano referred to in
the agreement, M., beini>- entitled to deliver, in |)lace
thereof, another piano of ecpial \alue, the contract was
not one of conditional sale within the Nova Scotia
Act i^y/), and that the owner of the piano was entitled
to same as against creditors, althoui^h the contract hatl
not been rej^istered (3S).
Non-compliance with the rei^istration laws of a
province cannot be taken adxantaj^e of by creditors of
(35) N.S. Laws 1899, c. 28, s. 8 in force from date of proclama-
tioiij.
(36) Sec. 2.
137) R.S.N. S. 5ih scries, c. 92, s. 3.
138) Gucs/ V. Diack 29 N.S. R. 504, affirmed on appeal to Supreme
Court of Canada, June 14th, 1898.
n
o
AN It (HAITI. I. I.I INS.
109
the conditional vendee if the conditional sale took j)lace
in another province, and the chattel was then in such
other province.
M. purchased from plaintiffs, in Ontario, certain
machinerv for his factorv in Nova .Scotia under an a-'ree-
ment in writini;" sij^iied in Xova .Scotia, whereby .M.
aLi^reed to pay for the machinery in certain instalinents,
and that until the whole amount of the purchase money
was paid the title to the machinery should not pass
from j)laintiffs, and that it should not he removed from
the j)remises without plaintiff's consent, and that in
case of tiefault plaintiffs shouki he at lihert)' to enter
and take possession. The machinery was shippetl to
M. from Ontario, and the first cash j)ayment was made
as agreed, l)ut, hefore any of the further pa\nients hail
been made, M. matle an assii^iiment for the benefit of
his creditors to defenilant, under which the latter took
possession of the machiner\. hefore the assioiiment
was actually executetl, the plaintifts served M. with a
demand of jiossession of the propert)' under the
terms of the ai^reement, and a similar ilemand was
made upon the defendant assignee ; it was held that
the provisions of the iiills of .Sale Act, R..S. \..S. 5th
series, c. 92, were not aj)j)lical)le, the subject matter of
the contract beini;" property in Ontario when the
contract was made, and the machinery havinj^ been
brouy^ht into Nova .Scoti.i subseciuently 139).
It has been held that an authority i^iven by the
seller, in a conditional contract of sale, t.o the purchaser
to sell the j^'oods in the course of trade and approj)riate
the proceeds to his own use does not ileprive the seller
of the title to the j^oods remain iii!^- unsokl aj^ainst an
assi<rnee for creditors of the purchaser. (40).
li
(39) McGregor v. Kerr 29 N.S. R, 45.
(40) Baker v. Tolles (N.H.) 36 Ail Rop. 551.
I lO
(ONDI rin\.\|. S Al.l S
Registration as notice. Vhv t";ut of ihc fxisifiuc
of a rt'i^isir) law seems to re(|uir(' tlial anv insiruineiii
atleilin^ tile lille which is properly recorded should
he held to he notice to exeryoiic siihsecjiieiuly dealiiiL,^
with the title whether or not the record has heen in
fact examined (41 ).
in the Tnited States the j)revailiiin rule is that the
presumption of knowledjuc is cnulusive that a suhse-
(|ucnt purchaser has full notice of any interest affected
by the recorded instrument (42).
A j)urchaser before buyini; should clear up ain
doubts which ap|)arentl\ hani; uj'on the title, b\
makinj^ due en(|uir\ and inxcstii^ation. If a pari\ has
knowledi^'e of such facts as would kad a fair and
prudent man usini; ordinary caution. t<. make further
en(juiries, and he avoids the en(|uiry, he is changeable
with notice of the facts which b\ ordinary dilij^efice he
would haVe ascertained (4^^).
W'hatever puts a party upon en<|uiry amounts in
judi^meiit of law to notice, provided the en(|uir\
becomes a dutv. aiul would leail to the knowledge of
the recjuisite fact by the exercise of ordinary dili!L»('nce
and unilerstandin|L>; (44).
The whole scheme of filing' records of conditional
sale contracts seems to imply that the purchaser of a
chattel is jjut on encjin'ry as to whether a record or
registration exists shewing* that the chattel was
obtained only upon a bailment, and that the title did
not j)ass ; aiul althoujj^h rej^istration is as re«;ards title
to land held not to be of itself notice unless the statute
(41) Wade on Notice, 2nd ed., sec. 97.
(42) Cool- V. Travis 20 N.Y. 400; Wood v. Chapin 13 N.V. 501)
Hunt V. Johnson 19 N.Y. 279 ; Wade on Notice, s. 97.
(43) Knapp V. Bailey 79 Me. 195.
(44) 16 Am. & E. Encyc. 792.
\\h ( II.MTIJ. I.IINS.
Ill
SO (Miuis (45). a person who docs not clioosc to make
any in(|uir\ rcj^ardiu^ (lotuiiKMils rt'(|iiirc(l l)\ law lo
!)(' rcj^istcrcd, ma) l)c irfatcti as lia\ inj; liad notice of
a lien which was preserved hy a vendor retaininjn"
possession of a rej^istered dociiinent (46).
A purdiaser who takes his purchase v\!ihoul
investij^ation ol title is affected with constructive
notice of all that he would have discovered! upon the
usual investij^ation of title (47).
Apart from the re^istr\ laws, mere nej^lij^cnce to
make entjuiries where there is no knowledj^e or suspi-
cion is not notice (4S). The term "notice" in the
corresponding section of the Imperial I'" actors' Act is
said to mean "actual, thouj^h not formal, notice, that
is to say either knowledjj^e of the facts, or a sus[)icion
of somethinj^ wron«;. comhined with a wilful disrej^ard
of the means of knowledj^e " (49).
I'Vom the time of the deposit of the instrument
with the j)roper officer for record, it is to he rej^anied
as constructive notice to all persons who sul)se(|uently
dt;al with the title, notwithstandinj^ any errors hy the
officer in recortlinj; the- instrument, or even when he
nej^lects to record it at all. The duty of the party
hrinj^injj^ in the document to he filed or rejj^istered is
fully accomplished when a perfect instrument is
depositetl in the hands of the proper officer, and he
should not he held responsible for the officer's nej^li-
j^ence in dischar^jinjjf a public duty (50). l''or a failure
(45) He Russell {\%'j\) 12 l-kj. ;8.
(46) Kettlewell v. Watson 1 1884) 26 Ch. D. 501, 508.
(47) Gainsborough \. Watcotnbe 54 L.J. Ch. 991; 53 Eng. \..'\.
116.
(48) Goodman v. Harvey 1 1836) 4 A. & E. 870 ; Bank of Bengal
V. Pagan (1849J 7 Moore P.C. 61.
(49) Chalmers (Judgel on Sale of Goods 3rd ed. 1896, p. 12S:
and seejones v. Gordon (1877 1 2 A' y. Cas. 616.
(50) Curtis V. Lyman 24 Vt. 338.
! ;»
I 12
(oNKirioNM. >\I,l.s
to iiuK'N ihc ortictT will Ik' lial)l(' t«» the searcher of the
records, who is thi'reh)' misled to his injur) (51).
Estoppel. H ii man hy his wortis or conduct wil-
fully eiKU.'avors to cause another to helieve in a certain
state of thinjLjs which the first knows to he false; and
if the second helieves in such a state of thinj^^s and
acts upon his belief, he who Unowiiii^ly made the false
statement is estopped from averrin;^ afterwards that
such a state of thinji^^s did not in fact exist (52). liut
the allowing; of the conditional xentlee to retain
possession of the chattel after the timt; for j)ayment
in full had passed, and the returnini,^ to him of his
promissor\' note on ohtaininjLj a new note from him in
renewal, will not constitute an estoppel as rejj^ards the
vendor's title reserved, if he has not wilfully endea-
voureil to cause the third party who purchased from
his vendee to helieve that the price was paiti (53).
If a man, either in express terms or by conduct,
makes a rej)resentation to another, of the existence of
a certain state of facts which he intends to be acted
upon in a certain way. and it be acted upon in that
way, in the b(;lief of the existenci; of such a state; of
facts, to the damajj^e of him who so believe-s ami acts,
the first is estopped from denyinjj^ the existence of
such a state of facts (54).
And if a man. whatever his real meaning may be, so
conducts himself that a reasonable man would take his
conduct to mean a certain representation of facts, and
that it was a true repn.'sentation, and that the latter
intended to act upon it in a particular way, and he
151) Curtis V. Lytnan 24 Vt. 338 ; S/>eer v. Evans 47 Pa. St. 141.
(52) Carr v. London cr* /V IV.Rv. L.R. 10 C.P. 307.
153) Mason v. Bickle (1878) 2 Ont. App. 291, 298.
54 1 (7(7/7- V. London (S- N. IV. Ry. L.R. 10 C. P. 307.
AND CirATTKI- MKNS.
I I
with such belief does act in that way to his damaj^^e,
the first is estopped from denying that the facts were
as represeiuetl (55). Hut the practice of renewing
notes is so common that the |)ossession l)y the maker
of a note «,nven under a conditional sale agreement
and endorsed by the payee does not demonstrate that
it was rt'iired by a cash paymeni, and the conditional
venilor is not e'stoppi'd as regards his title reserved,
because of his endorsing such note antl returning it to
the vc-nilee on obtaining another note in renewal,
although the vendee used the same to induce a third
party to believe him the owner and to purchase the
chatlle from him (56).
If. in the transaction itself which is in dispute, one
has led another into the belief of a certain state of
facts by conduct of culpable negligence, calculated to
ha\e that result, antl such culpable negligence has
been the proximate cause of leading and has led the
other U) act by mistake upon such belief to his pre-
judice, the second cannot be heard afterwards, as
against the first, to shew that the state of things
referred to did not exist (57).
VV'here safe-makers sold a safe to one H. on a
written t)rder which stipulated that he was to give his
notes for the price, that his name was to be painted on
the front of the safe, and that no title to the safe was
to pass to H. until full payment of the price, and the
name of the conditional ])urchaser was accordingly
painted on the safe, it was held that the vendors were
not by reason thereof estopped from proving and
(55 I Cur V. Loniion 6- JV. W. Ry. L.R. 10 C.P. 307.
(^561 Mason v. BUkle (1878) 2 Ont. App. 291.
(57) Sxvan V. North British 2 H. «S: C. 182 ; Ciirr v. Londiti cr*
NAV. Ry. L.R. 10 C.P. 307.
114
CONDmoNAI, SALKS
ass<irting their ownership as against a i)iirchaser from
their vendee (5(S).
The fact that the conditional vendor of a wagjj^on
knew at the time the bargain was made that the
conditional purchaser proposed havin*; th<i wagi^on
re-painted, and that he took no steps to prevent his
name and address, which had been painted on it in
compliance with the Ontario Conditional Sales Act,
from being obliterated by the re-painting, will not
alone justify a finding of collusion so as to tieprive the
vendor of his lien or title as against a purchaser from
the bailee (59).
Vendor registering a mechanic's lien, i'he fact
that the conditional vendor has registered a mechanic's
lien against the realty in respect of an engine and
boiler and machinery, the subject of th(! conditional
sale, the articles having beeti affixed to the realty by
the conditional vendee, will not constitute an esloj)pt.'l
against the vendors from suing in detinue for the
article (60).
By filing the mechanic's lien the vendors do not
elect to treat the fixtures as having become the
property of the vendees or of the owners of the realty,
and there will be no estoppel even if suit is brought to
enforce the mechanic's lien if such suit be not prose-
cuted to judgment but dismissed by the plaintiffs
themselves (61).
(58) Walker v. Hyman 1 Ont. App. 345.
(59) IVetllaufer \. Scott i\9>i)T,) 20 Ont. App. 652.
(6oj Vulcan Iron Co. v. Rapid City Co. (1894) 9 Man. R. 577
(61) Vulcan Iron Co. v. Rapid City Co. (1894) 9 Man. R. 577, 586 ;
Priestly \. Fernie 3 H & (.". 677: Curtis v. Williamson, L R. 10
Q.B. 57.
ANI> CHATTKI- I.IKNS.
H5
Vendor's election making a conditional sale an
absolute one. In Mc lint in- v. Crosshy (62) the hiri-
jHirchasc aj^rccmeiu provitlcs as follows : -
" In case of failure in payment of any of the above mentioned
sums, or in case the lessee, his executors, administrators or assigns,
shall durin^ the continuance of this agreement l)e adjiidi^ed bank-
rupt, or file a petition for liquidation, or make a coninosition with
or any assignment for the benefit of his creditors, or suffer his effects
to be taken in execution, or give a bill of sale, or on the breach of
any of the covenants and conditions herein contained, the full
!)alance of the said sum of - required for the purchase of the
said engine shall, at the election of the owners and lessors, at once
become payable to and be recoverable i)y them, who, iiowever,
instead of seeking to recover such balance may, if they think lit,
seize and resume absolute possession of the said engine wherever
the same may be, and for this purpose, if necessary, may break into
the premises of the lessee where the said engine may from time to
time be, or be reasonably thought to be, and sell the same in such
way as they may think fit, and the several sums which shall have
been paid by the lessee shall be forfeited to the owners and lessi)rs,
and out of the purchase money to arise from any sale of the said
- — engine the owners and lessors may reimburse themselves, and
pay all the costs and expenses incurred in such seizure and sale, or
in connection therewith, and after retaining the difference between
the instalments so actually paid by the lessee under the provisions
aforesaid, and the said sum of , pay the surplus if any) unto
the lessee, his executors, administrators or assigns, or to whom he or
they shall direct.
" Provided always, and it is hereby agreed and declared that in
case the owners and lessors shall see fit to resume the possession of
the said engine under this agreement without proceeding to
a salt;, then the loss occasioned them by reason of ihe noiv perform-
ance of the provisions of this agreement on the part of the lessee
shall be borne by the lessee, and in case of bankruptcy the owners
and lessors shall i)e entitled to prove against his estate for the same
as and for liquidated damages."
It was there held bv the House of Lords that if
the vendors elected, as they were entitled to do under
the contract, to sue for the remainder of the instal-
ments, treatinj^j them all as at once payable, their
election would be to have the purchase then com|)leted
and they could not sue for the purchase money, and
insist that ♦^he property in the «(oods. the price of which
(62) McEnttie v. Crossley (1895) -^-^ • 457*
w
li
116
(OMUTION.M- SAI,i:s
I
(fUyu.*'--%
tlioy wcTc suiii;^' for. had not jmissciI (63). Ami if tlur
vciulnr recover jiitljjfmeiu for the j)rice of the chattel
In virtue of an acceleration clause or otherwise, and
although the action is upon an acceptance )^nven in
j)ursuance of the contract of conditional sale for the
price aj^reed upon, and not in terms for the price of
j^oods soUl anil delivered, it is helil in New Brunswick
that the vendors thereby elect to treat as absolute a
sale which had been conditional only, and the brinj^inj^
of the action was an admission by them that the property
had j)assed. as that was the only position consistent
with a claim for the price upon which a judj^mient had
been obtained (64).
Fixtures to realty. — I''.\ce|)t where otherwise pro-
vided by statute, the affixing of the chattel condi-
tionally sold to the freehold of another, if not done by
the conditional vendor, will not operate to deprive the
owner of the chattel of his right to remove it, if it
can be removed without serious damage to the realty
(65).
If a hot-air furnace be placed in a house and affixed
to the realty by a person s wing both the furnace and
the realty, and who does so in pursuance of an agree-
ment for a loan on the realty, he cannot legally remove
the furnace from the premises during the currency of
the mortgage given for the loan ; and if it be removed
no title to it will pass even to an innocent purchaser,
and the mortgagee will be entitled to an order for its
replacement (66).
Where a boiler and pipes were purchased under a
conditional sale contraet, under which the vendors
(63) Ml Entire v. Crossley (1895) A.C. 457, 464.
(64) Pintle V. Hiney (1S96) 33 N.B.R. 607 (Sup. Ct. N.i).).
(651 Vulcan Iron Works Co. v. Rapid City Co, (1894) 9 Man R
577 ; Poison V. Degeer 12 Ont. R. 275.
1 66 1 American Investment Co, v. Sexton 26 Ont. R. 77.
AND CIIATTI I. I.IKNS.
I I
aftixecl lilt: sanu,' to realty occupied by tin purchaser,
it was litilcl that the vendors had a rij^ht as aj^ainsi the
laud niortjj^ajL^ce to remove the hoiler, etc.. under their
contract, while the purchaser remained in possession
of the lanil as mortjj^aifor (6").
An authority from the morinai^ce to the mortj^aj^or
to aj^ree to the removal is in such case implied . hut
if the lands he transferred to a purchaser without notice
of the rijL^lu of tht! conditional vendor to r<'mo\(' the
fixture, the lands will pass free from tht; claim to detach
the fi.xture (6<S).
It is not a necessary inference from the simple fact
of annexation, where the chattel is severable without
material injury to itself or to thtr freehold, that the
chattel becomes thi: property of the freehoUler ; but it
is always open to in<|uiry under what circumstances it
was annexed, and whether an a{j;reement did not exist
under which the owner would be at lilx'rty to taUe it
away ajj^ain (69). If, however, there is such a fixing
to the soil as reasonably to lead to the inference that
it was intended to be incorporated with the soil, then
it became freehold, e.g., piles driven into the bed of a
river (70).
An engine affixed by means of screws and bolts to
a concrete bed in freehold land for the |)urpose of driv-
ing a saw mill (m the land, will, in the absence of special
circumstances, cease to be a chattel, and become part
of the freehold. A. let the engine to B. on a hiring
agreement of an ordinary nature, and it was necessarily
fixed to the freehold in the way above indicated. B.
then mortgaged his freehold to C, who had no notice
of the hiring agreement, and became a mortgagee in
(67) Gough V. Wood{i^^) I Q.a 713.
(68) Hobson v. Gorrinf^e (18971 i Ch. 182.
(69) Hail Co. V. Haziitt (1885) 11 Ont. App. 749.
(70) Lancaster v. Eve 5 (!. B.N.S. 717.
liil
5=E
l\i^
(oNDmuNAi, s.\i,i:s
I
))()ss(;ssinii. H. havin;; failed to pay the instainu'iits
iiiulcr liic hiriii;; aj^rccint.'iU, A. claiiiu:cl the cnj^iiu;
hack. l)Ul the mortj^aj^cf coiUtMulcd thai it had passed
to him under the loMveyaiicc of the fri't^hold. It was
held tliat tlie iiiorigaj^ee's contention was the correct
one. ami that A. had lost his cnj^nne. The followini.'
remarks of Lnrtl Justice Smith, who delivered the jud«;-
meni n[' the Court, are instructive " 'I'hat a person
can a;4ree to affix a chatt(;t to the soil of another so
that it becomes part of the other's freehold, upon the
terms that the one shall be at liberty, in certain events,
to retak<' poss(.'ssion, we do not doubt; but how a tie
facto fixture becomes not a fixture, or is not a fixture
as rej^ards a i)urchas(rr of land for value and with(»ut
notice, by reason of some barj^ain between the affixers.
we do not understand, nor has any authority to support
this contention been adduced" (71).
The test as to the ri'inoval under a conditional sale
contract of chattels affixed to the freehold of the
vendees landlord is: — Could the conditional vendees,
had they affixed them to their own property have
successfullv resisted a claim bv their venilor, on the
• •round that thev had converteil them into freehold,
although the vendor must be held to have known that
it was intendeil so to use the chattel that it would be
annexed to the freehold ? (72),
M. ordered from the \V. Co. certain jjlaninj^ mill
machinery at an ajj^reed price, part of which was paid
down, and notes were j^iven for the balance, but the
agreement provided diat notwithstandinj^' the payment,
and the jjflvin*; of the notes, the property in the
machinery should not pass to M. but should remain in
the W. Co, until pavment in full. The machinerv
was |)laced in a building which was thereafter used as
<7i) Hobson v. Gor rinse {\%()i) i Ch. T82; 66 L. J. Ch. 114.
(72) I fall Co. V. HazUtt {x'^^) 11 Ont. App. 749.
j ;
AMI « IIATTI.I. Ill NS.
I IQ
a planing mill, and M. then inortgaj^ed tlic lands to II.
wilhoiit ineniion of the macliiiuTy. Allrrwards upon
M.'s rc-'prcsi-niation that llu-rc wcri* no cnciiinhranccs
upon th«' land, the \V. Co. took Iroin him a morij;aj^«*
of the land, incluilinj.; tin; maihincry described in detail
and which were th<rehv declared "to he considered as
fixtures and not as chattels." It was held that as
l»;iw<!cn the W. Co. anil M, the machiiK'ry remained
ch.ittels. such hein;^ the intention expressed in the
a|L(reement between them, and that the declaration to the
contrary contained in tht; mortj^a^e was not binding
becaust; of the misrepresentation, and that the mort-
ga;^e to H. was. notwithstaiulinj^. subject to the title
reserveil by the contract of conditional sale (".;).
The proper form of judi^inent for the r«rcovery of
chattels affixed to the fieehokl is to declare that th<'y
are the properly of the plaintiffs, that the chtfendanis
detained the same and that the ilefeiulants do permit
the plaintiffs by themselves, their servants or agents to
remove the same on demand, and failing such ptrrmis-
sion that the plaintiffs may, as an alternative rt;lief,
r(;cover lor the wron;;ful detention the amount assessed
or to to be assessed as the damajjjes (74).
In the Province of Ouebec it is held that to immo-
bilize movables by destination they must be affixed to
the realty by their owner and not by another person (75).
Fixtures in Ontario.— By an Ontario statute (76)
passed in 1S97, if a chattel contlitionally sold is affixed
to realtv without the consent /// ?c'r//////' of the vendor,
(73) Waterous Co. v. Ifenry 1 1884) 2 Man. R. 1^)9.
(74) Po/son V. Di'i;irr 12 Out. R. 275 : Vulcan Iron Woiks Co. v.
Raf^id City Co. (1884) 9 Man. R. 577, 587.
(7?) Waterous Co. v. Hochela^a Bank 5 (^iie. (^). l>. 125 ; affirmed
27 Can. S.C.R. 406.
^76) 60 \'ict. (Ont. I c. 3, s. 3 ; c. 14, s. 80; now R.S.O. 1897. c.
149. s. 10.
I JO
• nSltl I InS Al. S M.I'.H
it will oituiiuit* to Itr Miilijttt to the |>rn\ isii»i)H nf the
Ctiiulition.il Sah's Ait. .oxl thr vt'iulor will rri.iin Iuh
fl.iiin tlwrron it hr h.is coinplird with its |tro\ isioiis;
hilt thr |KTst>n hoKlin;^ tith' to tlw rr.ilu is ;;i\f n tin-
st.iiiitoiy ri^htto rct.iii) th<' ch.iticl ii|)oi) p.iyimntor
thr amount «lin' .in«l owini^ tlurcon (7"). This mail*
lucnt is (Icilari'd to lie i'i'ii-y.i(-ii\c and (o 'ipplv to p.ist
as w«'ll as to (uliir«' tr.msaitions (7S).
Fixtures in New Brunswicic. I{\ -t ncrni stitim
I thr \«'W iJrunswiik L<uisl.itiirr it is rnaitrd tli.it
o
wluTf any j^oculs or rh.ittcis havr hern soM or li.uln
inidrr an\ mript notr. hirr rctcipt, or oth» r insirti-
nu-nl l)V which it is ai-rrct
I th.it
no ownership thcrrin
shall he at(|iiir«il l)\ tin- pur* h.iscr or h-iiin- until th«:
pa\ incnt ol the purchasi- or consideration money, or
some slij)ul.itetl part thereof, and siiih ^oods or ihatuls
are arri.\<(l to .in\ realty without the consent in writin;
t the owner ol the -'oods or ( hattels, such ""oods .uu
1 1
I
chattels shall not he or hecome part of the re.ilty. hut
shall continue to he and remain pt^rsoiial property:
aiul the rights ot' the owner or owners thereof shall
not he in an\ ma\ alteretl or affected hy siu h iLjoods
or chattels heini^ so.iffiNetl to the realty, hut the owner
of such realty or other purchaser or any mort^aj;*** or
other incumhrancer on such realty shall have the ris^ht
as ajLjainst the manufacturer, hailor or vendor of such
goods or chattels, or any person claiminj,^ throuj,(h or
under them, to retain the said j^oods and chattels upon
payment of the amount due and owin;^^ thereon (79).
The provisions of this section are declared to he'
retroactive, and apply to past as well as to future
transactions, but nt)l to any suit either at law or in
(77) R.S.O. 1897, c. 149, s. 10.
178) R.S.O. 1897, c 149, s. 10 12).
• 79) Stat. N.H. 1899, c. 12, s. 8.
AM> < II Mill, i,ii;nh.
31
(M|iiiiy pcnditi;; at the d.tK.' on whicli it waH pasvil, i.e..
aS .\|»ril. iS<<9 (So).
Purchase from conditional vendee British Colum-
bia. I li«' HiilisI) t oli,ml»i.i " S.ilr nldiMidv, .\i t (S| )
rn.irts thai, sulijct t to its prov isifuis, when* ).;uoiK .in:
sold hy •! |>crsoi) who is out tin* nwiicr thi'nnl, and
\vl)ii dues lint sill tlxin under the aiithorilN nr s\iil)
tlir I onsrnl ni thr nwnrr, tllr l»ll)rr .K (|uit«>, no l)«lt«r
tiiN' to tin* ^immIs than thr srjlrr h.ni ind«'ss thr nwnir
mI thr ;4«iods is hy his loiidiict precluded iVoin drnyinj;
the srller's authority In sell; liiil this is i\pr»ss|y
Miad«' suhjrct to llur pro\ isions oj' thr i.ntors Act,
and .tny inactinrnt rnaMin;; the apparrnt ownrr of
;roods to dispose ol iheni as if he were the true owner
thereof (S J I.
Nor is the validity of any contract of ^.ilr under
any special common law or si.iiiitory powt-r of salt? or
under the order of a court of comp<'lent iurisdiciidii to
l)(! aff« I ted l)y the Sal<M)f (ioods Act (S^).
On sales of ^^ooils in market overt accordiui^ to
the usa^^e of the market, the huyer accpiires. under
the iirilish ('olund)ia Act, a ^ood title to the i^oods,
providtul he huys tht'iii in good faith and without
notice of any defect or want of till*- on the p.iri of
the seller (S4); lull the law relatin;^ to the sale of
hors<!s is not to he affected by that statute (S5).
The market-place or spot of ground set apart hy
custom for the sale of particular goods is lh<; only
market overt (exc(;|)l in th(; City of London), antl tin:
f8o) Sec. 8 Ca).
(81 j R.S. B.C. iSyy, V. i(n), s. 33.
(83) Sec. 3.V
(83) Sec. 33.
(84) R.S.H.C. 1897, c. i6y, s. 34.
(85) Sec. 34(2).
133
lONDITIoNAI, SAI.I.S
market overt is held only on special days provided lor
by charier or prescription (S6).
i'lie privilej^es of the market overt do not embrace
sales maile in a covert plact.* witiiin its limits, as in a
back room or wart;hoiise. or in a sho|) the windows of
which are closed iip(S-), nor sali;s ot gooils not
usually sold in that j)articular market (SS), nor sales
between sunset and sunrise, nor where the neooiiations
for the sal<' were begun out of I'larket overt (S9).
if. however, the j^oods have been stolen, and the
offentler is prosecuted to conviction, even a sale in
market overt will not give a g«)od title (90).
Special provisions regarding sales of /lorsis in
market oxiTt were exactc^d in I'jiglaiul bv Statute 2
ik 3 Ph. ^: M., c. 7. and Statute 31 Kli/.. c. 12. These
re(|uire that the sellers of horses at fairs, etc.. shall be
known to the toll-keeper or some other credible person
there, and that a note of the sales and of the prices
siiiiuld be entered in the toll-keeper's book, and a
memorandum thereof given to the buyer (91).
A (|ui'stion of considerabit! im|)ortance aris(;s with
respect to sub-section 2 of sec. 37 of the British
Columbia .Sale of (ioods Act (92). By it. the person
who has tti^rvcd lo buy goods, aiul who has obtained
with the consent of the seller, the possession of same,
is enabletl to transfer a good title to them in like
mamuM- as a mercantile agent may do. I'he section
mentioned enacts that : —
(86) Smith's Merc. I.aw, loth cd. 596; Tudor's Merc. Cases, 3rd
ed. 277.
(87) Smith's Merc. Law 598.
(88) Mantfi \. /itutks 17 I..'I'. N.S. 147.
(89) Smith's Merc. Law 599.
(901 Sec. 36.
(91) Tudor's Merc. Law, 3rd ed. 2S4.
<92) R.S.B.C. 1897, c. i6<j.
AM) ( MATTEI. LIINS.
'23
'' Where a person having bought or agreed to Ini) goods ol)tains,
with the consent of the seller, possession of the goods or tne documents
of title to the goods, the delivery or transfer l)y that person, or hy a
mercantile agent acting for him, of the goods or doc-uments of title,
under any sale, pledge, or other disposition thereof, to any person
receiving the same ui good faith and without notice of any lien or
other right of the original seller in respect of the goods, shall have
the same effect as if the person making the delivery or transfer were
a mercantile agent in possession of the goods or documents of title
with the consent of the owner.'
This siil)-sfcli«ni of the liritisli Coliiinhia SaU* of
('n)oils Act is icU'iuital with a proNision coniaincil in
tlu: Kiii^lish Sale of (ioods Act of iSg3 (i)^). A
loiulilioiial vciulec is. without doubt, a person wlio
has ajjjnt'd to buy oroods, and. from tht* ii; ire of the
transaction, he also obtains possession »:t tlie i^ooils
Nvilli tht: consent of the seller.
rile term " mercantile agent ' is declared by sub-
section 3 to ha\'e the s.\mv meaning in the section
(|uoted as it has in the Factors' Act (Ii.C'.)(94). namel) ,
a " mercantile agent having, in the customary course of
his business as such agent, authority either to sell
goods, or to consign gootls lor the purpose of sale, or
to buv "'oods, or to raise monev on the security of
goods." \\'heth(T or not a person acting for the
conditional vendee? in eftecting a sale is a " mercantile
agent acting for him " within the meaning of the
statute is a (|uestion of fact (95) ; but a sheritT selling
the chattel imder an execution against the conditional
V(Mulee could hardly be considered as coming within
the lU'lmition of a mercantile agent or as acfiiii^ for
the person against whom the execution hatl issued
The British Columbia l^'actors' Act also contains a
(93) 5'' *'*"d 57 Vict. (Imp.) c. 71, s. 35.
(94) R.S.n.C. 1897, c. 4.
(t>5) SfrofiiHenger v. Attenhuoti^h 11 Tinies I,. R. 7.
1J4
(ONDITIONAL SALKS
*
provision (section 9) tJiken from an earlier Im|)erial Act
(96) as follows: -
Where a person having bought or agreed to l)uy goods ol)tains
with the consent of the seller possession of the goods or the documents
of title to the goods, the delivery or transfer by that person or by a
mercantile agent acting for him, of the goods or documents of title,
under any sale, pledge, or other disposition thereof, or iiui/o iitiy
agptiiiictit for S(i/t; f^lcdgt' or other disposition thereof y to any person
receiving the same in good faith and without notice of any lien or
other right of the original seller in respect of the goods, shall have the
same eflect as if the person making the delivery or transfer were a
mercantile agent in possession of the goods or documents of title wiih
the consent of the owner.
It will he observed that the section in the Hriiish
Columbia Factors' Act is more extensive than that in
the Sale of (joods Act (B.C.), in that the former
includes not only sales, pledj^es, etc., but agrccniciits
for sales, pletlges, etc., and that the clauses are alike,
except as to the italicized words. Neither enactment
repeals the other, and the result is that both are in
force. The sections of the Imperial Acts, from which
these provisions were taken, are also both in force in
Eni^land.
The authority of a 'mercantile agent' to |)ass the
title to goods is declared in section 3 of the Factors'
Act (B.C.), as follows :
Where a mercantile agent is, with the consent of
the owner, in possession of goods, or of documents of
title to goods, any sale, pledge, or other disposition of
the goods made by him when acting in the ordinary
course of business of a mercantile agent, shall (subject
to the provisions of that Act) be as valid as if he were
expressly authorized by the owner of the goods to
make the same ; provided that the person taking under
the disposition acts in good faith, and has not at the
(96) The Factors' Act 1889, 52 & 53 Vict. (Imp.), c. 45, s. 9.
AND CIIATTKL LIKNS.
»25
tim«' of the disposition notice that the person makini^
the clis|)osition has not authority to make the same (97).
It is also enacted that for the purposes of the Factors'
Act ( i^C.) the consent of the owner shall be presumed
in the absence of evidence to the contrary (9S).
A factor is not by his employment authorized to
pawnor |)ledge goods entrusted to him, and apart from
certain statutory provisions, such as the one just men-
tioned, which validate transfers of that nature; made
by him, such a disposition is not binding upon his
princij)al (99).
A conditional vendee is, therefore, by virtue of these
clauses in the Sale of Goods Act and in the Factors'
Act, enabled to make as valid a sale or pledge of the
chattel which he has purchased as if he were in pos-
session thereof with the consent of the owner, with
authority either to sell the goods or to raise money on
them, (100) as a factor or mercantile agent may do.
L'nder the Imperial Factors' Act of 1889 (loi) it
has been decided by the House of Lords in Hclhy v.
Matthcivs that the expression " having agreed to buy
goods," which is used in that Act, and likewise in the
British Columbia Acts before mentioned, applies to a
person who has bound himself by agreement to buy,
and does not include a person who has merely an
option to buy (102).
In that case the owner of a piano agreed to let it
on hire, the hirer to pay a rent by monthly instalments,
on the terms that the hirer might terminate the hiring
(97) R.S.B.C 1897,0.4, s.3(i)-
(98) R.S.B.C. 1897, c. 4, s. 3(4).
(99) Cole V. North Western Bank (1875) I..R. 10 C.l'. 354, 363.
(100) R.S B.C. 1897, c. 4.
(»oi) 52 and '-^i Vict., c. 45, s. 9.
(102) Helhy s. Matthews (1895) A.C. 471 (H.L.), reversing S.C.
(1894) 2 Q.B. 262.
•I I
126
COXIHTInNAL SAI.KS
ffv
by cleliveriii)^ up the j)iano to the owner, he remainiii};
lialile for all arrears of hire : also that if the hirer
should punctually pay all the monthly instalments, the
piano should become his sole and alisolute pro|)erty.
and that until such full payment the piano shouKl con-
tinue the sole property of the owner. The hirer
received the piano, paid a few of the instalments aiul
pledijed it with a pawnbroker as security for an
advance, it was held that under the aj^reement the
hirer was under no legal obligation to buy. but had an
option either to return the piano, or to become its
owner by payment in full ; by puttinj^ it out of his
j)ower to return the piano he had not become bound
to buy; that he had, therefore, not "agreed to buy
goods" within the meaning of the Factors' Act. and
that the owner was entitled to recover the piano from
the pawnbroker. IMie question is not whether the
owner has agreed to sell but whether the hirer has
agre(*d to buy. It is not the owner's acts which are
dealt with, but the acts of the hirer, and therefore even
if the owner irn^vocably binds himself to sell, but the
hirer does not bind himself to purchase, even though
he has an option, the hirer cannot possibly be "a
person having bought or agreed to buy " (103).
If. however, there is an absolute obligation to
acquire tht: property in the chattel and to pay all the
instalments, whether described as for rent or hire, then
the case is within the Acts and the title will pass on a
sale by the conditional vendee, notwithstanding his
own want of title, if the sale pledge or other disjwsi-
tion thereof be to any person receiving the same in
good faith and without notice of any lien or other right
of the original seller in respect of the goods (104).
(103) Helby v. Matthews (1894) 2 Q.B. 262 ; (1895) A.C. 471.
(104) R.S.B.C. 1897, c. 4, s. 10; R.S.B.C. 1897, c. 169, s. 3712);
Lees. Butter {\^i) 2 (^.B. 318; Thompson \. Veate, 74 Eng. L.T.
130.
\):
m
AND « IIATTKl- LII'.NS.
127
It Is therefore necessary, if it is desired to avoid
the farreachin*; effects of section 10 of the Factors*
Act and of st'ction j^j of the Sale of (ioods Act, that
the contract, should l)e one of hiring with an option
of purchase, as was the case in ffclby v. Matlhciiis,
rather than a contract of hiring with an oblijjfation to
purchase. The followinj^ was the form of aiirreement
under consideration in that case (105).
•."">'
" This Agreement, made the 2^^rd day of I)eceml)er, 1892, between
Charles Hell)y, of 22 Maker Street (hereinafter called the 'owner'),
of the one part, and Charles Brewster, of 24 Chester Street, Ken-
nington Road, S. K. (hereinafter called the ' hirer'), of the other part,
Witnesseth that the owner agrees, at the request of the hirer, to let on
hire to the hireV a pianoforte, No. 8(X), maker, Rass, and in con-
sideration thereof the hirer agrees as follows :
" I. To pay the owner, on the 23rd day of December, 1892, a rent
or hire instalment of ids. 6d., and los. 6d. on the 23rd of each
succeeding month.
"2. To keep and preserve the said instrument from injury
(damage by fire included).
" 3. To keep the said instrument in the hirer's own custody at the
above named address, and not to remove the same ' or permit or
suffer the same to be removed) without the owner's previous consent
in writing.
"4. That if the hirer do not duly perform this agreement, the
owner may (without prejudice to his rights under this agreement)
terminate the hiring and retake possession of the said instrument ;
and for that purpose leave and license is hereby given to the owner
(or agent and servant, or any other person employed by the owner)
to enter any premises occupied by the hirer, or of which the hirer is
tenant, to retake possession of the said instrument, without being
liable to any suit, action, indictment or other proceeding by the hirer,
or anyone claiming under the said hi'.er.
"5 That if the hiring be terminated (under clause A below) and
the said instruirrent be returned to the owner, the hirer shall remain
liable to the owner for arrears of hire up to the date of such return,
and shall not on any ground whatever be entitled to any allowance,
credit, return or set off for payments previously made.
" The owner ogrees :
" A. That the hirer may terminate the hiring l)y delivering up to
the owner the said instrument.
" B. If the hirer shall punctually pay the full sum of /'iS i8s., by
los. 6d. at date of signmg, and thirty-six monthly instalments of
(los) 1895 A.C. 471 ; 64 L..|.(J.B. 465.
w
w
I2S
(ONDITIONAI, SAI.KS
los. (>d. in advance as aforesaid, the said instrument shall become
the sole and absolute property of the hirer.
"('. Unless and until the full sum of ^'18 i8s. he paid, the said
instrument shall he and continue to Ik' the sole property of the owner. "
A hiriiijL" contract would appear to I)e subject to the
requirt'imMils of section 25 of the SaK; of Cioocls Act
as to Ihmhj^ eviilencctl in writinLJ, aiul Ijimii^ filed as a
conditional sale agreement, although it provides for a
mere option «)f purchase.
\\'h(.'re the hire-purchase contract is one by which
the conditional vendee ' agretrs to buy ' as distinguished
from his having a mere option to buy, it is necessary to
consiiler whether the thiril party claiming title through
the conditional vendee ailv(TS(;ly to the conditional
vendor, is a person receiving the chattel 'in good
faith without notice of any lien or other right of the
original seller.' The (juestion of notice from the mere
fact of registration has been discussed under that
heading ( loO).
Whether or not the re.served title and claim of the
conditional vi:ndor be in strictness a 'lien', there si.'ems
to be no question that it comes within the phrase
'other right of the original seller' (107).
Purchase from conditional vendee -North- West
Territories.- Section 10 of the Factors' Ordinance of the
North-West Territories (io<S) is identical with section
9 of the Imperial Factors' Act of 1889 to which refer-
ence has been made afi/i' p. 1 24, with a similar statutory
definition as to the meaning of the term " mercantile
(1061 Ante p. no.
(107) Lcf V. BH//fr (1893) 2 (J.H. 318; //e/dj' v. Matthews (1895)
A.C. 471.
(1081 Con. Ord. N.W.T. 1898, c. 40, re-enacting Ordinance No. 9
of 1896.
ANI» rilATTKI, 1,1 INS.
129
ai^(MU" ( 109) as is contained in the liriiish Coimnbia
Factors' Act.
Siil)-soc. ? of sec. 25 of the Salt; of Goods Act,
NAV'.T. (1 10), is similar to thv. clause in the; I*'actors'
Alt. N.W.T., with the exception that the wonls "or
inuler any as^reeinent for sale, pUnljije, or other dispo-
sition thereof," which appear in the latter Act, are
oinniilteil in the SaU; of Cloods Act, thus followin<4 ^'i*'
course; of legislation in I'^ni^land with rejj^ard to the
similar (enactments in the Factors' Act of 1S.S9 and the
Sale of Goods Act of 1S9;.
As to notice by registration see d/f/c p. 1 10.
Purchase from conditional vendee — Manitoba. —
The Sale of (ioods Act of Manitoba (ill) (Miacts that,
subject to its provisions, where goods are sold by a
pi.-rson who is not the owner th(.'reof and who does not
sell th<:m under the authority or with the consent of
th(,' owner, the buyer ac<|uires no better title to the
goods than the seller had, unless the owner of the
goods is by his conduct |)recluded from denying the
seller's authority to sell ; but this is not to aftect(//) the
provisions of any enactiiK'nts enabling the appanMit
owner of goods to disp(jse of them as if he were the
true owner thereof, or (d) the validity of any contract
of sale under any special common law or statutory
power of sale, or under the order of a court of com-
petent jurisdiction (112).
By the same Act (113) it is also enacted that
Where a person liaving l)ought or agreed to buy goods obtains,
with the consent of the seller, possession of the goods or the docu-
ments of title to the goods, the delivery or transfer by^that person, or
(io«;) Con. Ord. N. W.T. 189S, c. 40, s. 2 (1 1 ; c. 39, s. 25 (3).
(no) Con. Ord. N.W.T. 1898, c. 39, re-enarting Ord. No. 10, 1896.
(in) Stat. Man. 1896, c. 25, s. 21.
( 112) Sec. 21 (2).
(113) Stat. Man. 1896, c. 25, s. 24 '2).
'30
«nM»ITI(>NAL S.M.I.S
l>y a mercantile auent n('tin^ for him, of the ^(Kuls or dnrtimcntK of
title, under any sale, (ileilKc or other disposition thereof, to any nersoii
receiving the same m good faith and without notice of arty lien or
other right of the original seller in respect of the goods, shall nave the
same effect as if the person making the ilelivery or transfer were a
mercantile agent in possession of the goods or documents of title
with the consent of tlie owner.
This is icleiilicai with siih-scction 2 of section J^nf
the Imperial Salt; of (loocls Act, 1X9^, ami with suh-
st'ctioii 2 of si'ciioii ,^7 of the liritish C'oliiinhia Sale of
(iotuls Act already referreil to (114).
The term " mercantile aj^eni " is hy the same Act
(leclareil to mean a mtTcantile ajjent haviii)^ in the
customary course; of his hiisiness as such a}j[eni.
authority either to sell i^ootls, or to consign j^oods lor
the purpose; «if sale, or to buy j^ootls, or to raise money
on thi; security of j^oods (115).
As ther<; is no provision for registration of hire-
receipts, rec(Mpt-notes, or ortlers for chattels sold hy
way of conditional salt; in Manitoba, the <pu'stion
arises whether the fact that the manufacturer's name
anti adtlress is aftixeil to the chattel pursuant t(» the
Lien Notes Act (116) is a sufficient notice to a jmr-
chaser or pletlgee of same to put the latter on encpiiry
as to the manufacturer's claim of title. There app(;ars
to have been no decision t)n the point, but it would
probably be held that it is either notice in itself, or
is such a circumstance as compels the purchaser or
pledgee to make entpiiries from the manufacturer
whose name so apptiars on the chattel, and |)laces him
under a like liability, should he neglt;ctsuch an ordinary
precaution, as if he had enquired and had received
notice of the manufacturer's claim, if anv. The manu-
facturer is by the Lien Notes Act compelled to furnish
(114) Ante p. 122 and 123.
(115) Sec. 24(3).
(n6)R.S.M. 1891, c. 87.
AMI « IIATTIM, I.MNS.
' U
the r(r(|iiisitc infonr.aiioii to any a|)|»licant Inrihwith on
application (ii"). If. however, tlu-re is no such nanit;
and address on >h(; chattel at th(; time of the negotia-
lion with the third party. h«- may, l»y virtue of sec. 24
(2)«>f the Sale of (ioods Act, ac(|uire a ;.4ood title not-
withstanding the lien reserved hy the vendor, provided
he rt;c(Mves the i^otuls in >^iun\ faith ami without
notice of tjie real owner's riLdit or title (1 iS). /JUjj^ilCi!.
Creditors and subsequent purchasers Nova Scotia.
I'nlil the proclamation of the new Ihlls of .Sale .\ct
of iSc>9 in this pro\ince. the ri^^hts <if creditors, and
of sul)se(|uenl ])urchasers and mort^a;4(<'s. of the
conditional xcndee as re^jards n(»n-coinpliance l)\ the
conditional Ncndor with sialutor\ pro\ isions. are |l;o\-
erni'd hv section ; of the .Secret hills of .Sale Act
k..S. \..S. 5th series ( 1S.S4) chapter cy2. as amen<led hy
the Nova .Scotia statutes of |SS6( 1 i(>)and 1S9; ( 120).
I hat section, as amended. rea<ls as follows: Mxcry
hirin<4, lease or ai^reemeiu for the sale of j^nuds and
chattels accompanied hy an immediate tlelivcrx . and
followed hy an actual and continued i hanj^e of
possession, whereby it is agreed that the jiropcrty
in the j^oods and chattels, or in case of an aj^ree-
ment for sale, a lien thereon for the price nr \alue
thereof, or an\' portion diereof. shall remain in the
hirer, lessor, or har^ainnr, until the pa\ ineiu in
full of such price or \alue I>\ future payments or
otherwise, shall he in writii.^ si|L,nied hy the parties
theret<x or their duly authorized a^^a-nts in writini.^. a
c«ipy of which authorils shall he attached to such
(117) R.SM. 1S91, c. 87, s. 3.
(118) Stat. Man. 1896, c. 25, s. J4 ^;.
(ri9) N.S. Laws 1886, c. 32, s. i.
(120) N.S. I-aws 1893, c. 40, s. 1.
^</;&-/''^7^
>.^^
rn\mi|nNM. sM,|:s
aiinrnu'iu. ami shall sci I'orih (iillv. I»v rctital or otlu-r-
wisc
the I
rrins. naliin- aii«l rlfrct ol* siu
h h
iriM
)^, h-asc
or l>ar<;aiii Inr sale, an*) the ainniini t<i lie paid there
under. ulielh<'r expressed as reiU, |iayineiU, nr nlher-
wise; ami shall he aeentnpanied liy the atddavit of
<ither nl the parlies; nr in case such aj^rei'inent has
heen si}^ne<l l>y an aj^cnt nr aj^ents of tin* parties, duly
aiithori/ed as aforesaid, then l>y the attida\ it of th<>
aj^enl ol either of the parties thereto, statin}^ that the
\vritiiii4 truly sets forth the aj^reement Ixtween ihe
)arties thereto, and truK sets (orth tin- claims, lien or
)alance due to the hirer, lessor, or har^ainor therein,
and that such Nvritin)^ is execute<l in j^ood faith, and
for the express pur|>ose of seciirinj^ to the hirer, lessor,
or harj^ainor. the |>ayinent of the claim, lien, or charj^U'
lereon, at the times and under the terms set out in
tl
th
ie writing, and f«)r no other piirpos(
>th(
ai
id
such agree-
ment and affidavit shall he re},,Mstered at the time and
place, and in e\('r\ respect accordinj; to the provisions
of this cha|)ter; otherwise the claim, lien, charge or
pnipertN" intended to Ik* seiiired to the hirer, lessor, or
harjLjainor, shall he null, void, and of no effect as
as^ainst the creditors and sul)se(|uenl purchasers and
mortj^a^ees of the perst)n to whom such j^oods and
chattels are hired, leased, or ajj^reed t<» he sold.
The chapter referred to. numher 92 K.S. N..S. (5th
series) ISS4. provides for rej^istration of hills of sale,
etc.. with the rej^istrar of deeils of the county or district
where the maker resides.
As s«)on as the 1X99 Act is proclaimed (121) the
ahove section will he superseded hy it, and the former
Acts ahove referred to will be repealed hy virtue
thereof (122).
(121) N.S. Laws, i8g(;, c. 28, s. i.?(i).
(122) N.S. Laws 1899, f. 28, s. 1^^ (2).
Wh rllMTII, III \^.
iS3
In this |ir<iviiu-(' also ilurr is in lun «• ,i staiutury
|»rn\ isinii, (ontaincil in tlw N<»\ii Stntia Tat inrs Act *>(
|S(>5, iilcntical with scctiun ^ <>! the Itritish ( nlinnhia
I'arlnrs' Act, ////A pp, \ 2.\ rt s«"«|., I»y which .i p«ts<tn
who has (H^rctif to /my ,l;»mi(Is, ami wlm has nhtainctl
pusscssion ol sanir with tin- srilrr's consrnt, may in
irrtain rases ionlrr a \ali«l title (l^.O- •^'^ l" ''^-'l
sul)j«'(t sec anft pajL^i's ij; tn i jS inclnsiNc, and as
In nntice l>y nj^istration see <////<• paj^r i lo.
(ia.O N.S. l^twK iK<>5, c. II, s. 9.
i:
iM
if
( ii.\i'ri:k \i.
Chat HI, Likns (inNKUAi.i.v.
Liens, g:cncral or specific A li<-i) (inswcrin}; to tin*
hhl/a /iy/>o//itt<t nl tin* ii\il law) is a ri^lu in oni' \\\,\\\
In rrtain that wliiili is in his posscssinii IM-Innuin^ to
aiinthcr. iiiilil rcrtain dcinaiuls nt' the |Hrsoi) in pos-
session art' satistuil. It is neither a /
US IN re nor a
jus ihi trill : it is not a ri^ht of property in th«* thinj^
its«'ir, nor a riphl of aition for tlie thin;; itseir(i)
I
lens are either s|
iieeitu
or <•(
neral.
si)ei
ific
h»n is a rii;ht to retain a thin^ for some char;;*' or
claim growing out of. or conm-eted with, llu' identiial
th
in:
I j^eiieral hen is a ri]
dn t
o retain a thin<j, not
only tor charj^es and claims specit'ically connectetl with
the identical tiling;, hut also for a {general halance of
account hetween the parties in respect of other deal-
int^s. Specilic or particular liens may arise in various
u.iys hy express contract, by implied contract result-
inj; from the us.i^m- of trade or the manner of dealinj;
hetween the parties, hy mert; operation of law from
the relation and acts of the parties independently of
any contract.
The t.
crm lien is app
lied
in various modes,
hut
in
all cases it sij^nifics an obligation, lie or claim annexed
to or attaching upon property, without satisfying which
such property cannot bedemanded by its owner. Xav.w
in its proper sense is a right which the law gives; but
it is also usual to speak of lien by
that is more in the nature kA an
l)ledge(2).
dth
contrac
agreement
ougl
f(
or a
(ii Trottif) V. Kftt A'nrr Trinis/>oftatioti Co. "1879) Man. Rep.
/«¥«/. Wood ^55.
(a) AV</(,v/r V. /n^i,'/f/:,ir/ ^ Bland Ch. (Md.) 540.
AM) I II MIKI, l.ll..\>,
135
A licM, .u law, is ail implied ohli^aliun wht:rfl)y
))rn|MTiy is Ixniiul for llx- tlischar;^'*' ol soinc dflii or
«'ii.i;aj4<'ini'nl ; it is not tin* rrsiilt of an r.spnss c;on«
tr.ict. i>iit is '^\\'fi\ l)y iinplication of law (,;).
N'imlors of proprriy. and prrsons who havt*
(xpi'iulrd work and lal)oiir on ^oods, arc said to havt;
a ' lirn ' on the properly s(» lon^ as th«'y anr slill in
pussfssion of ii ; that is to say. ihry havr a rij^lil to
rci.iin it in their possession till their elaiins in respet t
of it have Ixren satisfied (4).
The holder of ^oods who ( laiins a lien (i|>on them
for iharj^es in respj-ct of the j;oods lh«'mselves may
inlerple.ul wlun- the rij^ht to them is disputed (5) ;
l)iil not if his claim is onl\ in respt ct of a dehi due
froin on«' of the cunlendiii}; parlies (0).
Equitable Liens. An eiiuitahle lien aris(;s either
from a written contract which shows an int<*ntion to
( har^e som(! particular prop(;rly with a deht or olilij;;i-
ti<m. or is declared by a court of ('(piity out <tf
l^eneral considerations of rij^ht and justice as appli<(l
to the relations of the |)arlies and the circumstanct;s
of th<'irdealinj;s; and does not depend upon the posses-
sion as do liens at law (7).
An e(|uilal)le li(Mi may he contracted for in r<"s|)«-ct
of fulUH' property, and will attach as an ecjuitahh!
charge upon the particular i)roperty as soon as the
person contracting lh(.' charj^e ac<|uires title and |)os-
sc'ssion of the same (S).
(31 AV /y///i'.( Eitat, I..R. i I'.C. a./i.
(41 Mollancrs lurisprudcncc, 3ik1 c'd., 173.
151 Cottfrw Hank of liu^latui }, Mo. vt Sc. 183.
161 Ihaiiilick v. Smith 2 Mo. vV Sc. i,;i.
I 7) Jones on Wans, 27.
(8) IVisfifp- V. Ocum(*au)ih 71 N.V. 11,;.
\
I.
t
ill
1.^0
I i>\l'l I lii\ M
Mis
Am ,i|)|>in|)ii.iiinn <t| v;(mmIs sum »|»iil»li' it| (l»|i\«iy.
|ii| \\\r |>lir|>i>sc nl i liMlinL; .1 lirll iIhUuM ill I.IMH' nl
iiMollin, iniisi in onlci to lir x.iliil « uiisiiiiiii' ,i tl* |i\i ry
t;<ii)«l at (onnnon l.iw (<»)
I lie St.ltlltc ol I'LiinIs (lues iiol in illlN mI its |irn-
visions ,i|)|)l\ to .inK'fMicnls lor liens ( m).
Statutory Liens. I'lulri- N.iiions st.nnics in tin-
(lilltrrni proxinns o| (.';uiiitl,» (lie iit;|ii o| Ih-m Ii.is
Immmi r\t<'n«l«'»l to \,U'ioMs rl.iss«'s o| prrsoiis. sii< li .is
woodinni. li\('iy stuhlr Uccp' is. iio.ntliiii; house
l\ee|H'rs, .ind others, who h.itl no lien .it coininon l.iw.
riiesj". .iiul the coininon l.iw liens ol most (ie(|iienl
tHiiirreiu (', .IS well .is the rijLjht ol sto|)|).iue in ti.insitii
and Kit. tin other priN ilcL^es in the nature ol liens, .nc
in.ulr the siihjei ts ol th<' surree«lini4 eh.ipnis.
I'loxision h.is .ilso heen in.ulc l>\ st.itiiK' in most
ol thr l'n>\inr('s. wherchy lien hoMers. whetln r
tMilillcil .U tointnon l.iw or hy st.itute. .ire i^iven i
power ol s.ile lor the rc.ili/.ition ol tlu-ir i I.iiins. there
heinj4 no siuh pri\iU'jL;r alt.ulu'il to liens iiiuier the
common l.iw.
Evidence of general lien. A s^ciu'ial lien m.iy Ix-
proNcil. cillu'r by rxiilciut' of an express aj^reement.
o\' the moile \)i dealing between ihe parties, or ol the
o(>neral iisaj^c »)l other persons eni^ajjfed in th«' same
emplovmenl, ol such notorielv that it mav lairK he
pri'sunieil to he kiunvn to the owner of the i^oods ( ii ).
Hut to establish a giMieral lien by evidence of the
ijeneral usai;e the instances ougiit lo be ' ancii'iit.
(g) Afaliolm v. Harnish (1804) 27 N.S. R. 262.
;io) Per Stronp;, C'.J.. in />'ir/.f v. McMillan (1887) 15 Can. S.C.R.
at p. 201.
(11) Rushforth v. Ihiiifichl 7 East 22S ; riauf v. Alhock 4 F. iV
F. 1074.
\Mi < II \ I I I I I II Ns.
.1/
inimrrniis ,iii(I ini|»»»rt;mt ' (12). If,i ^i-urr.x] iis,i^» hr-
sIlDWIl th.il .1 lift) litr ,1 '^rnctMl li.il.ill« r sImII \h- riii'i\« (|
Ity a |».iitu iil.ir tr.idc, .ill wIm» <I''.iI uiili pfrsoii^ \n\
lovviii;.{ ili.ii Ir.ifl*' .iif sii|»|»osr(| in (diitr-i': 'tii iIm-
loutin^' nl ilir ^^fiMi.il prartic*', .iinl to .m|i.[)! the
^nicral lit n into the piirliciil.ir (Miiti.:(i M \).
A
^•'luiMl iK'n will (itvrr .1 (|«lil Mil whif h ili»- n^
f I
'l.i
<»r action IS l»ari»-i| ],y tin- >»taliil«- of I .nnit.itioiii ( i p.
A wli.nrin^'i' ii tiilitl«(| to ,1 li»n lor ihr i^'»-n*ral
baiam «• <lnf Inin Ms); and so is ,1 ( .iji( o |»rint»r (i'<).
or ,1 ily«r ( 1 7 ) I' a( tors or ( *»in mission a^^'nts^ntni^t* d
with Ljoods lor sal*- on a(((iMnl o| tlirir jtriin ijtai h,iv«-
a ^rnrral lirn (iSj; an<l so havr (»a( krrs. wlio-.»- hiisi-
tn'ss is similar to that ol fa( tors ( \<)}. An innk«» |i<r
has .1 ^riM'r.il li'-n on tin- ;^o(»ds of hi-, j/iif^t>>. and his
jirii ••xlriids rvrn to (^MKtds Iraiidiilrntlv ol»t.iin»d from
a third party l»y the j^nicst (20).
A ^t //</(// lirii, howr\rr, will !)<• litiiit'-d to rli'-
amount ( harj^rahlc .i^aiiist tlv ^oods prior to noticr
that th(! owner lias sold tluin (21).
Evidence of specific lien. \\'h«r«- a pr r>.on h* -.tows
his lahoiir on a partic ular chatt'l d*liv«r»d to him in
(121 Hiishfotlh V. J/iii/fii/i/ d i'.ast 526.
(i^i Nii^hfotlh V. //iti/Jii/i/ (t Kast 519.
(14) Miirse V. ll'i//liiws 3 Ksp. 418.
(151 A^ii\/i>r V. .\/iiNj^'/fs, I l',sp. 110: S/'fiin v. HartUy, ', K^j>. 8r.
{\U\ Wt'hlt'fl V. (rOU/d, ^ Ksp. 2')H.
(17; Sa?i//v. /uin/iun/ ^ Ks[). 5^ ; Montav'ue on f.ieiis ^o n.
(\?t) Kriigt) V. ////tc.v Aruh. kep. 252. S/^rrnsv. />/7/f» 25 Ch.
l).3i.
(19) (irefti V. Farmer ^ Hurr. 2222 ; Siirills. /uircharj ^ Ksp. 55 ;
£x p. Shfrhrooke 2 Ch. I>. 489.
(20) Mullins V. I'loretue }, i). H.D. 484.
[t\) Barry v. Loti^more \z Ad. \ K. 639.
'.?«
( MNhl I |(»\ \| s M Is
lite i<tiiisc III his liiisit)r*ss, lir his .1 Vuw iiixiii siit h
<h,iti(l lor ih«- .iinoiini ol his i-h.ir;;!' (.*.•) Ihr hcii
t»nl\ .insis .IS .11;. litis! [\m' |irrsnii who .iill!ltni/r«l (hr
NV«»|In In U tiniic ( i \).
.\ l.iilor li.is .1 hrii on ihr t Inlh «lrh\ri«»| In Mint
in.iiN' up hv hiiP (-]): •) tnillci mi the llniir •^iniiii«l
Imm ihi- i^i.iin «l«'h\« rd t»» him h»r th.it |Mii|»osr (-'Sli
,111(1 .1 shi|t\Mij;hi nil .1 ship (l('li\« r«tl to liiin lor np.iirs
( MlV
Ihr si'llcr o| v^ooils not soM on rr<'ihl h.is .1 lint
for lh<' price so loiiv; .is hr keeps possession o| the
■..line (.';), .ind .iin iinp.iitl seller h.is .1 ri^iit in the
n.iliire o| ,ni e(|iiii.iMe lien to slop the j^oods /// Imiisitn
iip.Mi the pureh.iser hecoinini; insolvent (jS).
A peistin l>\ whom .1 «h.lllel h.is heeil impiov<'(i
h.is .1 pitssessoi
\- hen iheieon htr the |
UK e ol Uis
I h
.ilioin, Ol el his Skill though it he ext'iTlsed \vi
ihoiil
.u'tii.il i.ihoiit'. .iikI lor the expenses incurred in \\\v.
linpi(»\ emeiU ol the ch.ltlf'l (.'()).
r.niners in ir.iih' m.iN h.i\c .1 lien lor l.ihour,
.ilthoii^h one t>l them is .1 p.ut owner ol the chiiltel
upon which the work w.is doiu* (,>n)-
(.'.o .s.',\tu'in,ifi V //i<ii'/<v Is M. \ \\ . 55?.
(.'0 //'■'.> V. ( ■.'i/'/./i.v 1 Taunt. S07 ; i'ii\/f//ttin v. /7ioM/>.u>fi i\
("i?.'NS K15.
(2^) /7/<>.W\ V. ( A';7i//> () |''.;lst. \\^^ \ AV./Xv V. .\'l,ho/s(>fl \ M. »V S.
160.
(-'5^ /'\ f. Oii-ithiiti I Atk. i\^.
{:h /'x f. // 7/7. '//.(,• ///m' i() I'll. P. ()o.|.
^.'7^ />nf'<-> III,' /uvik V. / ofiJt'fi y-' St. A'ii//trrin;'s />i></:s e^ i 'li. I). i(;5.
^j.S» /V/,.>.v V. (".'/// /vv .'i;C'!i. I>. .'^.Ji.
^0^ AV.iJv V. ll'iittf< ; ('. \' r. s'o ; /iii/sofi v. /'.V//*v7(/i,v 1 ("romp.
.^ M. 74;>
,30) /'i.i'tL'i'i V. Hi'sitr ^ B. vV Al. 541.
\M» ( II \l I I I, I II \s.
I.V>
Care of chattel under lien. A pfrsmi iK.ldin;; i
I ll.iltrl Ity viiiiic ol .1 lirii is iiimI't ^sh ol»li;>;ili<>ii
siinil.ir in iImI "1 ,i pawner as rr^anls ils tiislody; lie
must use nriliii.ii V ilili^t-iK (■ (^ I ); Imt lie < atiiiol iw(|iiin-
nayinriit lor ilic iisr ul ilic plair in whit li lli«- < liattcl
is «l<'i,iiiir(|, (H" nihnwisf lor kerpin^^ it, evni alllioii^li
h<- li.r. ^ivcii noiiif that mk h a payment vvill lie
(ji iiiaiKJeil I ;.r). riie lien holder ma) without lorhit
ini4 his lien d«li\(r the i^iods t(» his rreditor to hold as
senirit\ to the extent o| the lien, and may appoint
him to keip possession as ihe servant ol the hailer-
(;;), or ma\ in e<|iiily assi^,'!! the henefit of the lien,
to^clhrr with the del»t in respet t ol whi( h it is ( laiined
(,;.|) ; 1)111 il he tortiouslv transfer the mockIs as his
own th«- owner may maintain trover for them (,VS)-
Lien allowed. A <«'llarer has a hen for his ( har^Ms
or r< ntal upon tlie ^dnds deposit' d with him { ]h) ; an
aitoiintant h is a lien npon tiie hooks of a((onnl tor
work done thereon, il he holds possession ol the
hooks (,^7); and an arbitrator lias a specific lien upon
the award for his lees (^S). /\nd. general!), every
hailee lor hire who has, hy his lahoiir and skill, or l»y
the use ol ail)' inslrumeiii over whi( h he has (oinrol,
imparled additional value to the ch.ittel is entitled to a
li«'n (,v>).
(.}') ./'/.;'"> V. Ml l.iKliltiu 2;5 (Jh. I). \Tfi.
(,?.', Somi-s V. lirilish Co. H li.l,.C. .5,^8.
{^^) MiAomhic v. Daiirs 7 l'',ast 5.
(.VI' l^ulls. I'uulkuit 2 DcCi. iV S. 77 J.
(551 S(o(ls. Nfwiii)^tofi I Mf)0. \' k. 252.
{\U) duty V. Chanihtrlain 4 ( ar. \' I'. 2^0.
(37) Ex p. Soutliiill 12 Jur. 576.
f.^8) N. \. South Ih-Toti Hy. 15 <.).I5. 1043 ; /iV Cootn/'s 4 j-^x. HH9.
i Y)) y<i(A'Si>n V. CuiHinitis 5 M. »V \V. 342.
140
CONIHTIONAL SALES
[■ s
& ?
W. I
riir s ilvor of |)n)j)L'rty (^lulaiijiferecl l)y ju'rils of tlu:
sea has a lien on it for the amount of a fair rcnunicra-
tion (40).
A solicitor has a lien upon a (Iocumkmu p'accd in
his hands hy a person entitled to dispose of it. for the
price of work diMie tliereon (41) ; and also a i^cneral
lien in resju'ct of professional charj^cs. upon all docu-
ments or other jjroperty of tlur client which come to
his hands in the charactt'r of solicitor while coniluctinin
uie business or for the purposes of the client (42).
The lien exists only in respect of property recei\etl in
his capacity of solicitor and in the performance of his
professional duty to the clitMit (43); and does not
extend to documents receiv(;d by the solicitor as a land
a<4ent(44), or merely to keep for safe custody (45).
At common law a person fnulin^^' upon his land
animals helonjjfinj; to another, doinjj; injury by treadin«,r
down his growinj;' crops or the like, is entitled to dis-
train them until satisfaction is made to him for his
loss (46) ; a landlord also has a rijjfht to distrain u|)()n
his tenant's Ljoods for rent in arrear. The exercise of
the ri«;ht of distress places the chattels distrained on
in the custody of th'ci distrainor, or of his bailiff, antl
the distrainor becomes a lien holder in respect of the
j^oods seized.
A trustee has a lien on the property in his hands
subject to the trust for money properly expended
(40) Ilhi^ston V. Wemit i Q.B.I). 367,
(41) Hollis V. Clatid^^e 4 Taunt. 807.
(42) Ex />. Ster/ini^ 16 \'es. 258 ; Ex p. Nesbttt 2 Sch. iV l.ef.
279; Fn'sweil v. King 15 Sim. 191.
(43) Stevenson v. HIakelock i M. it S. 535.
(44) Re Walker (^% Eng. L.T. 517.
(451 Ex />. Fuller 16 Ch. D. 617.
(46) 3 Black. Com. 7.
AM) ( IIATTI.I. I.IINS.
141
tluTeoii (47) ; hut this is an (;(|uita))lc lien and is
c1('|umuUmu u|)()n a contract, express or implietl. lor iht;
r<'iinl)ursenu;nt of a trustee before callinj^ upon him to
deliver up the property.
Lien denied. There is no hen in favor of the
person wiio has oinained possession of ciiattels hy
fraud, misrepresentation or other wronj^ful act (4.S) ;
nor where, by the nature of the contract between the
owner of the chattel and the |)erson claiminjj^ the lien,
the chattel is rect.'ived u|)on the terms that the owner
is to ha\e the control and right of possessi<jii, and use
of the chattel at his pleasure, for such is inconsistent
with the nature of a lien (49).
A nuTe stattMiient communicated to the consi^iKM-s
of inoods that a bill of 4*«d»f>w is drawn against those
goods will not of itself give a charge.* upon them, and
the words " which plac(^ to account cargo per the
A . " will not give a litMi on that cargo (50).
The right of a wife to pledge her husband's credit
as a means of procuring necessaries for her support,
when th(; husband fails to make proper provision for
her, do(!S not extend to validate a sale b) her of h(;r
husband's chattels, nor to give her any li(Mi thereon (51).
An auctioneer has no lien on maps Uli with him
to aid in the sale of land (52).
y^^l*^*^
(47) Darke v. Williamson 25 Beav. 622.
(48) Madden v. Kempster i Camp. 12.
(49) Chapman v. Allen ("ro. Car 271 ; Jackson v. Cummins
5 M. & W. 342.
(50) Bnmn v. Kou^h ( 18851 L. R. 29 Ch.I). 845 ; Kol>r\ v. Oltiir
(1872) l-.K. 7 Ch. 695 ; Phelps v. Comber {x'^'At^) I,.R. 29 Ch. I). 813.
(51 ) Kieley \. Morrison {\%i)2\ 24\.S. R. 327 ; Edgcrly s.W'halcn
106 Mass. 307.
(521 Blackburn v. Macdonald ft U. C.C.I'. 380.
I4-?
< oMM I loNAI. SAI.KS
I'licrr is no \\vi\ as ai^ainst ^oods llir prn|M'rty of
llir Crown (5,;).
A l).mk«'r with wlmin a instoiurr Iravcs Inr sair
keeping a l)o\ ('(HU.tiiiii))^ srciirilics, to whidi the
customer lias sole access, aihi ke«'ps the k«'\ , has no
lien for a j^jeneral balance due IVoni tin- customer (54).
The Crown has no preterential lien upon the assets
«tf an insuKf-nt estate in the hands of the assi^n<'e Inr
credittHs in respect ol i ustoms duties on j^uuds pre-
viously imported and sold hy the insolvent, as a writ of
t'xtent (or the Crown d<'l»t would only ha\e eHe( t on
prop<rly owned hy llui debtor at the time of the issu<'
ol" th<' writ (55).
A sherill has in ( )ntario no li«'n for his lees on
j;oods sei/eil uiuler a writ of //c/v /adas (5')).
And in the ahseiic*' of an ai^reemenl there is no
li«'n in laxor of • landlord, unless he is an innkeeper,
upon chattels left on his |)remises by an outi^oin^ tenant
(5;).
Lien of finder of lost chattel.— I he linder of a i hait<l
has at common law no lien upon it for a rirompensi;
in respect of his trouble in securing it, and in takinjjj
care of it for the owner (5S); but he is entitled to be
paiil his reasonable expenses inciUTed in resj)ect of the
thini; found (sq). And the owner of a boat which is
found adrift on tidewater and is brouuht to shon; is
(5^) 77if (Jhiiu V J-'msrr i K. \- C (NovaSrotiai 4.^1.
(54) I.i-fSfw J/iif/iN \.M. 17 Kq. 2,^.
(531 C/iir/cson \. Attortify (ictierai y\^\)) i(>Ont. App. 202.
(56) Kf Koss 7, V>iU. I'r. v)4-
(57) /'/ iston V. N(Ui/i- 1 2 {. Iray < Mass. ) 2 2 2.
(58) Xicho/son v. Outf^mtan i H.Hl. 254.
(r,t)i iliast' V. Cotcotttri \oh Mass. 286 ; Arworv v. Flxnti 10 lohns.
.N."V.)i02.
,\M> rll.Mili, I. MAS.
'43
liiiM*' for llir lU'crssary <!.\|»rnsrs ol krfpinj; .md npair
in;; tlir hoat wiiilr it rcinaincd in the |Miss<ssioi) ot tin-
tiiidrr. I'hr law implies in such a case a prnniisi l»y
the ownrr that upon lakin;^ it from ihf person who
ha<l fouixl it adrift, he will pay lor the ncdssary
expenses of its presi-rvation (Oo).
II, luiwever. the owner of a lost chattel (jffers a
rewani for its return, tin* liixler has a lien upon the
jiroperty lor the payment of ihi; reward. Such an
oiler is to he (onstrued as meaning that the person
who has expended his time and money in the pursuit
and recovery of the lost or escaped property shouKI
remain in possession of the sanu- as sec inity lor th«r
payntent of the proferred reward imtil its restoration
to its owner, and that then the payment of the reward
would l)e a simultaneous act ; the lien is, tln'refore,
one arisinjn out of contract (6 1 ).
hut tl
w.rv IS no hen implied by an olhtr so mdelinitf
((v
as of a 'liheral reward,' as it <annot Ix- supposed that
the owiurr, l>y his ofler, intended that he was to he
kept out of the poss«'Ssion of his property till the just
amount in case of disaj^jreement could Ix; ascertained
in ie<^al |)roct;edin<4s (O2).
Where a part only of lost momry is recovered, the
fmder will he (;ntitl(;d to a />n> rata proportion of the
reward, unless th(M)ffer he in terms which exclude; any
apportionment (63).
A lien hy the finder of a lost chattel for the reward
C60) Chase v. C>rcofan 106 Mass. 286.
(611 U^i/son V. (riiyton « ('fill (Md.) 21,^ ; IVftitwotlh v. Pay 3 Met.
(Mass.) 352 ; Preston v. Neale 12 (Iray (Mass,) 222 ; Wood s. Pear-
son 45 Midi, 313.
(62) Wilson V. Cuylon « Oill (Md.) 213 ; Shuey v. United States
92 U.S. 73.
(63) Symmes v. Fiazier 6 Mass, 344.
144
( nNIHTIoN.M, SM.i-.s
offerctl Is not waived liy insislinj^^ on its iileniilica-
tioii(64).
Stolen property. -TIk! purchaser of stolen ^roods
ordinarilv takes no title to thi; same and lias no lien in
respect of the purchase price he has paid, alth<»u^h he
madtr the paynuMit in the hona tide belief that the selU-r
owned the j^oods. An express |>ower to order restitu-
tion in a criminal proscicution in respect of the thelt is
conferred hy th(r Criminal C'otle of Canada (iSc>2).
section S^S of which enacts that :
"if any person who is yuiliy of any indictable
offenci^ in stealing, or knowinj^ly receivinj^. any pro-
perty, is indicted for such offence, by or on behalf (»f
the owner of the j)roperty, or his executor or adminis-
trator, and convictetl thereof, or is tried before a judge
or jusiict' for such offimce under any of the foregoing
provisions |of the Cotlej and convicted there»)f, lh(r
prop(;rty shall be rt'stored to the owner or his repre-
sentative."
"2. In everv such case th(? court or tribunal before
which such j)erson is tried for any such offence, shall
have power to award, from time to lime, writs of
restitution for the said pro|)erty or to order the resti-
tution then-of ill a summary manner ; and the court
or tribimal may also, if it sees fit, award restitution of
the property taken from th(.' prosecutor, or any witness
for the prosecution, by such offence although the
person indicted is not convicttal thereof, if the jury
declares, as it may do or if. in case the offender is tried
without a ii;iy it is proved to the satisfaction of the
court or tribunal by whom he is tried, that such j)ro-
perty belongs to such prosecutor or witness, and that
he was unlawfully deprived of it l)y such offence. "
But it is also providt^d by the Code that the section
mentioned shall not apply to the case of any prosecu-
(64) Woods, Pierson 45 MicK 313, 7 N.W. Rep. SSt-,
AM) ( IIATIII. I IKNS.
'45
linn nf, my triisi«'c, hankrr, mm hant. .illorncy, faitur,
l)rnk»T, or otlur a;;rni cutnisfn^ wif/i //w /fossis.sion ol"
^notls or (lutllUH'lUs ol titli- to j^ikmIs. for iIh- llMlldilU'lU
(lispos.il l)y a person hoMini; a power of attorney, or
for the fraiululent misappropriation of ^^oods or their
procetuls h<'l(l muler (lin'ction (^)5). or to tlie prosecution
of a trustee for fnuiihilent convj-rsion of propert) (06).
And if it apjjears hefor*' any award or order is
made, that any valuable security has heen hona tide
paid or discharged hy any pirson HahU; to tlie pay-
nvnt tliereof, or Ikmiij^ a ne}.{otial>le instrument, has
l)een l)ona tide taken or received hy transfer or
delivery, l>y any person, for a just and vahial)le con-
sideration without any notice or without any rcason-
al)l<r caus(r to suspect that iht; same had. hy any
inchclal)!*' offence, lieen stolen, or if it appears that
the proptTty stoltMi has been transferred to an iimocent
purchaser for value who has ac(|uired a lawful titN*
thereto, the court or tribunal shall not awartl (»r onU.T
the restitution of such security or property.
When any prisoner has been convicted, either sum-
marily or otherwise, of any theft or other off«.'nce,
including the stealinj.; or unlawfully obtainin;^ any
proptnty, and it appears to the court, by thtr t'vidence,
that tlu; j)rison(,'r sold such pn)perty, or part of it, to
any person who had no knowled}.(<; that it was stolen
or imlawfully obtained, and that money has been taken
from the prisoner on his apprehension, the ct)urt may.
on ap|)lication of such purchasctr and on rttstitution of
the pri)j)erty to its owner, order that out of tht! money
so taken from the prisoner (if it is his) a sum not
exceeiling the amount of the proceeds of the sale l>e
delivered to such jnirchaser (67).
(65) i"r. Code 8^8 (4), 520.
(661 fr. Code 838 (4), 363.
(67) O. Code, sec. 837.
nr^
' ♦'>
ruNimiKN.M, >/\l,KS
Ih
«• pnwiT <>
f nnl
rrinj; n'siitiitinii mi thr criinina
th
it
pi'Msrciition is limited to |)rti|irriy iiictititicd ,it tlu- tri.il
.IS luill"; llu" sill)i«(l ul ihr 1 ll.Hi^r (')S); tlu' |M)\Vcr
I'xtnids as \v<H lo tin- prorctils «it |>ro|)frly as lo the
|)n»|Hrty itsrll" {(h)).
Wlirrr a roMx ry has Ihtii coininittrd in a forcif^n
iroimtrN and the nmncv sinlni has Imtm invested in the*
purchase ol ih.iitels in this enuntrx. the cnnit will, at
the suit <»r the true owner, intervene to secin'e tli<'
money tor him hy holihuL; liiin entitled to a lien on the
}^oods purchased with the stolen money or l»y adjudj^-
iu|L; the j^oods to he his in «M|uit\, an<l will jjjrant .m
injunction to restr.iin the s«'llini; or iiu mnherin;^ of" the
chattels imtil the trill (70).
Waiver and forfeiture.
poss«ssory li<n on a
ch.iltel is discharged hy lender ol tin- dehl (71 ).
ihe lender should he of the e\;icl amount in
mon»'N. hut if a larjj^cr sum is produced ami chanjjji;
ask<'d lor, and the tender is refused on the j^rountl
that the amount tdlen-d is insutricient, and without
ohjection lo the (|uality of the temler. an ohjeclion on
the latter "Ljround will he vvai\'ed (72).
I'lu' money should he actualK produced (7; I. hut
this may he dispensed with hy the express d(x'laration
or other e(|ui\'aleni act of the creditor, if the tender
De (slherwise sufficient (74). iiut it is not a sult'icient
(6H). A'. V. Coldmiilh \2 Cox VX\ 5^4; A'. \.Stnit/i uCoxC.C.
597-
(r)tj) C:r. Cotlo ,; (.-) : h'. w/us/iWs, I'tc, iH (.).H.l). 314.
170) Mnchants' lixpic^s v. Morton 15 (Irani (Ont.) 274.
(71) liatik of N. ir.S. V. O Connor 14 A.C. 273.
(721 liiiUulf^h V. St. John 2 Sch. iV I,ef. 521.
(7j) Diikitison v. Sin;- 4 I'sp. U"],
1741 I'lunnas v. I'lvana 10 Kast, 101 ; A.v. f>. Danki 2 DeCi. M. tV
(1. 936.
\M» I II Ml 11 IIINh.
147
tniilfr lor an .i;;«'m «»( i\u- tirhinr in «,.in ih.it llu'
money itas Ixcn Icit with hint lor payini-m ol tin *|rlii,
il ln' (Iocs not otlrr it ("5) The Hiulrr nuist not Ik*
(lo^<4r(| will) .1 contlition, .ts lli.it tlx- |>.i\ni* lU sh.ill Im-
l.ikcn as the li.ilaiKf din- (7')|, or tli.it a r(-(<'i|ii in lull
Ixr };i\rn in ri-tiirn(7/); l>nt an olijcrtion on acionni
ol the ( ondition will Im- w.iivcit liy the nltisal siin|)l\'
on the 'ground that tlir anioinit is insnltuicnt (7S).
I 111- lai t that th<- amount in n sjx cl o| wh'ili a
lien is cl.iim il is in i-mi-ss ol the .immint li-;;.ill\ du*-.
dors not iiis|)«'ns«- with the in'ressiiN ol' a n-ndi-r of ihi-
amount lc<4ally due nor in\alidat<- the lien [Jif).
Where tin- holder ol i^onds tletains thtin for
ditlerent ( laims, as to one ol whi( h he h.is a lien, and
as to ihe oth(-rs Ik- h.is not. tin- owner must K-ndrr the
)»ro|)<-r amount unless th«- (h-tainin;; P'"*') <ither
expressly or l)\ lair impliealion dispenses with it (So).
It'lhelien holder enter into a special «' tntr.Kt lor
a pariiiular mod«- of payment inc onsisH-nt with a lien,
the li(-n will he wai\(-d (Si); hut il the lontraii dms
nol alVetl tin- possession heM hy the CM-ilitor aiul is
not in disrhar);e o|" the ch-ht it is not neressaril) iiuon
sisteni with a tontinuance oliln- lien (Sj).
(75) y '//^' ///<;.>■ V. /•.'.••</ //v 10 l-last, 101.
(761 J'.Viitis \. /iii/kifii .\('a\\\\h 15').
'771 (t/iisiott V. /hiy 5 l',s|). 4H.
78) Ctle \. HIakf I'eakt-'s Ki'|». 171J.
(7m) 'I'hf Qiifiu V. Holliui^su'orth (iSt^tp 2 ilww. < r. ("as. 51)1, jar
koulcaii, J.
So I KfuMxll V. J'il'.i^i'iii/ii 2\ L".C'. K. 5.S5 ; Ihithiio iithi /.iskr
HtiroM V. Uor.ion \h U.( . K. 2S5; Milhh't, V. lUnin U U. C.C.I'.
523-
(Si) Hakff v. /hicrv 15 ('.rant (Out.) 66S ; Ihinpuy v. GiiM'ti
II L'. C.C.I'. 40» ; Heu'isou v. iiiithrii- 2 llinj; N.( . 755; /ho7i'ti/t>u'
V. AVij///.;; 2 Ir. Va\. R. 24^}.
1S2) AV l.iiiiiou «,'~' liirmifi)ihaiii Hivik 11 jurist N.S. ',i'i.
IMAGE EVALUATION
TEST TARGET (MT-3)
^^£n
1.0 !^i^ l&£
^^ u» IM 12.2
U i^-^ lllll££
— ™'-tt IIIIIJ4
p%
VQ
7i
7
/<^
HiotDgraphic
Sciences
Corporation
23 WEST MAIN STREET
WEBSTER, N.Y. 14580
(716)872-4503
^i^*^
'4^^^
%^
14.^
( OMUTIONAI, SAl.r.S
A lien will be lost if the lien holder claim to retain
the i^oods for the debt of another than the rightful
owner (Sj), or under another riLiht than the right of
lien (84)/
If there be a specific lien, but the holder claims to
hold the goods also for a general balance he does not
thereby waive his lien (S5), but no objection can in
that case be made by the holder that he was not ten-
dered the sum due on the specific lien (S6).
If the holder of the lien takes the goods in execu-
tion, and causes them to be sold by the sheriff and
becomes the purchaser from him, his lien is gone for he
holds as a purchaser and not by right of lien although
his actual possession was not interruj)ted (H7).
Liens in Quebec— Privileges. Under the Civil
Code of the Province of Quebec, which is based upon
> 't civil law and the Code Napoleon, "privilege" is a
.. which a creditor has of being preferred to other
.-i-e. litors according to the origin of his claim. It
results from law and is indivisible of its nature (88).
The claims which carry a privilege upon movable
property in the Province of Quebec are the following,
and where several of these come together they take
precedence in the following order, and according to the
rules hereinafter declared, unless some special law
derogates therefrom (89) : —
(83) Dirks V. Richards 6 Jur. 562, Car. & M. 626.
(?><\) IVeeks V. Goode 6 C. B.N.S. 367 ; fioardman v. Sill i Camp.
N.P. 410, «.
(85) Scarf e v. Morgan 4 M. & \V. 270.
{%6) /ones v. Tarlton 6 Jur. 349, 9 M. & W. 675.
{2)^) Jacobs \. Latour, 5 Bing. 130.
(88) Quebec Civil Code, art. 1983.
(89) Quebec C.C., art. 1994, 1997.
AND CIIATTKI, MENS.
149
1. Law costs and all expc.'iisfs incurred in the
interest of the mass of the creditors ;
2. Tithes. These constitute a lien or |)ri\ile';e
against such crops as are subjt^ct to them ;
3. The claims of tin; vendor ;
4. The claims of creditors who have a ri^ht ui
))led;^(; or of retention ;
5. I""uin!ral expenses (includin<r the mournini^ of
the widow) suitable to th(* station and means of
the deceased ;
6. I'he expenses of the last illness ; hut in cases
of chronic disease the pri\ilei;e avails only for the
ex[)enses during" the last six months before the
decease (90) ;
7. Municipal taxes limited to the taxes on pt^rsons
and personal property imposetl by certain munici-
palities, and taxes to which a like privilege is attached
bv s|)ecial statutes ;
8. Rent ;
8 (a). The owner of a thing who has lent, leased
or pledged it, and who has not prevented its sale, has
a right to be paid the proceeds of its sale after the
preferential claims for law costs and expenses, and for
rent, have been collected. The owner of a thing which
has been stolen, who would ncjt have lost his right to
revendicate it had it not been judicially sold, has a
similar right (91).
9. Servants' wages and those of employees of
railway companies engaged in manual labour, and
sums due for supplies of provisi(ins.
The lien of domestic servants and hired persons
is upon all the movable pro|)erty of the debtor, but
(90) Quebec C.C., art. 2003.
(,91) Quebec C.C., art. 1994. 2oo5(/.
I50
((».\i>i rioNAi, s \i.i;s
limited to wa|ues for a period m>l e\ceediii«^ one year
previous to the time of the seizure or of tile death (02).
("jerks, apprentices and jouriu?) men ar(.' entitled to
a preler(;nce for waives for a |)eriod of arrears not
exceeding three months, hut hmited to tiic merchaiuh'se
and (effects contained in tht; store, shop or workshop
in which their services were re(|uired. Ivnployees of
railway companies engaged in manual labour havt; a
lien upon all the movable property of tlu' company
for arrears not exceeding three months (q^).
10. The claims of the Crown against persons
accountable for its moneys (94).
TIk; privileges s|)ecifuxl under the numbers 5, 6.
7, 9 and 10 (!xtend to all the movable property of the
debtor, the others art; s()ecial and affect only some
j)articular objects.
Those who have supplied provisions to a house-
hold have a similar privilege to that of domestic
servants for \.;'.ges. under Quebec law. upon all the
movable pro{)erty of the debtor for the su[)[)lies fur-
nished during the preceding twelve months (95).
Mutual fire insurance; companies also have a
privilege upon the movable property of the insured
for the payment of assessments which may be im-
posed on the deposit notes of the members, which
privilege takes rank immediately after municipal taxes
and rates, and^remains in force for the same time (96).
Priorities of rights of retcntion^ — Quebec. — Credi-
tors having a right of pledge or of retention rank
(92) "Quebec C.C. art. 2006.
(93) Quebec C.C. art. 2006; 59 Vict. (Que.), c. 41, s. 2.
(94) Quebec C.C. art. 1994.
(95) Quebec C.C. art. 2006.
(96) Quebec C.C. art. 1994 /J/ R.S.Q. art. 5826; 45 Vict. (Que.),
c. 51, s. 49 ; 47 Vict. (Que.), c. 76, s. 2.
AM) CIIAIIII, I.II \S.
I ^I
accorcliiii^ to the naliirc of tln-ir pledge or of tluMr
claim.
I'lic tollovviii}^ Is the onlcr among llicm : —
1. Carriers ;
2, I Ioleil<(;e|)ers ;
,^. Maiuiatories or Consignees ;
4. Borrowers in loan for iis(; ;
5. I )ej)ositaries ;
6. Pledgees ;
;. \\'orl<men upon tilings repain.'d hy tlunn, and
persons having a privilege in virtue of article 1994, <-.
of the Civil Code.
S. Purchasers against whom the right of retlemp-
tion is exercised, for the reimbursement of the price
and the moneys laid out upon the property. This
privilege cannot, however, he exercised unless the
right is still subsisting or could have been claimed at
the time of the seizure, if the thing has been sold (97).
(97) (^)uebec Civil Code, art 2001 ; 60 \'ict. (<^)ue.), c. 50, s. 34.
I
(•|i.\n i:k \ II,
sr,Li.i;u s I, UN i ou I'kk i:
Rights of unpaid seller. Notwiilisiaiidins; that iIk;
|)r(>|)('rl\ ill llic ;^()()(ls may liaxc Massed lo the hiiNcr,
the iin|)ai(l seller ol" i^udils, as siicli. has hy implication
of law {({) A lien on tliej^ooils or rii^lil to retain theni
lor the |)ri(e while he is in possession of them ( i ).
(/)) In lase ol the insoKcney ol the l)ii\fr. a rii^ht of
stoppiiii^ the ^()o(ls /)/ Iransiln after he has parted with
the possession ol them ; [i) A rij^ht of re-sale in certain
cases on the |)urchaser's default.
Where the propert)' in ^oodshas not ()assed to the
buyer, the unpaid seller has. in addition to his other
remedies, a ri^ht ol withholding (leli\(ry similar to and
co-extensive with his rii^hts of lien and stoj)pai4C /;/
haitsi/ii, where tlu' propttrty has passed to the
buyer (2).
When there' is no actual a^reemiMit as to priie or
time; of p.iyment, tln' presmnption of law is that the
buyer is to pay a reasonable price, and in th(! absence,'
of evidence to th(! contrary a promise is implied to|)ay
on deliver) (3).
Seller's lien for price. I'he unpaid seller of j^oods
who is in possession of them is (4) generally
entitled to retain possession of them imtil paxnient or
tender of the price in the following cases, namely : —
(i) Dixon V. Yates (iS?3) 5 15. \: Ad. 313.
(2) Lords. Price {\%ii^) i) Kx. 54.
(3) Christie v. Burnett 10 Out. R. 609.
(4) Martiniiale \. Swit/i {1S41) 1 (J. IJ. 389; JUoxatn v. Saiiniiers
4 B. tS: C, 948.
AM) til Ml II, i.ii:ns.
i5;>
(d) Where ilie <;iM)(|s lia\c Im'cm sold witlioiii .m\
slipiilatioii as to credil ; (/v) Where ihe ^(toils ha\e
Keen sold on crevhl, hlll the lenn <)( credit has e\|)ired ;
(( ) Wliere the buyer hecnmes iiisc •Ivelil.
Where j^^onds remain in the possession of the
\fiulors and MO actual (|eli\('r\' has lieeii made to the
vemjee, the scildor's lien will re\i\c on the illsoKeiK y
of' the vendee althoi|i_>h the ^ooils are held l)\ the
\eiidors as warehouseuien lor the vendee (5). \nd it
is not im|)erati\c lor the exercise of this rij^ht that
there should tirst Ix; a jutlicial tindini^ (tl insol-
vency (6).
If the purchaser has a!^r(;ed with the \cndor to j)a\
(•(•rtain duties on the jjjo(»ds and lh('S(; are afterwards
|)ro|M;rl\' |)aid hy the vendor, thi; vendor's licMi will
co\-('r the amount of such duties (7).
I'he v(Midor's lien arises out of his original owner-
ship and dominion over the ^oods and is indejtendent
ol actual possession hy the vi-ndor so lonj^ as actual
poss(!Ssion has not heen ol)taiiu;d hy tlu: vendee, and
paynuMit or a tender of th<; price* is a coiulition prece-
dent on the l)uy(;r's part ImjIoh' thi; makiiiLr of" which he
has no riiL^ht to the possession (<S).
I'he ^'-ndor's lien is in that respect ditlerent from
oth(;r pos -essor)' liens, the claimants of which have no
otIuT titl:* than the possession of tin; chattel upon
which tile lien is claimed. The passing of the
|)ropert" in cortlwood does not \est the ri^ht of j)os-
sessioii without payment of the piicc;, which hy the
contract was to bt; paid in cash on the final measure-
ment, after piliuL;' ready to be loaded on railwa\ cars ;
(5) Gn'ce V. Kichanison (1877) 3 App. Cas. 319.
(6) The 7y?/rxj (1863) 32 I,. |. Adm. 97.
(7) Winks V. IJassii/l <■) W. !k. C. 372.
(S) Hloxixm V. Sijuudcrs (1825) 4 H. i\: ('. 941, 94S.
'54
< OMUTKtNAI. >AI.i:s
;iii(l ilic lien lor iinpaii.l piircliasc ipoiicn will subsist
allcr ilic wood has ht-t-n inarknl vviili ilic purchaser's
iiMrk in ihr presence t>r llie parlies, alter the nieasurc-
ineni lias.i)<!L'n agreed upon {i)).
riie h'en oNcrrides any hen which may exist ajuainsl
the |)ur(:liaser, or aj^ainst a purchaser from liini.
altliou|L;li the latter may h.i\-e paid the original pur-
chaser lor the j^oods ( lo).
l*\u:tors and brokers and persons who l)u\ for
otiiers at tlieir own risk, drawini^' bills uj)on tlu-m for
th<^ value of the i^oods and the commission, are
(Mititled to a lien as vendors ( i i ). and l)\ statute in
Manitoba any pt-rson who is in tile position of a seller,
as. for instance, an aj.(ent of tlu; seller, to wliom the
bill of ladinj^ has been emlorsed. or a consii^nor or
aj^t'nt who has himself paid or is dirt:ctly n^sponsible
for the |)rice. has du; liki' rijj^hts as a seller would ha\e
lo exercise a ri^lu of detention or lien (12).
When the property pass's. I'he time at which the
property in j^oods contracted to be sold passes to the
buyer is <^o\erned by tile ftjllowin^ rules: Where
there is a contract for the sale of unascertained t^oods
no property in the goods is tr.mslerred to the buyer
unless and until the ^oods are ascertained ( i^^).
When there is a contract for the sale of specific or
ascertained i^oods the j)roperty in them is transferred
to the buxer at such time as the parties to the contract
Feise v. IVfay 3
(9) Rogers v. Devitt {i^\) 25 Out.. R. 84.
(10) Dixon V. Ytitt's 5 B. & Ad. 313.
(11) Driti/ruiiter v. Goodwin i H. Cowp. 251
East, 93; /////. Bank v. Docks Co. 5 Ch. I). 195.
(12) Sale of Goods Act, Man. 1896, c. 25, s. 36 (2).
(13) Dixon V. Yates {x^ix) I H. & Ad. 313; Godts v. Rose {I'^n)
17 C. B. 239; Xfirabita \. Imperial Ottoman Bank {\S-jSt 3 Ex. IJ.
164, 172.
\Nh til Mill I II \s.
'55
intciul it In l)c transrcrrcil. I"i>r the piirpnsc ul
jisc'criaininj^ the inicnlinn of the |)ariics rcL^ard is i(»
In- hail In the terms nt the i-niitrail, llic inndiicl nt the
parties and the circiiinstaiu'es nt" the iase(i4).
Where h) the cniUracl ilselt the \ciulnr a|)pr<»
priales in the \ciulee a speiilic chattel, and the latter
tliert.'by ai^rees tn take tlial specific chattel and tn pay
the stipulated price, the parlies an* tln'H in the same
situation as they would \u'. alter a deli\'ery nt ^nnds in
pursuance nt a general contract. The xcry appro-
priation nt" the chattel is e(|ui\alent to deli\('r\' l)\ the
V(Mulnr, and the assent nt" the vend*'*; to tak(t the
sp(;citlc chattel and tn pay the price is e(|ui\aleiit tn
his accej)tin!4 possession. The (rtfecl of the contract
is to vest the property in the har^raince (15).
When a contract is niaile tor th(! saU; of a certain
portion of a specitic mass of goods, no title j)ass<'s to
the buyer until appropi iation of a certain portion to
that contr.ict ( 16). hut if it appears to he the inten
tion of the parties that title shall pass, it will pass ( 17).
A sale was made of not less than 1,600 nor more
than 2,300 bushelsof corn at acertain price per bushel
and part of the purchase; moiu^y paid, the corn beiiij^
in two cribs, one containing 1,600 bushels and the
other about 700 bushels, and it was agreed that th(;
vendor reserved a right to retain 200 or 300 bushels if
reijuired. A third party was (Mititled to 50 bushels
from the stock mentioned. It was held that as to
1,600 bushels title had passed to the purchaser, and
on the entire mass being destroyed by fire the loss as
to that portion fell on him ( iS).
(141 Sea//i V. Moore 1 1886) 11 App, ("as. 350, 370.
(15) Dixon V. Yates {i?>2,^) 5 B. i\: Ad. 313,340.
(16) Campbells. Mersey Dock Co. 14C. H.N.S. 412.
(17) Kimherley v. Patchin 19 N.Y. 330.
(18) Welch V. Spier (Iowa) 72 N.W. Rep. 548.
'"f
IS')
(UNIM I luNAI, SAM'S
111 a n-iriu v.isr ( K)) llu- f.uts wrrr, tli.it tin-
(Irrciitlant 11. had mcr .[.ooo.ooo Irrt o|' liiirhcr in a
yard in Uockl.tnd, < )nt., and sokl i,5()(),()((() Icct tliroiii^h
an aj^cnt to L. ol" M«)nir«al. on six m«)nllis' cirdit, rali-
i\u\<^ tlu' sale l)N a letter to the owners o|" the y.ird as
follows :
Montreal, i 2th jany.. iSS;.
Messrs. W. (". I'dwards X- Co.. Kockland. Out.
( ientlenien, N'on will pN-ast- ratilV .Mr. I.iinay's
order for one million leel ;> mill ( nils. S- 1 ; leet. and
^g^^.Sgo leel ; mill culls. \.\ \() feet, sold to .Mr.
William laltle. I.o.i). of har^cs with option to draw
lIn'Mi iVom the piles, it he wants some durin;^ winter.
N'onrs truly.
(Sj^d.) \. Iliirlcan et I'rere.
.\ few days after the sale the a»^enl L;a\(: an order
on the owners of the yarii for deti\'ery of iIk; lumber
to L, which order was accepted l>y the owners. I.,
hail oiNcn a si.\ montiis' note f<»r the prict- of the lum-
ber, and just before it malm-ed he asked defendants to
renew which the) refust-d, and, on L. sayinj^ that he:
could not pa\ the defeiulant replied that hr must ke(!p
his lumber, whereupon he was informed by L. of his
aj^rocment with tht; |)laiiuifl made about a month after
the purchase fr<>m the defendant, by which he pleiljjjtid
to plaintiff the warehouse receipt for the lumber as
collateral securil)- for advances to him by plaintiff.
On tile trial of an interpleader issue; to det(;rmine the
title to this lumluT it was shown by the evidence that
the ([uantity sold to L. had never been sejiarati'd from
the defendant's lot in the yard, and that defendant had
always kept it insured considering it his until paid for.
It was hekl by the Supreme Court of Canada, affirm-
ing the judt^ment of the Court of Appeal, Strong and
(19) /ioss V. Jliirteait (1S90) 18 (,'an. .S.C.R. 713.
ANK (II M I II. I.II•■.N^.
«57
(iwNHMr. I J ,, ilisscnlilli;, til.tt lllc |Hn|)«rtN ill lllc
liiinlxr never passed nut ol I i. the (leteixlaiii ( ji i|-
Transfer under Factors* Act- Ontario. I5\ ili«
Onl.irio Aft (ji) respeciinv; coiiir.it ts in ie|;iii(»n
l«» j;o(nls <ntrusietl lu ai^ents ((•uninonly known
as the I'aclors' Acl), all conlratls |il<'(l;;in'4 nr
j^ivin;^ a li«'n upon any Mil ol l.idin;^, warehouse
keeper's or wharlinj^er's receipt or order lor deli\ery
ol^^oods, or an) oilier dociiineiU used in the ordin.irx
course of husiness as proof of the possession or con-
trol of" noods, or aiithoriziii}^ or piirporlini^ to aiilhori/e,
cither hy endorsement or hy delivery, the possessor of
such tlocuinenl to transfer or receuc ""oods tl^erehy
represttnteil, shall he deemed a |)leil;^«' of and lien upon
the ;4oods to which it relates, and the ai^cnt shall he
deemeil the poss(;ssor of the ^oods or docuiiK-nls of
title wh<;ther the same are in his actual custody or an*
held hy any other person for him or sul)j<'ci to his con-
trol (22) ; hut the contract must hax'e heen made bona
fide and without notice that the aj^ent ('nirusled with
th<r documtMU of title and makiii*; th(; contract or
pletijjfe had no authority so to do, or that he was actinj^
mala tkU; aj^ainst the owner of thi: •4(»(>ds( 2.;). Know-
ledg{; that such aj^xint was not himself iIk; owiut of
the noods will not defeat th(; claim of the pUalge-e (24).
But an antecedent deht owinjjf from a mercantiU; ajrcnt
to another party will not authorize any lien or jjledye
by the aj^ent to such party in resp(;ct of such debt
(25)
(20) Ross V. Hurteaii (iSyo) 18 Can. S.C.R. 713.
(21) R.S.O. 1897, c. 150.
(22) Sec. 7.
(23) Sec. 9.
(24) Sec. 10.
(25) R.S.O. 1897, c. 150, s. 8.
'" J
i
'5'^
I M.NhlllnNAl. N.M.KH
'!'•» n>ns»itiil«' a |H'rM)u ,tii '.i^^rnl' wiihin tin*
< hii.iriu I'.iitors Art his rm|»l(>\ nwiu must t nnrspoinl
li» snm«' kiKivvn r'ass u| coiniiM-ii i.il .i^riii. mu li .is ilii*
ilass «»l" factors or inminissinn m«irli.ints. ami ihc Atl
iliM s not .i|»|>ly In ilu' cisf n( .1 |Hrsun cniriisit'tl with
tin- |M>ss«'ssM»ii nl ihr ;^iit><ls siinpK lor 'hi' imrposr of
(,irr\in^' out a jiariinilar traiis.niion o| saN*. il smh
pcisoM (Iocs llol iM.ikr a bilsini'ss ol stlliiiiL,' j^ooils lor
otiirrs (2(y).
I In- |i isoii who is lo :^i\r a title as a-^ainsi ihr
primipal or owner ol the mooiIs must he an aj^eiit ; if
he has no riv^ht to the possession as .ij(«'ni, the pio-
\ isions ol the I'.iciors Art as to pledj^rjn^^ do not .ipply
to him {2j). And an ai^ent whose .niihority has Keen
rexoked. .ind wiio wronj^lully retains possession of
^oods wliich he is hound to i^ixe up :;i the time when
he purports to make a pledi^e. is not m ai^ent at .iW,
l»ui a wroni^doer, and is not within the Act. nor is thi:
pledi^f a transaction within its protection ( jS). And
w liere a Nciulee of tobacco left th«; possession and <-on-
trol ol the docutm'nls representinj; the tobacco in the
power ol" his \<'ndor, as his aj^cni lor th<j |)urpose ol
torwarthn"' the tobacco to him or to his t»riler. and the
\cndor was. in accordance with the practice of tile
trad*', left in possession ol tlie i^oods in bond so as to
avoitl premature |)aym<'!U of duty, untlcriakinjj; to clear
aiul forward the j^oods for the plaintiff as re(|uired. thir
\<'ndor is not in law or in fact intrusted as an aL^cnt
(|ua sale or ph'djjje of. or dealinin ol any kind in, ih<j
^oods (2c>).
\\'ht;re it is proved that such a trade custom exists^
and that it is exceptional to do otlu;r\vise. it is n«)t
(36) /ii/s/i V. //)'(iSH7i 13 Out. R. a:.
'2^) I'er Willes J. in Finnttsw Afotitis{i^U'^) I,. R. 3 ("!'. 268, 283.
128) Il)id. p. 284.
i2r)) Jp/insofi V. Credit I.yonnais C". (1877) I..R. ;(MM). 32, 49..
\M» ' II \ I I I I MISS,
«5<>
Mi';;li;^<'nif uii ihc iiurclMsrr's pari to omii lo li,i\r iln-
y;oo(ls ir.mslrrn'il into his own n iinr at tin- wan-hoiisf.
or to h.i\r tl)f <l«li\iry onli-rs tr-inslrrn-d to liiin^rll,
.11x1 no rsio|)|it| .irisrs notluN iihsiamliiiii; ihr l.i» i that
ihi' \rnilor s hue ol Itiisincss w.is to s«ll that ( la-^s n\
j^ooils (.;i)). Ihr < )nt.Mio lattors' Aft is similar in
its provisions to thr I'aitors' Act 5 and '> \ i( t, ( Imp ).
{'. ^V>. Nvlii«li li'is sincr linn nprahd in r",ni;lainl.
Pledge by vendor in possession British Columbia,
N.W. Territories and Manitoba. In Hriii^h ( ojuml.ia
and th«' North West Territories it is eiiai ii d ihal
where .1 person having sold q;oods continues nr is in
possession t»r the i;o(ids. orot the documents nl title to
the i^onds, the deliver) or tranter l'\ that person, or li\
a mercantile .iMt-nt acting tor him. T th<' j^oods or
docnin«'nts of title iind<'r any sale, j)|edMr (»r otlx r
disposition thereot. or under any a<4ieemeni tor sal<'.
pledge or other disposition th' >o|', lo an person
recciviiiM ih,. same in ^^ood t.iith and 'viiiiout noiiir
ol die previous sale, shall have the sam( elteci as it lh(
person makinj4 the delivery or traiister were expressly
authori/eil hy the owner ot" the L^ood, to m.ike di<-
same (,;i ).
The only case in which the s<'ller is plact-tl. I>\
\irluf of this enactment, in the position of heini;
authorized l)y the owner lo make a pledge, eu., ot the
ji;()()ds is where he 'continues or is in possessi(Ui ' ot
the same or ot the documents of title. In such cases
th(! Act mak«!s authoritative the delivery or transter
of th(.' 54'oods or documents of title to a person
r(!ceivin}; the saiiK* in j^ood faith ; and there must,
theri'foro, he somt; deliverN- or transter after th(; sale,
{ifO) /(ifinxon V. CiiJit l.yoniuiis l,.R. jfMM). ^2.
(^i)'rhc Factors' Act, K.S.H.C 1897, c. 4, s. () : 'i'lie
Ordinance, Con. Ord. N.\\.'l\ 1898, c. 40 s. g.
•actors
f
160
(ONDITIONAI, SAI.l.S
1
williout nolicc that such sale had lakin plact*. So
wlicrc a merchant sold wiiu; stored in tht? cellars of a
Nvarehoiiseman, anti afterwards pledj^c.'d the wine to
t\\r warehouseman for advances made in ^ood faith
without notice of the sale, it was hekl. under a similar
enactment, that the pledge conferred no title to the
wine (^^ if<'). In that case the pl'jdi;(!es were themselves
in possession of the ooods lonj^ before the sale, and
there had been no alti;ration in the j)ossessi()n, nor was
there any 'document of title'. To satisfy the Act there
must be a delivery of the j^oods by the seller in posses-
sion, or where there is no delivery of the j^oods, the
transfer of documents of title ; and where there are no
documents »)f title, and no delivery at, or subsecjuent
to the sale, the pledgee is not protected (31/;).
By the Manitoba Sale of Goods Act, 1896 (3i<) it
is enacted, that where a person, having sold goods,
continues or is in possession of the goods, or of the
documents of title to the goods, the deliverv or trans-
fer by that person, or by a mercantile agent acting for
him, of the goods or documents of title under anv
sale, pledge, or other disposition thereof, to any person
receiving the same in good faith and without notice of
the previous sale, shall have the same effect as if the
person making the delivery or transfer were expressly
authorized bv the owner of the goods to make the
same.
This provision, it will be observed, is similar to
the enactments in force in British Columbia and the
Territories, v ith the exception that the Manitoba
statute does not contain the words referring to an
agrecuieut for sale, pledge or other disposition, and,
(3irt) Nicholson v. Harper (1895) 2 Ch. 415, per North, J,
(31^5) Nicholson v. Harper {\%k)^) 2 Ch. 415, 418.
(31^) Stat. Man. 1896, c. 25, s. 24 (i).
VSh I IIAIII
I ir.Ns.
i<)i
ill c<>ns«-(ju<-i!jc«% it .i[)|)lif's only wiicrc llicrt' has hccii
an aciua] s.ii«- ptf»l^f• nr other ihsposilion ot the j^oods
!»)• I he x']]*rr.
Property passing Ascertainment of intention. —
1 lie loJ]<«4*uO;4 riiU-s <^o\crnin_!j the passing of ilie
property ami ihc intere-nces ot law, where a ilitfereiu
intention <kies not appear, are Ljiv'en in tile iinperi;!
Sale of li<*<>l> Act (i\ rS93 (32), ant! are declaralorx of
th«' law l>trfMr«- thai Act.
Rule 1. Whf.-n there is an unconditional con-
tract lor lh«- -yilr ot specitic floods, in a deiiverahle
stat<^ ihii j)tr«»j)Hi-riy in the j^ooiis passes to the huyer
when the cifitttract is rnad(.', antl it is iniinaterial
wheih<^r the limfr *A [)ayment or the tiine of delivery,
or both. In- 5wi)->tf)oned. Rule 2. W'iiere there is
a contract t«»r iher sale of specitic gootls and thi*
seller i> Ixniiml lo do somethini^" to tile ^oods, tor the
purpose <»f jmiiiltinL;' them into a (.l(.'Ii\erai)le state, tlie
|jroperty d<i»es not pass until sucli thin^i^ i)e tlone,
anil the Jwiyer has notice thereof. Rule 3.- -Where
there is a CMOinct tor the sale of specitic i^oods in a
deli\eral<]e 'fiAU:, i>ut the stiller is bound to weiujh,
measure, te^l or do some other act or tliiiifj with n'ie-r-
eiice to the ;;«»«»dl?T for the purj)ose of ascertainini^ tile
price, the }»roj»erty does not j)ass until such act or tliin:^
be clone, and th«r buyer has notice thereot. I'iule 4.
When ;4<*<h5> are delivered to the isuyer on aj)pr()\ai or
"on sale <*rreiynrt ' or other similar terms tile property
therein ]),is-~es h* the buyer: — {a). \\'h(Mi he sio^nities
his ap])rova3 or acceptance- to the seller or does an\'
other act ad-iptm;^ the transaction ; {/>). if h(; does
not siL^nifv 3iii> a|>j)roval or accepi.uice to the selltM* but
retains the ^^oki^Is without gi\inL;' notice of rejection,
then, if a lime has b^^en fixed tor the return of the Ljoods,
(32 56 and 57 Vuct. Imp.'i c. 71, s. iS.
pn
162
COMH I loNAI. S.M.I'.S
1
tm the expiration of such liinc, and, if 110 time; has.
been lixed, on tht; expiration of a riMsonahK; linu;.
What is a reasonahU; tini<; is a <|uesli()n of tact (.13).
Rule 5 {(i). Whert! there is a contract tor the sale of
unascertaini'd or tiiture floods h)- description, and
j^ooils of that ilescription anil in a deliverahk' stat(;
are unconditionally appropriated to the contract,
either hy the seller with the assent of the' buyer,
or by the buyer with assent of tlv s(.'ller. th(! pro-
perty in the i>()'xls thereujjon passt;s to the buNcr.
Such assent may be exj)ress or ini|)lied, anil may
be i^iven either before 01 atter the appropriation is
made : (/;). When- in pursuance of thi; contract, the
seller deli\ers the i^oods to the buyi^r, or to a carrier
or other bailee or custodier (whi;ther named by the
buyer or not) tor the j)urpose of transmission to the
buyer, and does not reserve the right of disposal, he is
deemed to have unconditionally appropriated the goods
to the contract.
Where a person sold timber to A. and received'
from him a payment on account; but the timber was
to be culled and measured to complete the j)urchase,.
and A. did not cull or measure it nor pay the balance,
it was held that the [)roperty never passed to A. so as
to j)revent the vendor from re-sellino- (34),
The return where no time has been fixed, and the
goods are sent on approval or on 'sale or return', is
to be made within a reasonable time from the receipt
of the goods (35).
Where goods are sent by manufacturers to a person
to be sold by him and he pays for such of them as he
has sold, by periodical settlements at trade prices, (he
(33) Moss V. Stueet {x'ii^i) 16 Q.B. 493, 15 Jur. 536; Onistein v.
Alexandra (1895) 12 Times L.R. 128.
(34) Paton V. Currie, 19 U.C.R. 388.
(35) J<^(:obs V. Harbach (1886) 2 Times L. Rep. 419.
AMI ( IIATTII. MKNS,
i^>;>
l)<*i»;jf al liberty to deal with the ^ooils as he |)l(as(;s),
he is it) the positif)i) of a person havinjj; snoods on 'salt;
or return,' and the relationsiiip btaweiMi hini and ilie
manufacturers is that of v<;ndor and purcliaser. and not
of principal and a<;ent (,>6).
If g<jods are forvvartied on sale or naurn and the
reciMving party pawns or j)l(;d<^es lh(Mn, the vendor can-
not recovt.'r them from the pledj^ci; as the pawninjj^ of
inoods is an act 'adopting th(! transaction' and the
property then |)asses to the conditional v<;ndee {j~).
Sale on approval British Columbia, N.W. Terri-
tories, and Manitoba, iiy the Sale of Goods Acts, of
British Colund)ia and Manitoba, and the Sale of (joods
Ordinance of the North West Territoricts (3<S). if i^oods
are delivt;red to thi: buyi'r on a|)j)roval, or 'on sale or
return,' or other similar terms, the propc-rty th(;rein
passes to the buyer (a) When he* signifies his aj)pro\al
«jr acceptance to the seller, or dcx-s any other act
adopting the transaction: (/>) If he does not signify
his apj)roval or acceptance to the seller, but retains the
goods without giving notice of rejection, then, if a time
has b(;en tixed for the return of the goods, on the
expiration of such time, and, if no time has been fixed,
on the expiration of a reasonable time. What is a
reasonable time is a question of fact.
Implied warranty of title.— A pawnbroker is not
presumed on selling a pawned article to warrant the
title to same ; the only warranty that can be im[)lied
from the nature of his occupation, is that the suljject
(36) Ex parte White {\%io) 21 W.R. 465, L.R. 6 Ch. App. 397.
(37) Kirkham v. Attenborough (1897) i (^).B. 201, 41 Sol. Jour.
141, 13 T. L.R. 131.
(38) R.S.B.C. 1897, c. i6q, 3. 23; Stat. Nfan. 1896,0. 25, s. 18;
Con. Ord. N.W.T. 1898, c. 39, s. 20.
164
(()M»ni()N.\i, s.\i,i;s
I™"
nf the salt; is a jilcdi^c atul irrcdt'cinahlc, and that hv.
is not a)!L;nizaiU of any detect of title to it (^^9). Hut
if articles are hoiij^ht in a shop professtjclly carried on
for tlu; sale of t^oods, the sho|)keep(!r niiist be ct)n-
sideretl as warranting that those who purchase will
ha\(i a oood title to keep the ;40ods purchased. In
such a case th(! vtindor sells (fs /lis oi^'ii, and that is
e(|uivalent to warrant)- of title (40), and the same
ruU; will apply to the sale of a specific chattel in
the possession of the veMidor at ihv time of the sale,
and it will be assimKul that the vendor is selliin;' as /lis
07011 unless it be shown by the facts and circumstancc-s
of the sale that the vendor ditl not intc;nd to assert
ownership, but only to transfer such interest as he;
niiLjht have in the chattel sold (41 ).
If the purchaser knows at the time of purchasinin
that there is a defect in the vendor's title, no warranty
can be implied (42).
In all ordinary sales of L;oods the vendor, by
offering it for sale, thereby leatls the purchaser to
believe that he is the owner ; but this applies only to
ordinary cases, and not wln-re tht; vendor is acting in
any special character, such as mortgagee or pledgee,
or sale by a sheriff imder execution, provided the
vendor does not by word, act, or deed, give the pur-
chaser to understand that he is selling the goods, and
not merely his interest or title therein ; and if the
transaction is a sale by a pledgee with the concurrence
of the j)ledgor and not a mt^re transfer of the pledgee's
139) Morley v. Atteuhorongli 3 I"-x. 500.
401 Eichholz \, Bannister 17 C.H.N.S. 708; Raphael v. Burt
I C. cV E. 325.
(4T I Dickie v. Dunn (1887) i N.W.T. Rep. 12 (part I.).
(42) Turriff ■. McHugh {x'^^f)) \ N.W.T. Rep. 112 (part I.);
Ciitidy V. Lindsay L. R. 3 A.(". 459.
Ii
AMI ( IIAITII, I.IKNS.
1^)S
iiUt-resl under a bill of la(liii<(. there is an iinplicil
warranty of title \)\ tlit; pledgee; (43).
A sale of personal chattels implies an affirmation
by the vendor that the chattel is his, and tiiereforc he
warrants the titlt!, unless it can be shown by th(; facts
and circumstances oi' the sale that th(.' venilor tliil not
int(Mid to ass(irt ownership but only to transfer such
interest as he mi|nht have; in the chattel sold (44).
Re-sale by vendor. \VMi(M(! the goods are of a
perishable nature; the unpaid seller may without notice
re-sell the gootls and recover from the original buyer
damages for any loss occasioned by his breach of con-
tract (45).
Lumber and deals exposed to the weather and
liable to deterioration under circmnstances in which
they cannot be stored are 'perishable property ' (46).
If the buyer becomes insolvenit and his assignt;e in
insolvency, or a sul)-j)urchaser from the; elebtor, eloes
nejt te'uder the price of the goods to the seller who is
in possession ol them, within a reasonable time;, the
seller may treat the; ce)ntract as rescinded without
tendering the '>()e)ds to the assignee, and ma\- also
claim against the insolvent estate for damage;s (4-).
Where the unpaid venelor exercising his right of
lien or retention gives notice to the buyer of his
intention to re-sell, and the buyer does ne),t within a
reasonable time j)ay or tender the price, the unpaid
seller may re-sell the gejods and recover from the
(43) Peiich^n V. Imperial Bank (1890) 20 Out. R. 325 ; Mor/ry
Attenborough 3 Ex. 500 distinguished.
144) McFatridge v. Rohh (1892) 24 N.S. R. 506,
145) Maclean v. Dunn 4 Bing. 722.
(46) Bank of Nova Scotia v. Ward {\'i%'i) 21 N.S. R. 230.
*47) Ex parte Stapleton {\%ici) 10 Ch. D. 586.
1 66
KtNDIIIoNAI, SAI.I.S
(:"
III
orij^inal huytT damajjfcs lor any loss occasioiicti by liis
brcacli of contract (4S).
Wlicri- a (locunuMil of title to ^oods lias been law-
fully transf'tTrt'il to any person as buNcr or owner <»!
the jj^oods, and that person transfers the document to
a person who takes the document in uood faith and
for valuable consitleration, then, if such last mentioned
transft^r was by way of saU; the unj)aid seller's ri^ht of
lien or retention or stoppa^t; /// trausilu is defeated,
and if such last mentioned transfer was by way of
pledge or other dis|)()sition for value, the unpaid seller's
rij^ht of lien or retention or stoppajj^e /// transitu can
only be exercised subject to the; rights of the trans-
feree; but otherwise the right of lien is not affected
by any sale or other disposition of the *>oodj>, which
th(; buver mav have made, imless the seller has
assented thereto {49).
Reserving right of disposal. — Where there is a
contract for tht; sale of specific goods or where goods
are subsequently appropriated to the jontract, the
seller may, by the terms or the contract or appropria-
tion, reserve the right of disposal of the jj^oods until
certain conditions are fulfilled. In such case, not-
withstanding the delivery of the goods to the buyer,
or to a carrier or other bailee or custodier for the
purpose of transmission to the buyer, the property in
the goods doc : not pass to the buyer until the condi-
tions imposed by the seller are fulfilled (51).
When goods are shipped, and by the bill of lading
the goods are deliverable to the order of the seller or
his agent, the seller is prima facie deemed to reserve
(48) Maclean v. Dunn (1828) 4 Bing. 722, 728.
(49) Dixon V. Yates 5 B. and Ad. 313.
(51) Schotsmans v. Lane, or* York. Ry. Co. (186',) i .
332 ; Ogg V. Shuter (1875) i C.P.D. 47.
Ch. App.
A\l> ( HATTKI, I.IKNS.
167
the rij^lu of disposal. If fn)m all iIk; facts it may
fairly be iiiftrrrcd that tlu; l)ill of ladiiiy^ was taken in
th(! name of the seller in order to retain dominion over
the j^ooils. that shows that there was no intiMition to
pass the properly, hut if the whole of the circum-
stances l(;ad to the conclusion that that was not the
object, the form of the bill of lad in}; has no influence
on the result (52).
When the seller of goods draws on the buyer for
the price, and transmits l\w. bill of exchanj^e and bill
of lailint; to the buyer together to secure acceptance
or payment of the bill of exchange, the buyer is bound
to return the bill of lading if he does not honor the
bill of exchange, and if he wrongfully n^tains the bill
of lading the property in the goods does not pass to
Although th(; fact of the goods being made
deliverable by the bill of lading to the shippers' order
prima facie indicates that they intended to reserve the
right o( transferring the goods, it is not conclusive (54).
( )rtlinarily a contract of sale is not rescinded by
the mere exercise by an unpaid seller of his right of
lien or retention (^>,), but if the seller has in the con-
tract of sale expressly reserved a right of re-sale in
case th(; buver should make default, and he re-sells the
goods on such default, the contiact is rescinded, but
without prejudice to any claim the seller may have
for damages (56).
!i
(52) Joyce V. Srvann (1864) 17 C.H.N.S. 84 ; Wait v. /iaJL-tr (1848)
2 Ex. I ; Bro7i'tie v. //«/■<• 4 H iS: N. 822.
(53) Shepherd v. Hanison (1871) I,.R. 5 H.I-. 116; B.C. Sale of
Goods Act R.S. H.C 1897, c. 169. s. 24(3); Sale of (loods Ordi-
nance, Con. Ord. N.W.T. 1898, c. 39, s. 21 (3); Sale of Goods Act
(Man.) 1896, sec. 19(3).
(54) Pugh V. Wylde 2 R. & C. (Nova Scotia) 177.
(55) Martindale \. Smith (1841) i (^.B. 386, 396.
(56) Maclean v. Dunn 4 Bing. 722.
1 68
1 M\|i| 1 lo.NAI. s.M.I'.S
Reserving right of disposal British Columbia, N. W.
Territories and Manitoba, nysiaiuic in HiiiishL<»luin-
l)ia. Maniloba, and the N'nrili West TtTriloric s ( s;).
vvhcrt! tlit-Tc is a coiiiiaci lor llic saK; of spccitic j^oods,
or wluTc i^ootls arc siil)sc(|U('iuIy appropriated to ilu:
contract, tlu* seller may, by the terms ot the eoiiiract
or ap|)r()prialioii, reserve the rij^ht of disposal ot the
l^oods until certain conditions are rullilleil. in such
case, nolw itlistandiuj^ tin- d<'li\cry ol" the i^oods to the
buyer, or to a carrit^r or other bailee or custodier tor
the pin*|)ose ot" transmission to tile buyer, the j)ropertN'
in the iLjoods does not pass to thi* buyer until the con-
ilitions im|)osed by tin- seller are I'uli'illetl ; aiul where
j^oodsari; shipp<'d. and b\' tlu; bill ot ladini^' the i^oods
are deliverable to the ortU^r of" the seller or his a^ent,
tht; ajH(Mit is prima facie deemed to reserve the rij^ht ot
disposal. In thest; provinces it is also provided that
where tht; seller expressK' reserves a rij^ht ot re-sale
in casi' th(; buyer should make; detault, aiul on the
buy(;r makinin- default, re-sells the t^oods. the original
contract of sale is thereby rescinded, but without pre-
judice to any claim the seller may ha\e for damai^es
Waiver of vendor's lien. .\ vendor's lien is not
defeated by part payment of the price (6o), or by
recovery against the j)urchaser in an action for goods
sold (6i). But if the vcMulor give to the purchaser a
warrant in a form which, by the custom of a particular
trade, implies that the goods are free from any claim
(57) R.S B.C. 1897, r. 169, s. 24 J Stat. NFan. 1896, c. 25, s. 19;
Con. Ord. N.W.T, c. 39, s. 21.
(59) Stat. Man. 1896, c. 25,5.45 (4); R.S. B.C. 1897, c. 169, s.
58 (4); Con. Ord. N.W.T. 1898, c. 39, s. 40(4).
(60) //ot/j^son V. LoY 3 T.R. 440; Fa'se v. IFray 3 East, 93.
(61) Hoiihiitcli V. Desangcs 2 Stark. 337.
ANit I II Mil I. I II \S.
!')()
lor vendor's lii:n. or, if lie j;i\<' tin purcli.i-^t r tlo( n
inciils uhiih si. lie expressly tlui ilie i^oods .ire lulil
and deliverable lo his ortler or lo the holder ot ihe
dociiiin'iil [<)2), diere is no lien.
I'ariinm uilh possession of j^oods on a 'alse repre
setualion will not annul the lien, and the lien holder
who has heen deprived ol ihe ixissession lt\ the Iraiid
ot" ihe piirc-haser max recoxcr liiein Iroin him in trover,
or. il he can. nia\ re -posses . hiniself ot" ihein (0 ;).
The actual deliviT) ot" part ot tin- ,!l;<»(i ' , in.i\
import a eoiisiruitixe delivery ol the whole, where
there appears to have heen no intenlion. either helore
or at the time ot" the deliv<'rv. to separate that part
trom the rest (O4) ; hut it" it tan he shown that there
was an intention not to deliver the whole, hut to
separate the part deliveretl trom the residue, the lien
on the residue will hold (O5).
It the vendor iiiadvertentlv and without anv inten-
tion of partiii!:;" with possession, allow the purchaser to
L;et possession ot the chattel upon a cash sale helore
he has paid the price, that will not deprive the vendor
of his title (66).
The seller loses his lien or rii^ht of iletention (except
as to the riLiht of stoppage in transitu, if the huver
hecomes insolvent) when he delivers the i^oods to a
carrier or other hailei' tor the purpose of transmission
to the l)u\er without reservins^- the rij^ht of disposal ol
the j^ootls (ca: <;;■. hv maUinj^ shipment to his own
(62) Merchant Baiikiii^^ Co. v. Pluvni.x Steel Co. 5 ('Iv D. 205.
(6^^) Tysofi V. Ckv, T. vV R. 395 ; Wallaie v. U'ooi/x'dte i Car. \: !'.
575,'Ry. 'iS: M. 193 ; h'ii/iiints \. Syi/iotis 8 Q !!. 90, 15 i..J<J. I'>. 33-
(64) Sliiberv \. fleyward 2 H. I>1. ^04; //(iiiiiiiotu/ \. .hidrrson i
15. <\: t'.N.K. 69 ; Tantier v. Scoi'e// 14 M. vV W. 2S, 37.
(65) Btiuuey v. Poyntz 4 W. ^ Ad. 5^)8 ; Valpy v. Oakeley 16 (^. 11.
941 ; E.\. p. Cooper 11 Ch. 1). OS ; Kemp s.Falk 7 Apj). (,'as. 573.
(66) Miller \. Jones 66 Harh. (N.\'. 1 14H.
^w
i;o
(ONhl I |()\ \l, >.\l IS
nnlrr) ; )>iit iint li\ reason nnly thai lu- lias (tliiaincd
jud^^incni lor the pritc of the jnootls (o;).
As lon;^ as tin- i^oods remain in the warehouse •»('
the vendor, or in the hands ot° one wlio holds as his
a<4(nt, his lien upon them lor the unpaid price remains,
hut. when onee they have j.;ot into the possession ol"
an a;4cnt lor the huyer. tin* ven«lor parts witii his
lien (r)S).
.\ s»'ller's lien is not lost l)\ his chan^ini^ the purtha-
ser with warehouse rent on aeiount of the j^oodsl^c;).
The elTeit ol a ehari^c lor warehouse rent hy the
vendor against the purthaser is to he considerei,! as a
notifuation to the j)urihaser that he is not to have the
!L;oods until paxnient of hoth the rent and the priie,
and the rii^^ht ol the vendor in surh a case is just the
same whether tile j^oods hat! been speeiluialK appro-
priated lor the lullilment of the contract or not (70).
The removal of the j^oods hy the sellers alter tiu;
huxers refused to accept them, to a place not contem-
plated l)v the contract where thev could he better
taken care of. will not put an v\n\ to the lien (71).
And if, while the vendor's lien subsists, the parties
enter into a new ai^Teement which provides for a mode
of payment inconsistent with the continuance; of the
lien, it will constitute a waiver of the same (72).
I'he vendor also waives his litMi bv causinu the
j^oods to be seized and sold under an execution a;^ainst
the j)urchaser at his own. suit, althouj^h he purchases
(67) Scnrt-fttT \: GtriU Northern {i^-]\) 19 \V. R. 38S.
(68) Boiioti V. Imuc. d- York. Ky. (1866) L.R. i C.I'. 4^1; xs,
(6yi Grice \. Richardson 3 App. Cas. 319.
(70) Griffiths v. Perry 1 E. & E. 680.
(71) McLachlan v. Kennedy ( 1889) 21 N.S R. 271.
(72) Rait V. Mitilu'll 4 (.'amp. 146.
A\l» (IIAIIII. Ill NS.
171
llu- j;nn«ls iindrr ilic cxji iitioi) and lln\ arr iiui
n'ino\«'(l (ruin his prcinisrs. (or. in nril«r in sfll, ihr
sli(ri(( must liavc had possession, and aCtrr he has had
j)oss«'ssion with lh«' assciu o(" ih»' |»(rson claiming; thr
lien, ih«' sul)sc<|iinit possj-ssion of the hen hoMcr must
l)c taken to ha\c h«'<'n a((|iiired inuhr the sale {'}).
British Columbia, N.W. Territories and Manitoba
- Sale of Goods Acts. The law relatin*^ to the sale oC
j^oods, and to the rij^iits o( an unpaid sellt-r aj^ainst
the )^oods. has Ix-en eodi'ird in tin* provinces oC Hritish
l"oliiinl)ia and Maniloha. ind in the North-W «st I Crri
lories. ihe slatuies leferred to are as (oliows; The
hritish ("oliinil)ia .Sale of ( ioods .\(t. K.S.M.i. iSq;.
c. \(h), the Manitoba .Sale oC (ioods ,\it ol' \^i)h (74),
and the Sale ot (ioods ( )rdinanee of the North West
Territories passed in 1S96 (y-:,), now chapter \C) of the
Consolidated ( )rdinances. X.W'.'I".. i<S(>.S.
I'hese are all patterned aCler the Imperial .Sale of
(ioods Act of iSc); (-()). I'lider ihvM- statutes the
selU-r o( j^oods is deemed to he an "impaid " seller
{77) '■ i'f) vvh('n the whole of the price has not lu-en
paid or tendered ; (/;) when a hill o(" exchanj^c or other
ne}4<>tial)le instrument has heen received as conditional
payment, and the condition on which it was received
has not heen tull'illed l)\ reason o( the dishonor oC the
instrument or otherwise.
The term "seller" includes any person who is in
the position of a seller, as, for instance, an aj^ent of the
(73)y</<v>Av V. IaUoiii- I Hing. 130.
(74) Stat. Man. 1896,0. 25.
<75)Ord. N.W.T. No. 10 of 1896.
1(76) 56 iS: 57 Vict. (Imp.) c 71, s. 62.
(77) Stat. Man. 1896, c. 25, s. 36(1); R.S. H.C. 1897,0. 169,5.49;
Con. Ord. N.W.T. c. 39, s. 37.
»7^
t MM. I I |M\ M SAI.K.S
u
S*!'
s«'II«r In wIltJiM ihr hill •»! Lldillj; h.is hnn JMldiirsi'iI,
<tr .1 roii»>ij;Mnr or ,»;^fnt who h,is hiin^rll |i,iiil, or is
iliirilK rrslKMlsildc tuf. lllf prii r ( ^S ) Ihc tNriiiiiion
will ilK liulc lint i»nl\ tin- >>)'ll<'t'\ .i^M-IU In whoil) ihf
Mil ul" l.iiliii;^ Ims Ik'cii nujoiscil, and who. ilutrflorf,
h.is a s|H;cial pr()|iii-t\ in thf ;;<i(mIs ( 7(>|, Imt .itso a
fDfisi^nor or aj^iiu l>ii\iii:^ j^ootls on Ins own i'n«lii
and itinsii^nin^ llu-in lo his |)rnu'i|ial {Sa), .i\u\ a hiiNt-r
who ri' sells his inirri'si nndrr an a)^r«( incni lo si'll
;;nods. alllnuij^h ihc propcriN in dir j^joods has noi
v«'st<'d in hitn at ilic time ol' die exenise ot the
ri^ihl (Si ) ; hut a surety (or the hiiyer lan only exenise
the lien through the seller and in the seller's n.nne,
iilthoti^^h he has p.iid the price (S.M.
It. durin},' the iurr«'ncy ol ,\ mj^oiiahle instrument
rt'i:(MVL'd as conditional payment, ami hi'lore the deli-
very actually takes place, the purchaser hecomes
openly insolvt'Ut, the vt-ndor retains his lien (or the
law does not compel him lo deliver to an insols«'ni
purchaser (8,;).
Rights of unpaid seller B.C., N.W.T. and Mani-
toba. lU the Sale o( (loods Acts l)e(ore men-
tioned, it is decIar<Hl ih.ii. suhject to the provisions of
an\' statute in that hehalt and noiwilhsiandin"^ that
the |)roperl\ in the j^oods may havt: |)asst!d to the
1781 Stat. Man. 1896, c. 15, s. .^6(21; !i.S.({.C. i8()7, r. i(h), s. .»<>
CaV. (oil. Ord, N.W'.'I'. c. _^t), s. ,57 t.'i.
(7(>i A/orisoti v. Itniv \ 1S24) 2 Minn. Jf)o.
(So) //./-I'Xr.v V. J)nfiti{\^},\) I '("yrvvli. 41
I'last i.)^.
(81) Jnihns V. Ushortw (1844) 7 .\1. \: ('.. ^.78.
(82) lmf<erhl Hank \. London iHr' S/. Katluviue
Ch. 1). 195.
(8^^) iiunu V. /io/<ko7i' (iS-;^) (,. R. 10 Ch. Api). 501.
(80) //./-I'Xr.v V. yjtf»» (iH^i) I '("vrvvli. 41,^; /'Vise v. H'niy (1802)
3 ('last 93.
{82) Imperial tiatik \. London ^ Si. Kallutthie's Dock Co, ( 1877)
5(h. 1). 195.
i
i
\
i
J
;
AM) I II Mill I IK\M.
17.;
Imyr. ilir iiii|>.iiil sriirr u| j^iMitls. .1 » sin h. Ii.is l»\
iin|)li(.itii)n ol i.iw (S.p ;
((/) A lini (III ilir j4«hmU nr lij^lii i'» ni.iin ilnin lor
tin* pricr whilr In- is in pnssrssinn of ihm ,
(/') In (.isr III' IiiskImhiv nl ilw liiiyir, a n>^]n >*(
ii'tppiiiM ill,, oontis ill tr.msiiii .iltir he li.is |Mrt«'il
with thr pusscssinn ••! ilicm .
(/ ) A rij^lu nl' rt'-sali- as iiinitrd l»y llir At i {Sj:,).
Wlurr .iii\ ri'^lit uoiiM arise iiinirr .1 (oiitr.n t <>(
salt' l>\ iinplic.itini) ol law. i( iii.in Itc iii';;ati\r(| or
\arii(l l»N cxpri'ss a^rrcmcnl <»r l>\ ihc i-unrsc id"
tlcaliiij^ iM'tvvrcii ilir partirs, t»r l»y iisa^r. if llit' iis,i;^r
Itc siiili as to Kind Itoili parlies lo iln- coniracl (Sf)|,
in toinincrcial contr.u'ls tin- |)rrsiiinpiioii is that
llir roniratl is inadr with rrlt niiii' lo ilu' tisa'^o. nf
tradr applicable to the contract, and which the p,M'ti«'s
inakiiii^ it Unew or ina\' he re.isonahK piesiimMl to
have known (S7). |''\idence <»! a iisa^e is iv.t adinis-
sihle to control, \ ar\ . or contradict iIk- positive siipii
lalions in a writlen contract (SS); hut it may he admitted
for th<' purposj- of j'\plainin;4 the terms used in the
contract, i.e. to liiul tin- mercantile meanini; of tin-
words which are used (S()).
Where the propertN in JLjoods has not |)assed to the
huyer. llif unpaid seller has, in addition to his other
remedies, a ri^ht of withdraw inj^ d<'li\('r\ similar to
;md i()-e\l<-nsi\(' with his rights of lien and stop|).ine
(S4) Stat. Man. i.S.jd, c 25. s. ^7(1: K.S. !;.('. i.S.j;. < . i^.). s. 50:
Con. Ord. N.W.I'. •. 3.^ s. ,?S.
(,S5) Stat. Man. i.Si)0, c. .'5. s. 4S : K.S.ll.C. i.Si,;, c. idy, s. 50.
Con.' Oril. N.W. r. c ,v^ s. .\(t.
(S61 Stat Man iSoO. c 2$, s. 52.
(871 lliittov V. //',////(7- (i8;6i I .M. \ \\ . 475.
(.SS) Thi' h'lrsiiif > iH_57) 2 Sumner (U.S.) 567, s,()i), per Story, J.
(8y) /io7i'i\\ V, Sliiiiid \ 1S77) 2 App. Cas. 4fiS.
>ri
((•MHIIuNAI, S.M.KS
■■■I
it) ir.msiiii whcrr the property has passt'tl to the
l)iiytr (()o).
S^ller'slien B.C., N.W.T. and Manitoba. I'luhr
the s«'\fr.il Acts int'iuioiU'd, the unpaid sfiicr of j^ootls
wlio is ill possession of them lias, subjeet to the
pro\ isions ol llie statute itsell, a ri^iit to retain posses
sion ol' tiu' i^ooils until pa\ nieiit or leniler of the price
in the lollowiiii; cases (()i), nain«'ly : --
[a) Where the j^oods ha\'e heen sold without any
stipulation as to credit ;
(/•) W'lure the j^ooiis have heen s«»ld on credit, hut
the ternif of iredit iias expired ;
((■) Where the huyer hecoiues insolvent anil a
person is deemed to he insoKi-nt. within the n.'-anini;
of the All. who either has ceased to pay his debts in
the ordinarv course ol business, or cannot pav his
debts as they become due (i)2).
The seller may exercise his ri^ht ol" lien, nolwilh-
standiui; th..t he is in possession ol thei^oods as ai^cnt
or bailee for the bu\er (()^>). I'his is in extension of
the piexious law which allowed the lien in such a case
only where the buyer became insolvent (Q4).
Where an unpaii). seller lias made part ileli\er\ ol
the ijjoods. he may exercise iiis right ol" lien or retention
on the remainder. urJess such part ilelivery has been
[i)o') Stat. Man. iSijC), c. 25, s. 37(2); R.S.H.C. 181)7, c. i(u),
s. 50 [2) ; Con. Ord. N.W.'i'. c. ;«;, s. },S (2).
(01) Stat. Man. i8i)(), c. 25, s. 38; R.S.H.C. 1897, *'• 5« : t'on.
Oril N.W. T. c. 31), s 39.
(92) Stat. Man. 1S96, c. 25, s. 58(3); Con. Ord. N.W.T. c. 39, s.2 (3).
(93! Stat. Man. i8y(>, c. 25, s. 38(2); R.S. IJ.C. 1897, c. Un), s. 51 :
Con. Ord. N.W.'I'. c. 39, s. 39 (2).
(94) Cnsiu/s' V. A'o/'iftson (1861) 30 i.J. (J.15. 264; Grur v.
A'ii/i(in/s(>H, (18771 3 .App. C'as. 319.
I
\Nr> < iiAiTii, I ii;\s.
1/5
m.ul*' uiult-r such circiiinstamt's as lo sliow .m .ij^rct-
iiunt Ui %%.iiv«- ihr lini or rij^lu of rcicniioii ((js).
It is .ilxt ilril.irrti tint lh(^ unpaid sclhr of i^oods
Ktst", his li.-n or ri^ht of rcH'iiiiou ihcrc(»n (()<)).
{a) \\ h«-n he ilflivt.Ts llit- j^ooils lo a iMiricr or oilier
l).iil«'<- (l*fin'4 ihf hiiyrr's .ij^cnl) lor ihc. purpose of
tr.iiisinissioii Im ihr huycr wilhoiit rcscrv in;^ the \-'\^\n
ol (iisjK«>«ill o| ihf <^o<hIs. II ihi' rarricr who receives
possession ol ihi" v;;ooiIs l)«; ihe sellers a^jeiit, his
possession is, ihe possession >l llie seller and ihe lien
\M)uK] reni.iin:
(/'I \Vh«-n the l)iiy«T or his a^'nl lawlully obtains
p<»ss<*ssioii o| ihe v^ootls ;
^f ) I5y %%. liver ihereol. l'-xan\ples of waiver are,
selling oil cr«'«lii. /.«•. where the hiiyer is to lake pos-
sessiiMi of ih«' j»oo<ls anti ihe seller is lo irusi to iIk;
ItuytT s |iromi>«' for ihf' payment ol the price al a liiiure
linie(<i7(; or by lakitiLi a hill, note, or other nej^otiahi;
security in con«liiional p.iynient of the |)riie, therel>\
making th«- s«-ller -» /><//^/ seller for ihe tinu- heini; (i>S|;
or 1)\ asM-iiun;^ to the huNcr's re sc'llinj^ or picd.uini^
the ^4mkIs (Cut*)!.
Hut ihc Jirn or rinhl of retention is not lost li\
re.ison only th ki the unpaid sell(;r has ohtaineil jiul^-
inent <»r <l«.-cree lor the price of the goods ( loo) : nor
(951 S«ait. Maix i^/>, c 25, s. 39 ; R.S.H.C!. iSy;, c. i()i;, s. 52;
Com. Ord X.U.T. c. yt, s. 40.
iu6i SlaJ Man. iSi)6, v. 25, s. 40; R.S. U.C iSij;, c. ifii;, s. 55;
Con. Ord. N.U'. I', c. 31^ s. 41.
(Q7) Spjttjh V. fient'lke (1850) 10 C.H. 212; IJenjamin 011 Sale
1 8SS ed. Soy.
(»^S, ^ftIff V. Gorti>n 1^1834) 2 C. iS: M. 512.
(i>i») StcKYi'J \. /fu^hi's (1811) 14 Kast 308; Merchaut Hatikitig
Ci'.w rh'tvix iS77)'5Ch. V>. 205.
(100) Stat. Man. i8«^6, c, 25, sec. 40(2); R.S.H.C. 1897,0. Wuj,
s. 53 (2) : C"on. Ord. X.U'.T. c. 39, s. 41 (2).
it I
170
roMM I KiN.M. SAI.KS
#;-
Nv;is it iiiulcr the law j)revi()iis to tilt" Sale of (loods
Statutes l){'*or(! incntioiu'd (loi).
Suhjcct to ih(! j)rovisioiis of the Act, the impaid
sdltTs ri'>ln of lien or retention is not affecteil 1)\' an\'
sale, or oilier clisj)osition of the ljoocIs wiiicli the buyer
may have made, unl(;ss the selltM' has assenteil thereto
(102); proN'ided that where- a docmneiU of title to
jjjooils lias been lawfully transferred to any pi-rson as
l)u\er or owner of the; snoods, anil that pcM'son tr.msfers
the document to a person who takes the document m
!>ood faith and for valuable c()nsid(;ration, then, if such
last mentioned transfer was bv wav of sale, the unpaid
seller's right of lien or retention is defeati;d, anil if such
last mentioned transfer was bv way of pkidnc or other
disposition for value, the unpaid seller's rii^ht of lien
or retention can only be exercised subject to the rights
of the transferee.
The seller's ass^Mit to a sale or other disposition
may be either express ( 10^^). or impli(!d, as by con-
duct recoi4nizin<4" the title of the subsequent buyer or
pledgee ( 104). A " document of title to t^ooils" means
any bill of ladiui^'. iXock vv.irrant, warehouse-keeper's
certificate, and warrant or order for the deliverv of
"oods. and anv other document used in the ordinarv
course of business as proof of the possession or
control of t^'oods, or authorizing, or jjur|)()rting to
authorize, either by tMidorsement or by delivery, the
possessor o! the documt^iU to transferor rc^ceive goods
thereby rej)resented ( 105); and a thing is deemed to be
(loi) Siiivnicr v. G. N. Ry. (1871) 19 W.R. 3S8.
(102) Stat. Man. 1896, c. 25, s. 44: R.S.B.C. 1897,0'. 169, s. 57;
Con. Ord. N.W.T. c. 39,3. 45.
(103) Slorchiw Hu^:;hes (1811) 14 East 308.
(104) Pi'iuson V. Dazvson (1S58) E. 15. iV E. 44S.
(105) Stat. Man. 1896. c. 25, s. 58 (i); R.S.B.C. c. ifig, s. 2, and
c. 4, s. 2 ; Con. (^rd. N.W. T. c. 39, s. 2, and c. 40, s. 2 ' 4).
AM> CIIATTII, I.I1:NS.
/ /
<l()ii(.' "in i4()()J faith" within th(; mtsmin;^ of ih(! Act
wliLMi it is in fact ilonc honestly, w'hc'th(,'r it hv done
negligently or not ( 106).
Re-sale by unpaid vendor — BjC., N.W.T., and
Manitoba. \\'h(;re an unpaid seller who has exercised
his rij^ht of lien or rettMition rt^-sells th<! jj;oods, the
l)iiyt:r ac(|uires a i^ood tith; thc;reto as against the
orij^inal buyer (107); and whi;re the; ooods are of a
jH.'rishahle nature, or when; tlu' unpaid selle-r j^ives
n(>tice to the buyer of his intention to n; sell, ami the
huycT (.loes not, within a rtsisonable time, pay or
tender the price, the unpaid seller may re-sell the
i^oods and recover from the original buyer damages
for any loss occasioned by his breach of contract ( loS).
What is a reasonable time is a (|uestion of fact (109)
and not one of law.
So also, where the selhtr (;xpre -.sly reserves a right
of re-sale in case the buyer should make default, and,
on the buyer making default, re-sells the goods, the
original contract i^ thereby rescinded, but without
prejudice to any claim the seller may have for
damages ( I 10); but with those exceptions a contract
of sale is not rt^scinded by the mere exercise by an
unpaid vendor of his right of lien or retention ( i i i ).
(106) Stat. Man. 1896, c. 25, s. 58 (2); Con. Ord. N.W.T. c. 30,
s. 2(2).
(107) Stat. Man. 1896, c. 25, s. 45 (2); R.S.H.C. 1897, c. i69>
s. 58 (2) ; Con. Ord. N.W.T. c. 39, s. 46 (2).
(108) Stat. Man. 1896,0. 25, s. 45(3); R.S.B.C. c. 169, s 58(3);
Con. Ord. N.W.T. c. 39, s. 46 (3).
(109) Stat Man. 1896, c. 25, s. 53; R.S.B.C. c. 169, s. 66; Con.
Ord. N W. r. c. 39, s. 54.
(no) Stat. Man. 1896, c. 25, s. 45(4); R.S.B.C. 1897, c. 169,
s. 58 (4); Con. Ord. N.W.T. c. 46(4).
(in) Stat. Man. 1896, c. 25, s. 45 (1); R.S.B.C. 1897, c. 169,.
.s. 58 (i) ; Con. Ord. N.W.T. c. 39, s. 46(1).
I7S
( ONDITIONAL SAI.KS
The express reservation of the rij^ht to re-sell,
ordinarily reserved in cases of sales by auction, is con-
strued as a condition for maUing voiil the sale on the
buyer's default, and if the jj^oods art; re-sold at a profit
the seller is entitled to it ; and if at a loss, the buyer
is liable for the damages, includin|j^ the expenses
attendinj^ the re-sale (i 12); but if there be no express
reservation of the rij^ht to re-sell, the goods are S(jld
as being the property of the buyer, and the latter is
entitled to the excess if they sell for a higher i)rice
than he agreed to give ( i 13).
Rcvcndication and preference — Quebec. — The
unpaid vendor of a thing has two j)rivileged rights :
( 1 ) A right to rcvendicate ;
(2) A right of j)reference upon its price (i 14),
In the case of insolvent traders these rights must
be exercised within 30 days after the delivery ( i 15).
The right to rcvendicate is subject to four conditions :
(1) The sale must not have been made on credit ;
(2) The thing must still be entire and in the same
condition ;
(3) The thing must not have passed into the hands
of a third party who has paid for it ;
(4) It must be exercised within eight days after
the delivery, saving the provision concerning insol-
vent traders, already referred to, when 30 days is
allowed (116),
In an action to rcvendicate goods as having been
sold for cash to the defendant, an insolvent trader,
(112) Laniond v. Davall (1847) 9 Q B. 1030, 16 I-J.Q.B. 136;
Benjamin on Sale, 4th ed., p. 803.
(113) Greaves v. As/ihh (1813) 3 Camp. 426.
(114) Quebec Civil Code, Art. 1998.
("5) 54 Vict. 1890 (Que.) c. 39, s. 2.
(ii6) Civil Code Que. Art. 1999.
AM) (MATT 11. I.IKNS.
'70
•s'j;
within thirty clays prior to the seizure, a third parly
wht) estahlislies that he purchasetl the saiil s^ooils from
ilefeiiclaiit aiul received a dehvery order therefor, and
settlt.-d for the sanvi by note, is entitl(;d to interviMie
and contest the demand in reventhcation, just as the
ilefendant himself mij^ht have done, and to hav(! it
set aside on th(! ground that the sale from plaintiff
to defendant was not for cash, hut was made on
credit (117).
if the thino- be sold pendinjj^ the proceedings in
revendication, or if. when the thing is seized at the
suit of a third party, the vendor be within th(; delay
and the thing in the conditionsi prescribed for revendi-
cation. the vendor has a j)rivilege upon the proceetls
in preference to other j)rivileged creditors. If the
thing be still in the same condition, but the v(MKl«»r
be no longer within the delay or have given cnxlit. he
has a like privilege upon the proceeds, e.xcept as
regards the lessor, or the jjledgee (118).
Ontario Warehouse receipts for merchandise,
etc. Under the Ontario Mercantile Amendment
Act (119), any cove receipt, bill of lading, specification
of timber, or any receipt given by a cov(; keeper, miller,
or by the keeper of a warehouse, wharf, yard, harbour
or other place, for cereal grains, goods, wares or mer-
chandise (including timber, boards, deals, staves and
other lumber) laid up, stored or deposited, or to be
laid up, stored or deposited in or on the co\e. mill,
warehouse, wharf, yard, harbour or other place; in
Ontario, of which he is keeper, or any bill of lading
or receipt given by a master of a vessel, or by a carrier
for carrying cereal grains, goods, wares or merchandise
(117) Gillespie \. Doherty {i^f)'S,) 12 Que. S.C. 536.
{118) Civil Code Que. Art. 2000.
(119) R.S.O. 1897, c. 145.
T
I So
(ONDITIONAI, SAI.i:S
\'^ ■'
sliip|H!tl ii) such vessel or ihilivcred to such carrier for
carria_nrc from any place Nvhat(;v«M% to any part of ( )iitario,
or tlirouj^li the same, or on the watiirs horderinj^
thereon, or from the same to any other place whale\er,
and whether such cert;al grains are to be cleli\eretl upon
such receipt in specie or converted into llour, may, hy
entiorsemcMit thereon by the owner of, or jK-rson
entitlcnl to receive such cereal grains, goods, wares or
merchatulise. or his attorney or agent, Ik; transferred
to any private |)erson as collateral security for any
debt cUur to such private person, antl being so endorsed
shall vest in such private ptTson from the date of the
endors«.'m(Mit, all th<; right and title of the endors(,'r to
or in such cereal grains, goods, wares or merchandise,
fsubject to the right of the entlorser to have the same
re-transf(;rred to him, if the debt is paid when due ; and
in the event of the non-payment of the debt when
due. such private person may sell the said cereal
grains, gootls, wares or merchandise, and retain the
[)roceeds or so much thereof as will be e(iual to the
amount due to the private person Uj)on the debt, with
any interest or costs, returning the overplus, if any, to
the endorser (i 20).
Where a person engaged in the calling of cove-
keeper, miller, or of keeper of any warehouse, wharf,
yard, harbour or other place, master of a vessel or
carrier, by whom a receipt or bill of lading may be
given in such his capacity, as hereinbefore mentioned,
for cereal grains, goods, wares or merchandise, is at
the same time the owner of or entitled himself (other-
wise than in his capacity of cove-keeper, miller, or of
keeper of a warehouse, wharf, yard, harbour or other
place, or of master of a vessel or carrier) to receive
such cereal grains, goods, wares or merchandise, any
such receipt or bill of lading, or any acknowledgement
(120) Sees. 6 and 7.
>
'J*
AND ( IIATH:i, I.IINS.
iSi
or CfriiticaH.' iiUcndecl lo answer llit; |)ur|)(>s<' of such
receipt or l)ill of lailinj^, given and endorsed by such
person, shall he as valid and effectual for tile purpost.'S
of this Act. as if the person i^ivinj;' such rec('ij)t or hill
of iailini^ acknowleilj^inent or ct-rtificate, and enlorsini;
the same, were not one and the same person ( i 2 i ).
Ihis latter provision, however, only extends to
cases in which the jx^rson issuiuLj the warehouse
receipt is. from the nature of his callinj^. a custodian
(»f i^oods for others as well as for himself (122). No
tr.msfer of any such i)ill of ladini;, specification of
timber, or receipt, may be made unditr th(; ' Mercantile
Amendment Act,' to secure ihe payment of any debt
unless th(; debt is contracted at the same lime with the
cnilorsement of the i)ill of ladinj^, specification of
timber, or receipt (12^^).
The statute furtht^r declares that all advances mach;
on th(,' security of any such cove receii)t, bill of ladinjj^.
specificati(jn. receipt, acknowletl^ment or certificate as
aforesaid, shall j^ive and be held to ;j[ive to the person
making the advances, a claim for the repayment of
such advjinces on the cereal grain, goods, wart's or
merchandise therein mentioned, j)rior to and by pre-
ference over the elixim of any unpaid vendor, or cnher
creditor, save and except claims for wag(,'s of labour
performed in making and transporting such timber,
Ijoards, deals, staves or other lumber ( i 24).
(121) R.S.O. 1897, c. 145, s. 8.
(122) Tetmantv, Union Bank (1894) App. Cas. 31.
(123) R.S.O. 1897, c. 145, s. 9 and 10.
(124) R.S.O. 1897, c. 145, s. II.
I u
■
CIIAI'll-k \ III.
%
SKd'I'ACI |\ IKANsnr.
Stoppage in transitu defined. H l;<">(Is arc (on
siL^ncd on credit l)\ oiic mcrcliant Id aiioilicr ami ilic
lonsi^ncc hccoincs insolvcnl. llic seller lias tile ri^lu
1(1 retake |)oss<'Ssinn oj" the ^oiuls while still on their
way to the consij^nee, allht)u.i4h the properi) tlnrein
has passed to the consignee and although the latter
has the construitive possession of them ( i )• That
prisilej^c is called the rij^ht of stoppaj^c in transitu.
IIh' rii^ht is hased upon principles ol e(|uity and the
doctrine has alwa\s heen construed fa\oural)l\ to the
iMipaid seller {2), 1 he elTecl of the vendor's exercis
inn lli^' •'i.^l'il '^ '^"l I" rescind the contract (,0- hut to
restore tin- j^oods to the xendor's possession so that he
may insist on his lien lor the price (4). The eltect is
the same as if thi' consignor had not delivered them
to the carrier (5).
rile riiiht is operatixe only as against the '"oods in
the condition tlu'\ are in at the time of its exercise,
and iloes not appl\ as against insurance mone\ s pay-
al)lc on account of tlie j^ooils heinj^ damaj^ed or lost in
the transit (6).
il
(i) Kendall \. Mtirs/m// 11 (^.B. I). 356, 364.
(2) Bi'tlh'll V. Clark 20 Q.H.I). 617 ; Schotsmatis v. Lancashin\
L.R. 2 ("h. 332.
{\) ]h assert V. McEwni 10 Ont. R. 179 ; Plulps v. Comber 29 Ch.
I).'8i3.
(4) Wentworth v. Outlnvaite 10 M. i^ W. 436 ; Sehotsinans v.
Lancashire, I,. R. 2 Ch. 332 ; Phelps \. Comber 29 Ch. I). Hi 3.
(5) Edwards v. Brewer 2 M. iS: ^V. 375.
(6) Berndston v. .9//-rt«.c, L.R. 3 Ch. 588.
Wh tllMIII, III \s.
1R3
•J
I
f
i
Dependent upon insolvency. I Ik- insuUciK \ whidi
will ;illlllnfi/c tin- v\'^\n nl" sto|)|»,iL;<' ill irilllsilll need
not lie K'cliiiical insuKcmy. Iml it is siitliciciu il ilicrc
is a j^cncral inahilily to |>ii\ dcUts, ut wliicli ilu- lailiirc
tn |iii\ <)!)(> just and adinitK'd dcht would prnhaliK \h-
siilticicnt cv idciuc (7). I lie iiisoivcius iwcd not lia\c
Keen jiidiciallN declared and il is sutlicicnt il there l»ea
i^cneral inahilits in |)a\ , e\ ideiucd l»\ stoppai^e nl'ita)-
nieiU (S). The \cndor lias llie ri.u;ht to judj^e lur liiin-
seir nl" the danger nl the \cndee's insnivcncs. and tn
lake measures tn j^uard ai^ainst it ((;); and it dnes imi
matter that the insnKcnc) is tint Uimwn nr declared at
the time nf the stnppai^c prnxided the vendee hecunHs
aclualK insnKcnt hel'nre he nhiains nnssessimi nl" the
i^onds ( 10).
The transit. When the huscr nl -'nnds hecnmes
insnlxi'iit, the un|)aid seller who has parted with the
|)nssessinn nl" the ji^onds has the ri|L;lu tn stnp them
and In resume possession lA' them as Inn^ as they
are in cntirse nl" transit, and may retain them until
pa\ ineiit or tender of the price. This ri^ht ma\
he exercised allhnui^h the larrier hnlds the j^onds as
the purchaser's ai^cnt. il the stoppage takes place
hefnre the destination is rt-ached (11).
(innds are deemed to he in course ol transit
from the tiiiu' when the\' an- delivered tn a carrier
l)\ land nr water, or other bailee or custodier lor the
(7) Coiitinr V. MiK'av (1H.S91 6 Man. K. 27 v. //"'/ v. /ho^vn j^
K\. 786.
(8) Vettite V. Jcwfll 4 Camp. 31 ; iVewsom v. Tlwrnton U i.ast,
17-
(9) Patten V. Thompson 5 M 1.S: .S. 350.
(10) Gardner v. Tudor 8 Pick. (Mass.) 205.
(11) Lyons v. Hoffnung {\%{)o) 15 App. Cas. 391 ; IJckbarroiu v.
Mason 2 T.R. 63.
:
1S4
rnShllloN \l, s.\I,I:h
piirixisc of transmission to tin- Imycr. until tlic Iminit
or his a^cnt in that lu'lialt. takes (l«'li\crN ot iluin
from siiih larrit-r or other hailee or tustodier. If the
hiiyer or his a;;cnt in that hehail ohtains delivery ot
the i^oods helore their arrival at the appointetl
destination, the transit is at an end. II. alter the
arrixal of the j^oods at the appointed destination the
carrier or other bailee or cnstodier aiknowledi^cs to
the biiver. or his a''cnt. tiiat he hoMs the ;>f>o(ls on
his hehair and continues in possession ot them as
bailee or custodier tor tile l)U\cr or his a^cnt. the
transit is at an vm\, and it is immaterial that a t'urther
destination tor the jn(n>ds may have heen indicated l>\
the huNcr. it can onK he said that ti'oods are sent to
their 'destination' when lhe\ are sent to the purchaser,
or to the person to whom he directs them to he s(,'iU -
to a particular person at a particular place. That is
the meanin"' of ' destination
m a husmess sense.
In
business 'destination ' means that there must be j^iven
n(>t only the name of the |)lace to which, but also the
name of the person t«) whom, u'ootls are to i)c sent (12).
(ioods are deemed to be /// traiisilu not only while
the\ remain in the possession of the carrier, whether
by water or land, and although such carrier may have
been named and aj)pointed by the consi«jfnce. but also
when they are in any place of deposit, connected with
the transmission and ileliverv of them, havinu' been
there tieposited by the j)erson who is carryin*^ them
for the purpose of transmission and delivery, until they
arrive at the actual possession of the consijj^nee. or at
the possession of his a^j^ent, who is to hold them at his
disposal and to deal with them accordinj^ly (13).
If the vendee take them out of the possession of
the carrier into his own before their arrival, with or
(12) Ex parte Miles (1885) 15 Q.B.D. 39, 44.
(13) Kendall v. Marshalli,\'i&i) w Q.B.D. 356.
AM> < II Mill, l.ir.NS.
• «5
williniit ilir cnnsi'iu nl iln' larrirf. ilurc Mtins in !>«•
no (Iniil)t that the transit woiilil Ix- at an end. thmi^^h
in the case ol the al)snuc <»(' the larrirr's cnnst'iu it
ina\ l)(' a wmnj; i«» him (nr \\hi( h he nmhiM liavc a
rii^ht of act inn (14).
The arrival which is in divcsi the vendor's ri;;ht nl*
sln|)|>a<^c in transitu nuist he such that the htiscr has
taken actual or constructi\«' jjossession ol the j^oods,
and that cannot he so lun;^ as he repudiates tlu-in (15).
And if the ;;oods are rejected l)\ ihe l)u\er, and
the carrier or other hailee or custo(li<'r (onliinies in
possession ot them, the transit is nol deemed to he at
an end, even if the seller has rehised to rec<'i\c them
hack. When v^oods are delivered to a ship chartered
hy the huNcr it is a (piestion dependin;^ on the circum-
stances of the partiiular case, whether the\ are in the
possession of the master as a carrier, or as a^cnt to
the buyer ( If)). Ihe delivery in the purchaser's own
ship is, howeN'cr, a final deli\'ery at the place of
destination ( 1 7).
Where uoods are sold and l)\ the terms of the har-
j^jain th(!y are to he sent to a particular desii^iiation, the
transit n$ is not at an end until the j^oods have reached
the place named (!"</) ; hut with this exception, that if
the vendee Ljets the ''ooils from the carrier hefore thev
arrive at such place, the transit is at an end. Ihe
real test is not what is said hut what is done(iS).
The consignee may re(|uire the goods to he tielivereil
(14) Whitehead v. Anderson (1842) y M. N: W. 518.
(15) liollon V. Lancashire Nv. (1866) L. R. 1 C.I'. 431.
(16) VanCasieel v. Booker {\%^%) 2 Kx. 691.
(17) Schotstnans v. Lancashire Co. (1867) I,.R. 2 C\\. 332.
(17a) Coates V. Railton 6 1$. iV C. 422 : KendaU v. Marshall 11
Q.B.D. 356.
(18) Kendall v. Marshall \\ Q.B.I). 356. 360.
rJ
kl
ISO
« l»\l»llli)\AI. HAI.KH
In him .11 .m\ sl.v^f uf ihr jtuirnrN ( \if). Ami .ilthmii^h
tlw ;;tHitU in.iN ma h.i\r nai Ih'«I iluir tiltimatr drstin.i
lion. \«'i it tln\ ii.i\r sn r.ir ;.;iti in ilir «iiil ul ihcir
jniiriHA thai ih«\ aw.iit lU'w nr«l«Ts iVtiin ilu- pun hasrr
lo iMn\c thrin, and without su( I) ordrts th<-\ would
r«inain whin- tins .uc, the hnii\ifn.\ is i-nihil (.'nl.
\\ h<if part ol the ;;oMds sold l»\ one <'niirc' < ontract is
l.ikrn possession ol l)\ the vciulei'. without an) int«n
lion on ih«' vendor's p.irt of ntainin;; ilu' rest. Itiil as
a step Inwards and in progress ol the deli\<r\ ol" the
whoK, such is tin- takinj4 poss«'ssion ol the whole (21).
So loni^ as the <.;onds remain in the possession ol"
lh<' carrier as such, excn though the carrier mas ha\<'
l)e«n .ippoinied \)\ the consij^nee hiinsell", the\ are to
l»e deemcil in ttaiisihi imtil lhe\ conu* into ihe aitual
or construitive |)ossession ot" the consii^nee (2j).
W'hereNcr it is part ol the hari^ain helwcen tin- \«ndor
and the vendee thai the transit shall last up to a
certain lime, the transit contiinies imtil that lime has
arrived U.^); hut il" nfoculs are houi^ht to he al'lerwards
despatched as the vendee may direi l. and il is not |>ari
ol the harj^ain thai the ^^oods shall he sent to any
|)ariicular |)lace. in that case the transit onKcndswhen
the uoods reaih the plaie ullim.iieK nameil hs iht'
vendee as their desiinalion (24).
(ii;) London ^s' N.W.Hw v. Hartlett 7 H. iV N. 400 ; lunur v.
Win l,.R. 7 Va\. 64.
(20) l)i.\ou V. Hahhvin 5 Kast, i8^»; l'..\. />. MiUa 15 (^. IM). 44;
lifthill V. Cliitk 20 (^).H. I). 619; Lxous V. Iloffuun^ 15 App. Cas.
(21) Hammond \. Anderson i \\. iV P. N.R. 69; Ex. f>. ('oo/>i'r
II Ch. I). 6S.
(22) /',",v. /». Jiosevfar 11 C!h. 1). 560; E.\. />. lUitroiv 6 Ch. D.
783-
(23) Ex. p. Watson 5 Cli. 1). 35.
(24) Kendal v. Mai shall 11 Q.H.D. 356, 369, per Howen, I, .J.
\SI> • II \i I I I I II NM.
IS7
A sri/iirc iiiiclrr an .Ulachtnciit hmhiihiii in;; .111
iUlinii, nr iKlnn* jl|ilv!'"*'"l rr«n\t'r«'«l. iliU'H not |H'«'\«'lll
l\u- rxcrcisi' <»| the ri^^lit (.'5); l»iii it ^oikU in ir.m^ii
iirr sri/rd li\ a shcriti iimirr an <*\c'c iiliuii upun a jmlj^-
mint rrtuNrrr*! and .ire r«inn\rt| (n»in the (iisiniK nf'
tlir f.irrirr, ihc //>///>////> is at an rn«l ami tin- runsij^nur
lanntH alh 1 siuli removal i-xrnisr ihr ri;>ht (.")|.
riu' ri^^ht Is ('(|iiall\ drlratrd wluilur the Miulrr
nlitains posscssinn •»( ilic ynnds at tin- t«*rininatinn ut
tln' fnnisihis as nri^^inalK intJ-ndcd, nr at smnc inirr
inrdialc |)<iint : and whcllKr the jinsscssinn ul tin-
;^ouds !)(• ulttaincd l»\ the xciidcc hiinscM, ui- li\ his
ai4;('iit who ol)tains ihcm Inr the |nir|Hisc ol luildin;^
tln'in. or l»\ an assimiu-c in hankriiptc) . or a slu-rill
deriving his aiiihoriix Iroin the foiiri to t.ik( the i^oods
of ihr NTHdc*' ( 2').
Whrn ^oods an- plated in iIk- warrhoiis*- of a third
part) who has hccn in the hal)il of rccciv inj^ ;^(»ods for
the purchaser and holdiiijn thcin as hisajurnt until In-
takes ihein awa\, the transit is at an end, aIthoii;^h the
warchoiiscinan docs not char;;c any rent (jS).
Where bill of lading assigned. H the (onsiMncc
named in the hill of ladini; should hccome insoKcnt,
without havinj^^ paid for the ;;(iods. yet hi* uncondi-
tional transfer of the j^oods and the hill of ladinj;.
if made for a xaluahle consideration and without the
assi}^iu-'t' havinj^; received notice that the j^oods were
not paid for and that the consij^Miee was insolvent, or
that the ^oods were [)aid for hy hills sure to he dis-
(35) Mclj-an V. Iheithauf^l 12 Ont. App. 38.^; Pur,i:y Crntftit Co.
V. O Hrien 12^^ Mass. 12 ; Huckhy v. Futtiess 15 Wend. iN.\'.) 1.^7.
(26) Cou/uri' V. J/(A'<n' (18S1;) 6 .Man. Rep. 27,^
(27) Couture \. i\fcKiiy{\'Mfj)(^ .Man. k. 273; Itlackhurn on Sale
397-
(28) Wiley V. Smith i Ont. App. i7<;, 195 ; 2 Can. S.('. R. i.
iSS
( ONhirioNAI. SAlls
lonniircd
wil
)ilSS
tl
IC
'Onds iil)s»»liilcl\ 1(1 the
assignee, ami <l(|>ii\«' tin consij^nnr ol ilic rij^hl ol
si(t|)|>ai4f III traitsilii \\
hiih. as a<'aiiist llic nri'-inal
lOMsii^iU'c, lie mii^lit liaNc cxcrtisctl (Jo). lUil inrrc
know lc(l<'(' l>\ the (IkIoiscc that the '•onds liaNC ixil
Ix't'M paid Inr tlocs not ddcat his rij^ius ; to cUccl thai
result the knnwlcdt^c must hcorsiith (■ircimislaiitcs as
rciulcr the hill of ladiiii; not lairix and honcstU assij^n
able (;o). Where the hill ol ladini; has heen
iranslerreil hy \\a\ of pledi^c onl). a (|ualilied rii^lu ol
stoppai;(' remains, and. on the claim ol the pledj^ce
hein;4 disehari;cd, tlu' ri^ht is exaetls the same as il'
there had hi-en no seiiiril) as ajL^ainst the orii;ina!
|)urehasei and those elaimini; imtler him (^^i) ; and. in
e(|iiit\ . the \eiulor ma\ . I)\ i^ix ins^ notice to the pledgee
ilurini^ the transit, resume, subject to the pledj^ce's
claim, iiis former interest in the j^oods and will alter
such notice he entitleil to the residue ol the proceeds
alter the pK'd«;i'e's demand has been satisfied {.>2).
The rii^hl of stoppai^e in transitu cannot, however, be
exi-rcisi'il as aj^ainst tlu' |)urchase money pa\able b\ a
sun-purchaser to his vendor, as the n
rht
IS, 111 Its
nature, oiu' which is applicable onl\ to the n()ods(32^A).
pre-e.\istm}4 t
lebt
IS a \a
luabl
e consK.
lerat
ion
which wil! support a transfer of a bill of latlin*; as
aj^ainst a rij^ht of stoppage (,>3).
(2i)) I.itkhiviow V. Mason 2 T. R. 6^, 5 T. R. 68^; Gtirney v.
Hf/u,-n,i }, v.. $c H. 622; Tlw Marie Joseph L.R. i P.C. 219.
(30) CKmitis; V. firoivn y Kast 506; Sa/oinofis \, Nisseti 2 T. R.
674.
(31) Ketnp V. Fa/k 7 App. Cas. 577, per Sdborne I-.C.
(32) Re \Ves(zitit/ius 5 B. iS: Ad. 817 ; fienuitson v. Strani^ I,.R.
3 Ch. 5S8 ; A'otfj^er v. Comptoir (V Escompte de Paris L. R. 2 P.C'.
393 ; Kemp v. Falk 7 App. Cas. 573.
{xia\ Kemp v. Falk 7 .\pp. Cas. 573, 583 ; Contra^ Ex. p. Goiding
13 Ch. D. 628.
(■^T,) Clementson v. Grand Trunk Ry. 42 U.C.R. 2(^3; Leask v,
Scott 2 Q.B.D. 376.
\Nh • IIAI III, I, MAS.
iSr,
Goods in bond. W lien the ( Ollcctor nl ( iistoms
i»M«i\«-s ilm- ImmmI nt the \ciulcc, llicrc is as compNtc
a <l<-liv<T\ as if thr j^oods liad hccn (Irlixcrcd into hi^
own }ian<l%. Ihi' cmIIci tor lias a lien on the j^oods.
an<l ^^.•!1l«l In- jiistitird in d<tainin<4 ihcin until it is
saiislK-*! : Imii as Ix-twccn vendor and sendee the !L;o<)ds
,ire ai home and ( onstrii(ti\(l\ in the |)ossession o| the
juirthaM-r. ihr nistonis autliorilies (suhjecl to the |)a\-
in<MH ol the <liiiies| having l)y the a(ce|)tan(<' ol th<*
l)on<l iiiulnTiaker) to hold them for the use ol the
]Mir< has«-r. and sidiject to such sales or dis|)ositions as
he nii'^hl rli<»«»s*- lo make (.^4).
M<T«haiJls in New \'ork sold to I",, li. M ( o. at
I opMito 250 l»;irrels ot ciirranis on credit, and con
si^n<'<l ihd' >iuiie to him in hond. A hill ol la<iinL;
then-of wa*. «ltjl\ received hv I'.. H. t\: < o., who paid
the In-ij^hl and a«ce[)ted a draft for the price as uell as
lor the ciiriA'j^v and other <'ha!j4es. Ihe j^oods on
arrival wtrt: i-niered and bonded in the (onsiL^nees
name and placrd in a customs hoiuled warehouse sul»
ject to ih«- |»;iyment of the duties. I'^. ii. X: ("0. sold
and <i<-li\<-r«-*l a part of same and had the remainder
remo\<-<| in l»»>nd to a portion of their own warehouse
|)aniti«»n(i-«l mH and used as a customs warehouse lor
their own j^»>«h1s. K. li. ^ Co. hecaine insoher.i
hefore ih<- maiuriiy of the draft, and it was h(;l(l that
their ven<l«»r> had lost the ri^ht to slo|) the ;^'oo(ls. the
transiius Ijcinj; at an end (35).
Merchants in Boston shipjHxl a ([uantity of oil to
merchants in K^alifax: between the shipment of the oil
and its arrival at Halifax the buyers became insolvent.
'341 /rWrr \. Smith \ Ont. .Xpp. 179, affirmed 2 (Jan. SC. k. i ;
Wtldi \. Smith 2 Ont. \pp. 8.
(35: ll'i/ri \. Smith 2 Can. S.C.R. i, affirminsj; 1 C)nt. .Xpp. 179:
Hour// V. Alport \2 L'.C.C. P. 375 and Graham v. Smith 27 L'.C.C 1'.
1 overruled
I90
(.ONDITIONAI- SAI,i;s
IHIl :
l)iit before inakiii}^ an assij^nmicnt for creditors, and
without any intention of aiceptinj;- or taking tk-livery
of the oil or exercisin**' anv control over it on their own
account, the buyers bs a custom-house order made
before the i»()ods were dischar^^ed transferred the oil,
to<»ether with the bill of ladin<;, to one (i. to be held
for and on account of the shippers. It was held that
the exercise of the rijj^ht of stoppa}4,e by (i., actint^" for
the sellers, was in time and that the transitus had not
been completed (36).
H.. of Souris. IM'M.. carried on the business of
lobster packin<>, sending his j^oods to M., of Halifax,
N.S., who supplied him with tin plates, etc. They had
dealt in this wav for several vears, when, in 18S2, H.
shipped 180 cases of beef via Pictou and the
Intercolonial Railway of Canada addressed to M.
The bill of ladin*,^ for this shipment was sent
to M. and provided that the o'oods were to be
deli\ered at Pictou. to the freight a^ent of the
I.C.R. or his assigns, the freight to be payal)le in
Halifax. M., the consii;nee, bein"' on the veri>e of
insolvencv, indorsetl the bill of ladinu' to iMcM. to
secure accommodation acce[)tances. H. drew on M.
for the value of the consitj^nment, but the draft was not
accepted, and H. then ilirected the au^ent of the I.C.R.
not to deliver the Ljoods. The j^oods had been
forwardetl from Pictou. and the ai^ent there tele<:^raphed
to the ai;"ent at Halifax to hold them. McM. a'pplied
to the a^ent at Halifax to deliver the i^oods and
tendered the freiirht. but deliverv was refused. In a
replevin suit against the Halifax agent it was held,
affirming the judgment of the court below (Henry. J.,
tlissenting). that the goods were sent to the agent at
Pictou to be forwarded, and that he had no other
interest in them, or right or duty connected with them.
(36) Richardson v. Twining 2 N.S. D. 281.
AM) CIIATTi;!. I, HAS.
191
than to t'orvvard thcin to their di'stinatioii, ami coultl
not authori/c the anciu at Halifax to retain them; anti
that whether or not a lej;al title to the _y;o()cls passed to
McM., the position of the a^ent in retainini^ the i^oods
was sinij)l)' that of a vvroiiLjxloer. anil McM. had such
an e(|uitable interest in such i;"ooils, and rijuht to the
possession thereof, as would prevent the a;.;ent from
withholdin«r them i;^'/).
Where it was part of the terms of sale of a (|uan-
tity of whiskey that the seller should, from time to
time as the buyer should direct, ship to him portions
thereof, and pay the storage chart^es, taxes and insur-
ance, and draw on the buyer for the amounts, and the
buyer became insolvent while a shipment was in
transit, it was hekl that the rij^ht of stoppage was not
lost althouj^h the vendor had before forwardini; the
whiskey obtained a warehouse certificate; for it in the
name of the jjurchaser and had forwarded such certifi-
cate to the purchaser (t,^).
It is in such a case no answer to the xendor's claim
to say that there was a constructixe deli\ery of the
whiskev to the buver by virtue of the tieliverv of the
warehouse receipt to him, and that he had the ri^ht to
take j)ossession of it and withdraw it from the ware-
house ; for the j)urchaser did not take possession of it
at the warehouse, but left it in charj^e of the seller U)
be shipped by him (39).
Parties entitled to the right. I he rii^ln can be
exercised only b\' a person who holds the relation of
vendor to the consii^nee (40). And a commission
a^ent or factor who has paid for j^oods j)urchased for
(37) McDonalds. McPherson 12 Can. S.C.R. 416.
(38) Mohr V. Boston <s' A/danji Ry. 106 Mass. 67.
(39) Ibid.
(40) Fetse V. Wray 3 East, 93 ; Ireland \. Livingston., L.R. 5 H.L
395-
\i.)2
( ()M»I I loNAl- SAI.IIS
his principal, or who has rciulcrcd himself iiahle to |)ay
the purrhasc money, is siibsiamially in the position of
a vendor and may stop tile j^oods in transitu in like;
manner as a \endor(4i). So wheri' a hrokiT |)iir-
ehased for an undisclosed principal he was held entitled
to the ri^ht (42) ; ami a foreii^n purchasini^- aj^'ent who
l)u\s j^oocls on his own credit from a person unknown
to the principal and charges a commission on the price
is a consignor and is entitled to stop the jj^oods in
transitu if the principal fails while they are on their
way (43).
IMie vendor may exercise the rij^ht even when the
y^oods are consi^netl to he sold on the joint accoimt of
himself and the consij^nee (44) ; hut a mere surety is
not entitled {45).
If the sto|)pa!4'e in transitu he made by an unau-
thorized person on behalf of the seller, the act must be
ratifieil before the transit is over, otherwise it will not
be effectual (46). I'he authorit) of an assent of the
\'endor to exercise the ris^ht need not be specific as to
the j)articular transaction (47) : ami it will be sufficient
if he acted within the general scope of his authority.
Under what conditions. It is not necessary for the
\endor to temler back the purchaser's note or accep-
(41 1 Oak ford V. Drake 2 V. tx. F. 493.
(42) Imperial Bank v. Loudon e?^ St. Katharines Dock Co. 5 Ch.
!)• 195-
(43) The Tii:;ress 32 L J. Adm. 97 ; Feise v. IVray 3 I£ast, 93.
(44) A^ewsoH V. Thornton 6 East, 1 7.
(45) Siffken V. Wray (1805) 6 East, 371.
(46) Bird V. Brown 4 Ex. 786. ,
(47) Hatchings v. Nunes 1 Moo. I'.C. 243.
AM) < IIATTEI, LIKNS.
"93
I .:
taiia; hcforc excrcisiny^ the ri^hl. lor, thoiijL^b tlii- bills
may i)c proved in hankruptcy a<;aiiist the estate of the
purchaser, and part |)ayiiieiit ohtained, a part payment
does not tleprivi' the vendor of the rij^ht to stop in
transitu (4.S).
lint if the noods are paid for hy the note or accep-
tance of a lliird />crson without the indorsement or
guaranty of the purchaser, tht; note is re^ardeil as
absolute payment and there is no ri^ht of stoppai^^e (49).
I'nless the j^oods are sto))ped by the seller, the buyer
or his assij^nee may take possession of them, and put
an end to the transit and to the vendor's rij^ht of
stoppage (50).
jiut if j^'oods be s(Mit to a commission merchant to l)e
disposed of, and he becomes insolvent, and the i^oods
remain distinj^uishable from the j^eneral mass of his
property, the principal may recover the j^oodsin specie,
and is not driven to the necessity of j)rovinjL^" his debt
in the insolvency j)roceedins4S ; and if the i^oods have
been sold and the proceeds are ear-marked, he may
recover them (51).
The validity of a stoj)j)ane in transitu depends
upon the following conditions (52):
{a) ihe venilor must be unpaid ;
{/)) Ihe ventlee must be insolvent ;
{(■) The vendee must not have endorsed the bill
of ladin»>' over for value.
iUit no proof that these conditions have been
fulfilled is recjuired from the vendor before exercisiniL;'
the ri}4ht of stoppage (53). Whether the vendor is or
(48) Ffiisew IVray 3 i'^ast, 93; McEwan v. Smith 2 \\.\.A'. 309.
(49 1 Eaton V. Cook 32 \'t. 58.
(50) Ellis V. Hunt T, 'I'.R. 464, 467.
(51) Tooke \. Holli>i};u>otth ^'V.K. 215.
(52) The Tigress 32 I^.J. Adm. 97.
153) Guf'tey v. Behretid t, E. iS: B. 622.
194
(ONhl rioN.M. SAI.l.S
is not unpaid ina\ (lc])cii(l upon tlic l)alanc(' of a
current accoinit ; whctlicr the ncikIcc is insol\('nt may
not trans|)irc till al'lcrwards, when the hill of cxchaninc
lor the j^oods luronics due ; and whether the \'endee
has or has not indorsed the hill of ladinj,^ over, is a
matter not within the coi^nizance of the \'endor. lie
exereises his rij^ht of stoppai^c in transitu at his own
peril, and it is incumheiit upon the shi|)-niaster to j^i* c-
effect to the elaini as s»)on as he is satistu'd it is niatle
l)\ the vendor, unless he is aware of a le^al defeasance
of the vendor's claim (54).
The vendors' rii^ht of sto|)])a!Li'e in transitu is sub-
ject to the carriers' lien for the freij^ht ; and, if the
'^oods he consij^ned to one person under one contract,
. o carrier has a lien upon the whole for freij^ht and
':! rt>es on c\ery part ; and a tielivery of a |)art of the
i^oods does not dischari^e his lien upon the rest with-
out proof of an intention so to do, even as aj^ainst the
ii^hti). ihe consignor to stop in transitu the j^oods
not delivered, hut the carrier may charj^e aj^ainst those
o-oods the freight on the whole consii;nment (55).
Whether or not there was a rij^ht of stoppajj^e in
transitu, it is comj)etent for the parties, if the ^oods
have not been actually accepted and have, therefore,
not passed as regards the {property therein, to rescind
the contract of sale and allow the vendor to re-take pos-
session even as a<i[ainst an assit,Miee in insolvency (56).
Notice to carrier to stop the goods. -Althouj^^h a
notice to stop goods in transitu which are in bond at
a customs warehouse belonj^intj to the railway com-
pany at a railway depot may be valid if j^iven to the
(54) The Tigress 2,2 \,.]. Adm. 97, loi, per Dr. Lushington.
(55) Potts V. iV. ]'. 6- N.E. Ry. 131 Mass. 455.
(56) Mason s.Redpath 39 U.C.R. 157.
.\M> f IIMlll, l.ir.NS.
'05
r;iil\\a\ t'<)mi)aiu aloiu', il is adN'isahlc l»» <^\\c indicc
,ilsn to the rustoins otVu-cr (57).
A iiDiicc of" sto|)|)a|L;(' must <^i\v such parliciilars as
arc necessary tor the carriers to iileiuilV the packai^cs
it is intended to alTect. it tlie\ have other ^()o(ls
adih'cssed to the same consij.';nce and, theretore, can-
not distinmuisli them (5S).
Notice i^iveii to the carrier's au'ent, who has the
actual custody ot th(; ^oods in the n-j^ular course ol
his ai^enc)-. is i^ood notice to the carrier (5c;).
It notice to stop the ^oods he served on a ship
owner he is uiuler an oblii^ation to send it on with
reasonable cliliL^'ence to the master of the ship, and if
the notice arrixes hetore the l^oocIs are (leli\'ered to
the consignee, there is a valid stoppa|L;e in transitu ; hut
if notwithstaiulinj^' the use of reasonable dili|nfnce by
the shipowner, the j^oods were delivered before the
notice reached the master, the shipowner would not be
responsible (60).
If the notice be j^iven to the jjrincipal when the
''"ooils are in the custocK' of his awnt or servant. th(.'
notice will not ije effectual unless it be j^iven at such a
time and under such circumstances that the j)rincipal,
by the exercise of reasonable diligence. ma\' communi-
cate it to such a^ent or servant in time to j)re\ent the
deli\erv of the uootls to the consijrnee ; antl the only
iluty that the law imposes on the absent principal is
to use reasonable dili*rence to prevent the delivery (61 ).
The right of stoppage in transitu extends not only
to countermand delivery to the vendee, but to re(|uire
> !
I
i
(571 Asr/ier v. G. T.R. 36 U.C.R. 609, 614.
(581 Clementson v. G.T.R. 42 U.C.R. 263.
(59) Jones V. Earl 37 Cal. 630, 99 Am. Dec. 338.
(60) Kemp V. Folk 7 App. Cas. 573, 585.
(61) Whitehead v. Anderson 9 M. & VV. 518, per Parke, I*..
|C>f)
t (iMH ri(i\ \i. s.M.r.s
fi
rc-tU'livcrv to the vciulnr. and the latter may at niui.'
ilcinaiul the }^^(mhIs(02).
Wrongful refusal of carrier to deliver. W'litrc ilu:
carrier or otiier bailee or custodier vvroiij^fully ret'uses
to ilelivcr t'le j^ootls to the buyer, or his aj4<'nt in that
lu'halt". tlie transit is {leem(;(l to Ix; at an vm\ (61,).
Whort! part (lelivt;ry of the j^oods has been niatle
to the i)uy(.'r. or his aj^ent in that b(.'hall". the reniaiiuler
of the j^oods may l)e stopped in transitu, unless such
part d«'livery has been made under such circumstances
as to show an agreement to «;ive up possession of tht,'
whole of the ^oods (64).
Re-sale of stopped goods. Where a document of
title to j^oods has been lawfully transferred to any
person as buxer or owner of theo()ods, and that i)erson
transfers tht; ilocument to a person who takes the
document in j^ood faith and for valuable consitleration,
then, if such last-mentioned transfer was by way of
s.de the un|)aid seller's ri_oht of sto|)|)ap;e in transitu
is ii(;feated, and if such last mentioned transfer was
by way of pletly^e or other disposition for value, the
right ( f stoj)page in transitu can only be exercised
sul)iect to the riohts of the transferee ; but in other
respects the ri^ht of stoi)pa^e is not affected by any
sale or other disposition of the goods which the
buyer may have made unless the seller has assented
thert^to (65).
The contract is not ordinarily rescinded by the
mere exercise of the right of stoppage, but if the
(62) T/if Tigress 32 L.J. Adni. 97.
(63) Bini V. Brown (1850) 4 Ex. 786.
(64) K\ parte Cooper (1879) 11 Ch. D. 68 ; Jones v. Jones (1841)
8 M. & W. 431.
(65) Dixon V. Yates 5 B. &: Ad. 313. .
I
AM) ( IIAITKI, I.IINS.
'9;
sioppaj^a: is jiistitial)l(; and tin; parly cxfrcisiiig it re
sells llir ^(hmIs, th<! second l)uyer ac(|iiir(;s a j^ood title
as aji[ainsl the orij^iual Iniyer (60).
ir. h()Wcv(T, the seller has l>y his contract of sale
expn!ssly rjrserveil a rij^ht of re-sale in case th(' hiiyer
should make default, tlu; sale is th(in a conditional one,
and on its non-fuHilment the defaulter, in case of a
r(!-sale, is liable for the difference and expenses (67).
I'trrishable goods art; particularly suhjtxt to an
alteration in price in a few days or a few hours, anil
the law follows tin; usaj^e of trad<! in sanctioning^ a
re-sale of such <4oods by the unpaid selK;r extTcisinj^
the rij^ht of stoppaj^e, and this without any notice to
th(! buyer (6S).
Where the buyer is bankrupt, and his trustee does
not lench.T the j)rice of the goods to the s(;ller who is
in poss(?ssi()n of them within a reasonable time, the
sciller may treat the contract as rescincK:d without
tL'udering the goods to the trustee, and may prove in
tlu' bankruptcy for damages (69).
n
Waiver. The fact that the vendee has giv(;n his
iKJte or acceptance for the price of the goods do(;s not
defeat the vendor's right of stoj)page in transitu (70);
even although the vendor has negotiated it (7 1 ). If
the original vendor has notice of the re-sale of the
goods by his vendee and at the hitter's recjuest consigns
them to the sub-purchaser his right of stojipage is
(66) Lord V. Price (1874) L.R. 9 Ex. 54.
(67) Lamond v, Dei'alle '^1847) 9 Q.B. 1030.
(68) Maclean v. Dunn 4 Bing. 722.
(69) Ex parte Stapleton (1879) 10 Ch. D. 586.
(70) Lewis V. Mason 36 L'.C R. 590.
(71) Miles V. Gorton 2 Cromp. iV M. 504.
4
I
iqK
('ONMITION Af, sMKS
\vai\»(l (J 2). I*i«>\in<4 .i claim fur ihc prirt- nl thr
j^iioils aj^ainsl lln' I'slatc ul lln* cnnsi^nrr will iu»l
il<'|ni\(' ihr Nciuiors iVnin stnppinj^ ilicin in transilu
I hr rij^lil ul st()p|)a!^r in transitu will \u- l(»si il
part liciivrrN nt" tlu' <^(»(»ls lias Ix-cn ni.idc under stuh
(irciinisiaiu'cs as show an aj^rcvincnt to ^i\<' up
possession ul the whole of them. I here in.i\ he
ein iiinslances siitVicient to show that then* was no
intention to s«'parate the part delivered Ironi the rest,
and then the delivery of" part operates as a delivery of
the whoN' (74) ; il" both parties intended it as a delivery
of the whole, then il is a delivery of th<' whole ; hut il
either of the parties (Iocs n(»i intend it as a delivery of
the whole, if either of them dissents, then il is not a
ilelivery of the whole (75).
Nj
British Columbia, N.W. Territories and Manitoba.
I'luler tht! respective statutes relating to the Sale of
(ioods in force in the Provinces of lirilish ("olumhia
and Manitoba and in the North-Wi'st Territorit^s {'(t),
tht! law rel.itini^ to stoppage in transitu has hefn
codified, following closely the form of the lmj)erial Sale
of Ciot)ds Act of 1893 ("/"/). Under these statutes il is
declared tliat suhjt!ct to any provisions of the same,
whtMi the buyer of goods becomes insolvent, the unpaid
seller who has jiarted with the possession of the goods
has the right of stopj)ing them in transitu, that is to
(72) Eaton V. Cook 32 \'t. 58.
(73) Morgan l<'.nvelof>e Co. v. Bou stead 1 Out. R. 697.
(74) llenjamin on Sales, 4th ed. p. 813.
(75) Kemp v. Falk (1882) L.R, 7 App. ('as. 586.
(76) R.S.B.C". 1897, c. 169; Stat. Atari. 1896, c. 25: Con. Ord.
N.W.T. 1898,0. 39.
(77) 56 & 57 Vict. (Imp.)c. 71.
AM" I II M II I I II \S.
M>0
I •
s,i\, ln' in. IN rrsilllH' liosscssioM nl llir ^uotls ,is loll;" as
ilit'V arr in couis*- ol ir.insit. and may rrlain llinn iinlil
pas inriil or icntltr of ihc price (7S).
( ioods arc (l<<'inf(l lo !«• in coiirM' of ir.nisii iVoin
tin- tiinr whrn llicy an- drjiv rn-d lo a carrif'r I)N land
or waltr. or other hailcc fur the jinrposc ol iran>inis-
sion lo ilic l)n\<'r, until the l)ny<*r. or his a^Miit in that
lichalt, lakrs d('li\«'ry of ihcin fntin suih tairirr i>r
other hailer iyq).
If the buyer or his aLjenl in that hejialf ohiains
delivery of the Monds helore their arrival at the ap
pointed desiinalion. the transit is at an end (Nu|.
If after the arrival of the
J^oods at the appointed
destination, the earner or other
l>ail<
:l<i
ee ackliow ledirrs
1k'
lo the huyer, or his aj^ent, that he holds the i^oods on
his behalf and continues in possession of them as
bailee for tin; l)U\<-r. or his a<'cnt, tin- transit is at an
(•ml, and it is immaterial that a further destination for
the j^dods may have been indicat<(l b\ the bu\er(Si).
If the j^oods are rejected by the bu\cr, and the
carrier or other bailee conti-'ues in possession of them.
th(! tr.msil is not chcmed to Ix; at an end, e\cn if the
seller has nrfused to r(;c(.'iv(; them back (S2). An
insolvent Ijiiyer may thus refuse; to take possession of
th(! goods, and so prolong iIk; transit, and his conduct
(78) Stat, Man. iHc/), c. 25, s. 41 ; R.S.Ii.C. c. ifu;, s. 54; Con.
Orel. N.U'.'I". c. 39, s. 42.
179) Stat. Man. i8(/i,r. 25,3.42(1); R.S. !{.(!. 1897, c. ifx;, s. 55 :
Con. Ord. N.W.T. r. 39, s.43 (i).
(80) Stat. Man. 1896. c. 25, s. 42(2); R.S. B.C. 1897, <:. 169, s. 55
(21; Con. Ord. N.W.'I". c yt, s. 43(2).
181) Stat. Man. 1896, c. 25,5.42(3); R.S. B.C. 1897,0. 169, s.
55 (3); Con. Ord. N.W.'I". c. 39, s. 43(31.
(82) Stat. Man. 1896, c. 25, s. 42 (4); R.S. B.C. 189-, c 169, s. 55
(4); Con. Ord. N.W.T. c. 39, s. 43(4).
li
,1
''HI
3(M)
<nM.|||MN\|, >,\|,|>
(liH'S Dot ailliilllll tn ,1 iVatK
Illlt'llt
pri'lfrriui' in laxoiir
ihr I)
W'llill ]i;on(ls arr «lr|i\rn«l to .i shij* ( h.irii'irti li\
)it\ri' It IS a (|ii(sii(»ii (M'licnilin^ on liw ciiiuin
staiu'<-s ol ilir parliciilar lasr, whrthtr ihi'V arr in
possi'ssioi) 1)1' iIh- inastiT as a larrirr. or as a^rni tn
ihr liiiy«'r (S.j).
Whrrr tin* carri*!* or otixr Itailn-. \vnin«^(iilly r s
In deliver the i^ooils tn the luiyer. nr his aj^^eiii in mat
hehaif, tile transit is cleenud to he at an end (Ss) So
wlu*re ihe j^oods had r«Mt hed lh<ir tiesiin.ilion and the
i-onsi^^nee had tendere«l ih«' height and demanded ih<-
j^oods, and wonld haxc taken possession n| them l>ni
lor ihe wron^diil delivery ol tin in to other p.wties, the
transit was held lo l)«- lenninaled (S()).
\y
lu're pari (leli\er\ ol the j^(
IKX
Is has l)( en made
to the hiiyer, or his ajucnt in that heliall. the n-mainder
ol the i^oocls ma\ he stopped in transitu, unless such
|)art delivery has heen made under siiih eireiiinslances
as lo show an ai^reeineiu to ^ive up possession ol the
whole ol" the ^ooils (S7).
riu-
unpaid seller ma) e\ercis«' liis r\^
[ht of
pai;(' in transitu eiih<'r hy takiiij,; actual possessi... af
tht' i^oods, or hy ^[iNiniL; notice of his claim to the
carrier or other bailee i
n whose possession
th
e floods
are. Such notice mas he j^iveii eitlu*r to the person
in actual possession ol the j^oods, or to his principal.
(8.^) Menjnmin on Sales 4th cd. 487 ; Kor (\: l'carson-( Ice's Sale of
(loods Art 248.
(84) Stat. Man. i8(/), c. 25. s. 42 (5); R.S.H.C. 1897, c. j6y, s.
55 (5) ; Con. Ord. N.W.'I". r. yj, s. 43 (5).
(85) .Stat. Man. i8(/). r. 25,8.42(6); R.S. M.C. 1897, c. i6y, s.
55 (6); Con. Ord. N.W.T. o. 39, s. 43 (6).
(86) ////v/ V. Brown (1S50) 4 Kxch. yhtt.
(87) Stat. Man 1896, c. 25,8. 42(:); Con. Ord. N W.T. c. 39,
s. 43(7); R.S.H.C. c. 169, 8.55(7).
Wli I II \l 1 1 I I II NH,
31)1
H
mat
S.)
I the
I llx-
1 l)Ut
In ihr lattrr C.isr tlw Molid-. l.( Itr «•((«•( lii.il. IDiisl Iw
^iviii .il siK li time .tiid iiikI) I mk h ( in iiinsi.iittcs tl)<it
th»' |»ritu.i|i.il, by thr rvrn is<' nf ri'asnii.ilili- ilili^riur,
may i-oiniiiiiiiicati* it to his scrsaiii or .i;'nit in iiin<- to
prrsrni .1 <l<li\«i'\ to thi' lMi\rr(SS).
\\ lu'n noii( <• ol Nio|»|>.i^r in tr.msitii is ^iMH lt\ tlx-
.m;ll«'r lo thr rai'ri<r, or oilu'r l»ail«'«' in possrssion ol
llu' j^ootls, hi' must If (lilivrr th«* ^oods to, or a(«oril-
inj; to thr ilirrclions ol", thr srllcr, ami tin- «\|M'nsrs of
.siu;h rr il«'livrry must Ix- horm- l»y thr srljcr (.S(^).
hut a notice ^i\(n hy thr seller to hold th< |>ro-
crrds o| thr sale ul' the j^oods snhjec i to his order, is
not ail «rllei:lual sto(ipaj,'e, hecaiisr th«' seller expresses
no intention ol re-iakinj^ possession ol the j^ih ids ((><)).
Ihe unp.iid selN'r's rijL^lu of stoppa;,4e in transitu is
not affected hy any sale or other disposition of the
••oods which tlu" hiiNcr ina\ have made unless the
seller has ass<;nted thento ; provided that wher(.' a
docum<-nt of title to jroods hi, heen lawfully tr.uis-
lerred to any person as buyer "i- owm;r of the j^oods,
and that person transfers the document lo a p«'rson
who takes tht; document in ^o((d faith and for valuable
consideration, then, if such last mentioned transfer
was by way of sale the unpaid '>e||«"r's ri^hl of sto|)-
paj^H' in transitu is defeat(;tl; and if such last mentioned
transfer was by way of pled^Mt or disposition for value,
the riji^ht of stoppa;^*' in transitu can onU \^v. ex«.rcis(;d
subject to tht; rij^hts ot the transf(*r<.'e (91 ).
'I'he facts in a recent Mnj^lish case were that one
39.
(8«) Stat. Man. 1896, c. 25, s. 4^(1); U.S. M.C. 1897, c. i6(*, s. 56
(i); Con. Ord. N.W.'I'. <•. VA s. 44.
(Sy) Stat. Man. 1896, c. 25, s. 4.^(2); R.S.M.C. 1897, c. if)9, s. 56
i2)\ Con. Ord. N.U. I', c 39, s. 44 (2).
(90) Phel(>s s.Comhet 1 18S5) 29 Ch. D. 822.
(91) Stat. Man. 1896, c. 25, s. 44; R.S.U.C. 1897, c 169, s. 57;
Con. Ord. N.W.T. c. 39, s. 45.
I.^
202
I ONhlTloNAI, SAl.KS
Stcininaii had consiL;iU-il llic jj^ooils in (|ut'sti()ii to one
IMiiischcr. to whom Stcininan sent the hill of lading;,
acconipaiiictl hy a hill of cxchaiiij^c' tor the price. I'iiits-
cher refused to arci'pt the hill of exchans^e. hut kept the
hill of ladiiiiLj. and in fraud of Steinnian sold the snoods to
the plaintiffs, antl inilorsed the hill of ladinjn, tothcMii, and
the\ paid him the price. .Steinman thereupon sto])ped
the L^'oods in transitu, and the action was hroui^ht to
reco\t'r the i^oocls hy \irtue of the title conferred on
the plaintiffs as hona fide indorsees of the hill of ladinj.^.
The Court of Appeal held that, as the plaintiffs had
taken the hill of lading' in j^ood faith without notice of
the rights of Steinman, from a person who held posses-
sion of it with the consent of .Steinman. the)' hail
ac<|uired a i^ootl title, and that Steinman was not as
aj^ainst them entitled to stop the <;()od.s in transitu (91a.)
Re-sale by unpaid vendor B.C., N.W.T., and
Manitoba. If thc^ unpaiil seller, who has exercised
his rij^ht of stoi)pa};c in transitu, re-sells the ^oods,
the huyer acquires a ^ood title thereto as against the
original huyer (92). But the exercise of the rijj^ht
must he lawful and must he justified hy reason of the
buyer's insolvency (93).
Where the j^oods are of a perishable nature, or
where the unj)aid seller ijives notice to the huyer of
his intention to re-sell and the buyer does not within a
reasonable time pay or tender the price, the unpaid
seller may re-sell the j^oods, and recover from the
original buyer damages for any loss occasioned by his
(91a) Gihn V. Pocketts Co. (1899) i Q.H. 643.
(92) Stat. Man. 1896, c. 25, s. 45 (2); R.S. B.C. 1897, c. 169, s. 58
(2) ; Con. Ord. N.W.T. c. 39, s. 46 (2).
(93) Ker i\: Pearson-dee's Sale of (loods Act, 266.
ANK <ii.\rii,L i,ii:\s.
;t >■
breiich «»f contract (04) : aiul where tli<' seller e\|)r<'ssly
n-Mffves a rij»ht ot re-sale in cast; the hincr sin mid
Mi.ik',' default, and on liie l)nyer inaUiiv^^ ilelaiilt re-sells
the jjcKxIs. the- t»riL(inal contract of sale is then hy
rescin<led. hut without prejudice to ain claim tin- seller
may have lV>r tlama|L;es (95). Suhject. howexcr, lo ili«*
pnjvisions Just stateil a contract of sale is not rescindtd
hy the m«'re ♦rxi-rcise hy an unpaiti seller ot his rij^hl
<»f stop|»ai;e in truisitu (96).
Ontario Transfer of bills of lading. \W the
Mercaniilir .\mt;ndnient Act ot Ontario ((>;) il is
enactetl thai ev«.Ty consignee of t^oocls named in a hill
of ladinj^ and every endorsee; of a bill of l.idini; to
\\h<»m the property in the j^ootls therein mentioned
passes u|»«in or hy reason of such consignment or
endors<.-meni, shall have transferred to ami vest<'d in
him all riijhts ni action, and he subject to the same
liabilities in respect of the ij^oods as if the contr.ict
contained in the hill of lading had been made lo him-
self; hut express pro\ision is madt; that this shall not
prejudice- or affect any right of stoppage; in transitu, or
any right to claim freight against the original shipper
or <»uner. or any liability of the consign(;e orendors<'e,
by reas<iin or in conse<|uence of his being such consig-
nee or end«rrs<.*e. or of his rectnpt of the goods by
reaMin or in conse(iuence of such consignment or
endorsement (9.S).
(94) Stat. Man. i.S<>6, c. 25, s. 45 (^); R.S.M.C. 1S97, <-. i<»), s.
58(3): Con. Ord. N.W.T. c. 39, s. 46(3).
(951 Stat. -Man. 1H96, c. 25, s. 45 (4); R^S.H.C 1S97, c. 1O9, s. 5.S
(41 ; Con. Ord. N.W.T. c, 39, s. 46(4).
1961 Slat. Man. 1S96, c. 25, s. 45 (i) ; R.S.IJ.C. iiS97, c. 169, s. 5S
(I); Con. Old. X.W. T. c. 39, s 46 (i).
971 R.S.O. i8«>7, c. 145.
(98 1 Sec. 5.
HE
V I
T
204
( ()NI»ITlnN.\l< SAI.I.S
Nova Scotia Transfer of document oif title. H>
statute in Nova Scotia (99) wIkti; a dociiim'in of titU:
m j^oods has bet'ii lawfully transferred to a person as
a l)uy(T or owner of the goods, and that person
transfers the docinnent to a person who takes the
document in good faith and for valuabh.' consid(!ration.
such transfer has the same effect for defeating any
vendor's lien or right t)f st(»ppage in transitu ;is the
transfer of a hill of hilling has for ilefeating the right
of stoppage in transitu (100); and the expression
' cU)cument of title ' is dt^clared to include any hill of
lading, dock warrant, warehouse keeper's certificati;,
and warrant or order for the tleliverv of goods, and
any other document used in the ordinary course of
business as proof of the pt)ssessi()n or control of
goods, or authorizing or jnirporting to authorize,
either by endorsement or by deliv<;ry, the possessor of
the document to transfer or receive goods thereby
represented (loi); the transfer of a 'document of
title ' may be by endorsement; or, where the docu-
ment is by custom or by its express terms transferable
by delivery or makes the goods deliverable to the
bearer, then by delivery (102).
(ijg) The Factors' Act, N.S. Laws, 1895, c. 11.
(100) N.S. Laws 189S, c. II, s. 10.
(101) Sec. I (4).
(102) Sec. II.
CIIAPTHk IX.
F.\( iok's I.ii'.ns.
Factor has a general Hen. -A factor oi- cominissioi)
merchant has a <;(;n<TaI h'cn, (lej)eiuleiU on possession,
tor all that is due hint as such, upon all articl<;s of
commercial value that nrv entrusted to him hy the
same principal. rh(! Vw.n is a ^^(Mieral one coverinj^
the balance of account due him from his principal
Inicause he is an ai^enl for a continuous service. It
attaches onlv to y^oods rec<M\'ed hv him in his ca|)acitv
of factor and not to j^oods received uikUt a special
loreement for a particular purpose;. It arises upon an
implied aj^r(!ement. and will he superseded hy an
express stipulation inconsistent therewith ( i ).
I'he lien of factors is one which is allowed for the
convenience; of trade, and with a view to encojrajne
factors to advance mone\ upon floods in their posses-
sion, or which must com<; to their hands as factors ;
but debts which are incurred jirior to the existence' of
the relation of principal and factor an; not contracted
upon the general principle upon which the lien is
allowed, and there is no g(;neral lien in respect of such
debts (2). it applies only where the d(;bt is one
contracted in the factor's busint;ss, and is usually
limited to advances, expenses, and commissions
incurred in the business. \\'here the principal consigns
goods to his agents to sell, under an agre(;mt;nt that
he should be permitted to make drafts on th(;m which
were to be accepted for his accommodation, the infer-
ence is that the drafts were drawn on the credit of the
(i) m7/JI:er v. Birc/i 6 T.R. 258, 262.
(2) Houghton V. Matthews 3 B. &:. 1'. 4S5, 488 ; Mann\. Fonato
4 Camp. 60.
Jl)()
( i>Mt| I luN \|. sAl.ls
j^onils, and ill. It llir i^ouds were to he held .is an
iiidcinnily .iii.iinsi die drafts (;); Ixit it v^oods arr
Idt l)\ tlu' |nitni|i;il \\\\U his ajn<'nl lor sale Uccpin^
oidy, and not (or sair, ilic .li^tnt li.is no i^cncral li( n on
ihcin lor tile It.iiancc «lii<' liitn from the principal (^).
H tile lartor <'Hc(is an insurance lor the Ix'tidit of
the consiiLinor on tin- ^itods on which ad\anccs haxc
Itccn made, the insurance nion<\ which tlu* factor
rcccixcs in the cxcni of a loss will l»c sul)siiiut<'d for
tlu" i^oods and he suhjcct to the sanii- lien (s).
judicial notice is taken of the factor's rii^ht to a
i^cneral lien (O).
1
Jj? ?:
Actual possession necessary. .\ factor has no lien
on Hoods consii^ined to him until the) actuallx' come
into his possession (7).
I'.\clusi\(' possession ol the chattels is indispensahle
to the existence of the lien, and a contract for the
sioraiLiC or forwardini; of i^oods under which the con
sii^iior rcserxcs the rii^ht to order at pleasure the
reshipment of <4(M>ds stored thereunder, and hy which
each parly reserves the rij^ht to draw at sin hi on the
ollu-r lor an\ balance in his l;i\'our, does not ircate a
lien in favour of liie consij^iiee for his ch.u'i^cs under
the contract (S).
To maintain the lien the factor's possession must
l)e lawful (c)), ami if he has taken possession of the
( ^) .V(/,i,'A' V. McFeetcrs 97 N.\'. ii;(» ; Ilammotid v. Harcliiy 2
Kast 227.
(4) Hum V. Ihowti 2 Stark. 27;.
(5) Johnson v. Campbell 120 Mass. 449.
(ft) Barnett v. Jhandao 6 M. & (l. 630, 665.
(71 Clark V. Grrat U'eslern Ry. 8 U.C.C.l'. lyi.
(8) AfoliufM.&'S. Co.w H'altfr A. IFoot/ A/owin^' <r- /i. Macli.
Co. (Neb.) 69 N.W. Kep. 405.
[<)) Kinloch v. Ctaig 3 T.R. 119.
Wh < II \ I I I I. I II \s.
?' K
^tun\s wiilnMit llic .iiilliMrity •»! ilic |)riii( i|)iil he
;i( (|iiir(s iin lien ihcicoii ( ii >).
Notice of ownership of third party. II iIkm MusiMiinr
li;is iiilonnctl (Im- l;i(|r»r uImii luiu.irtliii^ ilic l^uimK
tliiit lIu'N liiluii^cd |r» ;imt|l)«r pcrsMii ami »lii(( l«»l
llial lli«' proceeds he crccliici [n sik li |»(rsuii, im Lj'iMial
lien will <'\isl in laMtnr nl ilic lac lor ( i i ). Ami il ilir
an<'nt has iiotiic nl the l»aiikrii|)i( \ <»! Iiis priiK ipal. or
ol his assij^iiinciil lor the hciiclil ol his ( n-ditors, hdorc
he ;4<'tH possession ol thr proper!) , or helore he re(ci\es
a hill ol' ladinj^ or other (lociiineni ol title thereto, he
(-annot hold it under a ( laiin ol a general lien (12).
Rights of factor's assignee for creditors. Ha fa( tor
makes a ''ciMrral assi<'ninent lor tile henelil ol his
creditors, ihe assij^nee has no rij^hl to sell the i^oods,
lor the factor cannot dele^att- his aiithorit\- to another
without tin- coiisenl of lh<r principal (1.^). The lien
on the i^oods passes to the assij^^nee hut his l<L;aI rij^hl
extends no lurlher than to hold the j^ftods hy \ir(iie of
the lien ; a sale of ihein wiihoiil the princij)ars authority
would he a tortious conv(;rsio!i (14).
Control of consignor. The lien attaches not only
upon die ^oods while the factfjr holds them hut upon
the proceeds after h«! has sold them (15); hut he may
not sell aj^^ainsl his principal's consent in ortl(T to
(10) AtcKeati v. Wii^nihlast 2 (Iratit's Cas. ' I'a .) 4^)2.
(11) IVfvmoulh V. lioyer i \'es. Jr. 416, 425; Dai/itif^lon v.
Cluvnbetlin 120 III. 5S5.
(12) Rohsonv. Kemp j^ Ksp. 233; Copland \. Stein '6'X .\<. n)^)
(13) Jones on F.iens, sec. 430.
(14) Teny v. Hamherger 44 ("onn. 55S; WilUiid \. White z^U
Hun(N.Y.) 581.
(15) Hudson V. Granger 5 B. «!t Aid. 27.
;oS
I t»Mi| I |. i\ \| •, \| I s
.ili'.lx his .iiK.mn's, .iikI ihr (.hi n\ .uK.inrfs li.ixii
'«
Itrrn IIMtlt' <ltic'. il(i| |it<'\('Ml I ll«' ilil «'t lion |ii|' s.ilc linin
l>rm^ n\«tlsr(| (
Isiil I \<}) rilr I. It I
<>t inif.l III. I «,iii\ mil
Ww ii\>.iMi« noip. .u t ttm|t.m\ iiu; ih*- ••<
I It t(
Is .1'. Ill ll
ii'ir
tllsptts.il .iMtl llic .l|)|)|li .llititl tt| llif |i|tt( «Tt|-. ; ,|||t|
llw I.HliM will* .Utr|»|s i;tit)tl'. st'lM Id lliili Willi .1
tllM-illDII l<> |).l\ ii\t-| .1 |).lll «t| lllr |tlitt t'i'tl'. It) ,1 lliinl
pcf.tin, t .11) ttiiU t l.iiin .1 vMiii'i.il lien tui llx' Mit|iliis
rnn.iiniuv' .ilici siit l\ |Mvm«iii (ip).
I ht' Im-ii ('\i-.i-< iittiwiilist.ititliii^ iIi.h the |ii'iti( ip.il
li\t*s ihf |Mii(' .11 wliit h tl)t' '^titiils .nc It) l»c stiltl, .mhI
th.it ihf l.iiiiM .flls in Ins |>i iiit iii.il's n.nnc (i.S) Tlic
niinii' 1)1 lilt- l.ii li)i s t'in|)lt)\ nunt iniplifs ili.ii he is
.nilhi)ii til l<) sfll ni lilt' nsii.il cDinsf t)| Imsinrss tlit-
jM)i)ils tDnsionnl Id liini ( M)). Iml lIu' |iiin<i|),il in.iy
it'\t)Uf t)i liinil ill, It .iiiilionix (.')).
n
w unit h.isci ln)in ihr l.it Idi t .ihudI stl tili .n'.imsi
ilw |)ri(t' .1 «N'I)| tine lo Inin liDin iIk' |ii im i|i.il. cNtt-iit
sMl)i«ti It) ilic l.itiDis liin ( ' I ). .iiitl il sill h |iiin li.iscr
|).i\s t)\i'r ilu- piDt tt'tis It) ilif |irint ip.il .ilicr ntiiicc tit
llu- l.u lor s jitn he is li.iMc it) ihc l.u lor it)r ihc .iintnini
t)| the lien ( .':).
Purchasing: .igcnt. An .ii^tni it) pun h.is*- ontxls is
cntitU-tl It) .1 lien lor .uU.nucs tn.ulc l>\ him to inaiNC
(1(0 S"i,i>f V. .V.I '/././» > s (Ml. St)5 , /\\ti(t\^>i v. .ttkifiM'fi u M. \
w. (':«
(i; /'ti/'iv /■'r>.^^ _\: I .j.Ch. lo. \ I >t( 'i. !■ . \- |..|ot); /'/i,//>< w
( ; w,V» ^ t.sS5) :t) rii. r>. Si ; ; /u,>;c» v. Koui^h ( 1SS5 1 2t>( h. I >. .S.j.S.
(iS Sl,:Yfis v. />'///>> .'5 (Ml 1>. ;i.
( 10 /<;Jif><' V. .tshfi z\0\\\. App. .'05; /•'.\f<. /h.\Ofl .\{.'\\. 1).
I ;; ; l',''>t>'it>,i,i/ /i,mi' v. )iii,7'>oiifitr 10.^ N.Y. 4,;t).
(;o^ S»i,t>{\. .S.;'/./i;/.> 5 ( ". 1». 8«)3.
(;i^ Alkytiy V. .hti/'ir 2 I'.sp. N.I'. 2i)\.
(12) /htfti;:^ ii/ir \. iiiwfuin 1 ( \>\vp. 2^1.
,
ANt> (IIATIII. I IKNH,
JfiVf
iIk |Hilrl). !'•<', ImiI iinl In ,i lini lur .1 ^;('lirral l>.il.ill(r
<lii<- hill) Irnin his priiii ip.il ( ,> \)
II .III .1^(111 i'. ciiiiiisiril liy his priiic i|Ml with iiioii'-y
III Itiiy );)mm|', iIic innliry will he i niisitlrrctl Iril'.l IiiidI'.
ill hi'. Ii.iikI'. .Mill iIm- |iiiiiri|>.il h.is thr '..iinr iiiicif.i in
llir ^mmhI', uIkii linll^;hl .{', Iir Ii.kI ill the llllid'. |iI'm
<lii( iii^; tlini) 11 ihc ^mhmI', ■,«» l>nii^;hl iirc iiiixr<l with
ihiiM' u| ihc ,l};r|l| ihr |Miliri|i.ll ll.is .III ('(|iiil.llt|i' tillr
!•• .1 (|ii.iiitily In ]»• i.ikiM liMin tli<- iii.r. ., ('(|iiiv.il('iii lo
liw liniliullnl the IlluiMV .l*l\ .IIM «i| wlli<ll ll.r. iton
n.ril ill ilir |)iii < h;is<-, ,is well .r, to ihc iiiM'\|t(ii<|('(|
I'.ii.ltl* r I .'I ).
Consignor not the owner Nova Scotia, British
(>olumbia and N.W. I'erritories. I'»y ili* It* I'm . At i ,
III li»i(c ill ihrsr iiinvilKrs il i , cii.k hd lh;it wImic iIic
nVNiirrul ^mhmI', h;is ^^ivrii |>os'.c'.sinii nl ihf ynin\,\n
.itiMlhcr |icrsMti lur the |»iir|M)'ic oj < <)ir.i;;iiiiM'iit >ti' ..ilc,
<)i h.r. sliip|M<| the ^immIs in tlw tiiitiM' ol ;iiioth) r ]n\
•.Mil ,111(1 ihc (uiisi^^iicc ul the ^o(mIs h;i', not h.id ii»(ii(c
ih.it sii« h pcriuii is lint tin- owner nl the Mood ,, the « on
si:.^iicc shiill ill respect ol ;nlv;iin «s made to or lor th«-
use ol siK h person have the same lien on the jmxkI, as
il SIM h person were the owner ol the ;4oods and may
ir.insler any sim h lien to aiioiln'r person ; hut this pro
\ ision is not to limit or aHe« t the validit) «»! any sale,
p|cd;4c or disposition, hy a mercantile a^enl (^s)
I his enactment is taken from the imperial la(lors'
.\(t {2h).
Waiver of lien. VVh«Te the far l«)r stands hy and
assents to the sale ol tin; ;^oods hy his principal without
ij,^) l}f\Volf V. I lowland 2 l'.iine (t'.S.C.C!.; .356.
(24) Curler \. Aonjii 2() i'au. S.('.R. 4p.
(25) N.S. I«iws iKy5, »:. 11, s. 7 ; R.S. M.C. 1X97, c. 4, s. H ; Con.
Ord. N W.T. 1898, r. 40, s. 8.
(2^') 52 <V 5.3 Vict. (Imp.j c. 45, s. 7.
2IO
CnNDITIONAI, SAI,i;s
:1li'
claimin;^^ his lien, he is estcmped from settiiij^ it iij) as
aj^^ainst the i)iirchaser who noujj^ht in j^^oocl faii'i with-
out notice of same (27).
The lien may In: waived l)y proving aj^niinst the
insolvent estate of tht; owner of the goods for the
amount for which the lien is held, with knowh^dge that
the goods on which the lien is claimed are incluiled in
the siatenuMit of the inst»lvent's assets as unen-
cumbered, and without taking objection thereto before
accepting a dividend from the (!state (2S).
The factor waives his lien i)y voluntarily giving up
possession of th(! goods to his principal (2q); and if.
when the principal demands the gooils, he refus(!s pos-
session upon other grounils than his right of lien ami
fails to make a claim in respect of his lit;n, the lien is
lost (30). So also, if the factor tortiously pletlge the
goods, he loses his right of lien (31) ; but a factor or
agent is not guilty of theft, by j)ledging or giving a
lien on any goods or tlocument of title to goods
entrust(;d to him for the pur|)ose of sale or otherwise,
for any sum of money no/ o/rafcr than the amount due
to him from his princij)al at the time of pledging or
giving a lien on the same, together with the amount
of any bill of exchange accepted by him for or on
account of his principal (32).
If the factor enters into a special ccjntract which
provides a mode of payment of his claim inconsistent
(27) Stevens \. Robhis 12 Mass. 183 ; Gragg v. Brown 44 Me. 157.
(28) Troop V. Hart 7 Can. S.C.R. 512.
(29) Kniger\. Wilcock, Ambl. 252 ; Bligh v. Davies 28 Heav. 211.
(30) Scarfe v. Morgan 4 M & W. 271.
(31) Holly \,Hugge/ord 8 Pick. (Mass.) 76: Jarviss, Rogers 15
Mass. 396.
(32) Cr. Code (Can.) sec. 305 (5).
AND (JIIATTKI. MENS.
21 I
with th(! cotuiiuiaiiar of a lien, the lien is waiveil {}}):
hut ilrawiii}^ a hill of exchange for advances inailc is
not inconsistent with a riy^ht of lien and is not to be
considered a waiver (34).
A fact«)r is hound to deliver to his principal within
a reasonable time after demand thereof, a full and
complete statement of his dealings with the goods,
and of the account bt:tween them ; and if he fails to do
so he forfeits his lien (35).
Nova Scotia Factors' Act.- By the \o\a Scotia
I'actors' Act of 1895 (36) it is enact(.'d. that where
the owner of goods has given possession of the goods
lo another person for th(; pur|)ose of consignment or
sale, or has shippetl the goods in the name of another
person, and the consignee of the goods has not had
notice that such ju^rson is not the owner of thf; goods,
iIk; consigniH! shall in respect of advances made to or
for the use of such ptrrson. have tht; sann; lien on the
goods as if such person w<'re the owner of the goods,
and may transfer any such litMi to another person.
I'he statute expressly provides that this enactment is
not to limit or affect the validity of any sale, pledge or
disposition by a mercantile agent (37).
{33) Cowell V. Simpson 16 \'es. Jr. 275.
(34) DcW'olfs. Hou'land 2 Paine (U.S.) 356.
(35) Terwilligers. heals U I,ans. (N.Y. ) 403.
(36) N.S. I^ws 1895, c. II, s. 7.
(37) Sec. 7(2).
1^^
i
CHAI'TKR X.
i,iKN> lok w.\ki.ii<>usiN(; AND wiiAKi a«;k.
Warehouseman's Lien. A wartihousLMiiaii has, by
the common law, a specific lien on the ji;ootls which he
stores, in respect of the storaj^n; charj^^es (i). He is
not hoimil to rtrceive t!very article offered to him for
storage; he has a ri^ht of selection both of person and
of property, and need take only those ^^oods, and from
such persons as he chooses. His lien is, therefore, of
a different character, as regards the ri^^hts of third
parties, to that of a carrier or an innkeeper, who is
under a lej^al oblij^ation to rectMve goods (2). And it
has been held that the wartfhouscman with whom the
chattel mortj^aj^or stores the mortgaged goods
accjuires no lien thereon for his charges as against
the chatK^I mortgagee, if the mortgage is recorded so
as to be valid as against a subsecpient purchaser from
the mortgagor (3).
When wheat or other merchandise is received in a
warehouse or elevator nominally on storage for the
person delivering it, but on such terms that the
identical goods are so mixed up with others that they
cannot be returned, and the well-understood course of
the business is that, unless a price is agreed on, the
party delivering the goods can only re(|uire an equi-
valent amount of the same kind and quality to be
accounted for to him, the contract between the parties
is really one of sale and not of bailment, whether the
(i) Jones on Liens, sec. 967; Steinman v. IVilkins 42 Am.
Dec. 254.
(2) Hatimatiti v. Post 12 N.Y. Supp. 213.
(3) Storms V. Smith 137 Mass. 201 ; Haumatiu v. Post 12 N.Y.
Supp. 213.
ANh < II.MTKI, I.IKNS.
'.?
voiul«)r is to receive the price in money or lUi r(|iial
<|uantity of j^oods. or has an option tr> do cither, as the
property in the j^ootls has passed to the warehoiisjr-
inan (4).
A workman who holds a chatt<'l nniler ileuiiiion
in res|)ect of his charges for repairin;; the same, is not
entitled to an additional lien for hims(;lf storing; the;
^oods. althou}.;h such a claim may constitute a debt
from the owner for which an action mij^ht In- ni.iin
tained (5).
When carrier a warehouseman. \\'h« n a shi|>per
stores j^oods from time to tinu* in a railway w.irthniise
loadinj^j a car wIkmi a carload is ready, the responsihiiity
of the railway company in resp«,'ct of such of the j^oods
as have not been s|)et:fically set apart for shipment is
not that of carriers, but of war«'h<)usemen, and in lase
of their accidental destruction by fire, the shipper has
no renu'dy against th«.' company (h). Where lh»?
noods are yet to be i^r.ided, cl.issifieil. markeJ or set
apart from othtTs by the; shipper before they an- ready
for shipment, they cannot be tieenvd to Ix' delivered
to the carrier for carriaj^e (7). So lon^ as the goods
remain in the railway warehouse subject to the |)laimifrs
control and are not to be put /// itimir until something
further has been done, the character of warehouseman
is not changed into that of carrier (S),
(4") /,(fr»7(V V. .\V<('/ (1S9S) \z Man. K. 224.
(5) Hritis/i Eiiipiic S/iif>f>ini^ Co. \. \>mts V.. 15. \' I'.. ;5^, \ui ;
affirmed 8 H.I, Cas. 7,1,^.
(61 Milloy V. (innnf IriDik Ky. (1894) 21 Out. App. 404, reversing
23 Ont. R. 454.
(7) St. Louis fiy. v. A't//x'/if 122 U.S. 79.
(8) Mi//oy V. Gnnii/ Tnitik Ky. ' 1893) 23 Ont. R. 454, 463, per
Rose, J., aiifirmed 21 Ont. App. 404.
:i4
• oMiirmwi svii's
Petroleum warehouse receipts Ontario, i^y thr
Mrrcaiuilr Anwiuliivm Ati it| ( )ni.iri«i ((>), tin* loll(»w-
in;4 s|Miial |trn\ isini) is inadr r«j;artlinj^ trans|t«)rtatinn
and warrlioiisc rijiipis lur i riidr inirolniin in this
proi iiiu' :
All transpuri ilioii aiul w.irrliouHr rt'cripls. accepted
orders and (eriilicates lor cruile peinileiim, issued hy
any conipans herelnfure. or wliicn may, al any time
herealier, l»e incorporated under competent authority,
and autlmri/i'd to larry on the l)usin«'ss «»t" warehousing,
shall he traiiNler.ihle l>\ <'ndorseinent, eiilur spi-cial or
in Mank. and upon heui^ endorsed in hiank shall
become translerahle hv deliver), and every such
endorsement or transfer h) de'li\er\ shall transfer all
riv^ht of propcrt) anil possession ol the petroh-um
mentioned in any such transportation t»r warehouse
recfipi, accepted order or certificate, lo tin- tmdorsee
or IransferLM- thereof, subject l<» the terms aiul conditions
of such iransp( (nation or warehouse receipt, accepted
oriler or certilicate, as fullv and tMnnpletelv as if a sale
ol the petroleum mentioned therein had be<'n made in
the ordinary way ; and on the deliver) of any |)eiroleum
mentioned in such document, b) such company, in
j.»'>od faith, to a person in possession of such iransport-
;.tion or warehouse receipt, accepted order or certificate,
endorsed or transferreil as .iforesaid, the company shall
b(t freed from all further liability in resju-ct th(Teof, and
the I'lulorsee or transferee or holder of ever)' such
transportation or warehouse receipt, acct^pted order or
certilicate, to whom the properly in the petroleum
♦ •nlioned therein passes by reason of such (rndorse-
m
mr
lit or deliverv. shall have transferred to and vested
in him all ris^hts of action and hv sith/tri A' ///. '»'>/<•
liahililics in respect of such |K'troleum if ie contract
i
I
(y) R.S.O. i8»;7, c. 145.
AND iM.MIKI. IIKNs.
315
(h.
cnni.iiiud in ihr iraiisportatiMn nr w.ir«h<»iis«' ri'tript.
iUH'pK'd ttnU'r or tcriilKMlc h.ul lu'cn mailf Wy ihe
ciMMp.my with liimsril" ( lo).
Wharfinger's lien. i'lw lirn ..C a wlLirfm^or is a
(-oiMincrcial one and not Inknulcd nn the lonnnmi law.
hy iisa;>jr Inni; «'sial>lish«'«l it is (••nsiiN'rrd as ,\ s«'Ulfd
|)()itu that a wliarlni^cr h.is, in like manner to a lactor.
I i^cnrral lirn lor thr l>.ilan(«" ol aicoiint dm* him Irnm
the riistomtT. and he is not rrstrii:t<(| to a lien lor
( h ir^i's or ailv.in(<'s in rdatiiui to the |iarti{iil.ir |»ro-
prrty ( I i). rin-' li«'n dors noi attaih imtil thi- j^tnuls
ari' lamltrd at the wharf ( i 2 I, and thr cl.iim lor.i ;;cn«ral
li.tlancc can he maintained only where the customer is
the owner of the M<),)ds at the time ol their arrival ( 1 \),
So where the fonsi;4n(!e sold the j^oods Ik lore their
irrival it was held that the whartin^er could not hold
them for the j^eneral balance ilue him from the con-
signee. aUh«»uy;h he had no notice of the sale until
alter the ^ooils were landed ( 14).
If a wharlinjjiJ'r, in course of luisiness with a
customer, parts with the j^ooils from tim«' to time,
receiving payment at the end of every six months or
every year for all his dues, that course of husimss will
preN'ent him from mainlaininj^ a lien as a;;ainst such
customer (15). it is not n<'cessary that the proprietor
of ,1 wharf upon navijjjahle watiTs. usetl for the lo.idin^
(10) R.S.O. iSgy, c. 145, s. 12.
I II I Xin/or V. Afiiiii^/rs i Ksp. loy ; S/<iitrs v. I/iiit/ry ; Ks|). Hi ;
/\'< \ V. HiiiHf^hiry i McClel. iV Y. 173, 194.
(12) .SivvA- V. Hiiy, 4 T. R . 260.
1;) Kiifi(trifson\. (ioss \ W. \- \\ 111^; ('r,r'tr</i(iv v. Iloinfiiix 4
W .V Aid. 50.
1 14) Cnm'shay v. Homfiay 4 W. & Aid. 50.
( 15) Cnui'shay v. Homfray 4 |{. & Aid. 50.
2l6
CONDITIONAL SALES
ill
and unloadinjj^ of vessels, should have a warehouse, or
shed, or other convenience for the storage of goods
and protection thereof from the weather ; and as such
wharfinger he is entitled to a lien on goods unloaded
at his wharf for money already due to him for wharf-
age (i 6).
If goods are landed in obedience to revenue
regulations at a particular wharf or dock, the wharf-
inger becomes the master's agent and the goods remain
in the constructive possession of the master, and may
be held not only for the wharfage charges but for the
freight due to the master of the ship (17).
And where goods are not required to be landed at
any particular dock, and the common practice! is to
land them at a public wharf and to direct the wharf-
inger not to part with them until the freight charges
are paid, the wharfinger becomes the master's agent,
and the goods remain constructively in the possession
of the master so as to preserve his lien (18).
The power of legislation concerning the collection
of freight and of wharfage and warehouse charges in
respect of merchandise rests solely with the Dominion
Parliament and a Xova Scotia Provincial Act (iq).
was in consequence disallowed as ultra vires, on tht'
recommendation of Sir John Thompson when Minister
of Justice in 1887(20).
Waiver of lien. — The mere fact of a warehouse-
man, who has lien on goods for a certain sum for
3
{lb) Sills V. liiikfoni 26 CraiU (Ont.)si2; Jinuilds. Walker ?>
U.C.C'.P. 37 ; Lhilo V. JA'/,c</// 23 U.C.C.r. 517.
(17) Wilson V. Kymtf i M. <!s: Sel. 157, 162, Faith v. East InJia
Co. 4 B. iS: Aid. 630.
(18) Angell on Carriers, 372 ; Kay on Shipmasters, sec. 313.
(19) N.S, Laws, 1886, c. 56.
(20) Lefroy's Legislative Power in Canada, 643 «; Hodgins'
Provincial Legislation 2nd ed. 558.
AND fllATTKL MKNS.
2\
Storage, claiming also to hold them for an untenable
claim as payable to himself or to a third person, does
not dis|)ense with a tender of the sum due, nor amount
to a omversion of the goods, unless the evidence fairly
warrants the conclusion that such tender would be
useless as it would be refused (21).
Where a firm stored wheat in warehouse and ^ave
in jjayment of warehouse charges a draft on their own
firm fiayable in another city, whereupon the warehouse-
man receipted the account, but after accejjtance «)f the
draft but before its maturity the firm became insolvent.
it was held that the warehouseman could not enforce
a lien during the currency of the bill > 22).
A right of lien is not lost by delivering the gootis
to common carriers for carriage subject to it. or by
accepting from the carriers the amount of his charges
thereon with authority to the latter to colUxl same at
destination {2$). And where goods are received from
the same owner in one transaction, the warehouseman
may release a part of them and hold the remaiiuhr for
the charges against them all (24).
(21) Uados. Morgan 23 U.C.C.I*. 517.
{2t) Kfnalds. Walker 9, U.C.C.r. 37.
<23) Haxwards. G. T.R. 32 UC.R. 392.
(24) S,kmiJt\. filoodf) Wend. (N.Y.)268;
\V. & S. 466.
Steinmav v. Hi /kins
CIIAPTI'K XI.
LiKNS OK CaKUIKKS.
Girrier has a specific lien. A common c;u ritr lias
a specific lien ii|)on ihr i^ootls carried, for his hire in
carrying them { i ), It is a common law rij^ht to retain
the Ljoocis until he is paid for his services but confers
no rij^hl of properly. It attaches only lo the specific
jT(M)ds in the possession of the carrier and secures
t)nly tht; unpaid price for the carriat(<! of thos*; specific
cTooils (2). The carrier can only ac(|uire a lien by a
contract express or im])lied foi a general balance of
account or for transportation cluirges on goods pre-
viously ilelivert;d ( ;).
If the consignee on receiving a railway freight
advice note calls at the railway warehouse and obtains
permission to leave the goods there, nothing being said
about storage, the railway com|)any thertNifter holds
the goods with the liabilities of warehousemen only,
and not as carriers (4). And when a shipper stores
goods from time to time in a railwav warehouse, load-
ing a car when a car-loati is ready, the responsibility
of the railway company in respect of such of the goods
as have not been sj)ecific;;ily set apart for shipment is
not that of carriers but of warehousemen, and in case
of their accidental destruction by fire, the; shipper has
no remedy against the company (5).
The payment of the freight and thi; delivery of the
goods are ordinarily to be concurrent acts. The
(1) Si'/HHrrv. Uf>slunv 2 \A. Raym. 752.
(2) Lt'OHdfi/ V. // />M/if>7t' 2 (Irant (Ont.) 139.
(3) Rushforth v. HadfieUi 7 East 224.
(4) Mayer v. Grand Trunk Ry. U. C.C.I*. 248.
(5) Milloy V. Grand Trunk Ry. (1894) 21 Ont. App. 404.
AM) < IIATTKI. I.II.NS.
219
carrier is not i)()iiiul to dcliviT the cari^o iinlrss the
consii^iiL't; stands rcacly to pay the Ireii^hl at tlir s.iine
timt!. On the othrr haiul, the carrier is not entitled to
demand the freij^ht unless he is r«;ady to deliver the
carii[o. I'here nnist h«' a concurrent readiness on hoih
sides, - on the one to deliver anil on th(' other to
pay i^tr). I'he consignee cannot insist upon a delivery
of any j)art until thi; whole freight is paid (6). If ihe
i^oods are in distinct parcels ami the freii^ht charges
are divisible, the carrier may re(|uir(* the freight on
(;ach separate parcel to In* paid on its deli\(;r\, and
may maUe delivery of parcels separately (7). If a
j)art of the goods are delivered without an insistence
on pa\iiient of any of the freight, the lien is, of course,
lost as to th(* part delivered ; hut it will remain in full
force upon th(; remainder for the payment •►f the total
charge (S).
The carriers are entitled to a lien notwithstanding
that the goods were delivered to them hy a pi;rson
who had stolen them (9).
Carriers by water. Under the Canadian ' Act
respecting the liability of carriers by water ' ( 10), it is
declared and enacted that " carriers by water shall, at
the times and in the manner and on the terms of which
they have respectively given j)ublit notice, nrc/rc and
couvcy, according to such notice, all persons applying
for passage and all gooils offered for conveyance,
unless in either case there is reasonable and sufficient
'
(51/) Black \. Hose 2 Moore I'.C.N.S. 277.
(6) Perez v. Alsop 3 F. \: V. 188.
(7) Black V. Rose 2 Moore I'.C.N.S. 277.
iH) Kx p. Cooper 11 Ch. D. 68.
(9) )'orkev. Genaugh 2 Ixi. Raytn. 866.
(10) R.S.C. 1886, c. 82.
?
220
lUNDITIONAI. SALKS
cause for not doinjj so ( 1 1 ). Carriers by water are
responsible not only for ^oods received on board their
vessels, but also for goods delivered to them for con-
veyance by any such vessel, and are bound to use due
care and dili}j;ence in the safe keeping and punctual
conveyance of such goods, subject to the provisions
of the statute (12).
The shipowners, and the shipmaster as their agent,
have a lien on the goods for the amount of the freight
(1,0. Juid cannot be compelled to part with them until
the freight is paid although the freight is payable 'on
the delivery of the cargo ' ( 14) ; the j)ayment of fn'ight
and the delivery of the cargo are, in that case, to be
considered as concurrent acts. Hut if the contract
provides that the freight shall not be payable until
after the delivery of the cargo, there is no right of
lien (15). A contract to pay freight is imjjlieil from
the fact that the; shipper j)Iaced the goods on boartl to
be carried (16). I'Veight is payable on tht; arrival of
the goods at the |)ort of destination reatly to be
delivered : and if the goods be lost on the vovage
(17), or if their owner be compelled against his will
to receive them at an intermediate port (iS), or if the
ship has been |)roperly abandoned without any inten-
tion of resumption and is subse(|uently brought into
(11) R.S.C. 1886, c. 82, s. 2.
(12) R.S.C. 1886, c. 82, s. 2(2).
(13) Kinhner\. Venus \2 Moo. I'.C. 361.
(14) The Kner)^ie L. R. 6 P.C. 306, 314.
(15) Foster \. Coibv ^ H. tV N. 705; Alsager v. St. K tit liet hies
Dock Co. 14 M. i"v \V. 794.
(16) Dometts. Beckfotd t^W. & Ad. 521.
(17) Kitchners. Venus 12 Moo. I'.C. 361, 390.
(18) The Sohlomsten., L.R. i .Ad. 293, 297; Metcalfe \. Ihittania
2(J.B.r). 423-
AND CHATTEI, MKNS.
231
! I
port by salvors ( 19), no freight is payablt;. I*>i:ii;lit
will be payable in respect oi part of the goods carried
althoii,y;h all of them are not carried, unless th<t charter-
party make the carriage of the whole a condition
precedent to the earning of any freight (20). if the
ship be prevented from completing the voyage, the
master may still earn the whole freight either by
repairing her and within a reasonable time carrying
oil tile goods, or by sending them within a reasonable
time in another shij), to their destination (21 ).
Where the master, in order to jjreserve th(; cargo
from a danger which has not arisen from any default
of the shipowner or his servants, pro|)erly incurs n
extraordinary ex()ense or makes a sacrifictr in taking
such measures as a prudent man would think most
conilucive to the benefit of the ,cargo-owii<,'rs con-
cerned, he has a lien on all the gooils for whose
pn'servation the expense is incurred or sacrifice made
(22). This lien arises whether the expense be for the
preservation of particular goods or such as would be
the subject of a 'general averages' contribution (2;).
Ihere is, however, no lien in favor of the ship-
owner in the absence of an express agreement, <»r of
usage having the force of law, for demurrage (24), or
for wharfage (25), or for pilotage or port charges (26),
(19) The Kathleen, L.R. 4 Ad. 269; The Cito, I,.R. 7 I'.D. 5.
(20) Dakin v. Oxley 15 C.H.N.S. 646, 665.
(21) Benson v. Chapman 2 H. L. Cas. 696, 720: Matthews v.
Gihbs 3 El. & El. 282, 300 ; Kay on Shipmasters sec. 272.
(22) Kay on Shipmasters sec. 294.
367; /////// V. Lamport 16
'38.
(24) Phillips V. Rodie 15 East 547.
(25) Bishop \. Jf<i/r 3 Camp. 360.
(26) Faith V. East India Co. 4 B. & Aid. 630.
(21) Hingston v. n'endt i Q.B.I).
().B.I). 736 ; Crooks v. Allan 5 Q.B.D.
222
( ()N!UTH»N.\I, SAI.KS
or for "ilfiul freiglu, " /.<.. damaj^es for not Inailinj^ a
full cartel, unless so tixctl by iht; charter-party as to
be ascertainable by calculation (27).
The shipowner, and the master as his agei\t. njust
be, in law. in possession of the ship in onler to support
the rij^hl of lien apart from contract; anil if possession
be Ljiven to a charterer in such a way that the mastt?r
ceases to be the servant of tin; shipowntir and beconn'S
the aj^ent of the charterers, the shipowner has no lien
on the' j4<Muls unless he has expressly reserved it by
aj^^ret-nuMU (2S). Where it is th<r common practice to
land the j^oods at a public wharf and to direct the
wharfinger not to part with them until the charges
upon them are paid (29). or where by revenue
regulations tin* goods are riKjuirtal to be laiuhal at
a particular wharf (2g</), the wharfinger l)ec«)mes the
masH-Ts agent, and the gooils nmiain in the construc-
tive possession of the master and his lien is retained.
But the lien will be lost if the master voluntarily parts
with tht! possession of tht; goods in the hands of
himself or of his agent, and he cannot afterwards
reclaim them (30).
Lien dependent upon performance of contract. I lit*
carrier's right to freight, and to detain the goods for
its payment, results from his performance of vthe con-
tract to carry the goods, if he fails to carry the
goods and to hav(; them ready for delivery, he cannot
claim his freight. If through his fault the goods are
(27) Gray V. Catr, I,. R. 6 (J|.B. 522, 558; McLean \. Flcinhii^
I,. R. 2 H.'h. Sc. 128.
(28) Small \'. Moates 9 Bing. 574, 589.
(29) Ani^ell on Carriers 372.
(291/) Wilson V. Kymer i M. iV Sel. 157, 162 ; Faith v. East India
Co. 4 B. iV Aid. 630.
(30) Artaza v. Smallpiece i Ksp. 23; Angell on Carriers 370.
AMI « IIATTKI, I.IKNS.
(23
ilaina^^ctl to an amount in excess of the frei;;hi. he is
not entitletl to deniaiul anylhinj^^ for the carria;;*' of the
;,fooils ; and if thi? damaj^es he less than the freij^hi
(harj^^es. the amount he is entitled toilemand is reihiced
to that extent. If hy reason of sucli injury to die
'•oods he is not entitled to demand any freight, h<' lias
no rij^dit to retain the j^^oods for the paMiienl offreij^ht.
and if he iloes so thev mav he taken from him hv
re|>levin ( ;i ).
I'here is no j^ood reason why the carrier's liability for
tlamaj^es to the j^oodsaccruinj^ tlirou;^h his fault, should
not he asserteil and determined hy way of defence
to the claim for freij^dit as well as hy a cross-action ;
it would he contrary to the analoviies of cases in\ol\ in«'
similar relations of suhject-matter and parlies. i«» sas
nothin;4 of the hardships to the consi^^nee. to r«'(|Mire
him to pay the freij^dn upon the i^dods, and then to
trust to the ri'sponsihility of the carrier at the end of
a lawsuit for the recoyery of the daniajn<'s to the j^oods
sustaineil through the fault of the carrier {t,2).
Statutory rights under the Railway Act (Canada).
In cast; of denial or nej^lect of |)aynuMit on demand of
any 'tolls' due to a railway company within iht;
legislative authority of the Dominion Parliament the
same are hy the Railway Act of Canada m itle
recoyerahU; in any court of compettmt jurisdiction
The expression 'toll' includes any rate or chart;*- {^^).
made for the conyenience of any |)assenger. j^ooils. or
carriay^e, or for the collection, loading, unlo.idinj;,
cording or delivery of goods, or for warehousing or
(31) Jones on IJens, sec. 331.
(32) Dyfr V. Grand Trvnk Ry. 42 N't. 441, per Uarrett, j.
(33) 51 ^'ict- (Can.) 1880, c. 29, s 234.
234
(ONDITIONAI. SM.KS
for wharfage, or other services incidental to the busi-
ness of a carrier (34). The agents or servants of th»!
company may seize the goods for or in respect whereof
the tolls are payable, and may detain the same until
|)iiyment thereof, anil in the meiuuime the goods art;
at the risk of the owners (36). If the tolls are not
j)aitl within 6 weeks, the company may sell the
wh(>i(! or any part of such goods, and out of the money
arising from such sale retain the tolls payable, and all
reasonable charges and expenses of such seizure,
detention and sale, and shall deliver the surplus, if
any, or such of the goods as remain unsold, to the
|)erson eiititieil thereto (37).
If any goods remain in the possession of the
company unclaimed for 12 months, the company may
ther(;aft(T. and on giving public notice thereof by
advertisement for 6 weeks in the ofificial Ciazette of
the province in which such goods are, and in such
other newspapers as it deems necessary, sell such
gooils by public auction at a time and place which
shall be mentioned in such advertisement, and out of
the proceeds thereof pay such tolls and all reasonable
charges for storing, advertising and selling such
goods (38). The balance of the proceeds, if any,
must be kept by the company for a further period of 3
months to be paid over to any person entitled thereto ;
and in default of its being claimed within that
time, it shall be paid over to the Minister of Finance
and Receiver Cieneral for the public uses of Canada
until claimed by the person entitled thereto (39).
(34) 51 Vict. (Can.) 1888, c. 29, sec. 2 («).
(36) Railway Act (Can.) sec. 234.
(37) Sec. 235.
(38) Sec. 236.
(39) Railway Act (Can.) 1888, s. 236, 237.
AM* rilATTII. I.IIIXS. 225
Separate consignments under one contract. It tin*
i^odtls arc cairinr mulcr one conir.K t ilir lini will
allacli upon any one or more of ihc parcels noiwiili-
-.l.imlinj' inal lln-y were dcliNcrcil to the carrier at
ililterent times (40). It s«'veral Wills of" ladin;^ arc
;^i\cii in '•especl of s(!veral parcels shipped liy the
same consi;;nor to the same consijjfnee, and the hills
of ladinj^ are translerred to dilTerent persons, the
carriers will not have a lien lor the iVeij^hi due in
respect ol one ol such sj-par.ite pari'<'ls upon the ^oods
(ontained in another parcel covered by another hill ol
lad in,:; (4 1 I.
Separate liens changed to one general lien. 1 1
>.e\('ral cargoes ol coal are carried 1)\ a railwascom-
paiu to the same consij^nee uiuler contract entitling;
tin- compaii)' to no more than a separate lien upon eaih
lar^o tor the iVeii^ht due in respect ol" s.une, and the
coal is mixed to^icther in hins upon the compan\'s land
1»\ direction ol the consii^nee so that they cannot he
distinjuuisheil. then all the coal will he re|^arded in law
.11 delivered together, and the separate lien upon each
cargo will merge into a general lien upon the whole
(|uantit\ (42) ; and. although the compaiu allow roal
to he withdrawn from time to lime l)\ the consignee
lor deliver)' to j)urchasers from him, their lien will
remain gootl lor the tVeight on all the cargoes, and
they may prevent the t.iking aw.iy of any more of the
coal without pa\ nient ol" the unpaid .treight.
Refusal to pay freight. 1 he lien is not alTected hy
the ret'usal ol" the consignee to accept the goods (4,;).
(40) Chase \. ll'estiiiorf ^ M. vV S. iHo.
41 ) Sot/ftf^ii-n V. Flight u Kast 622.
4J) I.ane\. Old Colony A'v. 14 dray (Mass.) 14;, : Jones on I.iens,
se<:
U.?) It'fi/^fl,l\.(rff,i/ ll'fitrrfi 52 I,.|.(J.B. 276.
14
326
( ONIHTIONAI, S/\r,KS
Ipon the refusal <»f the consij^ncc to an cpl the j^nnds
ami pay the iVri^lu. ihc larrii-r is not nultN'tl In take
the ^riMuls l)ark rorthwilh to the place from which the\
were shippetl . he is ImmiiuI tn keep them Inr a reason
al)le length ol time at the plate where they were i«»
he delivered, so as to j^ive the consij^nee an opporiiiiiit\
of ol)tainin<4 the ;,ohhIs upon paying ilu- carriers
demand (44). If the j^ootls are left in the carrier's
hands without fault on his part, he is hound to take
reasonahle measures for their preservation, an<l may
recover the expenses so incurred, and maintain a lien
therefor (45).
Connecting^ lines. \\ hert; there are several succes-
sive; carriers anti each succeedinjj; carrier pays the
back fri!i};lit charj^es to the immediatt; carrier Ironi
whom he receivi!S tin* j^oods ami the last carrier i laims
his own lr(;i;4ht charj^^cs />///s all hack ( harjj;es paiil I»n
him. it is not hy any means clear that the last carri<'r
can collect the whole sum thus charged, or that he
has a litrn on th(! ii^oods for what he may d.iim as his
own frtM«;ht charj^cs and thtr advances paid by him
If the first carrier has received the ^ooils to be
transported to the place to which they are tinally
carried, with no stipulation in the contract as to price,
and no condition limitin<^^ his rt.'S|)onsibility to the lime
when the },;<)ods art; delivered to the next carriiT, or
providin},; that money paid for the conveyance beyond
this terminus is received only for payment to the next
carrier, the consijjjnor's contract is with the first
carrier alone, and all tht; successive carriers nrv. the
mere agents of the first carrier, and can of ri},,^ht assert
no lien in respect of the charges for freight or carriage
(44) Gtfii/ IVestern v. Crouch 3 H. & N. 183.
(45) Great Northern v. SwaffieU, L.R. y Ex. 132.
.\M» iiiahii, I.IINS.
23:
IhIwim'ii llu- two termini, «xc<'|>t .is tlu' .issiy;nt'i' or
.i^rnt of tilt; first i;irrirr.
Tlu'rc may Iw a li«'ii on thr j^ouils Ittr tlu- nasnn-
at)le aiul fair frcii^lu and tlu- ri;;lu to assert this lieu
may rest in the last carrier not as an in(le|iiiulent aiitl
absolute ri^lu in liimselt hut as the assi^^iiee .iiul
a^ent of lh(! first carrier ; th«* ionsi;^ner Is hahle to
|>ay tlu! r(MSonal»l«! and lair frei^^ht i/uiiiihiiu iturnif.
luit not the money advaiued hy the last larrier to
|»rec«'din^ carriers simply hecaiise \\v has paid it. nor
the freij^ht of th<! last carrier sim|)ly Ihc.uisc hr makes
the char^^t!. I'lu' last carrier ma\ i)e (niisidrred ijir
aj^f'iU of the first carrier and assert .1 rij^hl to ret over
in his name, or he may be consiiNretl as the .issi;^nee-'
ol' th«' first carrier, hut in <iihercase he is in no lutter
jtosition than the first carrier with whom the {unir.K t
was made, and ;:an r«'co\er only what is re.istm.ilile
and fair. </iittiifuni nicniil (4O).
In the United States it is held that .1 riilniad
receivinj; ;.;()ods consij^ned to a place hcNoiid its own
line is cloth(;d with the apparent atiihorit) of (he
cc-nsij^nor to forward the j^oods hy aiu iisii.d nmte ;
and where the first carrier was instructed to lurw.ird
hy a specified railway from the plac«' «)f transhipment
hut disrejj;arded the instructions and forw.ir led tin-
^^oods hy another railway company. th<- latter was held
to he «:ntitl(;d notwithstandinjj; to a lien lor its own
charj^esand for prior char;^a's paid to other c.irriers (47).
Mr. Justice IJrewer in (U.-liverinj; his Jud^MneiU in
the Pattcii case said : " Anv other rule would work
"a serious hindranci.' to the immense trans|)ort.aion
"business of to-day, while this rule protects both
(46) Trotiur \. Red River TransporUUion Co. (iSjy) Man. Rep.
temp. Wood 255.
(47) Patten v. Union Pacific Ry. 29 Fed. Rep. 590 : but see
contra Fitch v. Newberry 40 Am. iJec. 33, i Doug. (Mich.) i.
ajS
IMNhlllONAI. «..\|»
** c.irrirr ami mwiut. It* ihi- tirst «.irri«r (lisnl>r\H Itis
"instriH linns li\ which loss r«'siih> to thr nwiur. such
" < .kirii-r is lialih* to .in .ulion nt (i.nn.tj^cs, .tml, .is is
" |»ru|M r. ll> \\rnn;^<|i)rr sull«ls ihr InsH. .\l thr
"snni' linn' tin' snontl .iiui innncrijt jMtrirr
" h.i\ ini^ ilonc the nmhU oI trans|)<irt,itinn nccixi-s, as
•' hr oiiyhi. lln insi Inij^ht ih«r»htr. I'h« lirst (.nrirr
•* is tin .i;4<nt ol the M\\n«r; it hr h.is dnnr wmn;;.
"v\hy shiiulil nut ihr print i|>.ii hr rrniiitrd tn his
" action .i;4.iinsi his wmnj^ duin^ a;;rni. and win
"shonid thr liin'drn ol iiti^^.ition hi* cast ti|>on thr
" inno( ml sriond r.iirirr .^ \nd whs should
"thr ovvnrr, uiio his had his i^oods r.irrird in ihr
" pi.u r of tirsiin.ition. hr |(riinillri| ti) t.ikf liwin hoin
"ihr iMiiirr wilhoiii an) paynirnt lor siuh tr.mspnrl.i
"lion? Is thr roiitr by which ihr fVrij^hl is trans
" portrd ,1 inaitrr so \ itai to him th.ii. larrird oxer thr
** wron;^ roiitr hr is I'Htith'd r(|iiil.il»ly to tilr ptissrssion
"nt his -4oods trr«' tVoin am Imrdrn ol iViij^ht ?' (.pS).
|{\ i^rnrral us.ij^r tlu! i.ist c,irri«T pays all prior
frrij^ht ch.irjj^rs, ami hr has a lirn lor |>rr\ inus trrij^rhi
chari^rs paid hy him upon thr i^ontls. as vv<'ll as tor his
own ch.ir;4r. IWisinrss iniild imt well hr condiictrd
unless thr succr<'dinj4 carrirr were pmirctrd in
making such paynirnt. It" a carrier ( inplnys annthrr
carrier in his placr to fnrward thr ^onds ihv. laitrr has
a lirn, imlrss paymrnt has hrrn made' In the carrier
who nceived the 14 nods in adv.inc(.'. And in the case
of connectinj^ carriers the last carrier who has rec<'ive<l
and transport«.'d the jjjoods without notice that a
former carrit-r has receipted tor all charges throuj^jh to
the destination of the j^oods, is entitled to a lien tor
Ills own charges (49). lint if th«' goods are received
(4S) /',///<••«%. fmon Pacific 2\) I'ed. Re[). 51*0
(4y) Jones on l.iens sec. ay8 ; Wolf s, Hou^h 22 Kans. 659.
ANh < MAI III III Vs.
999
IrMm ilir previous cirri* r with kiiuwlrtl.;!' ili.il a
<Mi)(r.ui lor (-.iri'sin;; iIdiii li.is Itrni in.t«l< .uul tin*
ilirt»'.i;;lt Irri^^lu |»r«|Mii| t<> \\\r |»r«\i(»iis t.irri»r. hr Ih
ImiiiiuI l>y th'tt (oiitr.Kt .uul h.is nu lim ii|mmi ilic
j^.mmIs (50).
W'lurr, hnwi'vcr. tb • payiiKul u| rli.ir^'cs h.is liroii
iiM>li- it) .i(l\.itu.<- .uul ilx' (uiitr.tti tliifs, not itM|)K that
iImt*' shall !(«• a «h*li\«'r\ ul' th»' j;«in.ls in ,1 (mim » liii^
nr nijur larrirr. a larrirr ••mpluyttl l»y tin* iuiiii.it niiy;
( .irricr to act in siibstiiiiiiMi) for hiinsi-ll will Imm ho
Iji'ii, hill must look lo the |M-rsoi) who 1 tn|)lo\r(l him
( ; I I. If tlu" last ( .irritr h.is paid to .1 pi» \ i.»iis • .urirr
• Mrssivc an<l improper » harj^rs the litn will Im:
risiritlcd to rrasonahlf r.itrs JSJl.
I'lu' nvrr fad that the carrier has |>ai(l i harj^rs
upon the Muods dors not enahic him to rct.iiii iluin
tiir more than tin- usual ami proper char^^^es lor their
ir.msportatioii. nor lor any char;;es disc oniuc led with
the cost of transport. ition. A prior deht due to ilu?
lorwardinj^' a^enl from the shi|>per an*l prep.iid lt\ the
t.irrier will not justify the detention of the i^o.kIs hy
the latter against the consignee (5,^).
Demurrage. I)emurra;4e is an allowance which
mariiH! law makes l»y w.iy of ind«'mnil\ to ilu c irrier
where the Vessel h.is heen detained unreason. ildy lon^
in lo.idinn or unloading; tin* car;^Mi throui^h tin- fiuli of
the customer (54). If the ri^iht exists .it all so .is to
afford a lien indi-peiidently of contract, si.itiiie, or
(501 Marsh V. I'liioti I'liiifii \ Mi(!rar\ R. iL'.S.) .",''• '' I'C'd.
K.,S7,v
(51) A'on/cwivif V. /.i'i<,/iir I I lilton (N. \'. ) 499.
(52) Travi'i V. Tliomt<\on yi IJarh. (N.Y.) .'54; Mii//orv \.
lUiirett I K. I). Smith (N.V.) ^y,^,.
'5.^) Vit ai'ii'i V. Kioft 35 Mo. 67.
(541 Schouler on Hailnicnts 3rd cd., sc<:. 540.
23*^
< oMdlloNAI, SAM'S
iisajjj«' taiilainoimi in law. it is confined to carriage hy
\\at«'r ; and wliiK' railroad cirriers may store in case of
delay, and chargi' storage rales, or perhaps sue for
special daniajne. they cannot apart from contract or
staliitorv simction claim ilemiirra'>(' nor enforce such a
claim hy a lien upon the goods (55).
Lien on passenger's baggage. Carriers of pas-
sengers ha\(' the same lien upon the passtMiger's hag-
gage for the recov(rry of his fare as they would hav(;
for the carriage nf his goods, and this lien will co\er
not onK the baggage given o\(.'r to the care of the
carrier to be re (leli\(M'ed to the |)assenger at his
destination, but such baggage; as the passenger takes
with him into iIk; passenger coach (56).
The lien on a passenger's baggage is lost if the
|)assenger re lakes the baggage into his personal con-
trol and |)ossi!ssion before the carrier taki;s possession
of it (57).
The passenger is entitled to a reasonable lime
after his baggage is placed upon the railway platform,
at the; end of the journey, to call for it and take it
away (5S). WhtMi \\\v carriers put the passenger's
baggage on the |)lalform, or other usual j)lace of
delivery, risidy to be delivered to the passenger, as
they are bound to do. the owner is under an obligation
to call for and receive it within a reasonable time (59).
And. if the passenger elects to leave the baggage
k
(55) OiiiiJi^o Jiy.w Jrtikitis 103 III. 588; Sclioiiler's Bailments,
sec. 540.
(56) Hiitchiu^s V. Western Ry. 71 Am. Pec. 156; Hig^ius v.
Bret lie rtou 5 C. v\: I*. 2
(57) Einerson s. Niagara Navigation Co. (1883) 2 Ont. R. 528.
(58). Pentoti V. Grand Trunk Ry. (1871) 28 U.C.R. 367; Halls.
Grand Trunk Ry. 34 U.C.R. 517.
(59) Shepherds. Bristol ^^^ E.xeter Ry., I,.R. 3 Ex. 189.
AMI ClIATTI.I, I,II:Ns.
^3'
unclaimed until tht: nexi ila) after it is re-ady to Ik.*
• leiivrreil to him. their liability as carri<!rs is at an «*nil.
.md. if they place the ^ootls in a l)a)4!naj4e room or.
w .tr<r house, they are not under any hi^iur lialjility
than that of warehousemen (60).
Waiver. I he carrier waives his lim l)y deiiNcrini^
the j;«kkI> without first obtaining payment of tin*
char;;es for carriage (61 ). If the master of ,1 xcsscj
Miluntarily de()osit the ^oods in a wareliousc on
landing th« m and so \^\\r another |)erson a lien «»n
them, the master loses his own lien for the fn-ij^hi
e\< I) thtiutjh such other person slionkl undertake with
him not 10 drliv<!r the goods to the consii^iiee without
being |«itl the freight charges (62) ; but if the i^oods
.ir<- taken out of the ship /// invitiini anil by conipul-
si(»n of law, the lien will be prt;ser\ed at the pi. ice
where the gomis are d(;posited by law (63).
The carrier's litm is not lost in case the goods are
obtained from him by fraud ; he has not in such case
Noluntarily flirted with the possession. His /v;'/// of
po>ses>»i<»n remains and he ma\' assert tliis rii^ht by
replevying the gooils. though the\" Ik; in the hands of
the consignee (64). A right of lien for freight is not
lost by demanding in addition some other charges
not reco\ enible. pnjvided the amoinit of freight for
which a lien in fact existed was not tenderetl (O5I.
If the bill of lading represents the freight to ha\e
been jiaid. when in fact it not not bi;en paiil. that will
(60) VinrhfTj; v. iirand Trunk Ry. (1886) 13 Out. .App. 93, 99.
(61) Jiigf/ffU' V. Heaion ^ Denio (N.V. ) 49*^).
(62) Mon-lf-Blamhs. Wilson I..R. 8C.1'. 327.
(63* Wilton V. Kymer i M. vS: S. 157.
'64) Wallaif V. Woodgate, Ry. ^- M. 193; liii^ctow v. H talon 4
Denio (X.V. >496.
(65) Bufalo and Lake Huron Ry. v. Gordon 16 U.C. R. 283.
5 13
32
(ONHITIONAI- SAI.KS
constitute an estoppel ai^ainst a claim of the frei|Lilu
as H'j^arils a iransleree of the hill of ladinj^ for \aiiie
(06) ; aiul a lien is waived hy the larrier ohlaininj; the
^ootls to he seized hy the sheriff under an exnulion
at his suit (67).
(66) '/'iiifiiiito V. Siiii/ison I,. K. iC.l'. .?".?; /Icnariiw Tutkitx
Hani. \- Acl. -\2.
(67) Ke Coumhf z.\ (Ir. (( )iit. 1 5i(;.
C IIAI'II-R Nil.
WdOD.MKNS LiKNS AND LiKNS lok TlMlilK I )l lis.
Woodmen have no common law lien. W ooclincii
or I. il)( Hirers (MUployj'd in culliniL;. Iiaiiliii;4 and (lri\ inj^
litnlxT had, at coninion law, no lien upon die limlx-r i i ),
for, from iht; naliin- of tin; t'ni|)lo\ incnl. duy loiiltl
not retain possi'ssion of thi; timber.
Property in growing timber. W'lien- ihe owner of
tiniheretl land has \(;rl)ally a_Ljn-ed to sell j^rowin;^
timher to another, th(; property in the trees passes
lo the hiiyiT as soon as thi; trees are severed from
the freehold and notwithstanding; a dispute iniween
lh<' parties as to what was thir pric(; aj^^reed upon ;
hut liii; landowner has a lien upon the limlter for
the price, and the purchaser is not enlitU;d to remove
them without satisfy inj; the lic-n (2).
WHiere the landowner sold and conveyed lhetimlK;r
and cordwood thert.-on and the purchaser j^ave his note
in paynvMit and took possession, anti aft<'r cuitin.L; the
timber n*sold it and abscond«;d without paying tile noti:,
the laiulowiH.'r was held to have no lien (3).
In McLcod \. \i"io lirunsi\.Hck /un/icny Coin-
f>aiiy (4) the respond(MU comj)any were owners of
timber lands in \<;w Hrunswick and iL^ranted ('. <S: S.
a lic(;nse to cut on twenty-five s(|i!an! miles, liy the
license it was a^ree-d, inter alia, as follows :
(i) Oakes s. Moore 24 Me. 214; Ariam \. Ihickhy ^15 Wis. 26;
Olii'er V. Woothnan 66 Me. 54.
{i) McCarthy \.Olher 10 C.L.J. 1^0, (A, Wilson,!.): 14
U.C.C.R 290.
(3) Wyatts. Bank of Toronto, 8 U.C.C.r. 104.
(4) McLeoiis. Neiv Iiruns7C'ick Jiy. Co. 5 Can. S.C^.K. 2S1.
J-
234
( (>NI>HI(»NAI. SAI.I.S
" Saitl sliiinpagc to be paid in the follow in jjj
manner : saitl c«)m|)any shall iirsi clecUict from ihe
amount of stumpa^e on the timber or linnher cm
by the grant<;es on this license as aforesaid, an
amount (!<|iial to the mileai^c |)aid by them as afore-
saiil, and lUv whole of the remainder, if an\, shall,
n<»l later than the i sih of Aj»ril next, be secured by i^ood
CMulorsed notes, or other sufficient s<,'curit\ t(» b<-
approNcd of by the said comp.my, antl payable on
the 15th July next, and thi' lumber not to be removed
from the brows or laiulin^s till the stmupai^c is secured
as aforesaiil. .Anil said companx reserxcs and r<tains
full and complete ownt?rship ami control of all lumber
which shall 1m: cut from the afore nuMitioned premises,
wherever and however it may be situated, until all
matters or thinj^s appertaininj; lo or comufcled with
this license shall be settled and adjusted and all sums
due or to become ilue for stumpaj^tr or oiherwist; shall
be fully paid, and any Hnd all damai^es for non-pi.-r-
forman^e of t'lis agreement, or stipulations ht.'rein
expressed, shali be li(|uidated and |»;iid. And if any
sum of money shall have become payable by any one
of the stipulations or agreements herein expressed, and
shidl not be paid or secured in some of the moiles herein
expressed within teii da\ s thereafter, then, in such case,
said company shall have full power ;md authority to
take all or any part of said lumber where\t:r or how-
ever situated, and to absolutely sell and tlispost; of the
same either at priNate or public sale, for cash : and, after
deiluctinj4 reasonable ex|)enses. commissions and all
sums which may then be due or may become due from
any cause whatever, as herein ex|)ressed, the balance,
if any there may be, they shall pay over on demand to
said grantees, after a reasonable time ft)r ascertainin«;
' ' amounts due, or which may become
(|UI
ith
mg
ue, either as stumpage or damage.
ANh ( IIATTII. I.IINs.
235
l"or sccurinj^ tin: siiiin|»a^<' payahir to rcspniulcius
iiiuhr tliis licrnse.C'.itS. j^avc l<> the rrspoiulenlsa dral'i
upon J. ^c Cii., whicli was acc(!pt«'(l \i\ J. ^s: C'(»., and
approved of l)y ihc rcspoiulrnis, hut wliich was not paid
at niaturilv. AfuT j^ivini^ ihc tlrali ( '. tS: S. sold ilic
liiinlxr to J.iS: ( o., who knew llic luinl)(r was cut on llic
|)laintitf s land under iIk; said aj^reenient. J.^s:( "o. tailed,
and appellant, tln'ir assiirnec. took possession <»! the
luinher and sold it. It was held I>n the Supreme ( "ourt
ol ( luiada, I I'er Stron;^. laschereau and ( iw\ nm-, | |..
(.itlirniini^ the jud^^nient of th*- f(nirt helow ). kilchie,
(■.|., and j-'ournier and llenry. J J.. dissentin|n| that
u|n>n the case as submitted, and l)\tnere force of the
frms of the ajjjreement. the ahsolute pr(»p<'rt\ in the
lumlxr in (|uestion did not pass to ('. ^^ S. immediatel)
uptin the receipt l)\' the compan\ of the accepted draft
of ('. ^ S. on J. & ( (>., and that appellant was liable
for the actual payment ol the stumpajjfe (5).
\\ here timber siandini; upon any land ri j^isiered
under the Ontario Land Titles Act is sold under an
ai^ncemenl in writinii;, the purchaser instead of enter-
ing; ;i caution, may deposit the agreement with the
Master of Titles of the comity, ( ity. town, or district ;
and such Master, upon j)roof of th<; due (.-xecution
thereof by the own«!r, shall rej^ister the same as an
incumbrance upon the land by eiiti'rinj^ a memorandum
upon lh(' r<!Ljister of tin; parcel, referrin<4 to th',* instru-
ment and i^ivin;^ shortly the eflect thereof (0).
Extent of statutory lien. In the l'ro\inc('s of
Ontario. Ouebec, liritish Colinnbia and ManitoI)a
statutes have been passed <i[ivin!4 '^ ''<^''' ^" woodnuii
(5) M(Leod\. NcU' Bninsiviik Hy. Co. 5 Can. SC.R. 281.
(6) R.S.O. i8c;7,c. 1,^8, s. 80.
2yy
t n\m I hiNAI. nAI.KS
I-
Miul ollicrs «'iv::i;^«'(l in j^n'tiin;^ nut timlxT and Ifrin;^-
\\\^ it to market. 1 1 thr scrxiti'S ha\r I urn in
lunjiMulitin wilii scM-ral nihcrs. as wlu-ri* a ninnln-r of
tcanisicrs ar«' <n^a;4<'(I in haulinj^ loj^s vvliitii arc
tlicrrallcr ini\<il in^cijur. ilir lien is not limiird as t<>
t'ach In tin- identical lo^s he has haiiNd althnii^li th«'
eniploynu'iil of ••acli is separate, hut it mas' in such
case h«' entorceil hv anv n\ ijieni against an\ pinion
ol tile lot ol loi^s upon uhiih he and the others
Nvorkeil (;). And if the owner inierniini^Ie loj^s o| a
p.u'ticular mark and upon which there is a woodman's
lien, with others hearing the same mark also Itelonj^-
in}4 to him. anti the former cannot he disiint;uished.
the lien is enforct-ahh- a<;ainst all of them (S) ; hut if
sevt.'ral owners separateK em|)loy the same drivers,
and in the drive all the lojj^s lurome intermixeil. tin.'
liens are not collecti\'eK upon the whole mass of lo^s,
hut upon the loi^s of each owner separat«'l\ for the
proportionate amount of lahor bestowed therei)n (ij).
Woodman's Lien British Columbia. A statute
respecting the lien of woodmc'n for wajni-s w.is passed
in liritish Columhia in |S()5 (lo). in many respects
similar to the Woodman's Lien Act of New lirunswick
j)asse(l in the pre\ ious year, and to tht; Woodmen's
Lien Act of M.uiiloha piussed in iSqv
Any person perlormin;^ any lahor. service or
ser\ices in comicction with any logs or timber in the
province of llritish Columbia has a statutory lien
thereon for the amount du«'. subject onK to limber
dues or charj^es payable to the Crown, anti to tolls due
(7 /ill ///i, i- \. //tum// ()i Wis. ()() . Ki'iHf wCotnstOik (i"; \\i^. 47^
(8i /\tr\-it \. H'tJ/hims 77 Me. 4iS.
(9) Hamiiton \. Muck 36 .\te. 5,?f) ; Olivir v. Woodmau ')6 Me. 54
Af>(>lftnan v. Myre 74 .Mich. 359.
(10 B.C. Acts iS(j5, c. 58; k.S. H.(\ iS(;7, c. 194.
AMI (IIMIII III \s.
-\;r
•<•
or
n
lilt*
lien
Ml
her
s
(IlK!
is.
473-
Me. 54
lit ,in\ limlHT slidr coinitaiiN <>r owner i»| sliilt>, .iiul
liooins III). I In- ri^hi ot" lien ••xinids lo looUs.
hiai'ksiuilli'', arli^iins ,uu\ .ill otlwrs iisu.iIIn <in|(|ii\ td
in fonnct lion willi iIk- "(Uiiin;^, ikiililin:^, Irllniu;.
h.mlin}.;. sciilinL:, l>.inl<in;^, (lii\in;^. iiinnin^', laliin:; or
Ixioinii'L; 'in\ loj^s or liinlxr ' i\2). This sMtiiior\
lien (liii-^ noi all.uh lo or remain a ( har^e nn ihe juj^s or
liinher unless anci iiniil a siaienient ihereol in wrilin'.^,
\i-rilie(l upon oath hy the |>erson clainiinL^ sue h lien nr
-.iiMieone titily authorized on iiis liehall. shall he tiled
in the ottiic t>l the ke;^isirar ol ihe ('uunt\ ( ouri
li.i\ inj; jurisdiction 'n the counu , district or jMirtion ol
district, in which the laltor or sers ii:e or snme part
thereoj' has been perfornu-d ; or il in a part ot the
province l)e\ oiul ihe jurisiliction of any tomiis (ouri.
then with the nean-st llriiish ("oluinhia (ioverinneiit
ameiil ( I .O- I li<' l'*"'i statement in statutory t«trni ( i ;)
i>r to the like elTeci must he tiled within ;,() da\s alter
the last day upon which the ser\ ices were pjrl'ormed,
and must set oui hrietly ilu- nature ot the deht,
demand or claim, the anioimt due to the (laimant, as
iu!ar .IS ma\ lie. over and ahovt- all l< ^.il set-otls or
counterclaims, and a description ol the lo^v, or limher
upon or ai^^ainst which the li( ii is claimed (15).
No sale or iranstcr duriniL; the time so limited lor
rilin;4 and |>re\ioiis to the tiliii;,^. or duriii;^ the time;
limited after the lilin^ lor enlorcini^ the lien will allect
the same, e.\ce|)t as to "sawn timlH"- st»Id in tin-
ordinar\ course of business " ( 16). Ihe lien will ter-
(11) K.S li.C. r. i()4, s. V
(I.') K.S. ll.C. iS.,7, c. it,4. s. 2.
(i_\) K..S. !!.('. i8<>7, c. n>4, ?». 4.
(14) .Scliediile to R.S.H.t". iHijj, r. 194.
(15) R.S.H.C. i.Sy;, c. n>4, ss. 5, 6.
[i(y) R.S.H.C. |S<)7, c. I. ,4. s. (I.
HT
23«
toNimioNAi. >.\i.i:s
luinatr. iinlt-'ss pmctTtliiij^s t<> mlMrctr llu* sanu' .in*
coniim'ncril wiihin ^;o days after the filin;^ nf tin- lini
stat<im'm. <»r alUT tin* rxpiry of tin- jwrind nf cri'dii,
l>y suit in the rounly Court vvlurr suih li«'ii is tilrd,
prnvidrd tlu- stun riaitncd is witliin thr jtirisdirtinn ul
sncli iniirt. and oihrrwist* in thr Su|»r«inr Court ol
British ("ohnnhia (17). Iln' CoiMity Courts havr
juris(h( tion in all |)crsonal actions whctc the d('i)t or
dania;4«s claiinrd do not <'\r«'(rtl $ 1.000, and in all
actions \vhcri' tin* drht or demand claimed consists ol
a balance not exceedinj,' $1,000 after an admitted set
off of any deht or demand claimed or recovered hy
the ilefe-ndani from the plaintiff ( iS).
A s<'i/iire or det<iuion und<r th<' Woodman's I.ien
Act is not authorized as t«) any loj^s or timher in
transit from the place where cut to the place of
(Nstin.ition. when such place of destination is within
th.e district in which the proceetlin^is under tin- .Act
ha\i' licen comnu'nced ; hut in case such lo^s or limher
an- s<) in transit, or are in the; possession of any
hooinin;,^ company or otlu^r person or corporation for
the purpose of iH-injj; driven (»r sorte<l anti ilelixcred to
tln" owners, or to satisfy any statutory litrn. then
attachment of said loj^^s or timher may Ix* made hy
ser\ini4 a copy (»f the attachmt'nt upon the perstui or
corporation drawiui; or holdin}^ the same, who shall
from the timt! (»f such servict' he deemed to hold the
same both on their own hehalf and for the sheriff to
the extent of th«! Ii(!n. until th(! lo<,^s or timher can be
ilriven and sorted out ( 19).
liy thf: liritish Columbia Mechanics' Lien Act (20).
(17) R..S. H.C, 1897, c. 194, «;. 7.
(iS) R.S.Il.C. 1897, c. 52, s. 24.
(19) R.S. B.C. 1897, c. 194, s. 16.
(201 R.S.H.C. 1897, c. 1,^2.
\M» « II Mil I. I.II.NS.
2.^9
it is cnacUHl that t'vttry prrson inakinjr or nurrinj;
iiUtt .m> omiract, <'n^a;;<'im'm or a^rcfnuiit with any
uthtr pfrsnii for the purposr f»f' lurnisliin^. siipplsini^
or ohtaiiiinj; tiinln'r or loj^s. by whicli it is rr(|iiisii«'
aiul iH.'Ct'ssary to «'nj;a};t' ami tinploy worknu-n and
l.ihourcrs in the ohtainin^, siipplyin<4 and liirnishini;
siuh lo^s or liinlu'r as alor«'sai<l. shall. Iirlup' in.ikinj;
any paynirnt (or or on hrhall ol" or iindrr muIi ( (inirari.
ni«;a;.^«'im'nt or aj^ai'dncnt. ol any sum of nioncN. or
l>y kind, rt'(iuir»' such person to whom pasincnt is to
Itr made to prothiff and tiirnish a pay-roll or s[ir«i of
th«' waives and anioiini due and owin;^. and of ihf
pa\nirnt thereof (or if not |>aid. tin- ainouiii ol waives
or |).iy due and owiiij^). to all the W(»rknirn or
lahourc-rs «'inpl(»N('d or enj^ai^cd on or uiulir su( h
conirait, en;^Mv;«Mr.ent or a;^reenient at tlu- lime when
till- said loos or tiinher is tl«livereil or taken in char|n<'
lor, or hy (iron hehalf of, the person so making; siu li
|)a\inenland rea'ivinj,( the; tiniher or lo^s (21). Ihe
pay-roll may he in the form provided in the schedule
to the .\ct, which includes tlur name of the workman,
the numlx'r of days empkiyed within the |)eri(id which
the pay-roll purports to cover, the rale ol w.ii^es |)er
day. total amount earned, the amount paid, *lale ol
paymtmt and the signature of the workman to the roll
hy way of receipt in full.
If a person makes any payment under any such
contract en^aj^cment or ai^reement without re(|uirin^
the production of th(r pay-roll he will he liahle, at the
suit ot any workman or labourer enj^a^^ed under tin-
contract, to pay the amount due and owin;^ to thtr
workman or labourer (22). The person to whom
such pay-roll is ^dven must retain for the use of the
labourers or workmen whose names are set out in
(21) R.S.n.C. 1897, c. 132, s. 26.
(22) Sec. 27.
rr
H
u
I
I:
240
(OMUlHiNAI. sM.hS
Sikh p;»\ roll tlir sums set ()|)|i«isitc llu-ir rrsprctlvi*
nanus whiili liavt* mn ln-i-n paid, and tlir rt'nipts of
tin- lahniirirs or worknuMi llurt lor will In- a miIIu icni
disi:hap^f { _» ;),
Woodman's Lien New Brunswick. I»n m Act
of ilic (icncral AsscniMy of New UriinsuicU passrd in
|S(;4 {2.\) any person pcrlorniini; any iiKor or scrNitcs
in conni'iiion \\\[\\ any loi;s or iinili«'r ini«'nil«»l to l>c
dri\(n down riv«'rs or str<'anis, or hauled dini ily fnun
ihe Woods, or hnuij^hi hy railwa\ lo the place ol dcs-
tinatiiln, is <^\\i-\\ a lien thereon for the aniotnil due
for riillin},', skiddin;,,'. fi-llinj;, haulin},^ scalini;. harkinj.;,
ilri\inj4. raflin},; or hooniin;^ an)' l()^s or tindier. an«l
an\ work done l»v cooks, hlacksniiths, arti/ans or
ni coiniection therewith
ith
and
iM the cl.unis or hons thereon, except any hen or i
hicii the Crown nia\ hav(! for dues
:l;
iini
w
or char<'«'s, (»r
which the landown<'r may have for stinnpaj^e. or which
any Streams lmpro\i>ment Company or iioom Com-
pany, or person owning streams, improvtMnents or
hooms, may have th(;r«'on for or in respect of tolls {25).
'Vhv. lien, however, does not attacii or remain a charj^c
on the lo<'s or timluT, unless and until a wrilt»Mi slate-
m«
■nt setting out briefly the nature of the dai
m.
including .1 description of the lo<,iS or timber, and
verified hy the oath of the claimant, or of someone
duly authorized on his behalf, is fileil in the office of
the Clerk of the Countv Court in which the labor or
services or part thereof have oeen pctrformed (26).
others used or employed
the same shall be dee-med a first lien or charj^c on
such lo|^s or timber, anil shall have precedence ov(;r j
(231 Sec. 28.
(24,1 57 \'ict. N. B., c. 24.
(*5' 57 ^ ''-"t* N.B., c. 24, ss. I, 3.
<2(>i 57 Vict. N.B., c. 24, ss. 4, 5.
AM* < IIMIH. I.IKNS.
241
).
The lien HtatciiuMii shmild Ih; in the statutory lorin
{2'), ami. if in respect of work tloiw in thr woods,
must 1)0 filed within .V) <l<us after tin; last day on
whirh siicli lalior or srrvins wen- |M'rfornu'd ; and if
in ri'sprct ol work dtMic in riser driv inj; or othiTwise
than in tht* woods, tlien within jo days .iftcr the last
d.iN on which such lahor or services were perfornxrd
In a recent case mulir tliis Act the fads were that
li. and others wen- employed hy the month to work
in the wooils. I'hey lu-jrim op(;r.itions in \o\rnd)er,
iSg4, and volimtarily ipiittcd on January J^th. |S()5.
< Ml March 14th of the same year, thonjj^h not
i<(jiiest«'d to tl(> so. they returned, and .iltrr workin;^
iwo d.iys a^ain stopp«'d. I'lu-y then fil' •' a claim
iind«'r th«' provisions of the Act. It w.is held th.u the
niurninj^^ to work lui March I4lh was not a /h>N(I fuh
continuatiitn of the work, and that the ri;;lu to enforce
a lien was i^one hy reason (»f lapse of time (J()).
A special mode of enforcinj^ such li<Mis hy smnmary
procei'dinjrs hefore a County Judj^e is provided hy the
Act ; anil it is enacttnl that no sale «»r transfer of the
lo;^s or timber durinj^ the tinn- limited for filinj^, or
durinj,^ the time after I'llinj,^ limited for enforciri}^ the
lien, shall affect the sanur (^;o).
Woodman's Lien —Manitoba. — I n Manitctha any
|)ers«)n performin;^ any lahour service or services in
conn(!Cti(»n with an\ Ioljs or timber includin;^ telegraph
poles, railway ti«'s, shinj^le bolts or stav*/.. and fenct;
posts and cordwooil while lyin<4 |)iied for shipment by
(271 Schfiliile I of 57 Vict. N.B., c. 24.
.?^') 57 Vict. N.B., c. 24, 9. 6.
>29) Guimonds. Bfianger, 33 N.U. R. 589.
130) 57 Vict. (N.U.)c. 24, s. 6.
^.
^
^^^.
IMAGE EVALUATION
TEST TARGET (MT-3)
^
1.0
I.I
1^128
125
2.2
us
u
uo
m
2.0
11.25 III 1.4
HiotDgraphic
Sdences
Corporation
.'*->
' V
^^^-7^^
^V^
23 WfiST MAM SJWER
WnSliR,N.V. 14SM
(716)S72-4S03
^^A ''*'
^
T
242
CONDITIONAL SALKS
rail or water (31) has a statutory lien thereon for the
amount due, not exceeding the sum of $250. for
' labour, service or services ' including in such term
the cuttint^, skidding, felling, hauling, scalin^^ bank
ing, driving, running, rafting or booming, and also
any work done by cooks, blacksmiths, artisans and
others usually employed in connection therewith (32).
It is declared by the statute that this statutory lien
shall have precedence of all other claims or liens on
the logs or timber, except any lien or claim which the
Crown may have for any dues or charges {^2,'^. Tht;
lien does not attach or remain a charge on the logs or
timber, unless and until a statement thereof in writing
verified upon oath by the person claiming the lien, or
some one duly authorized on his behalf, ^nd bearing
:ndorsed thoreon the name and post office address
of the claimant's attorney, is filed in the office of the
c'?ik of the county clerk of the division in which the
' y ur or services or some part thereof has been per-
. vied (34). The statement must set out briefly the
na*^ure of the debt, demand or claim, the amount due to
the claimant as near as may be over and above all legal
set-offs or counterclaims, and a description of the logs
or timber ; and it may be in the form set forth in the
Act or to the like effect (35). If the work is done
between October ist and April ist the lien statement
must be filed on or before April 20th, but if the work
be done on or after April ist and before October ist
the statement must be filed within 20 days after the
last day upon which such labour or services were per-
formed (36). The lien will remain effective against
(31) 61 Vict. (Man.) 1898, c. 50. '
(32) Soviet. (Man.) 1893, c. 38, ss. 2, 3.
(33) 56 Vict. (Man.) 1893, c. 38, s. 3.
(34) 56 Vict. (Man.) c. 38, s. 4.
(35) 56 Vict. (Man.)c. 38, s. 5.
(36) 56 Vict. (Man.) c. 38, s. 6.
AM) ( MAI Ti:i. I.I IN S.
243
the logs or timber in whomsoever the possession of the
same shall be found, notwithstanclin;^ a sale, mortgage
or transfer, of the same made during the time limited
for and previous to the filing, and afterwartls during
the time limited for the enforcement, for which a
suminary procedure is provided (^7).
Woodman's Lien — Ontario. The ( )ntario Wood-
man's Lien for Wages Act was passeil i.i iSgi (3S)
and applies to the Districts of Muskoka. Parry Sound.
Xipissing, Algoma. Thunder hay and Rainy River
and to the Provisional County of Haliburton (39).
By it any person performing any labour, ser\ ice or
services in connection with any logs or timber in the
said 1 )istricts or Provisional Countv. shall have a lien
thereon for the amount due for such labour, service or
services, and the same shall be deemed a first lien t)r
charge on such logs or timber, and shall have jireced-
ence of all other claims or liens thereon, except any
lien or claim which the Crown may have upon the
logs or timber for or in respect of any dues or charges,
or which any timber slide company or owner of slides
and booms may have thereon for or in respect of tolls
(40).
Any contractor who has entered into any agree-
ment under the terms of which he has cut. removed,
taken out and driven, for any licensee of the Crown,
by himself or by others in his employ, any logs or
timber into the waters at or near Lake Superior, the
Georgian Bay, Lake Huron or the Saint >hiry River,
for export in the log out of the Province of Ontario,
shall be deemed to be a person performing labour,
l\
(37) 56 Vict. (Man.) c. 38, s. 6 and 7.
(38) 57 Vict. (Ont.) c. 38, now R.S.O. 1897, c. 154.
(39)R.S.O. 1897. c. 154, s. 3.
(40) R.S.O. 1897, c. 154, s. 5 (i).
'5
i
244
CON HIT lONAL SALES
service or services upon loj^s or timber within the
nieaninj; of the section, and such cuttin^r, removal,
takin*^ out and drivintr is to be deemed to be the
pert'orniance of labour, service or services within the
meaning; of the section (41).
The lien shall not continue to be a charj^e on the
loMs or timber after the time within which the state-
ment of claim provided for in the Act is required to
be filed unless such statement, verified upon oath
by the person claiming- such lien or some one duly
authorized on his behalf, shall be filed as is therein
directed (42).
Such statement shall be in writin<( and, except in
the cases for which a different provision is made by
the statute, shall be filed in the office of the Clerk of
the District Court of the Provisional Judicial District
in which the labour or service or some i)art thereof has
been performed (43).
Where sucl i. .bor or services have been performed
upon any loj^s or timber i»ot out to be run down or
which have been run down any of the rivers or
streams flowing into the Ci('ort,nan Hay, Lake Huron.
Lake Superior. Lake of the Woods, Rainy Lake or
Rainy River or Pii»eon River, such statement may, at
the opti(^n of the claimant, be filed in the office of the
clerk of the District Court of the district in which the
labour or service or some part thereof has been per-
formed as aforesaid, or in the ofifice of the Clerk of
the District Court of the district wherein the drive
terminates or reaches the waters of the said lakes, bays
or rivers (44).
(41) R.S.O. 1897, c. 154, s. s (2).
(42) Sec. 6(1).
(43) Sec. 6 (2).
(44) Sec. 6 (3).
AXI) CIIATTII- I.ll.NS.
245
;!
Such statement shall set out hrictly the iiiitiirc (•!'
the debt, clemaiul or claim, the amount due to the
claimant as nearly as mav he, over ,\\u\ ahove all
lejjfal set offs or counter-claims, and a descri|)ti(»n of
the lojjfs or timber upon or ajj^ainst which the lien is
claimed, and may be in the following- form or t<> the
like effect (45) :—
Statemkni' ok Claim ok Lien.
A l{., {fidwc of claitnant) of {state residence of ihinnant), {if
(hum made as assif^nee then say as assignee of x''''"X' name and
address of assignor) under " The Woodman's l.ien Idf Wages Art,'
claims a lien upon certain logs or timber of (/lere state tlw natne and
residence of the 07vner of logs or timber upon whic/t (lie li:n is
claimed if known) upon the logs and timber composed oi Estate the
kinds of logs and timber such as pine smclogs, cedar or other />osts or
railway ties, shingle bolts or staves, etc., also ichere situate at time of
filing of statement) in respect of the following work, that is to say,
{here gi7" a short description of the work done for which the lien is
claimed) which wor'K was done for {here state the name and residence
of the person upon ivhose credi,' the 'work 7cas done) between the
day of and the day of
at (per month or day as the case may be).
The amount claimed as due {or to become due) is the sum
of
( IVhen credit has been gij'en).
The said work was done on credit, and the period of credit will
expire on the day of
Dated at this day of A. 1 ).,——.
{Signature of Claimant).
Akfidavit to ke attached to Statement 01 Ci aim.
I make oath and say that I have read (or have heard
read) the foregoing statement of claim, and I say that the facts
therein set forth are, to the best of my knowledge and belief, true,
and the amount claimed to be due to me in respect of my lien is the
just and true amount due and owing to me after giving credit for all
sums of money, goods or merchandise to which the said [naming the
debtor) is entitled to credit as against me.
Sworn before me at in the district (
of this day of A. I)., . I
A Commissioner, etc.
(45) Sec. 7,
246
CONDITloNAI, >.\M;>
i
tBIHB
In tlu; cast' (»f any contractor coining; within the
terms of suhscction 2 ol section s '>' the Act the
statement of claim shall he filetl on or before the isi
cla\ of St'|)teml)er. next followini^' the performing of
the labour service or services to which such statement
refers (46).
in other cases if such labour. ser\'ice or services
be performed between the ist tlay of October ami the
1st (lay of Aj)ril next thereafter, the statement of
claim shall be filetl on or before the 20th clay of Ai)ril
next thereafter, but if such labour, service or services
be jierformed on or after the ist day of April and
before the ist day of October in any year, then such
statement shall be filed within twenty days after the
last da\' such labour, service or services were per-
formed (47).
No sale or transfer of the I0S4S or timber upon
which a lien is claimed under the Act durin<': the time
limited for the filin<>' of such sta* nent of claim and
previous to the filing' thereof, or after the filing' thereof
and during' the time limited for the enforcemerit
thereof, shall in any wise affect such lien but such lien
shall remain and be in force against such lot^'^s and
timber in whosesoever possession the same shall be
found {48).
Kver\ a<4reement or bargain, verbal or written,
express or implied, which may be made or entered
into, on the part of any workman, servant, labourer,
mechanic, or other person employed in any kind of
manual lab(iur intended to be dealt with in the Act,
by which it is ai^reed that the Act shall not apply, or
that the remedies provided by it shaH not be available
for the benefit of any person entering; into such agree-
<
(46) Sec. 8(1).
(47) Sec. 8(2).
(48) R.S.O. 1897, c, 154, s. 9.
AM) CIIATTKI, I.IKNS.
24;
laim and
iiieiit, is by the statute tleclaretl to be null aiul void
iiid of no effect as against any such workman, servant.
labourer, mechanic, or other person but with an excej>-
lion however as to any foreman, manager, officer
(ir other person whose waj^es are more than $3 a
(lay (49)-
No payment of wa«j^es shall be made or offered to
any person for any labour or services performed upon
(»r in connection with any lojj^s or timber, in the said
districts and provisional county by any che(|ue. order,
l.O.U., bill of exchanjj^e. promissory note, or other
undertakinti^ (other than a bank note or bill) drawn
upon or j)ayable at or within any place or locality not
within the Province of Ontario (50).
No payment made or offered to be maile in
violation of this statutory provision will be allowed as
a defence in any action or proceedinjj^ for the recovery
of waj^es. or be receivable in evidence thereon, nor
will any such payment or ofler o( payment in any way
aftect any claim of lien for labour or services on loj^s or
timber under the Act, but in case of the sale, or trans-
fer of such paper writing or instrument, in whole or in
part, by the payee, the consideration received by him
shall be held and treated as payment on account (51).
Any persons having a lien upon or against any
logs or timber nay enforce the same by suit, where the
claim does no*, exceed $200, in the Division Court
within whose jurisdiction the logs or timber or any
part thereof may be situated at the time of the com-
mencement of the suit, or where the claim exceeds
$200, in the proper District Court where such state-
ment of lien is filed ; such suit may be commenced
(49) R.S.O. 1897, c. 154, s. 4.
(So)R.S.O. 1897, c. 154. s. 41-
(51) R.S.O. 1897, c. 154, s. 43.
248
CONDITIONAI. SAI.KS
P
to enforce the lien, if the same he due. iinnudiaicK
after the filin^^ of such statement, or, if credit ha>
been },nven, immediately after the expiry of the period
of credit, and such lien claim will cease to he a lien
upon the |)roperty named in such statement unless the
proceedinj^^s to enforce the same be commenced within
30 days after the filinjj; of the statement of claim or
after the expiry of the period of credit. In all such
suits the person, company or corporation liable for the
payment of the debt or claim shall be made the
party defendant (52).
There shall be attached to or endorsed upon the
writ, or summons, a copy of the lien claim filed
under the Act, and no other statement of claim
shall be necessary unless ordered by the Court or
Judge, and no pleadings or notices of dispute or
defence, other than such as are re(|uired in a suit or
proceeding in the Division Court, shall be necessary
whether the suit be brought in the District Court or
in the Division Court, 'n case no dispute is hleil,
judgment may be signed and execution issued accortl-
ing to the practice of the Division Court. The Court
or Judge may order any particulars to be given or any
proper or necessary amendments to be made, or may
add or strike out the names of parties at any time antl
may set aside judgment and permit a defence or
dispute to be entered or filed, on such terms as to him
shall appear proper. The writ shall be in the form, as
nearly as may be, of that in use in the court in which
it is issued, but the practice thereafter shall follow as
nearly as may be that of the Division Courts. Writs
may be served anywhere in the Province in the same
manner as in other cases, and the judgment shall
declare that the same is for wages, the amount thereof
(52) R.S.O. 1897, c. 154, s* 10.
AM> ClIATTKI- I.IKNS.
-M9
iMU'diatcK
:Ti'(lit has
the j)crioi|
l)C' a lien
unless th(
:ecl vvilhiii
claim <»r
1 all such
>lc tor the
nailc th(
upiin the
aim tiled
of claim
Court or
ispuie or
a suit or
necessary
Court or
i is tiled.
d accord -
he Court
tn or any
:,*, or may
time and
jfence or
IS to him
form, as
in which
follow as
Writs
he same
nt shall
thereof
I
and costs, and that the plaintiff has a lien theret'or on
the properly descrihed when s\ich is the case (5;).
In anv case, whether commencetl hv writ, or sum-
mons or attachment, and whether in a I )i\ ision or I )is-
trict Court, the Jud).;e may direct that the same shall
be disposed of summarily l)V him in chamliers wiiliniit
waitin«jjfor the rejj^ular sittinj^sof the COurt. upon such
terms as to notice and otherwise as the order shall pro-
vide, anti the same may he so heard and disposed of.
The Judge may also entertain in chambers any appli-
cation to set aside an attachment or s(!i/ure or to release
logs that have been seized, and may summarily dispose
of such application (54).
Special provisions are also made tor the issue of a
warrant or writ of attachment in certain cas''s for the
seizure of the logs before iudgment (>,^).
Hut it is also provided that no Sheriff or HailitT
shall seize upon or detain any logs or timber under the
provisions of the Act when in transit trom the |)lace
where cut to the place of destination when such place
of destination is within any of the said districts in
which proceedings have been commenced, but in case
such logs or timber are so in transit or are in the
possession of any booming company or other person
or corporation for the purpose of being dri\en or
sorted and delivered to the owners or to satisfy any
statutory lien, then attachment of said logs or timber
may be made by serving a copy of said attachment
upon the person or corporation driving or holding the
same, who shall from the time of such service be
deemed to hold the same both on his or their own
behalf and for the said sheriff or bailiff to the extent
of the lien, until the logs or timber can be driven and
(53)R.S.O. 1897,0. 154, s. II.
(54) R.S.O. 1897, c. 154, s. 15.
(55) Sees. 16, 17 and 18.
250
(OXIHTIoXAI, SAI.Is
snrlcil out ; and when ilri\t'ii or sorli'd out. the sheriff
or bailiff may rcccivr the said Uy^s or tiiulicr from such
person or corporation, and the statutory lien of such
t)erson or corporation shall not he released hy the
loldin^ of sucli sheriff or other officer (56).
A numher of lien holders may join in takin^^ these
statutory proceeding's, or may assijj^n their claims to
any one or more j)ersons, hut the statement of claim
to he tiled under section 6 of the Act shall include
particular statements of the se\eral claims of persons
so joiniiij^, and shall he verified hy the affidavits of th(;
persons so joinin}j;, or separatt; statements of claim
may he filed and veritied in the manner j)rovided hy
the statute, and one attachment issued on hehalf of all
the persons so joininjj^ (57)-
rhe lien under the Ontario Woodman's l.ien Act
will accrue to the henetit of cooks, blacksmiths, artisans
ami all others usually employed in connection with the
cuttin}', skiddinj^', fellinjj^, haulinj;, scaliii};", hankinj^",
drivinj^'. runninj^, raftinjj^ or hoomiiiLj' any lojj^s or tim-
ber (58), and the term ' loj^s or timber' used in the
statute is declared to mean and include loj^s, timber,
cedar posts, telej^raph poles, railroad ties, tan-bark,
shinjL»le bolts, or staves, or any of them (59).
A special mode of procedure for the enforcement
of the lien is created by the Act, but it is also provided
that the same shall not disentitle any person to any
other remedy to which he may be entitled for the
recovery of any amount due in respect of labour, ser-
vice or services performed upon or in connection
■with any lojj^s or timber ; and where a suit is brought
(56) R.S.O. 1897, c. 154, s. 19.
(57) R.S.O. 1897, c. 154, s. 36.
(58) Sec. 2.
<59) Sec. 2(1).
AMI ( IIATIII. I.IKNS.
-\S'
to ••nforcc a lien, l)iii no lii-n shall lie fiuind l<> exist in
r(s|)((t 111* the claim, jiid^nu'iu may Im* (lircricd (or the
ami ami iluc as in an onlinar) atiion (Oo).
Woodman's lien Quebec. In tin- l'n»\intc nt"
OiK'hcc t'xtTN' |)i'rs<m t'lij^aj^in); himscll in ciii or manii-
rat'lurc timlnT or to ilravv it out of the forest, or to
lloat. raft or hrinj; it tlown rivers and streams lias, for
seiiirinj; his \va;4i's or salarv . a |)ri\ile;;c rankin;^ with
the claims of cri'ditors who have a rij^ht of plediL^e or
of retention, upon all the timber l)elon_i;in!.^ to the
person for whom he worked, and if he worked for.-,
contractor, subcontractor or foreman, upon all the
timber belonj^inn to the person in whose service such
contractor, subcontractor or foreman uas. and w^iich
was cut down or tloated by such contractor, sub-con-
tractor or foreman ; but such privile^^c is exlinj^uished
as soon as the lumber shall have passed into the hands
of a third person who has bouj^ht it. has received
delivery thereof, and has paid the price therefor in
full (bi), .Such j)rivile}4e in no wise affects that which
a bank may ac(|uire in virtue of the liank Act.
Canada ( 1S90) (62) which permits a Canadian chartered
bank to accjuire and hold any warehouse receipt or
l)ill of ladin«>' as collateral securitv for the pavmeni of
any debt incurred in its favour in the course of its bank-
inj; business; and which enacts that the warehouse
receipt or bill of lading- so ac()uired shall \est in the
bank, from the date of the ac(|uisition thereof, all the
ri_nht and title of the |)revi<)us holder or owner thereof, or
of the person from whom the jLjoods and wares anil mer-
chandise were received or ac(|uired by the bank, if the
(60) R.S.O. 1897, c. 154, s. 35.
(61) (Quebec C.C. art. 1994 ic) ; 57 \'ict. ((^ue.) 1894, c. 47, s. i.
(02i 53 Vict. (Can.), c. 31, s. 73.
¥
352
• <»M.| I |..N \|, >.M,|s
warcliniisj' n rc'lpt nr l>ill of ladiii;^ Is inatlr dirci tly ifi
faNtnirul" ihr N.mk iiistr.ul tt\' id ih«- |ir<\ i«»iis ImMrr
or nwlur <>( siuh ''(mmIs. wares .iiul inert li.iiulisr.
Vh
r cxprrssmii "HfojMis. wares and men
hand
ise
as used in the hank Act •)! ( anada int liides tiiidter.
deals, hoards, slaves, sawlo^s, and other linnher (O;),
and
th<
e «\|)ress|on
v\areh<uise ren'ipl nu-.m-. .»nv
re
i'eii)l ;4i\('n h\ any person I'nr an\ ;>;ou(|s. w.ires or
'I
inercliantlise in his aitiial \isihle and coniiniieil posses-
sion as hailee thereof in j;;oud faith and not as <•! his
<»wn properiN. and imhides receipts <^'\\r\\ hy an\ per-
son who is the owner or keeper ot" a harhour, in\c,
pond, wharf. \ard, warehouse, shed, storehniise or
other place for the stora^^c of ^^ttoils. wares or iner-
ihantlise. for '^oods. wares and merchandise delixert-d
loM
im as l)ailee. and actiiall) in the place or in ••ne or
nmreofthe places owned or kept hy him. whether such
person is en^aj;cd in ot
ther h
iisiness or not (O4).
The liank Act of Canada also allows Canadian
ory
lich
chartered lianks to take a "security" in a stalut
fonr.. commonly called a warehouse receipt. under whic
the borrower, if a wholesale manufacturer or a whole-
sale |)urchaser or shipper of forest products [infcy
a/itt), ma\ i)leil,n(' such products for a money advance
ilth
oui
reiaimii':
th
em in
IIS own
)ossession
(65). if. however, the w«»odman's lien al)uve j>ro
vided for is one in which the cl;
uman
t h;
is w< •
rked
for a contractor or sub-contractor, such prixilej^e shall
not exist unless the j)erson havin*;- a rit^ht thereto
lias Ljiven a written notice (66) to the jjerson affected
bv the exercise thereof and to the debtor or their
(^'3^ 53 Vict, (ran.), c. 31, s. 2 [c^.
(641 53 Vict. (Can.,), c. 31, s. 2 {d).
(65) 53 Vict. (Can.), c. 31, s. 74; Tenmint v. Union Bank of
Canada '1894) A.C. 31.
(66) 62 \'ict. (Que.) i8yy, c. 50, s. i.
AM» i IIAI III. I.II.S>.
-\V?
ii^'MU^ or rinployci's, ul" llir ainniiiu iIim to him at ••arh
t<*rin III' p.iyinriil as snon a>> |)u«,sil)|f. Smli ijuticf
may lie i^ivcn l»\ uiir ( r«'<litnr for .uxl in ihr name ot
all lilt- others who art! imuaitl. In the <\(nt ol ,i otn
testation Ix'iuffn the crtMlitor and thedehtor respei tin:;
the amount due. the iTeditor shall without <lelay j^ive
written notii«' to the person af'teeted hy the e\erris«' ol
suih ri;;ht, and the latter shall then retain the .imount
in dispute until he rei-ei\es .i written notiliiation ol an
amir.ihle settlement or rd' a juiliiial decision (07).
Lien for timber dues British Columbia. I>\ the
' Land Act ' ol" liritish ( "olumhia Ixinj; the consolidated
Alt respecting; Crown Lands in thai l*ro\ iiue (oS),
then* is reserved to and tor the us*- ol" IIm- Majesty,
her in'irs and successor^ a rovalts ol so i'«'ius per
th(»usand I'eet hoard measure' upon and in respect
of all limher suitahle lor spars, piles .iwlo;.^s, or .ail-
road lies. proj)s for minin;.; purj)os( s. shinj^i' or other
holts ol cedar, fir or spruce ; and a royalty oi 25 cents
tor every cord of other wood cut upon ("rown lands,
patented lands, timher leaseholds or timber limits, and
upon any lands which may hej^ranted after the passiii);
of the Act (69). /\ii exception is piade, however, of
cord wood cut for personal use for fuel for chiinestic
purposes, and not for sale (70.)
I'he measurement of piles shall for the purjjoses of
the Act be by the running" foot, and, of railway ties
and props, by the cord ; and 200 running; feet of j)iles
t)r one cord of ties or props shall for that purpose be
taken as equal to 1,000 feet board measure (71). The
(67) Quebec C.C. art. 1994 ') as amended 62 Vict. (Que.) 1899,
• c. 50, s. I.
(68) R.S.B C. 1897, c. 113.
(69) Stat. B.C. 1896, c. 28, s. 2; R.S.B.C. 1897, c 113, s. 58.
(70) R.S.B.C, c. 113. s. 63.
(70 Sec. 58.
Ill
-\v»
» nNIMTIoNAI. S.M.IS
si;iuuf ilirl.iri-s turihcr thai all liinhcr or wood upon
whiih .1 roy.iliy is rt'stTvi'iI. «)r which lias Ihcii i ui
upon liinJKT ifasi'h«>lils. shall lu- liahlf tor the |)a\ iiuiu
of thf ro\ali\ (ami iit the case of Icasrholtls, tor ilu-
rent), so lonj^ as anil wlu'rcsiu'vcr ihr linilnr or .m\
p.iri ot" it nia\ Im- tomul in i?ritish Columbia, w/itt/nr
ill the ori^^iiiiil loi^i or iiniiiii/attiiirtf into deals hoanls
i>r t)thir stutts : ami in case an) such timber or wooil
has been made up with other timber or wooil into a
crib. dam. »)r rait, or in any other manner has been so
mixed up as lu ri-niler it impossible or ilitticult tt)
ilistinj^uish the limber liable to the payment ^.^f royalty
or rent lr«»m limber not so li.ible, such other timber
shall also be liable tor all royallN ami ri'iu imposed by
the Act. ami all otticers ami assents entrusted with the
colliition ot" the roNally or rent ma\ tollow all such
timbir. or any timber with which it is s.» mixetl, and
seize ami iletain the same wherexer it is toumi until
such royalties and rent, anti the reasonable costs
ami expenses ot" seizure ami iletention, are p.iid or
secureil {~ 2).
The statute alst) provides that the Crown shall
have a lien upon all steamships, railway and stationary
enj^ines. smellers. c»)ncentrators and all turnaces or
machinery in or tor which any timber or wootl upon
which a royalty is reserved or payable in any way or
manner, or tn>r any pui'pose has been or is beiivj, useil
or consumed (73). and also u()on all steamships, n>w-
boats. scows or other vessels, and upon all railway
trains, teams anil waggons in any way eni;ageil in
transporting such .imber (74). This e.xtendeil lien
confers the s;ime rights and is enforceable in the same
(72) R.S.IM". iS.,7, c. 113, s. 59.
(73) Sec. <«.
(74) Set\ (k>.
AM» (ll.Mlll. l.ir.NS. >SS
inaiilUT as ilu' lion ami rinhls of recovery t»t royalties
conferred by the statute (75).
A millowner may be autliori/eil by tlu" Chief
C'oininissioiier of Laiuls ami Works, \\X\, to ct>llecl
♦he royalties clue to the C'rowii upon any lovis which
may be brouj^ht to his mill ami to ^ive receipts there
for (70) ; but for all moneys so receiveil the Crown
w ill have a lien upon the mill ami a// titnlhr f/urtttf,
and on any lamls or waters appurtenant thereto (").
Lien for timber dues Ontario. - By the Ontario
Crown Timber Act ( 'S) it is enactetl as follows : -
" All timber cut under licenses shall be liable
for the payment of the Crown tlues thereon, with
interest thereon and expenses, so lon^ as and whereso-
ever the timber or anv part of it may be found in
Ontario, whether in the original loijs or manufactured
into deals, boards or other stuff; and when any license
holder is in default for, or has evaded the payment of
dues to the Crown on any part of his timber or saw
loj^s, such dues interest and expenses may be levieil on
anv other timber or saw loes, or their manufactured
product, belonging ti> such defaulter, cut under license,
together with the dues thereon, and interest and
expenses incurred ; and all officers or agents entrusted
with the collection of such dues may ft)llo\v all timber
and seize and detain the same wherever it is found
until the dues, interest and expenses are paid »)r
secured " (79).
l^onds or promissory notes taken for the Crown
ilues either before or after the cutting o'i the timber,
(75) R.S.RC". 1897, c. 11^ s. (Kj; Stat. H.C. 181)7, o. u), s. 4.
(76) R.S.B.C c. 113, s. 62.
(77) Sec. 62.
(78) R.S.O. 1897, c. 3a.
(79) R.S.O. 1897, c. 32, s. 16.
-\s<>
CONIHTIONAI, S\\A><
as collateral security, or to facilitate collection, shall
not ill any way atfecl tlit; lien of the ("rown on the
timber, hut the lien shall subsist until the ilues are
actually tlischar^etl (So).
If timber so seized and iletained tor non-payment
of Crown tlues rtMuains more than twt) months in the
cuslotly of the agent or person appointed to ^uard
the same, without the dues anil exjienses Ixrinj^ paid,
the Commissioni'r (>!' Crown Lantls, with the previous
special sanction of the Lieutenant-Ciovenh)r in Coun-
cil, may ortler a sale of tht; timber to be made after
sufficient notice ; and the balance of the proceeds of
the sale, after retainiiijL; the amount of dues and costs
iiicurretl, shall be handed over to the owner or claimant
of the limbi'r (Si).
W henever timber is stM/.ed for non-payment of
Crown dues, or for any other cause of forfeiture, or
any prosecution is brouy^ht for any penalty or forfei-
ture under the Act, and a (juestion arises whether
such dues have been paid on the timber, or whether
the timber was cut on other than the l\iblic Lands,
the burden of proviiiij^ payment, or on what land the
timber was cut, shall lie on the owner or claimant of
the timber and not on the officer, who seizes the
same, or the party brinii^ino- the prosecution (82)
The alleged owner or the claimant of timber
seized for non-payment of dues payable to the Crown
may obtain from the court an order for its delivery up
to him, on giving security in double the value of the
timber as provided by the Crown Timber Act (83).
The lien of the Crown will take priority over any lien
(80) Sec. 17.
(81) Sec. 18.
(82) R.S.O. 1897, c. 32, s. 23.
..(83) R.S.O. 1897, c. 32, sees. 24, 25.
,\M> ( IIATTIJ, I. MAN.
257
lor clearing an ohslructioii, etc., uiiclor the Saw Lo^a
Driving Act (.S4).
Hy Sec. 4 of chapter 23 of the Consolidated
Statutes of ("anada ( i(S59), which is still in force; in
Ontario, it was enacted that : -
" All timber cut under licenses shall he liabh- for
" the paynuMit of the Crown dues thereon, so lon^^ as
"and wheresoev(T tiie said timber <>r any part oi it
" may be found, wheth<T in the ori;^nnal loj^^s or manu-
" factured into d<'als, boards or oth(;r stuff, -and all
" ()ffic(!rs or ai;ents entrusted with th*- collecti'-n of
" such du(.'S may follow all such timber and seize and
" d(;tain the same wherever it is found until the dues
" are paid or secured."
Lien for Tolls —Ontario. — The rij^dn to use
river improvenutnts constructed by individuals for
floating down timbcT and rafts is controlled in Ontario
by the Rivers and Streams Act (S5), which provides
that in case any person shall construct in or uj)on a
rivtr, creek or stream, any apron, dam, slide, gate,
lock, boom or other work necessary to facilitate the
floating or transmission of sawlogs or other timb(;r,
rafts or crafts down such river, creek or stream, which
was not navigable or Hoatable before the improve-
ments were made, or shall blast rocks or remove shoals
or other impediments, or otherwise improve the floata-
bility of the river, creek or stream, such person shall
not have the exclusive right to the use of the river,
creek or stream, or to the constructions and improve-
ments ; but all persons shall have during the spring,
summer and autumn freshets, the right to float and
transmit .saw-logs and other timber, rafts and crafts,
down such rivers, creeks or streams, and through and
(84) R.S.O. 1897, c. 143, s. 15.
<85) R.S.O. 1897, c. 142.
2 5S
( oNldTloNAI, SAI.KS
ovtr llu" ronstriulions ami iin|)rov('Hi('ius, iloinj,' ik*
iiMiU'ccssary tlania^r to tin* conslriulioiis antl iinprov*--
nu'iits, or to llu' hanks of llic sai«l riv(;rs, creeks or
streams, subjeet to the j)aym<'nt to tin* jx-rsoii who lias
inailtr the constructions anil improvements ni reason-
able tolls (86).
rh<; owner of tht; improvements or any person
desiring to use th(r same may apply tiiuler the Act to
a Coimty Court Juilm' to fix a tariff of tolls therefor,
imless already lixetl by charter or statute (S;).
Antl by section 19 of the same Act, evi.'ry |)erson
entitled to tolls thennrnder shall have a lien upon
the saw-lo^s or other timlurr passiu}^ throuj^h or
over such constructions or improvements for the
amount of the tolls, such lien to rank next after
the lien (if any) which the Crown has for dues in
respect to such loj^s or timber, and if the tolls are not
paid, any justice of the Peace having jurisdiction
within or ailjoinini; the; locality in which the construe
tions or improvements are. shall, upon the oath of the
owner of the constructions or improvements, or upon
the oath of his ai»ent, that the just tolls have not bei-n
paid, issue a warrant for the seizure of such loj^s or
timber, or st) much thereof as will be sufficient to
satisfy tht; tolls, which warrant shall be directed to any
constable, or any person sworn in as a si>ecial con-
stable for that purpose, at the discretion of the maj^is-
strate, and shall authorize the person to whom it is
directed, if the tolls are not paid within fourteen days
from the date thereof, to sell, sujjject to the lien of the
Crown (if any) for dues, the said logs or timber, and
out of the proceeds to pay such tolls, together with
the cost of the warrant and sale, rendering the surplus
on demand to the owner ; provided always, that tht;
(86) Sec. II.
(87) R.S.O. 1897, c. 142, s. 13.
\\l» < IIAIIII. MI'.NS.
259
atilhorily in issiir such warrant hy such Justice of th(r
l'eac(r shall not rxisl .liU'V the expiration of oik- month
from the lime of tlu' passage of the loj^s or timher
throuj^h or over any of stich constructions or iniprov(;-
m«'nts.
The lien for tolls has priority ov<!r any lien f^r
exp«'nses of clearin;^ a 'jam' or separatini; intermixed
loj^s ^iven hy The Saw I.oj^s Drivinj^ Act (<SS).
Lien for expense of breaking * jams ' Ontario.
Another statutory lien in Ontario with resp(;ct to saw
loj^fs, is that |)rovi(lecl hy th«; Saw I.o^^s I )rivinj; Act
(S9), in respf!Ct of the expcMise of clearin^^ th<;
ohstruction on the occurnrnce; of a " jam. "
I'lie wortl " loj^s " is, hy the interpretation claus(;
of the statute, declared to includ(; " saw lojj;s, timIxT,
posts, ti(;s, cordwood and oth(;r thinj^s heinj^ parts of
tr(M;s " ; and the W(>rd " wat(;r " shall "mean and
include; lak(;s, rivers, cre(;ks and streams in this
I'rovinct; " (90). I'he statute; (rnacts that any j)erson
putting or causing to 1)(; put, into any wat(;r, logs, for
the pur|)os<; of floating the same in, upon or down
such water, shall make a(le(|uat(; provisions and j)ut on
a sufficient force of men to break, and shall make all
r(;asonal)l(; (endeavours to break, jams of such logs and
clear the same from th(; hanks and shores of such
water with reasonable despatch, and run and drive; the
same so as not to unnec(;ssarily ilelay or hinder the
removal, floating, running or driving of other logs, or
unnecessary obstruct the floating or nav'gation of such
water (91). In case of the neglect of any person to
comply with these provisions any other person desiring
(88) R.S.O. i8y7, c. 143, s. 14.
(89) R.S.O. 1897, c. 143.
(00) R.S.O. 1897, c. 143, s. 2.
(91) R.S.O. 1897, c. 143, s. 3.
•w
,1
!i
260
< UNDITIONAL SALES
to float, run or drive hjj^s in, upon or clown such water,
aiul whose loj^s would be thereby obstructed, may
causi; such jams to be broken and the logs to be
cleared from the banks and shores of such water, and
to be floated, run and driven in, upon and down such
water (92).
The person causin;^ such jams to be broken, or
such logs to be cleared, floated, run or driven, must
do the same with reasonable economy and despatch,
and take reas<jnable care not to leave logs on the
banks or shores, and will have a lien upon the logs in
the jam, or so cleared, floated, run or driven, for the
reasonable charges and expense of breaking the jams
and the clearing, floating, running, driving, booming
ami keejiing possijssion of such logs, and may take
and kei'P possession of such logs, or so much thereof as
may be reasonably necessary to satisfy the amount of
such charges and expenses j)ending the decision by
arbitration as provided by the Act. The person
taking possession is to use all reasonable care not to
take such logs beyond the place of their jriginal
destination, if known, but may securely boom and
keep possession of the same at or above such place.
The owner or person controlling such logs, if known,
shall be forthwith notified of their whereabouts, and if
satisfactory security be given for the amount of such
charges and expenses, possession of the logs must be
given up to him (93).
When a person floating logs down a stream fails to
break jams of such logs, as directed by section 3 of
The Saw- Logs Driving Act, another person whose
logs are obstructed by the jam is not limited to the
remedy given by the Act, of breaking the jam at the
expense of the person whose logs have formed it h>.t
(92) R.S.O. 1897, c. 143, s. 4.
<93) R.S.O. 1897, c. 143, s. 5.
AM) ( ii.\T'n:i- I. UN'S.
26 r
may claim, in an arbitration instituted uiulcr si'ctioii
17 of the Act. damaj^cs for the unrtasonahle obstruc-
tion of the floating of the logs (94).
Clearing intermixed logs Lien in Ontario. I^>
the same Act a lien is declared upon lo^s owned or
controlled by persons throuj^h whose neglect other
logs have become so intermixed that they cannot be
conveniently separated until driven further down
stream. The statute provides that when logs of any
})erson upon or in any water or the banks or shores of
such water, are so intermixed with logs of another
person or persons, that the same; cannot be conven-
iendy sef)arated for the purpose of being tloated in
upon or down such water, then the several persons
owning or controlling the intermixed logs, shall res-
pectively make adequate provisions and put on a fair
proportion of the men re(|uired to break jams of such
intermixed logs, and to clear the same from the banks
and shores of such water with reasonable despatch,
and to float, run and drive the same in upon and down
such water ; and the costs and expenses thereof shall
be borne by the parties in such proportions as they
may agree upon, and in default of agreement as may
be determined by arbitration as provided in the
Act (95). In case of neglect of any person to comply
with these provisions, any other person whose logs are
intermixed, may put on a sufficient number of men to
supply the deficiency and break jams of such inter-
mixed logs, and to clear the same from the banks and
shores of such water, and to float, run and drive all
h..t
(94) Cockburn v. Imperial Lumber Co. Sup. Ct. of Canada,
October 1899, reversing 26 Ont. App. 19, and affirming judgment
of Rose, J., 26 Ont. App. 20.
(95) R.S.O. 1897, c. 143, s. 6.
'i^
m
!
I
I
262
( ONDITIONAI, SAI,i:>
such iiUt!rmixecl lojrs in, upon anil down such
water (96).
The person supplying such deficiency and causin^^
such jams to he broken, or such intermixed logs to he
cU'an.'d, floated, run or driven, must do the same with
reasonabh,' economy and desjjatch, and must take
reasonable care not to leave logs on the banks or
shores, and shall have a lien upon the logs owned or
controlled by the person guilty of such neglect, for a
fair proportion of the charges and expenses of breakin;^
tht! jams, and the clearing, floating, running, driving,
booming and keeping possession of such intermixed
logs ; and may take and keep possession of such logs,
or so much thereof, as may be reasonably necessary to
satisfy the amount of such fair proportion of charges
and expenses pending the decision by arbitration.
The person so taking possession of logs is re(|uired
to use all reasonable care not to take them beyond the
place of their original destination, if known, but may
securely boom and keep j)ossession of the same at or
above such place.
The owner or j)erson controlling such logs, if
known, must be forthwith notified of their where-
abouts, and if satisfactory security be given for the
amount of such proportion of charges and expenses,
possession of liie logs must be giv(;n up (97).
Ontario Separating intermixed logs.- H\' The
Saw Logs Driving Act (98), when logs of any person,
upon or in any water, or the banks or shores of such
water, are intermixed with logs of another person,
then any of the pers(Mis whose logs are intermixed.
(96) R.S.O. 1897, c. 143, s. 7.
(97) R.S.O. 1897, c. 143, s. 8.
(98) R.S.O. 1897, c. 143.
AND CIIATTEI, LIKNS.
a63
may at any time during the drive, re(|uire his loj^s to
be separated from the other l(jgs at some suitable and
convenient place, and after such separation h»* shall
secure the same at his own cost and expense, in such
manner as to allow free passaj^t; for such other logs ;
provided that when any lojjfs so intermixed reach their
place of orij^inal destination, if known, the same shall
be separated from the other logs, and after such
separation the owner shall secure t'le same at his own
cost and expense (99).
The several persons ownin<^ or controlling the
intermixed logs shall respectively make adequate
provisions and put on a fair proportion of the men
required to make the separation ; the cost and (;xpense
of such separation shall be borne by the parties in
such proportions as they may agree upon, and in
default of agreement, as may be determined by arbitra-
tion under the Act (100).
In case of neglect of any person to comply with
these |)rovisions any other person, whose logs are
intermixed, is, by the statute, authorized to i)ut on a
sufficient number of men to supply the deficiency,
and the logs owned by or controlled by the person
guilty of such neglect shall be subject to a lien in
favor of the person supplying the deficiency, for a fair
proportion of the charges and expenses of making the
separation, and for the reasonable charges and expenses
of booming and keeping possession, and such person
may take and keep possession of such logs or so
much thereof as may be reasonably necessary to satisfy
the amount of such fair proportion <i{ charges and
expenses pending the decision by arbitration in the
manner provided by the Act.
(99) Sec. 9.
(100) Sec. 10.
wm
s()4
roNIHIIuNAI. SAI.KS
Tln' jM'rsoii so taking possrssimi «>! I«)^s must iisi*
all rcasonaltlt! care not i<> take such ln^s luynml thr
l^lacr oi' tlirir oriji^inal (Icsiination, it known, hut ni.ty
st'curcly l)ooin and kt'cp possrssinn ol llir sain«' at or
al)ov<' such |)lai«' ; and thrownrr «)r person i-onlrollin<^
suih loj;s. if kn«»\vn, is to In* lortlnvith notilicd of their
vvhen-ahouts, and il satislaclory s«'tiirity Ik; j^JNrn lor
the amount of suih proportion ol rharj^es and cNprnsr-s,
|x ssi'ssion of the \n^s shall ht* ^ivm u|) (Kii).
Timber drivers N-'W Brunswiclc. i^y ih«' Con-
solidatcil Alt n'spt'ttinj^ Tiinhcr I )rivrrs (loj) it is
t'nactt'd that the tindu'r drivers, wlxrn lalled upon hy
any person interested, shall proeeed to the river and
take charj^e t)f the tiinher drive, ih'termine the nuniher
of hantls. rii^j^inj^ and implements r<'(|uin'd for the
work, and apportion the number of men and materials
to he furnisheil hv earh owner, if anv «)wner does
not within two days after writti'U notice from the
timher tiriver furnish such men and materials, they
shall be proviiled by the driver, who shall hold the
drive .lUil //<irc a liiii llutroH for all expenses, toj^ether
with his own fees (io;0. If the same be not paid
within 60 days after arrivinjjf at the raftiii}; ground or
market, the driver may sell the drive or any part
thereof for the payment of the expenses and fees, first
giving the owner notice if in the Province, and adver-
tising the same for 30 days in three or more public
places of the parish where the |)roperty may be (104).
(loi)R.S.O. 1897,0. 143, s. II.
(102) Com. Stat. N.B., 1877, c, 109.
(103) Con. Stat. N.B., c. 109, s. 1.
(104) Con. Stat. N.H. 1877, c. 109, s. i.
CIIAI'II'K NIII.
LlIN <>l InNKKII'IUS ANI» hi)AI<l)IN<; llnl sK
Kl.l'.l'KKS.
Innkeeper's lien. An
owner of which holds out
' nni IS a
that hr wil
hoiisr
nccivr
ih»r
all
lrav«'llrrs and sojoiirn(;rs who an* willing; to |*ay a
price a(l(u|iiate to the sort ol ..ccoinniodation proxided.
and who come in a situation in which they are lit to
he receivi'd " ( i ), .\n in.ii-'eeper, r)r keeper oj a
house providing ^(rneral acanninodalion for waylarers,
wheth(?r or not it he known hy the name of an inn or
hotel, has a )^<rn(!ral lien on the ^^oods of his j^uests {2).
If the innkeeper receives a p<'rson as a traNelJcr
who is not really a lrav(;ller, Ik; has tin* same ri^dus
against him, and the same liabilities to him as if he.
were a travitller, hut he is not liahle for nfusin^' to
receive; a person who is not travelling (.^). If Ix;
rec(;iv<.'s {(oods that he is not hound to receive, he is
entitletl to the same; rights and is suhj(;ct to tlie s;im(;
liabilities respectin^^ them as if he had received th(;m
being bound to do so (4).
If the relation of guest is changed to that of a
boarder, or if a person comes to the inn. not as a
traveller but as a boardtT. in such case the innke<;per
has no other rights or liabilities with resju'ct to the
goods of such a person than a boarding hous«.* kec[)er
(i) Thompson v. Liu\\ 3 B. & Aid. 283.
(2) Thompson v. Lacy^ 3 B. iV Aid. 283.
(3) Newcomhev. Anderson (1886), 11 Ont. R. 665, 672; Walling
V. Potter^ 35 Conn. 183.
(4) Thre/all V. Bonvick, L.R. 10 (^.B. 210.
I
366
« MMMIlnNAI. sAI.K.H
would have, aiul wiuild tint Im* liaMc tor their safe-
krt'pin^r (5) t-M-cpl wlit-rt' by staUile it is providftl
otherwise.
It is a (|iicslion of fact as to wlicthiT thi* relation is
that ol iniik('c|>(>r and j^iicsi or of hoarding house
k(;e|)er and hoarder (0) ; the relation does not depend
upon the fact ol the price to he paid hein^ inort; or
less than the usual price : nor does a traveller, who
enters an inn as a j4;iu'st. lease to Im? j;uest hy pro-
posing; to r«'main a j^iven ninnber ol* days, nor l)y
ascertaininj^ the price that will he charged for his
<>niertaiiunent, nor hy payinj^ in advance for a part or
tlu; whole of his entertainment (;). In Ontario it is
dtrlared hy statute that an innUeeptrr has a lien on
the ha^^j^aj^e and pro|»erty of his ^^uesl for the value or
price t)f any "food «)r accoinnnulati«>n " furnished to
the j^uest ; and, in addition to all other remedies
provided hy law, the innkeeper is hy tlu; statutt;
authorized, if the same remains impaid for three
months, to sell such ha^^j^aj^e and property, after pub-
lishing^ the notice prescribed by the Act respecting;
Innkeepers (S). A tavernkeeper is, however, for-
bidden to keep the wearing ap|)arel of any "servant
or labourer " in pledj^^e for any expenses incurred to a
greater amount than $6 ; and oii payment or tender of
such sum or any less amount due, such wearing
apparel must be immediately given up, whatever be
the amount due by such servant or labourer (9).
Under the Ontario statute the innkeeper has n«)W
what he had not at common law, i.e., a lien upon the
(5) NnviOtnhe \. Anderson, 11 Out. R. 665,673.
(6) Hall V. rikt\ 100 Mass. 495.
(7) lierkshire v. Afood\\ 7 Cush. (Mass.) 417 ; Pinketton v. Wood-
ward, 33 Cal. 557.
(8) R.S.O. c. 187.
(9) R.S.O. 1897, c. 157, s. 6.
ANh I II \l III I II.K<».
367
jtihhIs of .1 |i«'rsoii nrrivrtl l») hiin inlu his hmisr tf\ a
/lotitift t , .ind upon ihr ;;<mhIs uI .i |MTson who, Ixiii;;
ill his hniisr .IS a ^uest, has < hati;;t'il his rclatioii to
that of a hnardrr ; hut it dois not confer a hm in
such case upon l)<i^';4a^c and |)i'oprrty hroii^ht h\ the
hoarder to the inn luit helotij^in;; in fact to .1 third
person ( m).
The wonls " for the value 01 prici* of any lotxl or
accommodation liirnislied to siuh ^tiest, hoarder or
lodger" contained in section 2 ol tlx; Ontario lim-
kjepers' Act ( I I ), do not restrict the hen to < har;;eH
for the hoani, etc., of the yuest personalK I""' will
inchide also the hoard and lod<;in;; of his servants and
the keep of his horstrs. The intention of the Ad was
to increase, not to diminish, the* ri;4hts of a landlord
(12).
Extent of lien. An innkeeper must receiv a
traveller and his ^oods and is not hound to eiKjuin*
whether or not the ^mmkIs helonj^ to his j^iiesl. He
has a ;^^eneral lien upon all jronds hrou;^hl l<» the inn
hy a finest as his jj;()ods, or sent to the j^uest wliilst
staying at the inn and received hy the iimkeeper as
the floods of the j^uest ; and it mak<'s no dilh,'renc«'
wh«'ther the fj;oods do or do not heloiij; to the ;;uest,
or whether the innkeeper knew lowh<»m ihey Ixrloiij^ed
or not (1.^). So when* a commercial traveller stayed
at a hotel and incurred liahilities for hoard and lodj^inj.;,
and while he was there.' his (employers sent him several
lots of s«;winj; machines for sale, it was held that the
hotelkeeper had a lii^n upon the machines noiwilh-
standini^ that hefore the liahiliiy was incurred the
(10) Newcombe v. Andfison (1886), 11 Ont. R. 665, 682.
(in R.S.O. 1897, c. 187.
(12) IfiiJlfntivt s'.Walterhousf {\^i)o), 19 Out. R. 1S6.
(13) Robins v. 6V(/>'(i895) 2 Q. 15. 501.
^p
26S
• «)NI)mONAl- SALKS
fmi)Ioyt'rs hail jriven notice to him that thr machines
belonj^ecl to them ami not to the traveller (14).
Hut, if the chattel is not received as the guest's
lui^'gaije but only to he used by him while he stayed
at the hotel, the law relatinjj[ to innkeepers would not
apply. And where a piano was lent to a ouest while
he remainetl at the hotel ami the hotelkeeper kntnv to
whom the piano bel«)nned, it was held that there was
no right of detention or lien (15). Where, however,
.1 person hired a piano and took it with other effects to
<in hotel where it was used bv the hirer and his familv,
ami the hotelkeeper did not know but that the i;uest
owned the piano, he was held entitled to detain it as
against t!v true owner (16).
At common law an innkeeper had a lien on horsts
the propertx of his guest or which had been brouj^lu
to his inn by a guest (17).
An innkee|)er has a lien on whatever goods he
wouKl be answerable for in case of loss (iS). The
lien is a general one on the horses and carriages and
guest's goods conjointly for the whole amount of his
bill ; he is not restricted to a lien on the horses for the
charges in respect of the horses, but has a lien on the
horses for the guest's reasonable expenses (19).
Where a man and his wife stay together at a hotel
and the husband only is charged with the bill, the
lien will nevertheless attach to goods which are the
separate proj)erty of the wife (20).
(14) RoHns V. 6rmv(i895) 2 Q.H. 501.
(15) BroadtvooJ \. Granara 10 Ex. 417.
(16) Thfffallw Bonvick L.R. 10 Q.B. 210.
117) Allen V. Smith 12 C.B.N.S. 638; Mylliner v.
Q. 15. 1). 484-
(18) Threfallw Bonvick L.R. 10 Q.B. 210.
(19) Hufiman v. Walterhouse (1890) 19 Ont. R. 186.
(20) Gordon V. Silber 25 (^. B. 13. 491.
Floiffice 3
ANI> « IIATTII. I.IKNS.
•6q
An innkeeper has no authority, however, to lUtain
the person of his guest or any ot the clothes the guest
is actually wearing (21).
Lien of boarding house keeper. At common law
neither a boarding house keejjer nor a loilging house
keeper had any lien upon the goods of his hoarder or
lodger for the hoard and lodging {22) The right of
litMi is. iiowever. conferred in Ontario by a statute {27,),
which enacts that the keeper of a boarding house or
lodging iiouse shall have a lien on the baggage and
property of a boariler or lodger for his charges ; and.
in addition to all other remedies provided by law. he
is empowenxl. in case the same remains unpaid for
three months, to sell the goods on one week s notice
published in accordance with the ' Innkei'per's Act '
(24). \\c. also has a lien upon a horse or other
animal for the keep of same, and a power of sale on
two weeks' notice by advertisement (25).
A person who boards for remuneration a relative
or friend, but who is in no sense making a business of
keeping a boarding house, is ntit a boanling house
keeper within the Ontario statute conferring a lien on
the boarder's efi'ects (26).
The object of the statute is to afford a remeily to
the keepers of boarding houses and lodging hou.;cs,
who at common law had no lien, by giving to them a
lien on the baggage and property of the boarder or
(21) Sunbolfv. AijorJ 2, M. & W. 248.
(22) Neiiiombf v. Atu/erson (1886) 11 Out. R. 665.
(23) R.S.O. 1897, c. 187.
(24) R.S.O. 1897, c. 187.
(25) R.S.O. 1897, c. 187, s. 2 (2).
(26) R.S.O. 1897,0. 187; Hees \\ MiKeo7i<n {1882) 7 Ont. App.
521.
.JH-!
270
(.ONPniONAL SALKS
lodger ; but the statute does not. by its words or by
necessary inference, ijive any lien upon baggage and
property brought to the house by the boarder but
belonging in part to third persons (27)
A boarding house keeper is forbidden to keep
the wearing apparel of any " servant or labourer " in
pledge for any expenses incurred to a greater amount
than $6 (28).'
Ordinarily the goods o( a sub-tenant are liable to
seizure in respect of rent due by his landlord to a
superior landlord (29) ; but a boarder or lodger whose
goods are seized under a distress against the keeper
of the boarding house may serve the bailiff with a
statutory declaration made under The Canada Evi-
dence Act of 1893 with an inventory annexed thereto
subscribed by the boarder or lodger stating :
(a) That the immediate tenant has no right of
property or beneficial interest in the furniture, goods
or chattels, so distrained, or in case a distress has been
authorized but not effected, the goods threatened to be
distrained upon ;
(d) That such goods are the property or in the law-
ful possession of such boarder or lodger ; and
{c) That nothing (or if anything the amount) by
way of rent, board or otherwise, is due from the
boarder or lodger to the immediate tenant by whom
the rent distrained for is due.
On service of such a statutory declaration and on
payment of the amount if any due from the boarder
or lodger to the immediate tenant the superior land-
lord is bound to release the lodger's goods (30).
(27) Newcombe v. Anderson (1886) 11 Ont. R. 665.
(28) R.S.O. 1897, c. 157, s. 6.
(29) R.S.O. 1897, c. 170, s. 31 (3).
(30) R.S.O. 1897, c. 170, s. 39, 40.
AND CHATTEL LIKNS.
271
Any sum so paid by a lodger is a valid payment
on account of the amount due from him to the imme-
diate tenant (31).
Enforcement of lien. —An hotelkeeper who locl>s
up the room of a guest containing the hitter's baggage
and effects for non-payment of charges for board and
lodging, and who notifies the guest thereof and
requires him to leave the hotel on the same day or
pay the bill, thereby places the guest's baggage under
lawful seizure and detention in respect of the land-
lord's common law Hen ; and the taking away of
such baggage by the guest without the landlord's
authority is theft under sec. 306 of the Criminal Code
of Canada (32).
A person retaining goods under a lien for board
must take reasonable care of them, and when the
boarder has assisted to place the trunk in a public
room of a hotel but had not requested it to be placed
there, and it was afterwards broken into and some of
the contents lost, it was held that he had not accepted
the risk incurred by the trunk being so kept, and that
the hotelkeeper was liable for not having taken
reasonable care of it (33), In such a case the mere
fact of the trunk having been broken while it was held
under the lien is evidence of negligence (34). Under
special circumstances, such as the property on which
the lien attaches involving considerable expense to
keep, the innkeeper may have a right to use the
property to pay the current charges of keeping it. So
(31) R.S.O. 1897, c. 170, s. 41.
(32) TAe Queen v. Hollingsivorth (1899) 2 Can. Cr. Cas. 291, per
Rouleau J. (N.W.T.).
(33) Frank v. Berryman (1894) 3 B.C. R. 506.
(34) Dawson s.Cholmeley 13 L.T.Q.B. 33; Frank \. Berryman
(1894) 3 B.C. R. 506.
T
272
CONDITIONAL SALKS
where a horse and wajj;^on were left with an innkeeper
to be kept for a few days, and, the }jjuest not returning
for same, the innkeeper had reason to believe that the
horse and waj^j^on was not owned by the party who
brought it and that he would not return, and the inn-
keeper did not know where to fnid either the party
who brought them or the true owner, it was held that
he had the right to use the property moderately and
prudently to the extent of compensating him for his
charges for keeping, and that such use was not a
conversion (35).
British Columbia — Liens of innkeepers and boarding
house keepers.- liy the " Innkeepers Act" of British
Columbia (36) it is declared that every 'innkeeper',
including in that term the keeper of an hotel, inn,
tavern, |)ublic house, or other place of refreshment
who before the Act would have been responsible for
the goods and property of his guests (37), and every
boarding house keeper, shall have a lien on the
baggage and property of his guest, boarder or lodger
for the value or price of any food or accommodation
not being money or intoxicating liquors (38) furnished
to such guests, boarder or lodger, and, in addition to
all other remedies provided by law, shall have the
right, in case the same remains unpaid for 12 months,
to sell by public auction the baggage and property of
such guest, boarder or lodger, on giving one weed's
notice by advertisement in a newspaper published in
the electoral district in which such inn, boarding
house, or lodging house is situated (or, in case there
is no newspaper published in such electoral district, in
{^^) Alvordv. Davenport ^'^YX.. y).
(36) R.S.B.C. 1897, c. 98.
(37) Sec. 2.
(38) Sec. 2 (3).
AND ( HATTI'.f, LIKNS.
273
'^1
'J I
a iu;ws|)aper pul)lished nearest to such inn, board-
ing house, or lodging h<iuse), of such intended sale
stating (39) :—
(u) The name of the guest, boarder or lodger ;
{/f) The amount of his indebtedness ;
{() A description of the baggage or other property
to be sold ;
{</) The time and place of sale ; and
(<•) The name of the auctioneer.
After such sale the innkeeper, boarding house
keeper, or lodging house keeper may apply the
proceeds of the sale in payment of the amount due to
him, and the costs of such advertising and sale, and
shall pay over the surplus (if any) to the person
entitled thereto, on application being made by him
therefor (40). if an innkeeper refuses to receive
goods from his guest on deposit for safe custody, or if
the guest through any default of the innkeeper is
unable to deposit his goods or property for safe keep-
ing with the innkeeper, the latter will not be entitled
to the benefit of the Innkeepers' Act in respect of
such goods or property (41); the innkeeper may,
however, if he sees fit to do, require that upon goods
being deposited by the guest, that the same shall be
dtiposited in a box or other receptacle fastened and
sealed by the person depositing the same (42).
Manitoba — Liens of innkeepers and boarding
house keepers. — The keeper of any hotel, inn, tavern,
public house or place of refreshment the keeper of
which is by law responsible for the goods and property
of his guests is declared to be an innkeeper within the
(39) R.S.B.C. 189 ,c. 98, s. 3.
(40) Sec. 3.
(41) Sec. s.
(42)R.S.B.C. 1897, c. 98, s. 4.
]3I
1
274
niNDITIONAL SAI-KS
meaning of the Manitoba 'Innkeepers' Act' (43);
and is declared to have a lien on' the baggage and
property of his guest for the value or price of any
food or accommodation furnished to the latter other
than wines or spirituous or fermented liquors (44).
A boarding h'^dse keeper, under which designation
the keeper of a lodging house is also included (45). is
given a similar right of lien on the baggage and
property of his boarder or lodger (46),
The statute provides that any innkeeper or board-
ing house keeper in Manitoba may detain in his inn
or boarding house, and before the same shall have
been removed out of the inn or boarding house but
not afterwards, the baggage and personal effects of
any person who is indebted to him for board or
lodging other than the price of wines or spirituous or
fermented liquors supplied to the guest, boarder or
lodger or to any one by his order (47). The inn-
keeper or boarding house keeper must keep in his
possession, and will be held responsible for, any trunks
and their contents and personal effects detained
by him for the full period during which he exercises
this right, unless they shall be sooner released (48).
If the owner does not claim and release any
things so detained, then, in case the charges shall
remain unpaid for three months, the innkeeper or
boarding-house keeper is given, in addition to all
other remedies provided by law, the right to sell by
public auction the baggage and property of such
(43) R.S.M. 1891, c. 73, s. 2 {a).
(44) R.S.M. 1891, c. 73, s. 3 and 7.
(45) Sec. 2 {(i).
(46) Sec. 3.
{47) Sees. 4 and 7.
(48) R.S.M. 1 891, c. 73, s. 5.
ANI> ( IIATTKL MKXS.
275
\
guest, boarder or lodger, on posting up and keeping
posted during the period of one week on the outside
of the door of such inn or boarding liouse a notice of
such intended sale, stating (49) : —
(a) The name of the guest, boarder or lodger ;
(d) The amount of his indebtedness ;
(c) A description of the baggage or other property
to be sold ;
{(/) The time and place of sale, and
(<•) The name of the auctioneer.
After such sale the proceeds are to be applied in
payment of the amount due the innkeeper or boarding
house keeper and the costs of such advertising and
sale, and the surplus, if any, he niust pay to the
person entitled thereto, on fipplication being made
therefor (50). If application for such surplus be not
made forthwith, the innkeeper or boarding house
keeper shall immediately pay the same to the Clerk of
the County Court of the Judicial Division in which
the inn or boarding house is situated, to be kept by
such Clerk for such owner for one year, after which
lime, if the owner does not make a claim, such surplus
shall be paid over to the Provincial Treasurer of
Manitoba, and form part of the Consolidated Revenue
Fund of the province (51). To entitle an iuukciper
to the benefits of the statute, he must keep con-
spicuously posted in the office and public rooms and
in every bedroom in his inn a copy of the Act,
Revised Statutes of Manitoba, Cap. "j^, and the
benefits of the Act can be claimed by him only in
respect of such goods or property as shall have been
(49) R.S.M. 1891, c. 73, s. 6.
(so) Sec. 6.
(51) R.S.M. 1891, c. 73, s. 6.
-V'>
M)NIHriuNAI, SAMS
brought to his inn while sucli ci)|>y shall he so posted
(52). riirrc is, howt^ver, no corrcspoiulinj^ provision
as regards hoartlinj; house keepers and iod^inj^ house
ke<'pers. So also if an innkeeper refuse lo receive;
froni his j^uesl i^oods on d(>posit for safe custmiy in
the? manner specilied hy the Innkeepers' Act, or if th(.'
^ucst he unable throuj^h the innkeeper's default to
(leposit such };<mk1s or |)roperty, the innkeeper will not
he entitl(>tl to the he'iefit of the Act in r(!spect of such
^oods or property (53).
North- West Territories Liens of innkeepers and
boarding house keepers. Hy "The Hotelkeepers'
Ordinance" (34), any hotel, boardinj; or lodj^ing house
keeper may seize and detain in his hotel, house, or on
his premises, and before the same shall have been
removed therefrom, the trunks and personal pr<)j)erty
of any person who is indebted to him for board and
Iodising, and shall be responsible for the safe keeping
of the same (55). Hut so far as the claim is for the
price of wines or spirituous or fermented liciuors
supplied to the nuest or to anyone else by his
order, the right of lien is expressly excluded by the
Ordinance (56).
In addition to all remedies provided by law, he
shall have the right, in case the charges remain unpaid
for three months after the seizure thereof, to sell by
public auction the baggage and property of the guest,
boarder or lodger, so seized, on posting and keeping
posted during the period of one week, on the outside
(52) R.S.M. 1891,0. 73, s. H.
(53) R.S.M. 1891,0. 73, s. 10.
(54) Con. Ord. N.W.T. 1898, c. 56.
(55) Sec. 2.
<56) Con. Ord. N.W.T. 1898, c. 56, s. 3.
AM) < MATiri- I.IKNS.
277
of lh«: door of such honl. hoardinj,' <tr ludj^inj^ housr,
a notice of such iiucirdcd sal<: staling {57) '■
(a) Vhv. name of the ^iH-sl. hoarder or lud^ir ;
{/f) The amount of his indrhiedness ;
{(•) A description of the ha^^j^'a^^e or nthrr pruprrty
to h(! sold ;
{</) The tinu* and place of sale ; and
(t) The name of tne auclinnerr.
After such sale, the innkeep<T. or hoardin;; or
lodj^dn^ houstt keeper, may apply the proceeds of such
sale in payment of the amount due to him for lioaril
and lodj^dng, and the costs of such advertising and
sal(! ; and he shall f)ay over the surplus, if an)', to th<;
person entith^d thereto, on application Ixin^ made
therefor (58). if th(; person entitled does not make
claim to the surplus ' forthwith,' the innkeeper, etc.,
shall immediately f)ay over the same to th*- Treasurer
ol the North-Wesl Territories to b<^ kept by him for
such owner for one year ; after which time, if such
owner has not claimed the amount, th(; same shall
form part of the (jeneral Kevenu*' Fund of the Ter-
ritories (59).
If the hotelkeeper refuses to receive for safe cus-
tody the goods or property of his <jju('st, which the
latter desires to deposit, 01 if the ;^aiest is, hy reason
of the hotelkeeper's default, unable to d(;posit his
goods, the hotelkeej)er will thereby disentitle himself
to the benefit of the Ordinance (60).
The liability of the hotelkeeper for any loss of or
injury to property brought to his hotel (not being a
horse or other live animal, or any carriage, etc.) 'is,
(57) Con. Ord. N.W.T. 1898, c. 56.
(58) Sec. 2.
(59) Sec. 2.
(60) Con. Ord. N.W. T. 1898, c. 56, s. 5.
i
27^
( OMUTIONAI, SAI.IS
houcvrr. limiii'cl l)y llir Ordinance In '$200, except in
lilt: lollovvin;; castrs (Oi ) :
{(I) W'licn tlie j^oiuls or properly liave Ixren slolcMi.
lost or injureil through th<r default or neglect ol the
hotelkeeper or any s<;rvant in his empio) ;
(/>) When the j^oodsor |)roperty hav(; liecn deposited
c*X|>ressly tor sale custody with thi; hotelke«'per ; but
in the latter case tlu; hotelkeejx'r may if he thinks fit
re(|uire, as a condition to his liability, that the goods ar
j)roperty to be de|)Osited shall be deposit' I in a box or
other receptacle fastened and seal(;d by the person
dei)ositin«; the same (62).
In order to obtain the benefit of tht; Ordinanct; the
hotelkeeper must keep a copy of same posted up in
the hotel office and in the public rooms in the; hotel, and
it will enure to his benefit in respect of such ;j[oods
only as are brought to his hotel vvliile a copy of the
Ordinance is so posted up (63).
Quebec— Liens of innkeepers and boarding house
keepers. I'crsons keeping a hotel, inn, tavern, public
house or other place of refreshment, and boarding
house keepers, and lodging house keepers, have a lien
on the baggage and property of their guests, boarders,
or lodgers, for the value or price of any food or
accommodation furnished to them (64). They have,
in addition to all other remedies, the right in case the
amount remains unpaid for 3 months, to sell such
baggage and property by public auction, on giving
one week's notice of such intended sale, by advertise-
ment in a newspa|)er published in the municipality in
which such hotel, inn, tavern, public house, place of
(61) Sec. 4.
(62) Sec. 4(2).
(63) Con. Ord. N.W.T. 1898, c. 56, s. 6.
<64) R.S. Que. 1888, art. 5820.
AND (II.MTKI. lAh:S>.
279
rrfrtrHhintiiU, l>(>ar(Iing house or lodj^inj; house, is
situ.Ucil ; or in case there is no newspaper published
in such numicipality, in a news|)aper published nearest
thereto (65). The notice must state the name of the
;;uest, boarder or lodger, the amount of his indebted-
ness, a description of the baj^y;aj^e or t)ther property
to be sold, the time and j)lace of sale, and the name of
tile auctioneer ; and after the sale the innk<reper,
boarilin;^ house keeper or lodj^injj^ house keeper, may
apply the proceeds of such sale in payment of the
amount ilue to him, and the costs of such advertising
and sale, aiul must pay the surplus (if any) to the
person entitled thereto on application bein^ made
thtrrefor (66).
The obligations of the keeper of a cafe or restaur-
ant, as rc^gards the effects of guests, are in Ouebttc
province similar to those of an innkeeper (67).
Waiver of lien. — If an innkei^per allows a guest to
depart with his goods while indebted to him, he thereby
gives him credit, and he cannot afterwards detain them
on their return to his inn as against a third person
owning the same, except for debts which arose after
the goods were returned (6S). But if the goods over
which the innkeeper has a right of lien are the pro-
j)erty of the guest and the latter removes them after
such right has accrued, but afterwards returns bringing
the goods with him, the right of lien will revive (69).
An innkeeper who accepts security from his guest
(65) R.S. Que. 1888, art. 5820.
(66) R.S. Que. 1888, art. 5820; Civil Code Que. art. i8i6<i.
67) Dunn V. Beau (1897) 11 Que, S.C. 538.
(68) Hartley v. Hitchcock i Stark. 408 ; Jones v. Thurloe 8 Mod.
172.
(69) Huffman v. IVa/ter/iou se (iSgo) 19 Ont. R. 186 ; Mullinerv.
F/orence iQ.B.D. 484.
'•1
I
)
280
• oNIHTInNAI, sM.VH
for hotel cliarj^cs dors nut nccfssarily waive his lici>
by so tloinjr (70).
A hottrlkt'cprr who hcI/<'s his j^iipst's ba^j^ajji' by
lockin^^ up the ro(»m assit^ned to the ^^iicst docs not, by
afterwards ijrantinj,' permission to the j^niest to r«'in«»vr
some specified articles and by allowin^^ him free access
to tht; room for that purpose, abandon such sci/nre
and detention as re^Mrds the other trffects ; and the
owner who removes any ba)^'j;aj^e as to which the
permission does not extend is K^'^^V '*' sttralin^' th«'
same under sec. 306 of the Criminal Code of Canada
(70.
(jo) Angus \. Mil.adtlan 33 Ch. I). 330.
(71) Tht Quetn v. Hollingsxvotth (1886) 3 Can. Cr. Cas. joi, per
Rouleau J. (N.W.T.)
CI I. A IT KK XIV.
I^IIN^ UN lloKSKS ,\NI» CaTTLK.
Subject to what Heni.— Ilorsfs ami caiilr may Im-.
as chattels, the Hiibj''< i of various classes of liens ; but
those to which special reftrrence will he matle in this
chapter are the liens of livery stable ke'epers. horse
breeders and agistors of cattle. Livery stable keepers
ami aj^istors of cattle have no lien at c<»mmon law for
th(' hr/>tnx «)f horses or cattle ( i ) ; but they may have
for charj^es for exercising and traininj; a horse to rim
at rac<!s, or the like special services (2). And the
owner of a stallion has a lien upon a mare for tht;
charj^c for serving the man; (3).
A livery stable keeper does not come within the
rule givinjf a lien for the benefit of trade, nor is it con-
sidered that the feedinj^ and taking care of the animal
imparls any new value to it so as to justify a lien iij)on
that j^roimd (4). Livery stable keepers are not under
the strict liability as insurers which the law imposes
upon Q)mmon carriers and innkeepers ; with th«r latKrr
classes the strict liability is imposed "by rtrason of the
necessity of the thinj^ " (5) ; but with liv 'ry stable
keepers, bailiffs, factors and such like, it is considered
to be unreasonable to charge any of them with a trust
(i) Jones on liens sec. 641.
(2) Sevan \. IVateis 3 C. cN: P. 520; Forth \.Sinif>soti 13 {).]^.
680.
(3) Scarfe v. Morgan 4 M. & W. 270.
(4) Grinnel v. Cook 3 Hill (N.Y.) 485.
(5) Coggi V. Bernard i Smith's L.C. 8th ed. 199, 2 l.d. Rayni. «>i7.
^iH'
283
« (»\nrni>N.\i s.vi f.s
luriluT (li.in ilir n.umt' of ilu* iliinvj puis it in l\is
powrr to |H'rlorm it (()).
!lis oltli^.ition lo i.xkc rrason.ililr larr of ilv thiiiiL;
<'ntriistftl to him involves in it an ol>lii;.ition to t.ikc
nMs»>ii.il)l«- r.irr (li.it .my Iniililini; in wliirh it is
(icpositcd is in a prop«'r statf so ili.it the tliini; iluMcin
ilcpositcti ni.iv In* rcasonahly s.ifr in it (7). A lifn
ni.iy. ol c«»iirs«\ l>r rrc.itfil l>y ai»rt't'nifnt lu'twci-n tin*
st.iMt" kf<'|MT .mil the liiirsf ownrr (SV hut a n<')^lt'ct
ol .uiy of ihf ilutirs hcforc nu'titioncil will ^ivr ris<' to
a rountcivl.iiin f»>r thf il.iniav;t's imunt'il to he off set
.ij^.iinst tlir hen rl.iini.
.A horsf (miner h.is .1 lien f»>r liis oh.ir^i" in keeping
ami tr.iinin«4 •' li«'rsf, pn»viilt*il he ln»Ms p«)ssrssit>n rf
the horse (o), hut if tiu" horse he so f.ir inuler (he
e«>ntr«»l ol tin- .iwner .is to he put uiuler the ih.irs;e oi
his serx.mts ln»n time to time thnini^ the tr.iinini^.
th
leri" will be no lien, lor the re.ison
th.it
suen eon
tn>l
hy the owner ileprives the tr.iiner o\ that eontimieil
possession issenti.il lo li«'ns (ie>V
A horse sho<'r «>r farrier is uiuler the like leiMl
ohliv^.ttion to shot* a liorst\ .is a eimimon e.irrier is to
eonvev i^otuls ( uv) ; aiul this would .ippe.ir to entitle
him to .1 lij'ii on the Imrse, hut the rii^ht h.i,s heen
(<») lb«?. |HT I orti lli)lt : h'<;tJ>ic,tii \. .I//./7./'/./, I,.K. .j (.'.15. \-j\) ;
/>.!»/. /.• V. CrAtf.:. 1. K. 5 (,).|{. iS.j. 501.
{;) .'Cr-.x/.'x. /./.r»/.^- (187.0. I .K. 7 l.>. I?. \2.\
(S) V.-ri-fy.ihin.ius^hyi \x\. Rayin. Soft; ih,/iiit,/ \. h\iii'stt,iic
«) (' H. (mjS ; //<./<."/ V. /•'///f»/./j,v, I (". \ M. 7.^.
^^«)) AV/7/r V. .1/. //;ww^/.;r (i.S«),S) .jo (Int. R. 107; />Vrii»/ v. Il'it/frs,
I C. \ 1*. 5 JO. M. \ N(. .•?(»; \,'f/ V. .\trti,r y\o\sA^ (»7 N.W.
Rep. loS,
(lol Fi'ttlt \. Stm/*Si<ti, I ; ( 1. H. (>.So.
{\oa^ / jftr \ l\>tti>» I Salk R. 17.
VM» ( 11 \n I I I II \^.
-'S;>
tlcnilxnl in Om.irin ( u>/'). In llu* luilctl St.itrs it 1"%
ln'M tint .1 t.uritr Ins a lien lor sho<'iM<4 .» horse (iiv ).
Power of sale. A liv«'i y stahK* k«'«'|n'r. with wliom
a luusr is It'll \o Ur takt'H cuv ol. is i^i\(«n. in Ontario,
a statutory powi-r lo sril a h»»rst> tor its kwy only in
cast" lit- alrt'aily has a lien «>n tin- sanu\ Ihc statute
|>ro\ iiK's as hallows :
" Wlu'if an innl\i't|>«'r. hoanlinj; Ikmisc kccprr.
loilj^in^j honst" kr«'|H'r «>r li\ try stahK- kt'«'|«r /nis />v
Anc It lieu ii|U)n a horse «)r other animal lor llu* \\\\\.v
or value ol any looil or ai itMniutnlation supplietl to
sueh animal, or lor tare or lalH>ur hestowetl thereon,
he shall, in .uKlition to ,ill other remetlies |»ro\ iileil
l>y l.tw, have the rij;ht. in e.ise any part (»l sueh priic
or v.ilue remains unpaid Uw the spae«' ol two weeks.
tt> sell l»N puhlie auction sueh horse or other .mim.il
^'^w i;i\ ini; two weeks' notiet* l>y .nlveriisemeiU in a
newsp.ipir puhlisheil in the muniiip.ilitx in whieh
the inn. l»oarilini» house. loilv;in<; house, or livery
stahle is situate, or in ease tliere is no newsp.iper
puhlisheil in the munieipality. in .i newsp.iper
puMisht il nearest to sueh inn. hoaitlini; house,
loilj^iu!,; house, or livery stahh*. t»l the intended sale.
statin|4 (it known) the n.une t>l the ptMson or persons
who hrouijht sueh horse or other .inim.d to tlu' inn.
I»*».uilini; house. Knl^in^ lunise, or lixciy stahle,
the .imoum ot the imlehtetlix'ss. .i deseripti«»n ol
the "'.orse or «>ther animal, ami tlu* name ot the
auelioneer ; and alter the s.iU-. the innk«'ep«'r.
hoaiilinij house keeper. Imlj^inv; lunise keeper, or
liv<M\ si.diK' keeper m.iy apply the pioi-eeils tht'rol
in p.»\ inent ol the .unount ilue to him in respcet t)l
food or aeeommoila ion supplieil or e.uc or lahour
(lOi*^ .\V.('//\v. /'w»/.ti« (1X54^ II r.r. K. ;;.'
110.^ /."./v. /."/f* .•4 Mo. .><(); ( '//w/w/M/!,> V,
//./
» » />
Vt i.\.\.
»84
CONDITIONAI, S.Xr.KS
;hi
" bestowed as aforesaid, and the costs of such adver-
" tisement and sale, and shall pay over the i-urpjus, if
"any, to the person entitled thereto on application
" bein}^ made by him therefor " (i i).
It will be observed that this statute confers no
rijjht of lien, but only a right of sa/e in cases in
which the right of lien already exists. An innkeei)er
undoubtedly has a right of lien upon horses brought
to the inn by his guest, but, as has already been noted,
the livery stable keeper has no such common law right
for the mere keep of the horse, although he may
acquire a lien in respect of special services such as
horse training. The section above quoted would,
however, apply to confer a |)Ower of sale upon the
stable keeper in cases in which, by contract express or
implied, a lien has been created.
Waiver of lien.— Continuance of possession is
indispensable to the existence of a lien at common
law, and the abandonment of the custody of the
property over which the right extends divests the lien.
The lien-holder in such case is deemed to surrender
the security he has upon the property, and to rely
upon the personal responsibility of the owner. If,
however, a sale of the property be made by the owner
while it is in the possession of the person holding it
under the lien, and without his participation or consent,
the sale will not divest it, and the purchaser in that
case will take it subject to the incumbrance (12).
In the State of New York it has been held that a
livery stable keeper waives his lien by transferring his
stable to a purchaser and delivering up with the pos-
session of the stable a customer's horse upon which he
(11) R.S.O. 1897, c. 187, s. 2 (2).
(12) Marseilles Mfg. Co.\. Morgan 12 Neb. 66; 10 N.W. Rep.
462.
ANI> ( IIATTKI. I.IKNS.
2H5
h.ul ;i lien, uiuler ;i new arnmj^ement with the pur-
chaser by which the further exj)ense of keepinj; the
horse was charjj^ed by the latter to the customer ( i^;).
it was considered that the purchaser became, under
such an arranjj^ement, the* owner's aj^ent. and- that the
purchaser's possession was the owner's possession, antl
this voluntary surrender was a relincjuishment of the
former stable keeper's lien, which could only be
|)reserved by some understanding made at the time,
by which the jjurchaser was to hold the j)roperty for
the benefit of the lien claimant and for the preservation
of his lien (14).
A continuing right of possession of the animal must
accompany the services rendered by a trainer for which
he claims a lien on a horse which he has trained, in
order to render such lien valid ; and a trainer who had
delivered up possession of a horse which he had been
training to the administratrix of the owner from whom
he had received it, and who afterwards resumed
possession under a new agreement with the adminis-
tratrix to take care of the horse, was held to have lost
any lien he might have had {14a).
If the owner agrees by the contract that the agistor
shall have a lien upon the animal, the lien so created
will not be lost by the fraudulent removal of the animal
from the agistor's custody, and the latter may re-take
possession for the purposes of the lien (15).
( 13) Fiichett v. Canary 38 N.Y. 531 ; 14 N.Y. Supp. 479.
(14) Jones on Liens 2nd ed. 701.
( 14a) Reilly v. Mclllmurray (1898) 29 Ont. R. 167.
(15) Wallace v. Woodgate i C. & P. 575; Richards y.Symons 8
Q.B. 90.
I mm
2S()
tuMnrioNAi, s,\i,i:s
Manitoba Statutory lien of stable keeper. it>
lln- Manitnha " Siahlc Keepers' ,\(i " (\()) every
livery siaMe keeper and keeper ni a Ijoardinj; or sal(;
sial)le sliall havi- lor the value or |)rit'e of any Inod.
eare, attendance or aceomniodation liirnished tor an
animal a li(*n thereon and on any vehicle, harness, hir-
nishinj^s or other j^car appertaining thereto or any
personal elTeits of which he holds possession helonj^-
in^ to any person who is indebted to him lor stahlini;,
hoarding or carinj; lor such animal ; and, in addition
to all remeilies provided by law, shall have the same
rijuhts and privilei^fs lor exercisinj^ and enforcing such
lien, in so I'ar as the same may he ap|)lical)lc, as hoard-
ino house keepers anti innkeepers have under the
Manitoba Innkeepers' Act (i/).
The stable keeper may only I'xercise the ri^ht of
ileteiuion before the animal, or other effects mentionetl,
has been removed out of his custody and possession
ami not afterwanls ( iS). The rij^ht of detention has
priority, by virtue of an amendinj^ Act passed in 1S99
(ic)). over any exisiiui; lien, chattel mortjjfaj^e, bill of
sale or other char«;e or encumbrance of whatsoever
nature or kind affecting the animal.
If the t)\vner tloes not reclaim and obtain the
release of any such animals anil effects within one
iiu)nth from the commencement of the detention, the
perst)n detainin«> may cause them to be sold by public
auction, anil after payin*; himself the amount for which
he has a lien and payinj; the costs of sale he shall [)ay
over to the owner of such animals and effects the
balance, if any, of the price thereof (20). if the owner
(16) R.S.M. (i89i),c. 91.
(17) R.S.M. 1891, c. 73.
(18) R.S.M. 1891, c. 91, s. 3.
(19) Stat. Man. 1899, c. 18, s. i.
(so) R.S.M. 1891, c. 91, s. 4; Stat. Man. 1899, c. 18, s. 2.
wit (IIAIIKI, I.IKNS.
I.S7
catinot he fniiiid then the halanct- is to In* liaiidcd over
lo the (^Icrk of the (juinty ("oiiri of the judicial
division witliin which the slal)l(r is situate to Ix* kept
hy the C'l(!rk for one year ; after which linn;, if the
owner "do not appear or claim the amount so kept,"
the same shall he paid (»v<t to th(! Provincial Treas-
urer, and form part of the Manitoha Consolidated
Revenue I'und (21). I'nless the animal is sooner
released, the stable ketrper exercisinj; his ri^^ht of li(Mi
must keep the animal and olh(!r effects (l(>taine(l, for
the full period of thrtre months iM^forc; he can le^^^ally
sell them (22). 'I"h(; same; privilej^es. rij^dits and
exemptions apply to persons leaving animals, furni-
ture, vehicles and the; ;^^ear th(T(.'unto helonj^inj^r to l^.
he kept hoarded or cared for at a livt;ry, hoardin*^ or
sale stable as are made to apply to lodi^crs and
hoarders under the Manitoba Distress Act (2,^); an<l
they will ther(ffor(! be liable to be (listrain<;d for r(;nl
due by the stable ke(;per to his landlord, only to the
extent of the charj^es due to the stal)le keeper in
respect ther(,'of (24). I'he keej>er must have a copy
of " The .Stable l\e(;p(,'rs' Act " of Manitoba conspicu-
ously posted up in th(' office of the stable and in at
least two other conspicuous places in th(! stabk; (25) ;
and it is only upon com|)liance with this provision that
he is entitled to the benefit of the Act (26) ; but the
copies are re(|uired to be posted up only when the
horses, etc., are brouj^ht to the stable and it is not
(21.) R.S.M. 1891,0. 91, s. 5.
(22) R.S.M. 1891, c. 91, s. 4.
(23) R.S.M. 1891, c. 46.
(24) R.S.M. 1891, c. 91, s. 8.
(25) R.S.M. 1891, c. 61, s. 6.
(26) R.S.M. 1891, c. 91, s. 7; R.S.M. 1891, c. 73, s. 8.
IH
288
CUNDITIUNAL SALLS
mjitericil that they should be kept posted up throuj^h
the whole period of detention (27).
>
N. W. Territories -Statutory lien of stable keeper.
— By an Ordinance of the [legislature of the North
West Territories (28) it enacted that every livery
stable, boarding stable or sales stable keeper shall
have a lien on the animals and the vehicle, harness,
etc., left in his possession, for ihe value or price of any
food, care, attendance or accommodation furnished for
any such animal or effects, and, in addition to all other
remedies provided by law, may detain in his custody
and possession any animal, vehicle, harness, furnishinjjs
or other gear appertaining thereto and the personal
effect.- of any person who is indebted to him for stabling,
boi i.. or caring for such animal (29). And by the
intti|. ':r^ -ion clause of the Ordinance it is declared
that the expression " livery stable keeper " means and
in; 111 les any person who for a money consideration or
the ecjui aleiu tfief^of carries on the business of letting
or hiring out lariiages, sleighs or other vehicles, or
horses or other animals, whether with or without a car-
riage, sleigh or other vehicle, and whether accompanied
- by an employee of the livery stable keeper or not ;
that the expression *' boarding stable keeper " means
and includes any person who, for a money consider-
ation or its equivalent, stables, boards or cares for any
animal ; and that the expression "sales stable keeper"
means and includes any person who stables, boards or
cares for any animal other than his own, with the
intention of selling or disposing of the same, and who
receives or is to receive payment for such services
(27) Dudley v. Henderson {x'i&d) 3 Man. R. 472.
(28) No. 40 of 1897, Con. Ord. N.W.T. 1898, c. 57.
.(29) Con. Ord. N.W.T. c. 57, s. 3.
I :
ANU CII.MTKL LIKNS.
589
whether in the nature of a commission or other-
wise (30).
ICvery livery stable, boardinjjf stable or sales stable
keeper, who has exercised such rij^ht of detention
is obli«^ed to keep in his possession and be responsible
for the proper care of any animal or effects detained
by him for the full period of such detention unless
they shall sooner be released ; and if the owner does
not reclaim the animals and effects so detained by pay-
injjf the indebtedness in respect of the same within one
month from the commencement of such detention, the
keeper detaininjr may sell or cause the same to be sold
by public auction on {giving two weeks' notice of sale
by advertisement in the newspaper published nearest
to such stable (or if more than one newspaper be
published in the same locality, then in either one) and
by posting up notices in the nearest post office and
in the said livery or boarding stable of the intended
sale (31).
The advertisement in the newspaper and the
notices posted up should state, so far as the same are
known to the stable keeper, the following particulars
(3i«):
{a) The names of the owner and the person or
persons who brought such animals or effects to the
stable ;
{d) The amount of indebtedness and charges for
detention ;
(c) A description of the animals and effects ; and
{(/) The name of the seller.
The proceeds derived from such sale shall be
applied as follows :
(30) Sec. 2.
(31) Con. Ord. N.W.T. 1898, c. 57, s. 4.
{3itf) Sec. 4.
290
CONDITIONAL SAMIS
H
,1
(a) In paying the expenses incurred l)y such tleien-
tion, advertisinjj^ and sale ;
(6) In payinji^ the debt for which such detention
was made ; and the surplus if any shall be paid to the
person entitled thereto on application beinjj^ made by
him therefor (32).
In case such owner does not apply for the same
within one month from the day of such sale then such
surplus shall be handed over to the Territorial treasurer
to be kept by him in a special trust account for <ine
year, after which time, if such owner does not appear
or claim the amount so ke|)t, the same shall be paid
over and belon}^ to the jjjeneral revenue fund of the
Territories (;^;^).
It is the duty of every livery stable, boardinjjj
stable and sales stable keeper to have a copy of this
Ordinance hunj^ or posted in a conspicuous place in
his stable and in default he is not entitled to the
benefit of the Ordinance (34).
Horse breeder^s lien -Manitoba.- By the Horse
Breeder's Lien Act of Manitoba (35) it is enacted
that :—
Any owner of a stallion domiciled in Manitoba and
rejjjistered in any of the following stud books, that is
to say. The Clydesdale Stud Book of Great Britain
and Ireland, The Clydesdale Stud Book of Canatla
(appendix excepted), The English Shire Horse Stud
Book, The Suffolk Stud Book of Great Britain, Stud
Book Percheron de France, Percheron Stud Book of
America, Stud Book des Chevaux de Traits Prancais,
The P!nglish General Stud Book (for thoroughbred
horses). The American Stud Book (for thoroughbred
(32) Con. Ord. N.W.T. 1898, c. 57, s. 5.
(33) Sec. 6.
(34) Sec. 7.
(35) Stat. Man. 1893, c. 15, as amended by Stat. Man. 1899, ^- ^5*
AM) < IIATTKL LIKNS.
291
horses), I'lio Stud hook Pnincais (for thorouj^^ihrctl
horses), The American Trotting Reji;ister, The Stiul
liook Francais des Chevaux Demi-San^. StiuI Mook
cles Hleveurs Francais de la Race des Chevaux Demi-
San}^, Stud Mook of the Royal I'russian Main Stud
Trakehnen. Hanoverian Stud Hook of (iermany,
Oklenburj^er (iestutbuch. Stud Hook of the Holstein
Klb Marshes, Cleveland liay Stuil liook of (ireat
Hritain. Yorkshire Coach Horse Stud Hook. Hackney
Stud liook of (ireat Hritain. Canadian .Shire Horse
Stud Hook, American Shire Horse Stud liook, Cana-
dian Hackney Horse Stud Hook. American Hackney
Stud Hook, may rej^jister such stallion in the Depart-
ment of Aj^riculture and immijj^ration and procure a
certificate of such registration in a form to he pre-
scribed by the Minister of said Department.
Such owners shall pay to the said 1 )ei)artment
for such rej^istration the sum of $5.00 (^^6).
F^very bill, poster and advertisement issued by the
owner of such stallion, or used by him for advertisinjj^
such stallion, shall contain a copy of such certificate,
otherwise the owner shall not be entitled to the
benefit of the Act {;^y).
The owner of any stallion rejj^istered untler the
second section of the Act, or his aj^ent, may file in
the office of the Clerk of the County Court of the
judicial division in which the owner or person in
charj^e of any mare upon which such stallion performs
service resides, within .iiff*e>i*ivimit)TCS after service has
been performed, a statutory declaration settin^^^ forth:
( 1 ) The amount of service fee.
(2) That the same is unpaid.
(3) The fact of such service.
(4) A reasonable description of such mare, and
(36) Sec, 2.
(37) Sec. 3.
]^f;fju^. ^'^y"
r/^. ?
tUf.
/
/ff/il
II
29;
(ONIilTKtNAI. ^A[,KS
(5) Iln- nanu' aiul rcsiilciicc ut ihc owirt of such
marc.
Aiul tlif County Court Clerk shall fili- th<' declara-
tion upon receipt of a lee ot ten cents (3H).
The owner of such stallion upon filinjj^ such
declaration | referred t«) in the statute as an affidavit!
and coniplyinj^ with the |)rovisions of the Act shall
have a lien to the amount of saiti service fee and
costs as therein provided upon the colt or filly, the off-
sprinj; of any such stallion from the service in respect
of which the said ileclaration is filed, which lien shall
take and have priority over any and all writs of exe-
cution, chattel mort}4a*;es. hills of sale, liens, claims
and encumbrances whatsoever (}g).
if payment of the service fee is not made before
the first day of January in the year followinj^ the year
in which the colt or lilly is horn, the owner of said
stallion or his duly authorized aj^jent may, at any time
before the first day of May followinj^, take possession
of the colt or filly upon which the statute }jfives him
a lien wherever the same may be found, and may
proceed to sell the same by public auction after jjfivinjj^
the person in whose possession the said colt or filly
was when taken, ten days notice in writinjj^ of such
intention to sell, which notice may be effectually j,nven
to such person by deliverini^ the same to him person-
ally, or by postin}^' the notice uj) on the door of
such person's last known place of residence in Mani-
toba (40).
The pnjceeds of the sale shall be applied, first in
payment of the reasonable expenses of the taking of
possession, giving of notice, and conduct of sale not in
(38) Sec. 4.
(39) Sec. 5.
{40) Sec. 6.
.\\i» • ii.MTii, i.n.\>.
393
all in any cast' cxtt'ctlin^' $10, and next in payment of
the service fee ; anil the balance shall Ik- paid hy the
owner of the stallion to the person from whose posses-
sion such colt or tilly was taken, on ileinaiul (41).
Horse breeder's lien N. W. Territories. H\ an
Ortlinance of the North West Territories assented to
on April 29. 1S99 (42) it was enacted that any person
residinjif in the North West Territories who is the
owner of a stallion rej^'istered in any reco«;iii/ed stud
book ap|)roved !)) the Commissioner of Aj^friciilture,
on payment of a fee of $5. may rej^Mster such stallion in
the Department of Aj^^riculture (NAV.'I.) and procure
a certihcate of such rej^'istration in a form to he jire-
scribed by the Commissioner (43). I he certificate is
transferable upon the sale of the animal upon payment
of a transfer fee of $1 (44).
The owner of anv stallion iri^ishrci^ under the
Ordinance, or his ai^ent. may fde in the office of the
rej^istration clerk of the rejj^istration district for mort-
j^^a^es and other transfers of personal |)roj)erty in
which the owner or person in charj^eof any mare upon
which such stallion performs service resides, within 3
months after such service is performed, a statutory
declaration settin«i,^ forth :
{a) The amount of service fee ;
{b) That the same is unpaid ;
(r) The fact of such service ;
{(i) A reasonable description of such mare : and
(<') The name and residence <jf the owner of such
mare.
(41) Sec. 7.
(42)Ord. N.W.T.
(43) Sec. 2.
(44) Sec. 2.
1S99, c. 20.
394
CONI»iri(»NAI. SAI.KS
I
Tin- n'j^istrationclrrk shall liN- ihr statutory dicl.irji-
tioii upon r«'i;t'i|)l of ini c«'nts (45)' ' li*' * *rtlinaiu'«* tlifii
titrilarcs that llir owner of suth stallion " upon fiHn^
such iij/ii/<i:i/ " ( tin- statutory dcclar.ilion is tjvitlrntly
rrfcrmi to], and coniplyin;; with tin* provisions of thr
Onlinancf, shall have a lien to the amount of said sct-
vicc Icr, and costs as thcrcinaftcT pro\ idcd. upon thr
colt or (illy, thtt offsprinj^ of any such stallion, for the-
service in respect of which such at'tidavit [statutory
(N'claration | is filed (46).
The lien lakes priority, by virtue of an exprens
provision in tht: statute, over any anil all writs of exe-
cution, chattel niort^i^ajjes, bills of sale, claims and
encumbrances whatsoever (47). The lien conferred
by statute in favour «)f the liorse breeder would, apart
from this provision, take priority over the lij^ht of a
chattel morij^a^ee of the mare takin;^ his security while
the mare was in foal (4S); and the effect of the statute
appears to be that priority is jriven to the statutory
lien as against any encumbranc** or conveyance. If
paymtMit of the service fee is not made; before January
I St in the year following the year in which the colt or
rtlly is born, tht; owner of the stallion, or his dub
authorized agent, may at any time before the ist day
of May following, take possession of the colt or filly
upon which he has such lien wherever the same
may be found, and may proceed to sell the same by
public auction after giving the person in whose
possession the said colt or filly was when taken, ten
days notice in writing of such intention to sell (49).
(45) Sec. 4.
(46) Sec. 5.
(471 Sec. 5.
(48) S/ws V. Ihadford \2 I,ea (Tenn.) 434.
(49) Sec, 6,
AM) « IIAirKI. LIKNS.
^95
Tin* notice may b** erfcctiially j^'ivrn liithcr l)y (h-livcr-
ii)^ the sanu' personally, or by postin^r jt up on the
iloor of thj! last known niact; of r<!sklencr in tlu' Trrri-
tori«'s. of thf person lo be served (50). 'I'lu; |)r«)cerdH
of thr sale of th<; coll or filly are to be applicil, firstly
in paynviu of tht; reasonable expenses of tlu' taking
of possession, jb(ivinj^ of noticf, ami coniliict of sale
(not in all in any case lo <:xceed $10), and luxl in pay-
ment of the service fet; ; and the balance nmsl be
forthwith paid by the owner of the stallion to the jwr-
son from whose |)ossession the colt or filly was
taken (51).
Cattle Lien Act -BritUh Columbia. Hy the Cattle
Lien Act of iiritish Columbia (52), it is enacted that
<\ery keeper of a livery, boardinj;, or sale stable, and
every agister of cattle, shall have a lien on any cattle,
and any effects left therewith by the owner of such
callle, for the value or price of any food, care, attend-
ance or accommodation furnished for any such cattle
(53). The word "cattle" is to be construed in the
statute as includinj^ " horses, mares, lillies, foals, colts,
geldings, bulls, bullocks, cows, heifers, steers, calves,
shet.'p, goats, swine, mules, jennets and asses" (54).
The keeper of a livery, boarding or sale stable in
British Columbia, and any agister of cattle, may detain
in his custody and possession, before the same shall
have been removed out of his custody and possession,
but not afterwards, any cattle, vehicle, harness, fur-
nishings, or other gear appertaining thereto, or any
})ersonal effects of any person who is indebted to him
(50 1 Sec. 6.
(51) Ord. N.W.T. 1899, c. 20, s. 20.
(52) Stat. B.C. 1893, c. 6 ; R.S.B.C. 1897, c. 39.
(531 R.S.B.C. 1897, c. 39, s. 3.
<54, Sec. 2.
396
CONDITIONAL SALKS
for Stabling, boarding .or caring for such cattle (55).
The duty is impwed by the statute upon every keeper
of any livery, boarding or sale stable to keep a copy
of the " Cattle Lien Act " consjiicuously posted up in
the office and in at least two other conspicuous places
in ever)' stable (56) ; but no penalty or forfeiture is
mentioned therein in case of non-compliance.
Every keeper of a livery, boarding or sale stable,
and every agister of cattle, is obliged to keep in his
possession, and will be responsible for, any cattle and
effects detained by him, for the full period of detention,
unless they shall be sooner released ; and, if the
owner does not reclaim and release any such cattle
and efiects so detained within three months from the
commencement of the detention, the person detaining
the siUTie may cause them to be sold by public auction ;
and after paying himself, and the costs of sale, he shall
pay over to the owner of the cattle and effects the
balance of the price received (57). If the owner
cannot Ixi found, the balance, if any. of the purchase
money is to be handed over to the Registrar of the
County Court for the county within which the sale
took place, to be kept by the Registrar for the owner
for one year ; after which time, if the owner do not
appear or claim the amount so kept, the same shall be
paid over to the Provincial Treasury, and form part of
the Consolidated Revenue Fund of the Province (58).
(55) Sec. 4.
(56) Sec 7.
(57) R.&B.C. 1897, c. 39, s. 5.
(58) R.S.B.C. 1897, c. 39. s. 6.
If:
11
II ■■
CHAPTER XV.
Workmen's Likns.
Lien on chattel for work done thereon. I n ociu-ral,
where a person bestows his labour on a |)articular
chattel delivered to him in the course of his busiiu'ss,
he has a lien upon such chattel for the amount of his
charjjfe (i). The workman who manufactures a chattel
out of material furnished by the customer has a lien
on in for his services (2).
The lien of a workman for repairing a chattel is
not confined to the value of the work done by himself
and the workmen regularly employed by him, but will
include the repairs which the workman entrusted with
the job has let out to another person, and notwith-
standing that the chattel has been sent to such other
person in a foreign country without the special direc-
tion of the owner (3). But a servant has no lien upon
the property of his master which he has, as a servant,
got into his possession ; and a compositor who sets uj>
type in his employer's printing office has no lien on
the type for his wages (4), A printer has a lien on
the sheets he prints and on the stereo plates hv makes
for the work, but he has no lien on the " copy " or on
stereo plates not supplied by him but |)ut into his
hands to print from, unless by express contract
(i) Bleaden \. Hancock ^ C. & 1*. 152; Steadman \. Hockley 15.
M. & W. 553.
(2) Gregory v. Styker 2 Denio (N. Y. ) 628 ; Curtis v. Jones, How-
ard's App. (N'.Y.) 137.
(3) Wel>l>er v. Cogswe/l {i%Ti) 2 Can. S.C.R. 15.
(4) Franklin \. Hosier (1821) 4 B. & Aid. 341.
:*)S
MtM>mn\\| sM.l.s
ix'lwrcii him .itui his niiploycr il h.is hfrn so pro
\'u\vi\ (5).
A hrickinaUrr who m.ikrs hiicks lor .idoiIht ihtsom
in A hri«-U\,it(l hrloii^in^ to (h.il prison, .in«l wjio has
)oss(ssioii «»i ihr y.inl \vhil«' rnj;.i|;r«l in making the
trit ks, is (luillcil (o a lirn tipon thtMU {()), ami whrrr
lor his miployrr at .1
cnipiovcr's sliop. at an
a nurhanu niadr piano cisrs
pl.uT assiv;n«'«
P
i 10 i)
nin in the nnploycrs shop, at an
aj^r«'o»l prii<' out ol inalnial siippiirtl l»y llu* rinployrr,
th
h
w incchanu- rinplovin^ worUint'n to assisl hnn, i( was
held (hat hr iiad .1 lien upon piano cases of which he
|-ctainc«l actual possession, as .ij^ainst the hohh'f of a
chattel inortiLjai^e lioin the i-inplovi-r (;).
\ iniller has a lien upon ineai which he has ground
li'oin
corn ruinishe«l l»v his ci
isloine
(S)
.UK
an
<Mi<4iaver has ,1 lien on plates en^r.ivetl hy him {()).
A person employ<*(l to ilye cloth is entitled to a
lien tlu'ieon ( 10) ; and so is one who inanuiactutes
cKuh tVom materials hirnished (11), and the tailor who
niakes the clotlt into an article of clothing (li).
The lien continues only while the workman or
bailee continues in p(»ssession ol the chattel ; and if
he delivers il up hr nas only a rij^hl «>! action lor the
Wt>rk doiu' (i.O- A specific lien r«)r work done
(5) />\>>/./ff/ v. //.;»/<.'.-(• {i8j«)) M. \- M. 465; 4 C. \' I'. 152.
((■>) Kol'ffts \./y,inkof /('ri'wA' (iS»)4"l .'I Out. App. 62«) ; Moore
\. /fit,ii,i\k .\ Wi'nil. (^Nl.V.) n)i \ kitin \.lfhiiitn Co. 11 Ciish,
<Mrtss.W;i.
(j^i Shaw \ . Ka!f> io() Mass. 44S.
(S' Ch,ii<- V W fit mot f 5 M. \' S. iSo.
(O' Ma>k:s\. l.ahir y^ Hiii};. N.(". .joS.
(lo^ {irr<n v. /utrmff.\ Hurr. 2i2\.
(^lO .IA'.'>r V. llitthiOik 4 Wt'iul. (N.V.) 2()2.
^12 ( <',V',Vr V. .h/i/rfwy, IIol>art K.H. 42.
(1;^ Sfhi'*!/"}' V. .///(■•« 10 (tray (Mass. ) 552.
AM> < II \l III. III.N'H.
t(>«y
«'\islH ill r.ivniir nl ,1 I iirrliij^r niiikiT lor n-pair'n^ .t
(•.irii.i^ji- { I,)).
/\ |i.i( kn Ims a lit-n ii|i<in tlw- ^mkkIs |*ui kcd Ity liiin
loi iIm- iiMit rials iisnl ;iii(| work <lotic in |ia( kiii^ ( I s).
Ih
ir Itcii IS allowcil lor work in Mitlin;.; up lo^^s into
hoards or sliiii^lrs ( lO), And on«- who i.ikrs window
sashrs inin his possrssion lorllw purpose o| hirnishin^
l^lass lor thnn and doin^^ llic ^^la/in^ thereon h.r. a
ronnnon law lien upon the sashes lor snrh work so
l<
ll
on^ as they reniaiii in ins possessto
/\ I
lorse irainer has a hen on
Ml (i;).
th<> I
lorse
•ll
will)
him lor training, lor his servires rendered, provided he
has a (onlinnin^ ri^hl ol possession ol the horse
throiii^hoiit the whole period diirin^^ whi( h the train
in>^ takes place ( jS).
A verlial agreement that one who had hy a written
conti.M t undertaken to prodiue hy his lahoiir a < hatlej,
whi< h is to hecoine the properly ol another when the
lalioiir is perlorined, shall have a lien on such iiroducl
lor the inoiny to he paid as the reward ol his lahour,
does not deroj^ale fr<»in llw ronieniporaneons writin'4 ;
and evidence is admissihie to prove sih h a veri»al
aurfeineiu il it is not in any way iiu onsisient wii'n or
contradictory of the written ai^n-emenl (My).
hy the ( ivil ( od*; of Oiiehec (20) ea( h person
en;4a;^ed to lish or assist at any lishiiiL; or in the
( I \) N II ^h for III V. Iliiilfirltl 7 Kast 2 2.|.
(15) llityis<iini \. (i. 'I'.N. 32 U.('. K. 302.
(161 Comshuk V. MtCrackffi 5.; .Mirh. 12^; .Uiiim v. liiickli")/
65 Wis. 26; IHerc- v. Swrrl t,t^ I'a. St. 151.
(17) AfiAfirkiH V. ll'orcfstei flowa) 6H N.U, kt[). ^So.
f iHi h'ciiiy V. M,///mutray (1K98) 29 Out. k. 167.
( U}) /iyrrs v. M( Millati ("1887) 15 ( an. .S .( '. k. 194 ; I'.i ^Idtii- v.
Adeanf'^Q\\. App. 764; Moff^ati \. (irif)illt, l,.k. '> I'.x. 70.
(20) C.C. art. i«>y4 a ; K.S.C^. art. 5826.
;oii
• <»M>I llnN M ^ M I s
^,
tlii'ssin^ nl lisii. riihn l»v wiiurii .i^irt'mnii m uiIm i
Nvisf, h.is. loi smiling his w.i^rs or share'. ,i (irsi hrii
l)l'<'t( r.diir to ,iin other t ir(h(<il ll|iol) thr |>io<liii (■ ol
his rmplovf r's hsh« rv.
Lien denied. I'lilcss the worU is «loii<' .it thr
owmi s ir(|ii«st. or witli his «onsrnl, ••\|trrss <tr
im|»hr»|, tin- lirn «|ors not .iiisr. So whrrr .1 ».tni.»^r
w.is »lrh\<*rr»l lor re'p.iirs t«» .1 tarri.i^r maUn \t\ thr
ownn's srrv.mt who h.ul iu'^hj;cmly hrokrn il, .iikI
t.ikrn it to hr rr|i.iir»'«l hrlorr thr m.ist<r w.is aw.irr ol
tlic iniury. it was hcM th.il no hcmoiild he in.iintaiix'd
ill re'spri t o( llu* r«*|».iirs ( J I ). Thr owmrs » onsrnt
ma\ . howixrr, lir iiuplirti (roin thr lirtiimst.uu rs ol
the rasr, as whrn- the rrp.iirs win* ol hnu'lit hoth t»»
the partN oidcrin^ thrin and tf» li»r owner ol the
(hatlel, and the ( it.iUel was heinj; used lor iheir ioinl
luMU'lit (J-?).
No Hen .ittailtes to personal propeity in .1 store
tor work done in t.iUin^ down .ui«l removing sik h
property .»nd pnttin;^ it in piaei" av^ain (^.>).
Priority over chattel mortgage. I In* liut tliat a
inoriiLjaj^or ol' ih.ilt<'ls is allowed to r<'niain in posses
sion thereol and to tise them lor prolii raises an
iinplicali«>n lliat he has the inorlj4aj;<-<''s aulhorit) lor
th«> creation ol a specilie li<'n lor r<|»airs (2.\). Wlun
the properly is to he retained and used hy the niorl-
iiaiior lor a iony p«'ri(ul «»l" liint'. il will he pnsiinied to
ii.i\ o heen llu: intention ol the parties lo the niori^ajj;e,
when it is properly liable to n<'«'d repairs, that it
^-m) ///.v.i'.vv. litfffiti'ooit :\ Ksp. 174.
(.'.') //////^ V. .S'////M 44 N.j.l,. 105.
>^2},) En^elhiittit Co. v. /ietijivniti, 3 App. Div. (N.N'.) 475, y)
N.V. Supp. .;i.
^24) Hiimitioriii \. Ditfiitlson 126 NLiss. 294.
,\M> • II \l I I I l.ll \^.
.V"
i. In Im |<»|(| in rrp.iir ; ;iiul when iIm proinriN is
in.K l«in<iy, ni |(io|»rriy nl .t i liin.K i«i wIik li i«ii(l(i'. it
iir< r'.'..u'\ In iiiinist it In ii in('( li.inii or iii.m liinisi in
iM.ik*' sn( li rr|(,iiis, llif nuHlj^iiwor in |»nss«ssi<iii will lir
( uiisliliiird till' ii^Miit ol (In- inorl^;i^M '* to pidc iik- the
iT|».iiis lo l»r in.HJr ; ;mhI .is sih h iin 'ssiiiy r<|»;iii'. iir
joi iIm' iM'tiirincnl ol ihr propirl), .in<l .nM to iis v.ilnr
to tlir ^'iiin ol tlir imMlj^iijyr, tin- ( onunon l.iw lien in
r,i\'oiii ol the IIKM ||,iilir |o|- llir v.il'H' ol the i<|i.iil't is
|),ir.iinoiint l<» thr iirn ol iIm- mori^;i^Mr. ,mmI tin- latlrr
is |u«siiin«<| to hav«' < ontf.u trd inr the inoii^aj^T with
.1 knowlrd^^M- ol thr law j^ivin^ a li<n to tin- inrc haiii(
lor rrpairs ( JS)-
liiil upon a inort^ai^r l»«'in^ madr ol an rn^inr in
«oiirsr of conslriK li(»n tlMrr is no implied aiiih»»ril\ to
the niortj^aj^or to iiu iir a lii-n in priority to same in
respect ol work «lone lor the mort^^a^or in ( (MnpletiiiM
il (jh).
Termination and waiver of lien. Where a person
eonira( Is lo make an arlicie lor an agreed pri(e and
on its rompleiion refns(!s delivery alter lender ol the
snm agreed upon, and claims a lar;^er amount, tin;
lender has the effi-cl ol t<-rminatin^ tin- lien (27).
A workman conlraciin^ lo make ihe wood-work ol
a wa;;on and who after complelion ol thai work for-
wards it, in the nam(r of ihe person ff)r whom il is
Ix-inj; made, to the hlacksmilh for the iron work, hiji
j^els il hack from ihc hlacksmilh, may slill enforce his
li<'n for work done th<;nron, for the lien reviv'ed upon
his a|Ljain ohlaininj^ possession of ihe waj^on (2X),
(.•5) H'<i//i \. Sit'irtiry 127 Ind. 116, 2O N.lv Hep. ''•Ho.
(2')) (iMif V, Wrijt^hl 106 Mass. 207.
(27) Willis \ . Sweet 20 N.S.R. 449; Daviwfi \. Miilca/iy 7 K. &
<'i.N.S. 209.
(2H) Mtlbttrn v. Milburn 4 U.CR- 179.
302
CONDITIONAL SALKS
If an artist contracts to accept for his services a
stated sum in cash and a security for the balance pay-
able at a future date, a lien cannot be set up after
payment of the cash 'instalment and • tender of the
security agreed on, at all events until default is made
under the latter (29). A counterclaim will not destroy
the lien unless it has been ajjreed between the parlies
that the one account should be deducted from the
other (30).
Statutory power of sale — Ontario. K very mechanic
or other person who has bestowed money, or skill and
materials, upon any chattel or thinj^' in the alteration
and improvements in its properties or for the purpose
of impartinj4' an additional value to it so as thereby to
be entitled to a lien upon such chattel or thing for the
amount or value of the money or skill and materials
bestowed, is }^iven by statute while such lien exists, but
not afterwards, in case the amount to which he is
entitled remains unpaid for three months after the same
ought to have been paid, the right in addition to all
other remedies provided by law, to sell by auction the
chattel or thing in respect of which the lien exists, on
giving one week's notice by advertisement in a news-
paper published in the municipality in which the work
was done (or in case there is no newspaper published
in such municipality, then in a newspaper published
nearest thereto) stating the name of the person
indebted, the amount of the debt, a description of the
chattel or thing to be sold, the time and place of sale,
and the name of the auctioneer, and leaving a like
notice in writing at the last known place of residence
(if any) of the owner, if he be a resident of such
(29) Dempsey v. Carson 11 U.C.C.P. 462.
(30) McFatridge v. Holstead (1889) 21 N.S.R. 325; Pintwch v.
Harrison {i^^i) 3 M. & W. 532.
AND CHATTEL LIKNS.
303
municipality (31). Such mechanic or oiht-r person
shall apply the proceeds of the sale in payment of the
amount clue to him and the costs of advertising and
sale, and shall upon application pay over any surplus
to the person entitled thereto (32).
Power of sale in British G>lumbia. Under the
Mechanics' Lien Act (B.C.) d;^) every mechanic or
other person who has bestowed money or skill and
materials upon any chattel in the alteration and improve-
ment of its properties, or increasing its value, so as there-
by to become entitled to a lien thereon for the amount
or value of the money, skill or materials bestowed, has,
while such lien exists but not afterwards, in case the
amount, to which he is entitled remains unpaid for
//mr months after the same ought to have been paid,
the power to sell the chattel on giving tivo ivccks notice
by advertisement in a newspaper published in the city,
town or county in which the work was done, or in case
there is no newspaper published in such city, town or
county, then in a newspaper published nearest thereto,
stating the name of the person indebted, the amount of
his indebtedness, a description of the chattel to be sold,
and the time and place of sale. The statute further
directs that after the sale, such mechanic or other
person shall apply the proceeds in payment of the
amount due to him, and the cost of advertising and
sale, and shall pay over the surplus (if any) to the
person entitled thereto, on application being made to
nim therefor, and a notice in writing of the result of
the sale shall be left at or posted to the address of the
owner at his kst known place of abode or business (34).
(31) R.S.O. 1897, c. 153, s. 51 (1).
(32) R.S.O. 1897, c. 153, s. 51 (2).
(33) R.S.B.C. 1897, c. 132, s. 23.
(34) R.S.B.C. 1897, c. 132, s. 23.
1
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( ONimioNAI. SAI.I'S
North- West Territories Power of sale. I''vtry
incchaiiic or othor |nTson who has l)cstow(Hi money oi
skill aiul materials u|>oii any chattel or thing in th(;
alteration aiul improvement of its properties or for the
purpose of imparting an additional valiu; to it so as
thereby to hv entitled to a lien u|)on such chattel or
thinjr for the amount or value of th<' montry or skill
and materials l)«'Stow(!d, shall, while such lien exists
i)ut not afterwards, in case the amount to which he is
entitled remains unpaid for three months aftrrr the same
ous^ht to have been i)aid, have; the rij^dit, in addition to
all othiT remedies provided by law, to s<'ll the chattel
or thing in ri^spect of which the lien exists, on givin)^
one month's notice by atlvertisem<Mit in a nirwspaper
published in the locality in which the work was don(,*,
or in case there is no newspaper published in such
locality or within ten miles of the place where the
work was done, then by posting uj) not less than five
notice*; in the most public places within the locality for
one month, stating tht; name of the person indebted,
the amount of the debt, a descri|)tion of the chattel or
thing to be sold, the time and place of sale, and the
name of the auctioneer, and leaving a like notice in
writing at the residence or last known place of r<!si-
dence, if any, of the owner as the cast; may be, or by
mailmg the same to him by registered letter if his
address be known (35).
Such mechanic or other person shall apply the |)ro-
ceeds of the sale in payment of the amount due to him
and the costs of advertising anil sale, and shall upon
application pay over any surplus to the person entitled
thereto (36).
Jeweler's Hen New Brunswick.— The following
statutory provision exists in the Province of New
(35) Con. Ord. N.W.T. 1898, c. 59, s. 31.
(36) Con. Ord. N.W.T. 1898, c. 59. s. 31 (a).
ANii riiAiTiL i,ii;ns.
3^5
lirunswick : " All walclu.'s, j«!W<'lry ami ollur arii( Irs,
lt:ft hy any prrsoii with any walthiDakcr or jrwclcr in
this I'nivincc lo he iiKMuIrd or repaired in any way,
may, if no a^n-cincnl is niadr lo the contrary, if not
calN'tl for within hvo years from the time such watch,
jewi'lry or other article, was left as aforesaid, lie sold at
public auction hy th(; watchmaker or jeweler, upon
four weeks' public notic*; of the tinu* an<l place; of sale,
which place shall Im; in the parish, cii\ or town wherrc;
the watchmaker or jeweler resides, p(»sied in lhre«; or
more public |)laces in such parish, city or town, and
also in two successive? issues of a newspaper' published
in the county, if any sjich newspaper is published, tiutf
in twofoiisi'f iifi'i'f isstu's of Ihv Royal (iauNv, and such
notice shall have specified therein the name of the
|)erson who left such watch, jewelr\ or olh(;r article,
if known, the dale when the same was left, and if a
watch, th<r mak<;r and numb(;r of the watch, and the
amount of charters therefin (37).
The; ameMulment, indicated by the words added in
italics, is by the provisions of the anK-ndin^ Act (.^S),
not to apply so as to affect any watches, jewelrx or
other arlicl(!s left by any peTson with any watchmaker
or jew(!l{T in New lirimswick to be mended or
repaired, imtil after July i, riSgg.
if such watches, jewe^lry or other articles anr
sold, and realize more than the; charj^e; due thereon
with interest, to_L(t-'lh(;r with the costs and expense^s of
advertisinj^ and selling, the surplus shall be j)aid by
the watchmak(!r or jeweler, on demand, to thir person
who left the same for re|)airs, or to his or her let^^d
representatives ; provided nevitrtheless thai such
demand shall be made therefor within six months
(37) C!ons. Stat. N. I>. (1877)0. 95, s. 1, as amended hy Acts of
N.H., 1898,0. 10.
(38) Stat. N.B. 1898, c. 10, s. 2, passed 18 March. 1898.
n
306 roNDirinNAI, S.M.KS
after such sale ; and in the event of no siicli demand
heinj; inaile lu-lonr the expiration nl' tlie six montlis
tile surplus shall he paid In the KeeeiviT (ieneral,
and the watchmaker or jew<'ler shall at the same
tiuK! lih' with the K«'ceiver (Ieneral a copy ol tin-
advertisc'inenl imder w hich such sale was made, and a
detailed siatenu-nt ol" tiu; articKs soKI anil prices
ohtained.
If the owm-r of any watch or jewelry so sold, or
his le<;at representative, shall maU(> application within
6 years for the sum so paid in. th<' Receiver ( Ieneral
is authorized t<» |)ay hack the same to him (.;<>)• I he
kec(Mver (ieneral referwd to is the Kec«'iver ("reneral
of the Province of New Ihimswickat l''rederict«»n, N.li.
If any sale he made uniler the provisions of the
Act, and the watchmaker or jeweler refuse «)r neglect,
upon demand duly made muler the provisions thereof,
to pay the surplus of any such sale after tieducting the
amounts therehy authori/«'d to he deducted to the
person entitUnl to receiv(! the same, or if the watch-
mak(;r or jeweler shall omit for th<' space of four
weeks after the expiration of six months from the
time of any such sale (in case tile said surplus has not
U'en tiemanded) to pay such surplus into the hands
of the Receiver (ieneral, and to file the statement and
copy of the advertisement of sale, such watchmaker
or jeweler will he liahUr in any such case to a peiialt)'
of not exce(!iling $100. to Ih; recovereil l)efore any two
Justices of the IVace. or hefori; any Police or Stipend-
arv Magistrate residin*' in the county where such
watchmaker or jeweler resides (40).
Threshers' liens — N. W. Territories.— In every
case in which any person threshes or causes to b(;
(39) Cons. Stat. N.B. (1877) c. 95, s. 2.
(40) Con. Stat. N.H. (1877) c. 95, s. ^.
AND < IIAini, I.II:N>.
.V>7
ihnshcd j^rain of any kind for aiiolluT prrsoii, at or
for a lixrd prin* or ratr of rnniinrraiioi), tin- person
who so llirrshrs the j^fraiii, or (aiisrs thr san)(.' lo
!»•! llircshrd, is *^'i\'t'i\ in llu- North-Wrsl Territories
a statutory ri^^ht to retain a (piantity of siicli ^rain
sufficient for the piirpost; of seciirinin payment
of the fixed price or reiniiiKTation, if such ;;rain
is tal\(;ii at the time wlien the threshing is finished
or within 30 ilays tlien'aft<'r (41). I he <|uantity
of ^M'ain which may \n'. so retained shall he a suffi-
cient (|iiantity, computed at tht; market value thereof
at the lU'arest mark<!t, less two and one half cents
per hushel for each 10 inihs Ixttween the place
of threshing; and th(r nearest market for h.iulin}^
the sanur to and d(!liv(Tin;^ the same at the nearest
available market, when sold, to pay for llu- threshing
of all j^rain threshed hy the p(Tson takiniL^ the ^^raiii, or
l»y his servants or a^iMits, loi thtiowner thereof durinj^
that sam<; season (4?). The ri-^ht to retain aiul
remove; such <|uantity of j^rain shall, if e.\(!rcised forth-
with after the threshiii}^ is finished, prevail over all
writs of execution against th(! own<r thereof, or chattt;!
mortj^aj^cs, hills of sale or conveyances, made hy him,
and ov(T ri|^hts of distress for rr\n reserved upon the
land upon which the ^rain is threshed, and tin; juirson
performin}^ such work of thrershin^, or procuring; the
same to he doiKr, shall Ix; detMiied a |)urchaser for
v.ilue of the j^rain which he takes hy virtue of the
( )rdinance (43).
(41) Con. Ord. N. NV.'I". 189S, c. 60, s. 2, as amended l)y Ord.
1899, C. II.
(42) Con. Ord. N.W.T. 189S, c. 60, s. 2, as amended hy Oidinance
of 1899, C. II.
14,^) Con. Ord. N.W.T. 1898, c. 60, s. 3, as amended by Ord. of
1899, C. II.
3o8
I itNDIIlHNAI. SAI.KS
Threshers' liens Manitoba. In the IVovim-c oi
Manitoli.i .my prrsun wlm tlircshcs, or (miiscs to l»ir
lliri'shcd, j^r.iin ol any kind lor anotlu r prrHon at or
lor a lixril pria* or rat*- of coininissioi), has a statutory
ri^du to rrtain. lor tin* piirposr ol' sn iirinj^^ payment ol
the price, a siilVuienl ijiiantity ol liie ^rain in pay,
when soM, lor the threshing ol all j^rain threshed lor
tin- own«'r l>y the person retaining the ^rain, or hy his
servants or .ij^enls. within ,;o ilays prior to the tiate
wlnn siu h rii;ht ol retention is asserted {.\\). The
^rain is to In* eonsiih'red as still in the poss«ssion ol
the person hy whom or hy whose servants «>r aj^ents
it is threshed, and as suhject to thisrij^ht ol lietention,
aithoiiHh the same has heen piled up or placed in h.i^s
or other recept.icles, unless and imtd said j^rain is sold
and delivered to a liona lide purchaser and value
receiveil therelor. and unless it has hej-n remov«'<l Irom
the pr«'mises and \ icinity wlu're the <;rain was threshetl,
an«i out ol' liic possession ol' the juTson lor whom the
threshin}^ was done (45). I he thrt-shers' lien j^iven
hy this statute is therein declared to pr<'\'ail a^;iinst
the (»wner ol" such j^rain and "any and all liens,
charges, encmnhrances, conveyances and claims what-
soever " (4()).
The ri^ht of retention of the jijrain hy th(! thresher
is effectually asserted when the person entitled to such
rij^hl
(ti) declares either verbally or in writing; his inten-
tion t)f holiling such j^rain, or
{/>) iloes any act or uses any lan;;ua^e incHcalinj^
that he has taken > r retained or is about to take or
retain possession of such j^rain (47).
(,44) Stat. Man. 1894, c. 36, ss. i, 2.
(45) St.it. Man. 1894, c. 36, s, .? ; Stat. Man. i8t/), c. 30.
(46) 57 \'ict. (Man.) c. 36, s. 4.
(47) 57 Vict. (Man.)c. 37,8. 6.
ANI> • IIXIIII III NH.
.V>'>
Ami any jHrson who
{(f) Takes or riidravors to takr the ^raii) out of
ihr tiisto<ly or (untrol of lh« jhtsoii assi-riinj^ such
ri^'ht ol ri'ti'iition, or
{/>) I'juliavors to prt-vrni or prrvt-nts sue h inrsfHi
Ironi rxrn isiuj; his statutory ri^hi of ntrutioii, or
(/ ) I'rrvrnts or ••ndravors to jjrrvmt tin- prrsou
nititlrd to and asserting su( h ri^iu Iroin rxrrcisin^
any ol" th«' rights conlrrrrd hy thr statutr,
is liahlc, upon summary conviction hilorr two
justici's ol tlir pracr, to Im* liiircl not less than $^0 nor
morr (han $i(>> toj^rthrr with thr costs ol prosecution,
and in delault oi payment is liahle to three months'
imprisonment (4S).
The person entitled to and assertinj,' a thresher's
li»!n may lorihwith house or store the i^r.iin in his own
name, and if, at the expiration of 5 days iVom the time
when the rijrlu of retention is asserted hy the person
entitled to th(; same, the prictr or remuneration lor
which the f^rain is hcrld as security he not paid, tin- lien
holder may sell the ^rain 'at a fair market price ' and
the proceeds are to \h'. applied, first, in payment of the
reas(»nal)le cost of transporting' the ^rain to market ;
next, in paymiMit of the pric<; or rcMnuneralion f<»r
threshin}^ ; and tlx; balance; is to he |)aid on d(;mand to
the owner of lh(! ;(rain or to his assi^nis.
I'he jjjrain rc'tained as security must in all cas(;s be
sold within 30 days after the rij^dit of retention is
assert(!d, unless the owner ihentof consents in writing
to the saiiK! beinvf held unsold for a lon;^M'r time (49).
(48) 57 Vict. (Man.) c. 36, s. 6.
(49) 57 Vict. (Man.) «:. 36,3. 5.
^i
Af-
\>m
1^0
CMAPTI'k X\ I.
L.WIU.OKh's LiKN l!V l)isTKi;ss.
Nature of the right of distress. — A disirtss upon
i^ooils aiul clialt(;ls, whether the rij^ht is conrcrrttl hy
the common law or hy statute or is created hy conlraci.
involves the holdinj; of possession of tlie chattels for
the purpose of enforcing the money demaiul in a
manner similar to ordinary common law liens. 1 he
riv[ht of distrtfss alone iloes not constitute a lien on the
•jootls, hut the ilistress, when actually made, constitutes
a lien u|)on the j^oods.
A distress does not take out of the ilebtor the
property in the goods (i). and the sheriff may make a
qualified sei/urt,' suhiect to a distress for rent untler
which the landlord's bailiff is already in j)ossession. and
the placing of an t!xecution in the sheriff's hanils hinds
the goJKls subject to such distress (2). lM)rmerly a
landlord could not distrain after his interest in the
estate had expired (,;) ; but now by statuti; in Ontario
(3</). it is rend('red unnecessary that the relation of
landlord should depend upon tenurt; or service, or
upon the continuance of the landlord's reversion (4) :
but the common law right of distress is not taken awav
by the Act (5).
(1) MtudonaiJ \. Cummings (iS()2) S Man. R. 406.
(2) Maidonalds. Cummif\:;i ^1892)8 Man. R. 406.
(3) HartUy s. Jan is 7 U.C.R. 545 ; Lei.Hs\. Hrooks'i U.C.R. 576.
(3</) landlord and Tenant Act (Ont.) R.S.O. 1S97, c. 170, s. 3.
(4) I/arpe/U w Carroll 21 Ont. R. 240.
(5) Il^'d.
\NI» fllATTKI- I.IKNS.
3M
Landlord's distress for rent. -A distress for rent is
the taking without h'j^al process of cattle or tioculs as a
pledj^e to compel satisfaction of the ainoiint of the
iaiulloril's demaiul (6).
The rent due from a tenant to a laiullorcl is a " rent-
service " to which is incident a rij^ht of distress. A
distress may also be «;iven by aj^reiMnent of ihi- parties
which will he effective as to premises held under
another landlord hy the party j;ranlini; such ri;4ht so
far as concerns gooils heloni^inj; to the i^rantinj; party,
but not as to gootls of others (7). A rent in kind. <'.r.
Xr. a half share of the wheat j^rovvn on the demised
premises, may In? lawfully distrained for (ya).
The making; of a distress for rent suspends the
rij»ht of action, and a concurrent altachmc ' issued
therefor will he set aside (S), ami when rent i . .illached
by j^arnishee process against the landlord, the collateral
remedy by way of distress is thereby suspended (q).
Where a landlord has distrained for arrears »>f rent
goods upon the dtMiiised premises, part of which beloni^
to the tenant and part to a third ju-rson whose goods
by reason of his luiing a sub-tenant or otherwist; are
liable to be distrained, such third person has no rii;ht
to compel the landlord to first sell the part beloni^ing
to the tenant ami apply the proceeds on the rent before
realizing on thi; gootls of the third |)arty ( 10).
If the tenant has a claim for debt against the land-
lord he may, in ( )ntario, set-off the same against the
(6) Hunter's Distress for Rent (1896) and ed. 26.
(7) A'e RoutuUi'ood Colliery Co. (iSy;) i C'h. ^73.
(7(/) Dick V. Winklfr (iiSi;9) 35 Can. Law jour. 052.
(8) Gray v. Curry (^x'^^ya) 22 N.S. R. 262.
(9) Patterson v. King 27 Ont. R. 56.
(10) Pegg \. Starr {i^K)2) 2.^ Ont. R. 83.
312
CONDITIONAL SALES
rent, either before or after distress, by giving a written
notice of his intention to do so ; in which case the land-
lord will be entitled to distrain for the balance only of
the rent after deducting the debt ( 1 1 ). The service by
th(; tenant, after distress but before the sale, of a notice
of set-off, pursuant to K.S.O. (1897) c. 170, s. 33, of
an amount in excess of the rent, to which the tenant
is entitled, does not, however, make the distress
illegal ( 1 2).
An Ontario statute provides that in case of an
assignment for the general benefit of creditors the pre-
ferential lien of the landlord for rent shall be restricted
to " arrears of rent due during the period of one year
last previous to, and for three months following, the
execution of such assignment, and from thence so long
as the assignee shall retain possession of the premises
leased " ( 1 3).
A lease under which the rent was payable quar-
terly in advance contained a provision that if the
lessees should make an assignment for the benefit of
creditors, the then current and next ensuing quarters'
rent and the current year's expenses, taxes, etc., should
immediately become due and payable as rent in arrear,
and recoverable as such. The lessee made an assign-
ment, and it was held that the lessor was entitled to
recover, in addition to a {|uarter's,rent due and in arrear
for the quarter preceding the making of the assign-
ment, the current quarter's rent, being the quarter dur-
ing which the assignment was made, which was also
due and in arrear, as well as a further quarter's rent,
(11) R.S.O. 1897, c. 170, s. 33.
(12) Briilinger v. Am/>/er (i^f) 28 Ont. R. 368.
(13) R.S.O. c. 170, sec. 34, s.-s. i ; and see 35 C.L.J. (1899) 261,
AND CIIATTF.L I.IKXS,
3'3
together with the taxes for the current year (14). Hut
a landlord has no preferential lien aj^ainst the insolv-
ent's estate, if there be no distrainable goods on the
premises at the time of the assignment (15).
A distress made by an agent in his own name for
the benefit of his principal, and subse(|uently ratified
by the latter, has been held to be valid (16). If rent
be made j)ayable in advance, the landlord may distrain
at the commencement of the term (17). The tenant
is entitled to the whole of the day upon which the rent
falls due within which to make payment, and in con-
sequence a distress cannot be legally made until the
day following (18)
A distress more than six months after the expiration
of the tenancy is illegal, and a continuation of the
tenancy will not necessarily be implied from the mere
fact of the party remaining in possession (19).
A i)erson entitled to distraint for an entire demand
cannot split it so as to justify making more than one
distress therefor if upon the first distress there was
more than enough of goods distrainable which might
(14) Tews. Toronto {iSgS) ^o Ont. R. 76,35 C.L.J. 112 (Fergu-
son, J.); Langley\. Meir\\%C)%) 25 Ont. App. 372,34 C.L.J. 467;
Lazier v. Hetuierson (1898) 29 Ont. R. 673, 34 C. L.J. 698 commented
on.
(15) Magann v. Ferguson (1898) 29 Ont. R. 235 ; Langleys. Men
(1898) 25 Ont. Ap ' " * ~ --
673. 34C.L.J. 698.
25 Ont. App. 372; Lazier v. Henderson (1898) 29 Ont. R.
(16) Grants. McMillan loU.C.C.P. 536.
(17) Galhraith v. Forttt.f 10 U.C.C.P. 109 ; Lees. Smith 9 Ex. 663.
(18) Sinclair's Landlord and Tenant (Ont.) 40.
(19) Soper V. Broivn\\3.Q.Q.'$,. 103 ; Strathy \. Crooks (i\5.QO.^.
587 ; Dick V. Winkler (1899) 35 Can. I.aw Jour. 652 ; Stat. 8 Anne
•c. 14.
i:
3>4
( OMUTIONAI, SALKS
havo hcru taken if the distrainer had then thought
proper (20).
Distress after termination of tenancy. Untler the
statute 8 Anne c. 14, ss. 6, 7, the landlord may
distrain for arrears of rent due upon any lease ended
or determined, after the determinati(Mi of the lease, in
the same manner as he mi}^ht have done if it had not
been ended or determined, provided such distress be
made within six calentlar months after the deter-
mination of the lease and during ihe continuance of
the laiullord's title or inier(;st and durin}^ tli<; j)osses-
sion of the tenant from whom the rent became due.
If nothini4 has been done by way of extendin*; the
tenancv or creatinj* a new lease, a seizure will be
illejj^al if made more than six months after the termina-
tion of the tenancy, althou<fh the tenant had remained
in |)ossession (20.1). The holding over need not be
tortious, and if tht* landlord permits the tenant to hold
over as to part of the premises, he may distrain on
that part for the arrears of riMit due for the whole
pro|)erty demised (21). There must, however, be
posses lion by the same tenant, and if a new tenant
has been yjiven possession by the landlord, chattels
left behind by the former tenant cannot be distrained
(22).^
Ihe power conferred by the statute 11 Geo. II.
c. 19 of following and seizing, within 30 days after
their removal, the goods of the tenant which the latter.
(20) Oldham and Foster on Distress 258.
(2ort) D/ii- V. IVink/er (1899) 35 Can. Law. Jour. 652.
(21) Nuttallw Staunton 4 B. & €.51.
(22) Taylorson v. Peters 7 Ad. & E. no.
AM) ( II.MTKL I.IKNS.
i^5
has frautlulciilly or claiulestinely taken away from the
demised premises, aj)|)lies only where they would have
been liable bv law to tlistress hatl th<;v remained on
the premises, and therttfore cannot be e.\(;rcised after
the termination of the tenancy ami after the |)ossessinn
of the tenant in respect of the premises demised has
ceased (23).
Distress by landlord's executors. I he executors
or administrators of any lessor or laiullcjrd may dis-
train upon the lands demised for any term or at will,
for the arrears of rent due to such lessor or landlord in
his lifetime, in like manner as such lessor or landlord
niTj^ht have done if livinjj^ (24).
Such arrears may be distrained for at any lime
within six months after the determination of the term
or lease, anil durinij the continuance of the possession
of the tenant from whom the arrears became ilue ;
and the powers and j)rovisions contained in the
several statutes relatinjj^ to distress for rent shall be
applicable to distresses so made (25).
Distress of goods fraudulently removed. I^\ m
Geo. 11. c. 19, it is enacted that if any tenant of any
lands or tenements upon the demise or holding
whereof any rent is reserved shall fraudulently or
clandestinely convey away from the demised premises
/i/s\i^00(/s or cliattch to prevent the landlord distraining
for arrears of rent, it shall be l.iwful for the landlord,
or any person by him for that purpose lawfully
empowered, within 30 days next ensuing the carrying
away of the goods, to seize the same wherttver they
(23) Gray v. Slait w Q.B.D. 668,
(24) The Trustee Act, R.S.O, 1897, c. 129, s. 13.
(25) R.S.O. i8y7, c. 129, s. 14.
.;•'>
roNIHTlONAI, SAMS
I
kl'
4
Hhall lie riiiind. as a (listrcss for the r<>Ml {2(i); and lie
may s(;ll aiui tlisposc oC them as if they had been acdi
ally ilislrained upon llur demised |H'einis<'s, provided
lln'y liavj' i»«»l. hefore the seizure, heen sold /ut/tti fuic
and for a Nalnahle consideration to a person ij^norant of
the iVaiid (.7/). The landlord or his hailill may break
into a building or enehtsiu'e in the day lime to seize
tin* ^oods. first callinj^ to his assistance a constable or
peace ollicer ; but before; breakinj; into a dwellin;^
house oath must be made before a justice of the peace
that there is j^ooil ground to suspect that such }>oods
are in the dwellintj house (2S).
The statuttr applies only when* the floods allej^ed
to hav(' been fraudulently or clandestin«'ly remoVed
are the tenant's own pro|)erty (2c)) ; and ;^(»ods which
are the property of a stranjj;er cannot Ixr followed evtrn
althouj^h the tenant has an e(|uity of redemption in
them (30).
In order to briii}^ the case within the statute
relatini> l«) fraudulent or clandestine r«'m«)val the rent
must have accrut'd due befori; or at th(* time of \\\v.
n'lnoval (.^i); but it neerd not have been in arrear if
it were due ; and so where a tenant fraudulently
removiul his goods on the morning of the tlay when
the rent came du(\ with intent to avt)id a ilistress, the
landlord was heltl to be justifietl under the statute, in
following the goods the next day and seizing them as
(26) It Geo. IT. r. 19, s. i.
(27) Sec. z.
(28) Sec. 7.
(29) Afiirtin v. Hutchinson 21 Ont. R. 388.
■(30) Tomlinson v. G^nsolidated Credit 24 Q.B.I). 135.
<3i) Rands. Vaughan i N.C. 767.
AM» « IIATTII, l.ll'NS.
?>n
a ilislrrss (^2), 'I hr n'lnoval nerd not Im- sren-t ii
it l»«! fraiidiilnU, tin* words of llir slatiilr ImIm^
" fraiKliilriuly or claiuN-slinrly."
WIk'iIht tin* removal was fraiMliilnit or not is a
(|iirstion of fact within llv province of a jury lo
(Ictcrniinc (,^3) ; luit it would seem that if th<- ilfccl of
tln' removal is to leave no siitTicient distress on the
premises, that will Ik; (evidence of fraiul (.V|).
Exemptions from distress. I'he following' articles
,\vv. I>y the common law ahsoliitely privile^rd from
hein^ dislraine<l for rent (.^5),
1. I'ixtiin's and other things which camot he
restored in th(; same plight as taken.
2. Animals {vrw natura-.
T^. ( loods (l(;liv»!r(Ml lo a person exercising a public
tradt.', lo he carried, wroii^hl, worke<l up <(r maMa;;e<l
in the way of his trade or employ (,^0). So j^oods of
a principal in the hands of a factor lor sale are
privilej^ed from distr(!ss for rent due from sm( h factor
to his landlord, on lh«' j^roimd that th«- ruN- <'f puhlic
convenience;, out of which th«; privilej^e arisis. is
within lh(! exirmplion from a landlord's ;4«-n«ral ri^^hl
to distrain (,^7).
(32) Dibblf V. Rowdier 2 K. \' H. 564, 22 I- J.Q. H. y/).
(3.1) J"^'" V. Jnikins \ Cr. iV M. 227.
(^4) 0/>f>erman v. Smit/i 4 I). iV Ry. 33 ; Parry v, Duncan 7 IJing,
243; Koscue N. I'. i6tli ed. 1072.
(35) ^V'oodfall on Landlord and 'I'enant 16th ed. 468.
(36) Simpson v. //ar(o/>/> Willes Rep. 512.
(37) (iilman v. F.lton 23 R. R. 567.
3<«
CONIUTIONAL SAI.KS
4. Things in actual uk(!, as the horse on which a
man is ridin^r or a fish net in a man's hanii, or, tools of
trade in actual use at the time ; the reason of this rule
l>einjr because of the tlan^^er to the pulilic peace were
such distresses allowed (3X).
5. (ioods in the custody of the law ; " f<)r it wcuild
he repugnant that it should he lawful to take goods out
of the custody of the law " (.^g).
(). The goods of an ambassador (40).
Hoth imiler the common law and by statute, 51
Men. T,, Stat. 4, a man shall not "be distraintnl by his
beasts that gain his land, nor by his shec.'p. while ther<!
is another sufficient distress to be found, except for
damages feasant " (41). Hut beasts of the plough may
be distrained if the only other subject of distress is
growing crops, because the landlord is entitled to
tlistrain whatever is immediately available and to hold
the growing crops for th<! n'sidue (42).
Tools of trade not in actual use at the time of the
distress so as to be absolutely privileged, are yet priv-
ileged in case there is sufficient other distress on the
l)remises (43).
Where ■" gas stoker hired a sewing machine and
his wife, a seamstress, usj,*d the machine and applied
the earnings so accjuired for the maintenaPice of the
household, it was held that the sewing machine was an
(38) Woodfall's Landlord and Tenant 16th ed. (1898) 476.
(39) Co. I, it. 47rt.
(40) Parkinson v. Potter(\%%i) 16Q.B.D. 152 ; Novello v. Too^ood
(1823) 25 R.R. 507 ; Stat. 7 Anne c. 12, s 3.
(41) Davies V . Aston i C.B. 746.
(42) Piggottv. Birtles i M. & VV. 441.
(43) Nargetts. Nias 28 L.J.Q.B. 143.
ANh < IIAITKL I.ILNS.
3'9
•'implement of tratUr " of th(! '^as sti)l<(;r and so was
ex(;m|)t inuhrr an I'-iiglish sialiilr (44).
Neither the cut i^rain nor i^rowiii^ < rops roiild he
distrained upon at common law, hut \>y 2 W. iS: M.
sess. I, c. 5, s. 3. " Any pe*rson havin;; n-nt in arrear
and due upon any d(*mise, Irasr or coniract, may seizr
and secure; any sheascs or cocks of corn, or corn loose
or in the straw, or hay lyin},^ or Ixinj; in any ham or
j^ranary, or upon any hov<;l, stack or rick, or oih«'rwise
u|)on any j)art of the land or j^aound chapped with such
rent, and lock up or detain the same in the place
whert! the same shall Ixr found for or in the nature of
a distress imtil the same shall he re|)l«'vied or sold, hut
the same must not be removed from such place to the
damaj^e of the owner. "
My the Distress ff)r Kent Act 11 Cieo. II., c. 10,
sees. 8 and 9. the landlord is authorized to take and
stMze as a tlisiress for rent, "all s<»rls of corn and
j^rass, hops, roots, fruits, pulse or other product what-
soever " i.e. ejusdem j^cneris (45), ^^rowim^ on the lanti
demised.
The landlord exercisin" the statutorv ri'lit <»f
seizin}j^ jjfrowinjj;^ crops could not under that statute sell
them until he had harvested the crop, hefon which
time an ap|)raisement could not legally !»<• made ol
them; hut this has heen varied in ( )iuario hy statute
(46) under which it is enacted thai when ^rowin^ or
standinjj^ croj)S. which ma\ he seized and sold under
execution, are seized for rent, the) may, ai the option
of the landlord or upon the recpiest <»f the tenant, he
advertised and soKl in the same maimer as other
(44) Cfiurc/miiini v. Johnson ( 18S9; 54 1. 1'. 5;'!.
(45) Uark V. Gaskaith S 'ramit. 431.
(46) R.S.C). 1.S97, c. 170.
320
(ONIMIIoNAI, SM.V.S
if
jronils, and it shall nul hv necessary for the lantl-
lord to reap, thresh, jfalher or utherwis*; market the
same (40<i).
Any person piirrhasinj^ a j^rowin^f crop at such
sale, will Ih- liahle lor the rent of the lands upon
which the same is j^jrowinj^ at the time of the sale, and
imtil the crop shall he removed, unless the same has
l>een paid or has heen collected l>y the landlord, or
has heen otherwise satisfied, and the statute declares
that the rent shall, as nearly as ma\ he, he the same
as that which the tenant whosi' j^r,),,(|s wen* sold
was to pay. ha\ inj.^ rej^artl to the (|uantity ol" land and
to the time during which the purchaser shall occupy
I he actual user ol j^oods, oi whatever kind
exemjus them from seizure either hy distress or other-
wise, and whether, in the case of distress, there he a
sulViciency or not of other liahle j.,M»ods on the premises
(4S). It is illej^^al to distrain sheep for rent when there-
are other chattels u|)on the j)remises sufficient to satisfy
the claim (49).
Exemptions under Ontario statute. Hy statute in
Ontario (50) such of the tenant's j^oods and chattels
as are exempt from seizure under execution are also
exempt from a lanillord's distress, hut with the j)roviso
that " in the case (>( a monthlv tenancy the said
exemption shall only apply to two month's arrears of
rent. " i'he effect of this |)roviso was considered in a
recent case in the ("ountv (..'ourt at Toronto and it
{^(ui) Sec. 36.
(4 7)««c. 37.
(48) A/Mr V. Mi7/<r 17 U.C.C.I*. 226.
(4.;) //<>/»■ V. ly/iUf 22 U.C.C'.P. 5.
(50) R.S.O. 1897, c. 170, s. 30
ANI» r||ATTi;i. I.IKNS.
32 >
was held l)y Mel )«nijr;i||. ('<i. J., ihal it was im)M»ssil)ir
to say froiu the laii^iia^^* used therein what liinitaiinns '
the legislature iiUeiuled to put on a inoiuhly tenant's \
ri^hl u» exemption wht;re more than two months' rent
was in arrear muler a monthly tenancy, and the pro-
viso was helil inoperalixc by reason ol" its indelinite- 1
ness(5i).
Where an (rxemplion is claimed «»n the ^^^roinid that
the ^ot)ds are not liahhr t«» seizure under exeiiition, the
person claimin}^ the exemption must select and point
out th(-' j^oods and chattels claimed to he exempt (52).
liy the same st.itute it is enacted as follows :
A landlord shall not distrain for iriu on the
}4(M)ds and chattels the property of any jM-rson except
the tenant or person who is liahle for ih*- rent,
althoujj^h the same are on the premises; hut this
restriction shall not apply in favour of a person daim-
m^ title imder or hy virtue of an execution against the
teij.mt. or in favour of any person whose title is
derived hy jnirchase, ^^ift, transfer, or assignment from
the tenant, whether ahsolute or in trust, or l)\ wa\ of
mort}.,Mj^a' or otherwise, nor t<» the interest of the
tenant in any •^oods on the premises in the possession
of the tenant under a contract for purchase, or hy
which he may or is to l)ecom<; the owner thereof upon
performance of an\ condition, nor where <^oods have
heen exchanged hetween two tenants or pers«)ns l)\
the one horrowinj^ or hirinj^ from the other for the
purpose of di'featinj4 the claim of or the rij^hl of dis-
tress hy the landlord, nor shall the ri-striclion apply
where the jjropert) is claimed 1)\ the wife, hushand,
daui^diter, son, dauj^hler-in-law, or son-in-law of the
( 5 1 ) //f//m V. G/«(/(/<i /V/7//</w/7// (iS(j.S) _^4 Can. I,;i\v Jour. t<j,
followed in Shannon v. (Y lUicn 34 Can. Law jour. 431 (.Snider, ( o.
J. of Wentwortti) ; i)Ut see article 34 (M,.J. (1898) 440.
(S?) k.S.O. 1897, 0. 170, s. 30 (3).
r
il
3«a
• ONr)ITH>N,\f. HM.V.H
1?
tcnaiu, or l>y any <»tluT n-laiivr «)!' his, in v;\sv such
othiT rtlalivc livi's nn lh«' puinise's as a ntcinlxT ol'
the tciiaiu's family, or l>) any person whose title is
<lerive«l l»y purchase ;;il't. transfer or assi;,Munent fron)
any relative to whom such restriction does not
iippiv (53)'
1 he word "tenant" as used in the section is to
extend to and include the suh-tenant and the assi^^ns
ot the It-nani and any person in actual occupation of
th(> |)remises imder or with the assent of a tenant
durinj,^ the currency of the lease or while the rent is
due or in arrear whether he has or has not attorned to
or hecome the tenant of the landlord (54) ; l>ut is
not to extend to hoarders or lod^^rcrs as to whom
speiial provisions ar<' made hy another se< tion ol the
statute (55) : IhU persons let into possession by a
house a;;('nt appointed hy assij^nu'cs of a tenant lor the
sole purpose ot exhihitinj; the premises to prospective
lessees and without authority to let or j^^rant possessi«»n
of them are not in occu|>ation " imder " tlie tenant
and their j^oods are not liable to distress (56).
The exemjuion of stran^^a-r's ;^foods is not. how-
cvtT, to apply so as to exempt from s<'i/ure by tlistress
;^foods or merchandise i|i a store or shop mana;,rfd or
controlled by an aj^aiit or clerk for the owner of such
^oods or merchandise when such clerk or aj^^eni is also
the tenant ami in default, and the rtrnt is tlue in respect
of the store or shop and premises rented therewith
and thereto belonj^^inj^;, when such jj^oods would have
been liable to seizure but ft)r the Act (57).
f 53) Sec. 31 ( I).
(54) ^t-'c- 3« (3)-
(55) ^^- 39-
(56) Fanvell s. Jameson (i8(;6) 26 Can. S.C'.R. 58S.
(57) R.S.O. 1897, c. 170, s. 31 (2).
ANI» tllATTKI, III Ns.
.V^
'\'\u' trnaiU who is in default for iioii paNimiu iti
rent and claims the Ix'iirtit ol th<' cxcinpiiMn frnm
distress iiiuh'r the Aet, must j^ive up iHissession ol" the
preinisi's forthwith, or l»e ready and offer to do so (5S)
or his ;;oods may still Iw sj-i/ed and sold fur the rent.
I he <»ffer to j,MVe up possession may he m.ide to th«'
landlord or to his ai^cnt ; and the person aiithori/eil to
seize and s«*ll the ^(oimIs and chattels, or havin;^ the
custody thereof for the landlurd, is to he considered
an aj;ent of the landlord for the purpose of the offer
and siirreixler to the landlord of the possession (50).
If the landloril after default has heen made in the
payment of rent ami before or at tUv time of sei/ure.
serve the tenant with a notice informin;^ him of the
amount claimed for rent in arrear, and that in default
of payment, if he ^Mves up |M»ssession «if the premises
to the landlord within } days aiu-r service of the
notice, he will he entitled to claim esemption for such
of his j^ooils and chattels as are exempt from seizure
under execution, hut that, if he neither pays the rent
nor j4;ives up possession, his jj^oods and chattels will he
iiahle to seizure, and will he sold to pay the rent in
arrear and costs, the tenant must vacate the premises
within the : davs or the laiullord will have the rij-hl to
distrain u|>on the }^roods notwithstandin<4 that th(>y
would he exemj)t from sei/ure imiler execution (Oo).
The notice may he in th(.' followinj; form or to the
like effect (6!) :
'lake notice that I claim $ for rent due to nie in respeit
of the preniioes which you hold as my tenant, namely, {hfifhy htifHy
(iesitih Ihem) ; and unless the said rent is paid, I demand from you
immediate possession of the said premises ; and I am ready to leave
(58) R.S.O. 1897, c. 170, s. 32(1).
(59) Si-'C. 32 (2).
(60) Sec. 32 (3).
(61) R.S.O. 1897, c. 170, s. 32 (4).
m
1
Hi
1
' '^1
¥
9
i
i
4
4
.>-^»
« nSI»HH»NAI, SAMS
III your |M>s«M>!ision mkIi of ytnir ^o«HiN and tliattdK as in that tiisc
«inly voii an* nititlcd to i-laiiu i-\viii|Uioii tor.
Takt* iiolH'i* rurliuT, that if you tu'itlu'r pay tlu> said rent nor give
iiu' up ftosscssion ol tlu> said prcniisi's within three davs alter the
servue «»! this iiotiec, I am hy law entitled t«> sei/e and sell aiiti I
intend to s<-i/e and sell all your piotis nnd ehattels, or such part
thereof as nuy l>e neeessary ftir the payment of the said rent and
«°osis.
This iiotiee is ^iven under the Art of the Legislature of Ontario,
res|K-t-ting the Uiwitf Liiullord anil IViiant.
hateti this dav of A l>
(Sipieil) .!./{. v/,iW/<'/,/).
It) ('./>. {UflitHt )
riic iioiifj- lU't'tl mn lie st-rvctl pcrsdnaily anil thr
srr\ ill" will !><• i^noil il it l>r Kit 'with somr i^iown
prrsiiii Uiiii^ in, .mil a|){).n'(>n(l\ rcsiilino on, (he
jHfinisrs nit tipictl I»n ilu- piison ti) lir siiNril («>.').
anil ii the icnant rannot lie ioiinil anil his jilarc nt
.lUuIr is ri'hrr not known, or ailniission ilurrto rannm
lu- olttaincil. the posting up of the paper on some
ronspit lions part ol the prrniisrs. shall In- ilninnl
t^ooil Nrr\ iif (').>K
Exemption of lodger's goods Ontario. I'tultr
tin- ( >ntario l.amlloril ami ICnani Art ((>.{) it a
sn|M-rior l.inillonl shall \v\\ or aiilhori/c to lir lr\'i(*il .i
ilistrrss on .tnN fiirniliirr, oooils or I'hatirls ol an\
lioanlcr or loilj^rr lor .irrVars of rrni ilur to ilir superior
lamllonl li\ his iinineili.ite tenant, the hoanler or loilt^er
nt.iN ser\e the superior lamllonl, or the li.iilill or other
person eniplo\eiI hy hint to le\ \ the ilistress, with the
statdtorx ileilar.ition (niaile in aii-onlanee with the
< ".m.iila l-.\ iilenee .\et) ol the lioanler or loilj^er, setiiii;,;
forth : (<') that the intnteiliate tenant has no rii^ht ol
properiN or henetiiial inieri-st in the linnitnre, v;oo»ls
or I haltels so ilisiraineil or ihreateneil to he ilisiraineil
(hz) StV. ^2 (ft).
((.;) See. \2 (7).
(u.\\ R.S.O. iSi>7. e. 170, s. ^t).
.\NI» (I I. Mil; I. I.IKNS.
;>-'
5
upon ; {/f) that siirh ftirnitiirc, j^immIs or chi'ttcls arc tin-
|)ro|M*rty t»r in the lawliil possr.sioii ol" siirh hoanlcr or
lods^cr ; (< ) wlicthcr any aiui what amount hv \va\ ot
rent, hoanl or tithcrwisc is iluc iVoni tin- hoarder or
liwlj^cr to tin* inunrdiatc tenant : (*/) to such ilrclaration
shall he annexed a eorreet inventory. suhs(rih«'d hv
th«' hoarder or hul^cr, ol' tlie lurniture, j^ootls and
chattels referred to in the declaration.
The hoardiT or lo»l^»'r may pay to the superior
landlord, or to the hailill or other person miplovcd
hy him. tin* amount due, it' any, or so mui h thereof as
is sutticient to tlischari^c the ilaim ol" the sup<'rior
landlord,
It' the superi«>r landlord, or a haililt »»r other
person employed hy him, alter heini; serxetl with the
declaration an<l inventory, and alt(*r the ho.irder or
lodger shall have paid or tenden-d t(» him the amount,
it an) , which the hoanler or lodocr is so autht>ri/ed to
pa\. shall levy or pn»ceed with a «listn'ss on the lurni
ture, m»otls »)r chattels ol" the hoarder or lodger, tlw
sup(>rior landlord, and his haililt w ill he deemed i^uilts
of an illegal ilistress, and the hoarder or lodj^er ma)
replevy such furniture, i;oods or chatt<ls in any court
of competent jinisdiction, and the superior landlord
will also he liahle t«) an action at the suit of the
luianler or l«»dner, in which acti«>n the truth of the
declaration and inventory may he intjuired into (05).
Any payment made hy a hoanler or lodj^cr to tin*
superior landlord pursuant to the Act shall he tieemed
a valid payment on account of the amount due Irom
him to tile immediatt* tenant (()(>).
Form of Distress. I h<* entry upon the premises
tor the ptnpose ji)f distrainiu}; must he made in the
^
(»>5) R.S.O. iS.,7, c. 170, s. 40.
(()(») Sec. 41.
i!
326
CONDITIONAL SAI-KS
usual manner adopted by imtsoiis havinj^ access io the
l)uildinji», as by turnin}^ the key, liflin;; the latch 01
drawinj^^ back the bolt (67). It is ill<';;al U) effect the
entry by i)reakin}^ open the outer door or j^Mte (OcS) ;
or by .»|K*iiinu a closed window, wh(!ther fastened or
not (69) ; but the entry will be lej^^al if made throU}^h
an ryV;/ window, althoui^h it was necessarily oj)ened
further by the baillT to enable him to jj^et into th(;
house (70). If th<' premises are enclosed by a hij^h
wall intended to k(;ep peo|)le out, and c<»nstitutin<4 a
serious obstacle to their g<'ttinji; in, it will bt; illej^al for
the bailiff to obtain access to the |)r<'mises by gettinjn
over the wall (71); but t<» climb over an ordinary
fence and so }j;ain access to an op(;n door of the house
is not illej^al (72).
A landlord on lh< il.iy of the removal of the floods
by the tenant forbade the removal of same until the
rent in arrear was paid, and seized the samt; aft<*rwar(ls
upon the hi!L,diway. It was held that th(?re had been
by such notice a sufficient inception of a distress to
justify the subs(?(|U(;nl seizure on the highway (7.>).
An (;ntry by a bailiff under a distress warrant for
rent must be through tht? ordinary and natural merans
of inj^ress to the place where the distress is about
to be made (74). And* where a sub-tenant has an
(67) A'viifi V. Shi/o(k 7 ICxch. 72.
(68) Jhou'ti V. G/i'titi 16 (^_. B. 254; Attack v. lUamwrll 32
I,. J. OH. 146, 3 H. iV S. 520.
(69) Hatifock V. Austin 14 C. H.N.S. 634; Nash v. Lucas I- R. 2
(). H. 500.
(70) Crabtrce \. Kohinson 15 (Ji.15. 1). 312.
(71) Scott \\ Buckley 16 I,.T.N.S. 573.
(72) K/driiigf V. Staccy 15 C. H.N.S. 458.
(73) Puher V. Yeitx 9 U. C.C.I'. 270.
(74) An^Uhart v Rathier 27 U.C.C. \\ 97.
AND CIIATTKL I.IKNS.
327
a|)arlm(MU with a separalt: outer door, it is illej^al for
the superior laiullord U) break iiUo that apartment to
make a distress (75).
(ioods which are not the tenant's property cannot
be lollowetl and <1 strained off th(; premis(;s, although
claiuh;stinely nniioved by the tenant (jh). A chstress
was held to have been vahilly matle where the bailiff
entered and maile an inventory of "the sev(;rai snoods
and chattels distrained by me, vi/. : in front sliop.
([iiantity of milliiu'ry toj^cther with sundry articles on
th(; premises," the tenant havinj; then i^ivcn to the
bailiff a rec(!ij)t or undertaking^ whenrby he acknowl-
edged to have received all the j^oods and chait(rls in
the house, 'seized for rent' and aj^recd that tln*y
should be delivered up when demanded (77).
('atlle m;iv be taken on the hi<>hwav as a distress
if ihey have been drivt-n off the demiseul premises in
the view of the bailiff executing; the warrant {~i^).
But when; the h!sse<;'s mare and yoke of oxen, ilit;
subject of tin* distress, had strayed off the demis(;d
|)r(Miiises on lo th(; lessor's land adjoining;, and iht;
bailiff th(Mi and liefon; makinj; a s«i/ure served the
less(;e with a notic(! of distress, and takinj^ a bridle
from the lessor's stable he and the lessor and one I.,
went to the plac(! where th(! mare and oxen were,
off the demised premis(;s, and the bailiff havinj; |)Ut
the britlU; on th<! mare, the mar(; and oxen were
taken to the U^ssee's j)r(Miiis(!S and a .yoke was there
put upon the oxen ; it was held that then; was
eviilence to go to th(; jury that the distrc^ss was made
off the demised premises, and was therefore illegal (79).
(75) Mc Arthur v. iVn/k/ey '1841) Rob. iV Jos. Ont. Digest 1084.
(76) Martin v. Hutchinson i\ Ont. R. 388.
(77) Black V. Coleman 29 U.C'.C. P. 507.
(78) Hahteds. McCormick (1840) Rob. iV Jos. Ont. Dig. 1087.
(79) Peacey v. Ovas 26 U.(.'.C.I'. 464 (Hagarty C.J. diss.).
328
CONDITIONAL SALKS
'1
If the bailiff has been in peaceable possession under
a distress, and is afterwards expelled from the premises
by force, or induced to leave by fraud, but does not
abandon the distress, he will be justified in forcibly
rej^aining possession of the j^oods, and may break open
the outer door of the premises for that purpose (80).
Holding possession of goods distrained. — Hy 1 1
Geo. li., c. 19, s. 10, it was enacted that any person
lawfully taking a distress for any kind of rent may
impound or otherwise secure the distress of what
nature or kind soever in such place or on such part of
the premises chargeable with the rent as shall be most
fit and convenient for the same, and may appraise sell
and dispose of it as might before have been done in
the case of a distress taken off the prtimises.
A distress is sufficiently impounded in accordance
with the statute where, with the consent of the tenant,
the person distraining makes an inventory of part of
the goods distrained, serves it, together with notice of
distress, on the tenant and leaves a man in possession
on the premis-s, but does not disturb, lock up or
remove any of the goods (81). The landlord of cer-
tain premises distrained for rent in arrear, and did
everything required for impounding the goods on the
demised premises within the meaning of 11 (ieo. II.,
c. 19, s. 10, and a man was left in possession. On a
Saturday night and without any reasonable necessity
this man left the premises and did not return until the
following Monday. In the meantime the defendant,
who was the true owner of the goods, entered the
premises and seized and removed the same. It was
i
(80) Eagleton v. Gutteridge 1 1 M. & \V. 465 ; Bannister v. Hyde
2 E. & E. 627, 29 LJ.Q.B. i4r ; Boyd w. Prof aze 16 L.T.N.S. 432.
(81) Johnson v. Upham (1859) 2 E. & E. 250.
pp
AND CIIATTKI- MKNS.
329
held that actual possession was not nt;cessary to pre-
serve the landlord's rij^ht to the goods, and that they
were in custodia lejifis ; and there being no intention
on the part of the landlord to abandon the di!»tress, it
was not necessary that the man shouKI continue in
actual and visible possession (S2).
Delay in the sale of goods distrained for rent does
not prejudice the distress, if there be no fraud or col-
lusion b<;tween the landlord and tenant to defeat the
rights of third parties. And where tht; j^oods seized
are left by the landlord's bailiff upoii the d(;mised
pn*mises, in the possession of the tenant, the takin)^ of
a bond or undertaking from the tenant to the bailiff
to j)roduce to and keep for the bailiff the chattels and
crops, and to deliver them to him and not to remove,
or allow them to be removed from the premis(?s, but
to hold them for the bailiff, is not evidence of an
abandonment of the seizure, but the contrary (83).
Inventory and notice of distress, fkfore the j)ass-
ing of the statute 2 Wm. & Mary. c. 5, distress was
merely a i)ledge to be held until the rent was paid, but
by sec. 2 of that statute it was enacted that "where
" any goods or chattels shall be distrained for any rent
" reserved and due upon any demise, lease or contract
*' whatsoever, and the tenant or owner of the goods so
"distrained shall not ivithin Jk'c days next affvr ^auch
*' distress taken, and notice thereof (with the cause of
*' such taking) left at the chief mansion house or other
" most notorious place on the premises charged with
*' the rent distrained for, replevy the same with suffi-
'* cient security to be given to the sheriff according to
(82) Jones V. Biernstfin (1899) i Q. H. 470.
(83) Anderson v. Henry (1898) 34 Can. Law Jour. 742 (Ont.) ;
Mctntyre v. Stata 4 U.C.C.P. 248; Roe v. Koper 26 U.C.C.R 76,
and VVhimsell v. Giffard 3 O.R. i, distinguished ; Langtry v. Clark
27 Ont.R. 280 distinguished.
'
;>3o
CONIHTIONAI. SALKS
"law, that then in such c isc, ////<•;' such distress and
" notice as aforesaid, and ex|)iration of the said Jive
'' thys, llie |)erson distraniiiij^ shall and may, with the
"sh('riff or inulersheriff of {\m\ comity or with the con-
" stable of the hundred, parish or place, where such
" distress shall he taken (who are re<|uired to Ik; aiding
" and assisting; ther(rin), cause the j^oods and chattels
" so distrained to be appraistHJ by two appraisers
"(whom such sheriff. imdt;rsheriff or constable are
" hereby em|)owered to swear) to appraise the same*
" truly, accortlinjj; to the best of their imderstandin}^s,
"andaftir such ap|)raisem<'nt shall and may lawfully
".v<7/the jnoods aiul chatt(;ls so distrained, for the best
" price that can be j^otten for the same, towards satis-
" faction of the rent for which the said j^oods and
" chatt(!ls shall be distrained, and of the changes of
" such distress, appraisement and sale, leavinjj; the
" oNcrplus (if any) in the hands of the said sheriff,
" inulersheriff or constable, for tht; owntTS use. "
I'hi: notice of distress under 2 \V. & M.. c. 5, s. 2,
is for the purpose of informini^ th(; tenant or the per-
son whose effects are taken what j^^oods are distrained,
and the amount of rent in arrears (84), and it must be
in writing; (85) ; but a notice of distress specifyinjf
certain j^oods and purportinj^ to include "all othiT
i^oods that may be recjuired to satisfy the lent" is too
va«,nie and uncertain to justify a sale of stranger's
goods deposited on the prcnnises and not sjjecifically
mentioned in the notice (Sb).
I'he fact that the tenant, on being informed by the
bailiff of the time \\\ which h(^ may redeem the goods,
said that he did not recjuire an inventory of same will
(84) Kcrhy v. Harding 6 Exch. 234.
(85) lVihon\. Xi.i;htii»i;a/e^i:i.K 1034.
(86) Kert>y v. Harding 6 Kxch. 234.
w ■
AND CIIATTEI, LIKNS.
.^;i'
not constitute a waiver of th<! notice of (listn-ss which
tht; law re(|uires to he j^iven before a sale can he
Icj^ally madt; (87).
A notice of distress }^MV«'n «)n the Sth for tin- 1 2th <)f
the same month is invalid (8S). The notice is only
re(|iiired to enable the landlord to take advantJi^'e of
the statutory power of sellinjj; the distress, and the
distress itself is ^ood although no notice be j^iven (Sg).
Appraisement of goods distrained. I he //:•< (iays
specified in the statute (90) are to be reckoned exclu-
sively both of the day when notice «>f (lislr<ss. i.e., lh<'
inventory with a notice of distress subjoined, is |L*iNen
and the date of the sale (91). '['he appraisers must
be parlies disinterestcrd in the distress and neilh<r
the landlord or his bailiff can act as aj)praiser (92).
It is doubtful whether a tenant can waive; the statutory
formalities as to inventory, appraisement, sale etc.,
as rejijards mortj^agees of any of the j^oods seized or
other persons havin*; a title iim;rest thertMU (9;). The
fact of swearin«,^ the appraiser, aft<;r the* makinj^ of the
appraisement is a mere irrej.jularity, and is a ^'round
for damaj^es only, and does not render tht; distress and
sul)se(|uent proceedings invalid (94). \\w. ap|)raisers
chosen should be reasonably competent m(;n but not
(87) S/iuUz V. Jiediiicl: 43 U.C. R. 155.
(88) Schultz V. HeddUk 43 U.C.R. 155.
(89) Trent V. ////«/ 9 Exch. 14 ; Lucas v. Tarletoti 3 II. iS: N. 1 16.
(90) 2 \Vm. iV' M. c. 5.
(91) fA'nchw Bickle 17 L'.C.C.P. 549; Nobitisoti \. IWiiifiitiglon
15QB/753-
(92) Oldliam & Foster on Distress (1886) 223.
(93) WliimseU\. Gijffard {\%%2>) 3 Ont. R. i.
(94) Plaxton V. Barrie (1899) 35 Can. Law Jour. 611 (Ont.).
332
C;()NI>ITU)NAI, SAI.KS
lurarssarily professional appraisers (95). Ami the
bailiff or other person concerned in making the
distress must not act as an apprais<;r therein (96).
Landlord's right of sale. — The landlord is not bound
to sell the ^oods distrained but may still hold them in
pledj^e as before the statute, 2 \V. & M. c. 5, s. 2 (97) ;
but unless he removes tht: goods from the ttrnant's
premises (if there impoundeil) within a reasonable time
after the five days allowed to the tenant to rtrplevy,
h(! may be deemed a lrespass<rr for keepinj^ them
there (98). There must be five clear days between the
notice ot distress and tht; sale, but the landlord is
allowed a reasonable time after the live days to sell,
and what is a reasonable time is a ([uestion for the
jury (99).
Ordinarily a landlord takes no title under a sale by
his own bailiff actinjjf upon a distress for rent, and, as
the distress is then at an end and the yjoods no lonj^er
in the custody of the law, the landlord cannot set up a
lien for the rent as against an owner of the chattels
other than the tenant (100). Although the general
rule is that no one can sustain the double character of
seller and buyer, yet where the landlord ai the sale of
the goods distrained bought some of the chattels with
the tenant's consent, it was held that the property in
them passed (101).
(95) Allen s. Flicker 10 Ad. & E. 040; Roden v. Eyion 6 C B.
427.
(96) Westu'ood V. Cowne i Stark. 172; Lyoti v. Weldon 2 Hing. 336.
(97) Philphotty.Lehainsi I..T. (Kng.)85S.
(98) Griffin v. Scott 2 Ld. Raym. 1424 ; Pitt v. SAaw 4 B. & Ad.
206.
(99) Lync/i V. BicJk/g 17 U.C.C.P. 549.
(100) Williams v. Grey 23 U.C.C.P. 561.
(loi) Woods V. Rankin 18 U.C.C.P. 44.
AND CIIATTKI. MKNS.
3.^.i
Abandonment, withdrawal or waiver. Vhr ri^lu
of distress may lur waived as to any siM-cilird ^roods by
agreement of the landlord with the conditional vendors
of same in casrs where, hy th<! provincial law, j^oods
not the property of the tenant are notwithstandinfr
liable to distress (102).
A landlord camiot, after ahandonin^r a seizure,
make a sttcond distress for the sanu- rem ( 10 0-
Where a landlord, with a view of seciirin;; rent due
to him by one Scott, purchased some of Scott's
furniture from Scott's wife in his absence, applying
the rent upon the purchase money, and removed thtr
j^oods from thtr d(Mnised premises to his nwn, it was
held that his ri<^du to ilistrain as against a chattel
nu)rt^a^e<; from Scott had c(!ased on the removal of
the j;()ods (104).
A second distress for the same rent is ilNj^al where
th(! first has Imhmi voluntarily abandonetl by ihe
landlord, but it is not a volimtarv withdrawal if an
arrang<Mnent is made, at the re(|uesi of tin- imani.
wherebv he should have further time to pav. and. on
his making default by not payinj^f as arranj^til. the
landlord may distrain a second timei'O.S)- -^i^^^ the
landlord's claim for priority to th<! extent of un<; ye.ir's
rent against an e.\(;cution creditor is not impaired by a
withdrawal of the distress, at the re<|uesi of. and for
the accommodation of, the tenant (106).
If the distr.iinor, or anyone by his diicilion. make
(io2> //(///<»(<• V. /''tiisif 2 Can. S.C.R. 52:
(103) /.vness V. Si/ton 13 U.C.C I', ly ; JA/
(1041 /•'tiisff \. lA/'li/z/V/iff 13 N.S. K. 2S.
(105) TliWiiilcs V. Wildin)^ I2(^).IJ.I). 4, 1
Kxch. 641.
(106) IVoolaston v. Stafford 15 C. B. 278.
(103) I.yness v. Siflon 13 U.C.C I', ly ; May v. Scvtis 24 t'.( '.( ". I'.
(105) Thwaitt's v. ll'iUin^' I2(^).IJ.I). 4, (C.A. ) . />./,a''' v. Ma7(f>y
X Kxch. 641.
J^^
M4
10NI»HH»\.\I. SAI.K.S
im|)r(»|MT use ot the thin^r distriiincd, llic cfCcct of hJH
wnMij^liil usrr of it is l<> justify tlu; owner in rcclaiinii)^
Ills proprriy willnml hnnj^r |ial>lc for ii rt'scur (107);
Init where the t<-nant contiiuied to use a hired piano
distrained upon, whicli the landlord had left in the
custoily of the tenant's wife with directions not to
allow its removal, it was held that such did not operate
as an ahanilonmenl of the seizure (loS).
'I"h«' j^mmmIs of a tenant, which had been mort^aj^ed
hy him, wertr ilistrained for rent and inipoimded, and
were left «)n the premises in his char^jc* for over thnre
weeks by a};r«'<'ment between him and the bailiff, when
on bcin^ advertiseil for sale under the distress they
were seized and taktrn away by the mort^Mj^ee. It was
held thai while then* was a j^ood distress and a i^ood
impounding as between the landlord and tenant, and
while there was no aband(»nment between them, yet as
between the landlord anil the mort^a<;ee the latter was
eniitle<l after the expiration of five davs from the date
of the distress, and after a reasonable time for the sale
and disposal of the ^oods distrained had ela|)S(;d, to
treat tin* jj^oods as no loni^ier in the custody of the law,
but subject to his morti;a}s'<'- It was also held that
havinj^ taken possession of them under his morlj^aj^ts
the mortgaj^ure was not, undttr iht; circumstances,
guillv of a pound breach under 2 W'm. ^t M. sess. 1,
c. 5 (109).
Where th(! laiullord withdrew a distress at the
re(|uest and for the accommodation of the tenant on
obtainin<4 from him a chatt(!l mortgaj^t! on his j^oods
for the rent, but the tenant fraudulently concealed from
the landlord thai h(; had previously given a chattel
(107) .Sw/V/t \. II right d H. iV N. 821.
I loS) nimoik V. Millet (1897) .^0 N.S.R. 74.
(iO(;) Ltngtty V. Chrk 27 Ont. R. 2H0.
AMI rilATIII. I.IKNH.
.U5
in(»rl^a^(; to anmhcr party oivrrin^ inoHt of ilic same
^ooils, a scconti disirrss matlt- afte^r a sri/up* iiiuirr tht*
last inctuioMcd inort^a^c was iiplK'ld ( i lol. A land-
lord who mc'ivfs a promissory notr tor r«'nt ami. hy
arraii^M'incnt with the tenant, discounts it at thr It.mk,
JH to l)c considered as ha\ in),; a^'reed that the ri<;ht of
distress shall l>e suspended until dishonmir ot the
note (mi).
British G)lumbia Statutory provisions. \U the
Ikitish Colunihia " Landlord and i'enant Ait " (i i j)
the ri({hts of a landlord to distrain tor rent nw'ii^ to
him i)y his ttMiant on j^oods in possession (»t the ttrnant
sold to him un«l«'r a duly tiled a^^reemeni fur hire,
contract or conditional sale, is limited to ;, months'
rent ; and payment Wy the hirer or owner of such
^oods of the ] months' rent, or so miit h then-of as
will satisty the landlord's claim, will disch.ir;^e the
claim of the* landlord as a;.rainst such ;4<>ods ( i i.;).
A similar provision is n^ade in this province lor the
protection of the j^'oods of lodj.;ers and hoarders (114)
as is contained in the Ontario statutt^s.
The hritish Columliia Landlord and Tenant Act
contains a re-enactment as t(» that province (»f the
statute 2 W'm, ^ M. c. 5. alread\ reterreil to, uiuler
which the landlord is empowcrtnl to sell the i^oods
distrained after due; appraisement thereof and the
expiry of 5 five clear days after the distress (1 15); and
(no) llarpelUs. Carroll ii Out. R. 240.
(mi) Simpson v. Hoti'itt i,i) L'.C.R. 610.
(iia) R.S.IJ.C. i8(j7. r. no.
(113) Stat. H.C. i8«/t, c. 18, s. 2 ; R.S.Il.C. iMi;;, c. no, s. 2.
(n4) R.S. ;{,(". i8y7, c. no, s. 3.
(ns) R.S.H.C;. 1897, c. no, ss. h et so/.
IMAGE EVALUATION
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23 WfST MAIN STMET
WEBSTER, N.Y. 14S80
(716)873-4503
336
CONDITIONAL SALES
also of the statute ii Geo. II., c. 19 as to goods
fraudulently removed to evade distress of same (116).
N. W. Teiritories — Statutory provisions. — The
Distress for Rent Ordinance (117) contains the follow-
inj^ enactment :
A landlord shall not distrain for rent on the goods
and chattels the property of any person except the
tenant or person who is liable for the rent although
the same are found on the premises ; but this restric-
tion shall not apply in favour of a person claiming title
under or by virtue of an execution against the tenant,
or in favour of any person whose title is derived by
purchase, gift, transfer or assignment from the tenant
whether absolute or in trust or by way of mortgage or
.ti^jrwise, nor to the interest of the tenant in any
goods on the premises in the possession of the tenant
u ) ' r a contract for purchase or by which he may or
is • >'_come the owner thereof upon performance of
aiiv . ndition, nor where goods have been exchanj^ed
between two tenants or persons by the one borrowing
or hiring from the other for the purpose of defeasing
the claim of or the right of distress by the landlord,
nor shall the restriction apply where the property is
claimed by the wife, husband, daughter, son, daughter-
in-law or son-in-law of* the tenant or by any other
relative of his in case such other relative lives on the
premises as a member of the tenant's family (i lya).
This section is similar to the Ontario statute passed
in 1894 (118) as it stood before the amendment of
same in 1897 (119) by which it was further provided,
(116) R.S.B C. 1897,0. no, ss. IT e/ set/.
(117) No. 7 of 1896; Con. Ord. N.W.T. 1898, c. 34.
(1170) No. 7 of 1896, s. I ; Con. Ord. N.W T. 1898, c. 34, s. 4.
(118) 57 Vict. (Ont.)c. 43, s. I.
(119) 60 Vict. (Ont.) c. 15, Schedule A. (60).
AND CHATTKL MKNS.
^^7
as to that Province, that any person whose title is
derived by purchase, jj^ift, transfer or assignment from
any relative to whom the restriction mentioned in the
section is declared not to apply, shall not be entitled
to claim exemption of the jj^oods so accjuired.
In the North-West Territories the statutory lien
in favour of threshers for their charges authorizes
them to retain a sufficient (|uantity of the <jrain to pay
such charj^es where they are employed " at or for a
fixed price or rate of remuneration " (i 19^) ; and such
ri(;ht of detention and the ri<j^ht of removing the urain
for the enforcement of the lien will, if exercised forth-
with after the threshinij is finished (i \^)b), prevail over
a rii^ht of distress for rent reserved upon the land
upon which the i(rain is threshed (i 19^).
Nova Scotia — Statutory provisions. By the Ten-
ancies and Distress for Rent Act of Nova Scotia
( 1 20), no distress for rent shall be made unless there
be an actual demise at a specific rent (121).
Where anv jioods are distrained in Nova Scotia
for rent reserved and due upon any lease or contract,
and the tenant or owner of the goods shall not, within
five days next after the distress taken and notice
thereof with the cause of taking served upon him, or
left at the most conspicuous place on the premises
charged with such rent, replevy the same with security
to be given to the sheriff, the landlord (with the sheriff
or his deputy or a constable who are re(]uired to aid
therein) may cause the goods so distrained to be
(ii9«) Con. Ord. N.W.T. 1898, c. 60.
( 1 19/5) Con. Ord. N.W.T. 1899, c. 11.
(119O Con. Ord. N.W.T. 1898, c. 60, s. 3.
(120) R.S N S. 5th series, c. 125.
(121) Sec. 2.
'i»
kii
'm
3.^8
{•ONDITIONAI, SALKS
a|)|)raisccl by two sworn apjmiiscrs who shall lie sworn
bcibre a justice of the peace, the sheriff, his deputy, a
constable or a commissioner (122).
The <^o<k1s so distrained may be im|)ounded or
otherwise secured in such place or on such part of the
premises charjjjeable with the rent as shall be most fit
and convenient, and the huullord may appraise and sell
and dispose of the same on the premises, after jj^ivinj;
five tlays' public notice of such sale by haiulbills to be
posted in at least five public |)laces in the district in
which such sale is to take place. But the landlord
has the option of removing the jj^oods to another
place of impouiidinjj^ or security, and may sell, after
due appraisal and notice, elsewhere than on the
premises (1 23). ,
After the appraisement the landlord shall sell the
goods distrained for the best price to be gotten there-
for towards p. ^ nent of the rent due and expenses
incurred, leaving the surplus, if any, in the hands of
the officer for the owner's use ( 1 24). Special provision
is made by statute for the protection of lodgers' goods
and for their release from distress made at the instance
of the superior landlord upon j)ayment to him of the
amount due by the lodger to his immediate land-
lord (125).
All property brought upon or into any building
used as a market houa fide for the purpose of sale by
any person or persons, not being the property of the
tenant or property in which the tenant is interested, is
exempt from distress for rent ( 1 26).
(122) R.S.N. S. 5th series {1884), c. 125, s. 3.
(123) R.S.N. S. 5tli series, c. 125, s. 4, N. S. Laws, 1886, c. 38, s. i.
(124) R.S N.S. 5th series, c. 125, s. 5.
(125) R.S.N S. 5th series, c. 125, ss. 6 and 7.
(126) R.S. N.S. 5th series, c. 125, s. 9.
AND t:ilATTi:i- l.IKXS.
339
A statutory rijj^ht is conferrt'tl upon a laiullord to
sci/c "any cattle or stock of his tenant feeclin^r u|)on
any common belon^inj; to any part ol the premists
demised " and also " all sorts of corn, j^rain, grass,
hops, roots, fruits, pulse or other product j^rowinj^ on
any part of the premises demised," as a distress for
arrears of rent rmd he may cut, gather, cure, carry
and lay them up when ripe, in barns or other places on
the premises so demised (127). in case th(;re is no
barn or proper place on the premises demised for
receiving the same, then he may cause the same to be
placed in any barn or proper place to be procured as
near as may be to the premises, and " in convenient
time " shall appraise and dispost* of the same towards
satisfaction of the rents and the charges of such
distress as in other cases ; but the appraisement is not
to be made until after the crop is cut, cured and
gathered (128). Notice of the place where the goods
so distrained are deposited, shall within one week after
their being so deposited, be given to the tenant or left
at his last place of abode (129).
In Nova Scotia sheaves or cocks of grain, loose or
in straw, hay in a barn or upon a hovel, stack f^r ricK.
or upon the land charged with such rent, may be locked
up or detained upon the premises by a landlord
having rent m arrear, for and in the nature of a
distress until the same shall be replevied ; and in
default of being replevied may be sold after due
appraisement ; but the same shall not be remoxed out
of the place where found and seized by the distrainer,
to the damage of the owner, before such sale (130).
(127) R.S.N.S. 5th series, c. 125, s. 19.
(128) R.S.N.S. 5th series, c. 125, s. 20.
(129) R.S.N.S. 5th series, c. 125, s. 21.
(130) R.S N.S. sth series 1884, c. 125, s. 10.
340
CONDITIONAL SALKS
A provincial statute also provides for cases of
clandestine removal by an enactment in the followin«»
terms : —
" In case any lessee of any messuaj^fe, lands or
" tenements, u|)on the demise whereof any rems are
*' reserved, shall fraudulently or clandestinely convey
"from such demised premises his goods with intent to
"prevent the landlord distraininj; the sam<\ such
"landlord, by himself or his servants, may. within 21
" days then next ensuing such conveying away, seize
" such goods, wherever found, as a distress for such
" arrears of rent, and dispose of the same as if they
" had been distrained upon the [)remis('s, unless such
" goods shall have been sold in good faith and for a
" valuable consideration before such seizure, in which
" case they shall not be liable to a distress O ^M.
Executors or administrators of a deceased liindlord
may distrain for rent due in his lifetime, but if the
term is ended the distress must be made within six
months after its termination, r .1 while the tenant
continues to hold possession (132).
An irreuularitv or unlawful act done after the
distress is made, by the distraining party or his a'l^ent,
will not make the distress unlawful nor constitute the
distraining [larty a trespasser ab initio, but will ^^ive
rise to an action for damages only (133).
Manitoba — Statutory provisions. — Hy statute in
Manitoba ( 1 34) the following restriction is placed upon
the right of distress : —
" A landlord shall not distrain for rent on ifoods
" and chattels the property of any person except the
"A
(131) R.S.N.S. sth series, c. 125, s. 15.
(132) R.S.N.S. 5th series, c. 125, s. 18.
(133) R.S.N.S. 5th series, c. 125, s. 13.
(134) 59 Vict. (Man.) 1896, c. 6.
AND CMATTtL LIUXS.
341
*' tenant or person who is liable l\)r the rent, although
*' the same are found on the premises, but this restric-
" tion shall not apply to crops or i,'rain in favour of a
" person claiminjj^ title under or by virtue of an
" execution or attachment against the tenant, or in
*' favour of any person whose title is derived by
" purchase, f»ift, transfer or iissij.;nment from the
" tenant, whether absolute or in trust, or by way of
" mortga<;e or otherwise, nor to the interest of the
*' tenant in any goods on the premis-rs in the posses-
" sion of the tenant under a contract for purchase, or
" by which he may or is to lx,*come the owner thereof
" upon performance of any condition, nor where goods
" have been exchanged Ix^tween two tenants or
" persons by the one borrowing or hiring from the
" other for the purpose of defeating the claim of or the
" right of distress by the landlord, nor shall the
" restriction apply where the property is claimed by
"the wife, husband, daughter, son. daughter-in-law or
*' son-in-law of the tenant, or bv anv other relative of
" his, in case such other tenant lives on the premises
" as a member of the tenant's family " (135).
This provision is similar to that contained in the
Ontario "Landlord and Tenant Act "( 136) with the
distinction that in Ontario the restriction is declared
not to apply tu ^^rz/y goods in favour of persons claiming
title under an execution against the tenant, while in
Manitoba the restriction is only declared not to apply
to crops or grain as to claimants of that class, and
with the further distinction that, in Ontario, words
have been added to the section since its original enact-
ment so as to make the further exception that the
restriction of the right of distress shall not apply
(*35) 59 Vict. (Man.) 1896, c. 6, s, i.
(136) R.S.O. 1897, c. 170, s. 31 (i).
^ww
.142
( OMiiriMNAI, SAI.I'S
in r.ivniii nl " .nu |W'|S(»n whns*- lillr is (Inivrd l»y
|)iin Im'.c. jmIi, ii.mslrr or iissi^iiinnil lioin any rrl.i-
li\<' to whom MK li n'sirii lion dors not .<|»|>ly ('.?7).
riu' s.nni" prixilrvMs, rights ,\\u\ «'\rni|>tions .ipply
to persons lr.i\ in^ .mini. lis, tinniliMr, \(lii( Irs ;mil the
^v,\r tluTcnnto liclonj^in)^, to Im' Ivrpi. Iio.ndrd or cnrti
(or .U .1 lixcrv, hoardini; or s.il«- si.ildr, as air made to
a|)|)l\ to lo<l<;n-s .md ho.irdns under the M.mitolia
|)isinss ,\« t ( I ;,.^) ; .md tluv will then lore In* liable
to he disli.iine«| upon loi rent due hy the stalile keeper
to his l.mdittrd, onU to the extent iil the ehar^(*s due
It) the st.d)le l«'eper in respet t tlureol (i.>o).
M .m\ superior l.mdiord shall le\ \ or .luthori/e i«»
he le\ ied .1 distress on .my riirnitiire. ^oods or chattels
t)l .m\ ho.irder or lodj^er lor .irrears ol rent due to
such superior landlord l)\ his immediate tenant, such
h
)oanler or
lod.
;er ma\ serx'c su<h superior laiu
llord
or
>'
the h.uliU or otiur person employe<l l»y him to levy
suih distress with a staliit* .y declaralion in writing
matle in aciordance with the Canada I'.vidence /\cl \i
such l)oard«M' or lod<;er st'ttiiii; forth :
{(t) Ihal such immediate tenant has no rii;lu ol
propertN or henelicial interest in th<' riirnitun', j^oods
or ch.ittels so ilislrained or ihreateneil to he distrained
upon ;
(/') That sucli furniture, i^oods or chattels anr the
propiM'ty or in tint lawful possession of such hoarder or
lod
'»('r. aiu
or
{<■) What amount, if any. is due from th(! l)oard<!r
le immedi.ite tenant for rent, board or
lod
Lli>r
otlUTWise
to tl
( 1 40).
(i^^7) <)o Vict. (Ont.l, c. 15 Soh. A. (60) ; R.S.O. 1897, c, 170,8. 31.
(13S) R.S.M. i8»,i, c 46.
(139) R.S.M. 1S91, c. 91, s. 8.
(140) R.S.M. 1891, c. 40, ss. 5, 8.
AM) rllAI I II. I.IKNS.
,V».^
/\ ruinrt inv'iilnry mI tin Moods i , to In- .iiilirx* d
lu the <l<'rl.ir.ilinn .mil In l)f si^iH-il l*y the Ixi.ird'r <»r
lod^iT. I 'poll srrvirr of tin- st;iliilory «lr( l.ii.ilion In:
IkiS |I|«- I'i^lll to ( l.lilM tll<- K Ir.iM- oj hjs i^rxids froti)
ihr (listifss ol tln' sii|Mrior landlord on piyiiiLj to
hill) or Ills l>.iilill llif .iinoiiiit, if .my. <liic for lio.ird or
lodMiii^ or siirli ji.irt .IS m.iy l»r siiHk icnt to di',< li.ir;^''
tin- rl.iiiii distr.iim'd (or. II ili*' dislrrss is |»ro( cfdcd
with not willislaiidiii^ tin- scrvirr ol tlir dec lar.iti(»ii,
and allrr |iayiiwni as .dnr«'„iid vvlitrr the lod;^«r or
ho.n'dcr is liiinsrK in arn'.ii, In- may r<|ilrvy tlir
;4oods ( i.j I ).
Quebec Statutory provisions. IIm- lessor has for
the payment ol his rent and <)llnr ol»li;siiions ol ilw
lease a privilcj^ed ri^ht upon the mo\al»le e|fe( is whi( h
an: loiind upon tin- properly hased (i |j).
In the lease ol houses the jirivile^rd ri^lll llicllldrs
the lurniture and inovaMe elfec ts of the h-ssiT, and if
the lease l»«; of a store, shop, or m.mula( tory, ihf;
merchandise conlained in it. In the lease of farms
and rural «rstal«-s tin- privileged ri^hl iiw hides every
ihin^ which serves for tin* lahour of the farm, the
furnilure and inovahh; effects in tlw liousf; and
dependencies, and the fruits |)rodu(«d during the
lease (ij.^). I lie rij;ht inclii<les also ih»; effects ai the
un<lert<:nant in so far as he is indel>t<-d to tin: lessee
(144). it inchides also movable effects belonj^in^ tr,
third persons, and heinj.; on the premises by their con-
sent express or impli<;(l, for sums which hav<; become
due by th<: lessee prior to the notification f^iveii to the
lessor of the pnjperty rights of third persons, or before
(141) R.S.M. i8(ji,r. 46, F. 6.
(142) Civil Codo Que, art. 1619.
(143) Civil Code art. 1620.
(144) Civil Code 1621.
w
tt^
344
CONDmuNAI. SAI.RS
the kiiowletl^f ac(|iiirc'il by ihc lessor of such rights of
thirtl persons, l)iit not if such effects l)e only transiently
or accitlentally on the premises, as the baj^jiaj^t; of a
traveller in an iini. or articles sent to a workman to
he repaired or to an auctioneer to be sold (145). I he
notification in due time to thi; lessor will avail aj^ainst
a sul)se(|uent ac<|uirer of the leased premises (146).
Thtr ' privilej^e ' of the lessor extends to all icnt
that is due or to become due uiuUt a lease in aut'ientic
form. Hut in the case of the li(|uidation of property
abandoned by an insolvent trader who has made an
abandonment in favt)ur of his creditors, the Urssor's pri-
vilej^e is restricted to 12 months rent due and the rent
to become tlue during the current year if there remain
more than four months to complete the year ; ami if
there remain less than four months tocomplett: the year,
to the twelve months' rent due and to the rent of the
current year and the whole of the followinj^ year. If
the lease be not in authentic form the i)rivilej;e can
only be claimed for three overdue instalments and for
the remainder of the current year (147).
If a lessee fraudulently pledj^es his j^oods, so that
the pledge might be annulled, the annulment would
not give the lessor a right to seize after eight days
from the time of their removal from the premises, and
before judgment on h writ of sa/su'-j^tri^rn't' (148).
The landlord may e.xercise his right indiscriminately
on all the goods on the tenant's premises, and cannot
be compelled to reserve from sale until after other
goods were realized upon, a piano the [)roperty in
(145) Civil Code 1622 ; 61 Vict. 1898 (Que.) c. "45.
(146) 61 Vict. (Que.) c. 45, s. i.
(147) Quebec C.C. art. 2005, ^^ amended (1898) 61 Vict. (<^ue.) c.
46, s. I.
(148) Cuddy V. Kamm 9 Que. S.C. 32.
AMI (IIATTKI, I.IKNS.
M5
which was rescrvecl to a thirtl party u|)on a conditional
sale aj4rc(!nu'nl (149).
Where tile lessee has inatU; a judicial ahandoiiiiieiit
of his effects ami lh<r same are in the possession of a
curator for the benefit of the creditors j^enerally, the
lessor is not entitled to cause ihctm to In; seized under
a writ of su/su'-i^di^m'i; and the lessee as well as tht!
curator may contest lh«' writ (150).
When a third party has carried away soim? of the
movables which formed part of the furnishings of a
rented dwelling houst;. and refuses to point them out
to a bailiff who has tht; execution of a writ of .ui/st't--
j^ai^rrii' by right of mortgagt;, the landlortl lo whom
rent is owing in respect of the dwt^lling may exercise
his privilege upon such movables, and have them
placed in legal custody for sale, by nu;ans of a writ of
saisie-anrf against the third jjarty (151)-
Where a piano is loaned to and left with a tenant by
the owner in the hope of the tenant purchasing it, but
without any hire-|)urchase contract, it is not subject to
the lien for rent under Art. 162J of the Ouebec Civil
Code (152). And the privileged right of the lessor
upon the movable effects in the pn-mises leaseil does
not extend to an article (e.g. a jjiano) brought there by
a person boarding with the tenant, and who owes
nothing to the tenant for board, where the lessor had
notice before the piano was placed on the premises
that it was not the property of the lessee but that of
the boarder. And the removal of an article belonging
to a third person, but which, under the above-
mentioned circumstances, was not subject to the
ii
i : .fi^
(149) Langhoffy. Boyfr g Que. S.C. 216.
(150) Forsyth v. Beauprv (1897) 10 Que. S.C. 311.
(151) Macdonald \ . Meloche {\%f)i) 11 Que. S.C. 318.
(152) McKercher s.Gervais (1898) 12 Que. S.C. 336,
¥
.U^
CONI>ITlr)N.\I, SM.KS
I« ssor's priviN'jjr. will m»t sv.rvv as jiistitkatiuii (or a
s«'i/un; »»( lUv h'sst-e s «?lTi:cls -more «'s|)rci;illy nvIi«t«
sufVuit'iit t'ffrcls ar«' It'll to s<'ciir<! tin* n:ut (luf ami also
the rent for t\u: currt-nt H'rni ( 15,^).
(153) /•'oisy V. lloiighUm (iH«>H) la <2ut. ^' C. 591.
■%'
(HArri'K w'li.
MnKn;,\«;i.|..s I.ii.N its i»IMKI>n.
Distress by land mortgagee. A laixl inort<4.i^a>(',
iiltrr j^iviii;; imlicc ol the inori;^;!;^*' to the iciiaiU ii)
juisscssinn under a lease or UnancN cnattd />rior t<»
the mori;4a;;<'. may distrain lor the rent in arrear and
unpaid at the time of tile notice, as well as tor rent
whiih mav accrue after such notice. althou''h he v.as
not in the actual seisin of the premises, nor in tht;
receipt of the rents and profits thereof at the time the
rent hecame due ( i ). hut he may not tlisirain lor rent
due upon a lease madt; l)y the mort}j[a^i without his
concurrence a/fi^' the mort^Mj^c, unless he lias acceptecl
rent from the tJ'uant or has j^iven him notice to pav
the rent and the tenant has ac<|uiesc I so as to ciratc
a new tenancy, express or implied, as l)( twecn the
niorij;.i;;ee ami the tenant (2).
Attornment by mortgagor. The relationship of
landlord ami tenant ma) also he created hetween the
mort};a},jce and the mort^aj^^or hy a stipulation, in the
mortj^a^^e or otherwise, wherehy the mortj^aj^or attorns
to and becomes tenant to the mortjj^ajj^ee (3). anti if such
a contract reserves a riMit, and is not a mere tenancy
at will or at sufferance without such a reservation,
(4), the rent may he distrained for by the mort^a^ee
as the mortj^aj^or's landlord in like manner as in
ordinary cases of landlord and tenant. It is, however,
(i^ Woodfall, Landlord and Tenant (1898) i6th ed. 457; Moss v.
Gallimore 1 Doug. 279.
^2) Rogers v. Humphreys 4 A. & E. 299 ; Piirthigton v. Woodcock
6 A. & E. 690.
(3) Ex parte Jackson 14 Ch. D. 726.
(4) Trust 6- Loan Co. v. Lawrason (f88i) 10 Can. SCR. 679.
If
34S
vuNhmoNAi s\ik:s
fssfiiiial lo ilu- \ciliilit\ i»t siuh du ariaMit^t'infiit that
it shiHiKl Ik- so ^ariii'il oiii as to loiiif)!) nn iih the
rfi|iii»' 'nu'iits oi ihf law jutsviilH-d tor thf nt-aiion ot
U'ast's, ami tiuihrr, that it shouKl ap|)tMr that it was
ifiilK thf iiitfiuion ot tin- partit-s to iivatf a tt-uancy
at thi' rental rfsfr\t\l, ami not iiu-rt'ls iimltT colour
iiml juvtrnet- ot a U-ast- to i;i\ t- ihr n\ort);ai;\-f avKli
lional' si'iuriiN not imivU-ntal to his ^haiiUtt-r ot
M\oitv;ai;t'<' [^) ; ami it tlu- rt-iit ivsctn t-vl is so
umt-asonaMt' ami f\i.fs>,i\ t- iis to shew com"Uisi\ t'l\
that thf airam;fnu'nt was mural ami tiititious ami that
thf parties louKl not h.i'.t- iittt-mU-vl to irt-att- a
tfiiaucN , thf \alidit\ ot thr U'ast- inas Ik- iiupu^m-d
by third partit-s whosf intt-rt'sts art- attritt'il, tilthouv;h
thf mortgai^or hiiusflt ina\ ht- tstop|K\l tivnu ilisjHitini;
tlu- tri\iim\ [o).
In an action tor daiUiii;rs broui;ht l»\' thr plaintitts
against a shrritt tor sfl/urt- ai\t-l Stilt' oi llu' gv>oils o(
(Hw C\)ultrr nuuU' inulrr an rxfiution in his hamls, ht*
rctusini; to acknow l(;\li.H' thr plaii;titt's clain\ tor rt-nt
dm- luuk-r a K-asr by Coultfr troni tlu'in to an anutunt
t'XCft'ding ihr \ alur ot tlu- L;o(.>ds, it a|)[)«:'art\l that
Coulter was in arrt-ars under two n\orti;eiL;es to the
plaintitts. and in Max, iSi;5, signed a lease ot the
mortgaged premises, a^reeing to [)a\' a reiittil ot $7tx^
t\)r a term ending oi\ the tirst ot November oi the Siune
ytar. The rent was niade paxable in aiKance, on the
tu'st day of )anuar\, iSc>5, and was shown to be about
three times the rental value ot the property for a year.
Besides this, other cireumstanees were proved, tending
to show that the lease hail been procured by the mana-
ger o( the plaintitts with a view of preventing the
(>) Hodi's V. Ontarh Loan 6-^ Dcdcnture Co. (i8qo) iS (."an.
S.O. R. 48^?, 4^3.
^6) Hodl>s V. Ontario Loan >>■ Deb^ntute Co. (iSyo) 18 Can.
S.C.R. 483.
AM» IHAIU.I. ll^•^^.
M^>
fxt'culion irfililt>rs o\ CiuiUer i^t'ltiii^ am thiiu^ out ol
his \rv»ps tor thai vtMr, aiul ll\at it w.is iu»i ilu- init-n
tu>n ot tlu* pariit's lo irtMU- a iral U'Maiu\ luiwfin
tluMW. It was ht-KI that llu- h-ast- rt-lird upon l»\ tlu-
plaihtiUs (.H>ulvl not l>r vUfiutil lo ha\ f iKt'U init'iultvl
as a bona tult' uiu-, ai\il ihat tlu- irlalion ot lauvlK»i\l
ami ifu lilt \va^ not \aliill\ ^ riairi.1 tbfrfl>\ ^v> as to
attVvt ihiiil |>aiiirs ^7).
Aiul in anoiluT vast- wlu-rt* tlu-tavi-. wnr similar
to tho^t' in ihf prt'CfiliniL; vast-, cwrjH iluu tlu- K-a^i'
rclifvi on lnuf datr Ji«>t 1 >rvfml>fr, iSw4 aiiil }>ur-
jtorifil to U-i llu- laiid until isi Nv>\rinlKi, iSi>5, at a
rt-nial ot $705 payahU- i^t jamiarx, 18^5, aiul that
f vi».UMUf \\a^ L;i\fn thai tlu- plaiiilitU havl iiisi^trd o\\
thf K-asr htini; siv;iu"*.l oi\ pain v»t rvivtivMi and salt- ot
tht* j)rv>[>fri\ , hut tlu-if \\a^ iu> tvidt-iut- that plauuitls
had noti^f ot Murras s tmaiuial dittuiiltit-^, it was
lu'Ul that tht" K'a->f was \ oiil a^ai^-^t f\fiutu>n iii-vliiois
on a^'couiU v>t ihf t•\^.•t•^•^i\ t' au\v>uiu lixt-d tor tlu- ivnt \S).
A mort^aj^ff ma\ distrain o\\ tlu- inortv;ai;or lor
rt-nt rt'siTNt'd U|>on an atli>rnnu'iu in ilu- morti^vii^f
lU-rd, whflhtM" ^u^.•h mu Ih" |>a\al>lf in adxanvr or not,
anil c\fn whrrr tlu- mort^a^rr has not r\t\utfd ilu-
lU'fd. it ihr tt'naiuy hf at will only, or lor a tt'rn\ ni>t
f\*.'t'f(.lini; thrt't' years [*.)). V\\v rrntal rrst-rx t\l uiulrr
a it-naiu'V crt-aifil bftwft'n thf nu>rt;4am»r aiul nu>rt-
i^as^t't' nt't'il not bt* ot a sum whiih nnouKI go in rt'dui"-
tion ot intt'ifst aloiu-, but max br ot a >uin t-qual ii»
anu>unt to the stipulatt-d in^talim-nt ot both |>rinii[K»l
II Man. K. 4-'^-
n Man. K. 1+5; f/i'^fi^ v. Ontario' Ilmh v-^ / <.w>Uu'c t '.'. ^iSgo'*
iS Can. S.C'.K. 4.S , tollowcvl
^9) A/i^/iifH V. Utv</.v, l.R. 3 1^.15. D5S.
350
coNDlTinNAi, saij:s
aiul interest ( I o), willi the (|iialit'icalinn Ix^fon; iikmi-
tioiied that to hv. valid as to tliird parties the ainoiitit
ol rent must not l)e unreasonable and excessive ( i i) ;
and althoih^h a distress he made nominally for int(!rest,
the niorti^aj^ces may justify the taking on the j^round
that an instalment of principal was in arrear (12).
Termination of tenancy, if no rent has hvm fixed
for the perioil sul)se(|uent to th(; time at which lh(;
morl«;aii<' matures, tin; tenancy created by an attorn-
ment clause reserving a rental e<|uivalent to the
interest sti|)ulateil for in the proviso for re-payment
will terminate with th(* last instalment which the
mortj^ai^or thereby contracted to pay ; anil under th<'
Statut<' of Amu;( i;,)a distress cannot be mad(; if more
than six months has elapsed after the expiration of the
tenancy (14).
Where then; is an attormnent clause reservinj^ a
rental e(|uivalent to the morti^aj^e interest, a mortgagor
who continues in possession after the mortgage has
matured, and who has not contracted to pay interest
thereafter, beconu's a tenant at sufferance, and is no
longer a tenant at the rental fixed by the mortgage.
I'he inli'rest after maturitv in such a case is recover-
able as ilamages only hiuI not a-i a matter of contract,
anil it bt comes necessary to prove a new fixation of
the rental bi-twi-'en the mortgagor anil the mortgagee
(10) McDonclI V. Ihdliihis; 6- Loan Ass'n (1886) 10 Ont. R. 580.
(11) Hobbs V. Outario Loan e*"" l'>ebentiire Co. (i8()o) iS Can.
S.C.R. 483.
(12) McDonells. HuUding e-' Loan Ass'n (1886) 10 Ont. R. 580.
(13) 8 Anne, c. 14.
(14) Kliuck V. Ontario Industrial Loan Co. (i888) 16 Ont. R. 562,
565-
AND CIIATTi;!- MKNS.
35'
in order to coiiliiuic in f«»r(M' the; rij^ht of <lisircss
incident to iIk; original attornment (15).
License to distrain for interest in arrear. It is
customary to ins(;rt in land mort^aj^its a proviso that if
the mortj^a^or shall make default in payment of interest
it shall \n: lawful for the mort^Mj,^(!e or his assij^ns to
distrain therefor upon the mort^aj^ed lands an<l
premises, or any part thereof, and, by disir(;ss warrant,
to rtrcovei l>y way of rent reserved, as in the cas(; of
a demise of the said lands anti pn.'mises, so .nuch of
such int<'rest as shall, from Umv. to timer, i)e, or nrmain
in arrear anti unpaid, to^eth(T with all costs, charj^es
and expens(;s attentlinj; such levy or distress, as in like
cases of distn-ss for rent.
Such a pow(.'r of distress is, hy virtue of th(!
Ontario .Short I'Orms of Mortgaj^cs Act (16), con-
fernrd under a clause in any mort^aj^(,' expressed to he
made pursuant to that Act as folhjws :
" i'rovided that the mortj^aj^ee may distrain f(jr
" arrears of inttrrest. "
This proviso may he included in the mort^rajrc,
whether or not thtTt* is an attornment clause creatinj^
the relationship of landlord and tenant, but in the
absence of any attornmeiit clause, or even where there
is an attornment clause but no rental is expn.-ssly
reserved, the mortj^agee can distrain only to the
extent to which the mortgagor has by the f)roviso
contracted that the mortgagee shall have such privi-
lege, and with respect to such goods and chatt("ls
only as the mortgagor is the owner and (Miiitled to
(15) Klinck V Ontario Industrial Loan Co. (1H88) 16 Ont. R. 562 ;
Bickle\.Beatty 17 U.C.R. 469 ; Clowes s. Huj^lu's, L. R. 5 Kxch. 160.
(16) R.S.O. 1897, c. 126.
t , ' '■
352
CONDITIONAL SALKS
encumber with such a license of distraint (17). What
is to be recovered by the distress under the distress
clause in the Ontario Short Forms Act is not rent but
interest I'o nomine ; and, although the recovery is to be
' by way of rent reserved,' the interest is not, as soon
as it gets into arrear, to be considered as rent reserved.
The words 'by way of rent reserved ' are not used in
connection with the interest, but with the mode of
recovering it (18).
Where there is no rent reserved, a power of
distress given by the contract between the parties for
arrears of interest will not give the mortgagee a right
to claim priority as against a seizure under execution
against the mortgagor made before any levy under
the stipulated power (19).
In Ontario the right of a mortgagee to distrain on
the mortgagor's goods is governed by the following
statutory provisions : —
" The right of a mortgagee to distrain for interest
" in arrear upon a mortgage, shall be limited to the
" goods and chattels of the mortgagor, and as to such
" goods and chattels, to such only as are not exempt
" from seizure under execution. This section shall
" not apply to mortgages existing on the 25th day of
"March. 1886" (20).
" As against creditors of any mortgagor or person
" in possession of mortgaged premises under a
" mortgagor, the right, if any, to distrain upon the
(17) Laing v. Ontario Loan 6^ Savings Co. 46 U.C.R. 114;
Doe d. Wilkinson v. Goodier 10 Q.B. 957.
(18) Trust e^ Loan Co. v. Lawrason (1882) 10 Can. S.C.R. 679,
701, per Strong, J.; Royal Canadian Bank v. Kelly 22 U.C C.P. 279
considered.
(19) Trust &" Li,an Co. v. Lawrason (1882) 10 Can. S.C.R. 679.
(20) R.S.O. 1897, c. 121, s. 15.
AND CHATTKF- MI.NS.
353
" mortgaged premises for arrears of iiiU'rest. or for
" rent in the nature of or in lieu of interest, under the
" j)rovisions of any mortj^a^e executed after the 23rd
" day of April, 1887, shall he restricted to one yi.-ar's
" arrears of such interest or rent, hut this restriction
" shall not apply unless some one of such creditors
" shall be an execution creditor, or unhtss there shall
'* be an assij^nee for the J4eneral i)enerit of such
" creditors appointed before lawful sale of the j^rxxls
" distrained, nor unless the officer executin^r such writ of
" execution, or such assijj^nee shall, by notice in writing
" to be given to the person distraining, or his attorney,
" bailiff, or agent, before such lawful sale, claim the
" benefit of the said restriction, and in case such notice
" is so given, the distrainor shall relinquish to the
" officer or assignee the goods distrained, upon receiv-
*' ing one year's arrears of such interest or rent and his
" reasonable costs of distress, or if such arrears and
" costs shall not be paid or tendered he shall sell only
" so much of the goods distrained as shall be necessary
" to satisfy one year's arrears of such interest or rent
" and the reasonable costs of distress and sale, and
"shall thereupon relinquish any residue of goods, and
•' pay any residue of moneys, proceeds of goods so
" distrained, to the said officer or assignee."
" Any officer executing a writ of execution, or an
"assignee, who shall pay any money to relieve g<iods
" from distress under the next preceding subsection,
" shall be entitled to reimburse himself therefor out of
" the proceeds of the sale of such goods."
" Goods distrained for arrears of interest or rent,
"as aforesaid, shall not be sold except after such public
" notice as is now required to be given by a landlord
" who sells goods distrained for rent" (21).
l!
(21) R.S.O. 1897, c. 121, s. 16.
354
CONDITIONAL SALES
!t^
By statute ill Manitoba "the rij^hi of mon^fajjces
•'to distrain for interest clue upon niort^aj^^es *.hall Ix?
"limited to the j^^ootls and chattels of the mortj^jjor
" only, and, as to such jj^oods and chattels, lo such
"only as are not exempt from seizure under execu-
" tion " (22).
A similar restriction is in force in the Xonh West
Territories, under a recent Ordinance (2;) providinj^
that th(; ri^ht of a land mortj^aj^ee or of his assi«rns v>
distrain for interest in arrear or principal due upon a
mortjj^a^e shall, uotivithstauditi^f^ auyihiiii^ s/aUd to the
contrary in the mortjj^a^e, or in any aj^^eemeni relaiinj^
to the same, be limited to the ^ootls and chattels of
the mort}^aj^or or his assigns and as to such j^oods and
chattels to such only as are not exempt from seizure
under execution.
Where a mort}jfaj»e contained an attornment clause
by which one R. ajj^reed to become the tenant of the
mortgagee at a yearly rental ecjuivalent to the yearly
interest, and also contained the usual proviso for
distress for arrears of interest, it was helc in Manitoba
that the mortgagees might distrain for the arrears
either as rent or as interest, but if thev distrained for
interest their right would be restricted by the statute.
to the goods and chattels of the mortgagor only (124).
Where a loan company holding a mortgage upon
lands, by their warrant authorized their bailiff to dis-
train the goods of thie mortgagor upon the mortgaged
premises for arrears due under the mortgage, and, the
mortgagor being dead, the bailiff under the direction
of a local agent of the company seized the gorxls of a
stranger upon the premises, it was held that he was
(22) R.S. M. 1891, c. 46, s. 2.
(23) Ordinance N.W.T. 1898, No. 16, s. ij new
N.W.T. 1898, c. 34, s. 5.
(24) Miller v. Imperial Loan ks' Investment Co. {i'&.t
247, 254-
\v«!L. Ovd.
AXI> ( IIATTKI. I.IKNS.
355
acting within the scope of his authority as aj^a-nt for a
principal, in makinj^ the seizure u|)on the |)remises,.
and that the mori^aj^ees were liahle for the illejijal
seizure (23). And if the |)ers«m who issues a distress
warrant takes ailvantaj^e of the proceedinj^s by receiv-
injif the proceeds of a distress illej^ally made there-
under, it may be inferred, in the absence of evidence
to the contrary, that he either knew of the ilie)j;ality or
meant to take upon himself without in<|uiry the risk of
any irrej^ularity the bailiff may have committed, and to
adopt the bailiffs acts (25a).
Under the Ontario Morti^aj^e Act (26) when a
notice is given pursuant to a condition t)r proviso in
the mortgage, by the mortgagee of his intention to
exercise the power of sale therein contained, no further
proceedings may be taken until the expiration of the
time specified in the notice with respect to any clause,
covenant or provision conuiined in the mortgage,
" unless and until an order permitting the same shall
first be had and obtained."' Under this section an
order may be made permitting a sale to take place
under a warrant of distress for interest issued within
the time specified (27).
The proviso for distress contained in a mortgage
of lands will be controlled and overridden by any
clause inconsistent therewith preceding it in the inden-
ture ; and if the proviso is in the printed portion of
a form and there is a written clause inconsistent there-
with appearing either before or after the proviso for
(25) McBride v. Hamilton Provident and Loan Society, 29 0nt. R.
161 ; Lewis v. Read, 13 M. & W. 834, and Haseler v. Lemoyne, 5
C.B.N.S. 530, followed.
(25a) Dick V. Winkler (1899) 35 Can. Law Jour. 652.
(26) R.S.O. 1897, c. 121, s. 31.
(27) Plaxton V. Barrie (1899) 35 Can. Law Jour. 611 (Ont.)
356
(nNItmi)NAI, SAI.I.S
dislrcss, i\\r words su|>(TacUl<:(i in writinj^ art: ontitUxl
to liavc ^^rcatcr ctfcct atlributcil to llicin than th(i
priiUcil olansc (2S).
A (lisirt.'ss clausi! or |)(»wcr of distn.'ss for the mort-
jifa^c iiU(Tt'st will i'xl(!iul only to th(,' intcrt:st Hti|)ulat(!cl
foi by the niorl;;a«4(;, i.r., what is recoverable by the
terms ol" iht; contract ; and if the contract is silent as
to the rate charj^eable after maturity of the principal (29)
the subse(|uent interest at the statutory rate of six per
cent, per aiuuim allowed by law is recoverable as
damaj^es only, and will not come within the terms of
the distress clause (30).
(a8) McKay v, Howard d Ont. R. 135, per Boyd, C,
(29) Peck V. Powell 11 Can. S,C.R. 494.
(30) Klinck V. Imlustrial Loan Co. (1888) 16 Out. R. 562.
%
rn (MUillcd
\ than the
r the mort-
L sti|)ulat(;(l
l)lc by the
is silent as
incipal (29)
of six per
veral)le as
le terms of
562.
APPENDIX.
Statutes Relating to Conditional Sales
of Chattels.
PKOX'IXCI- OF liHmslI COIa^MHIA.
TiiK "Sam; oi Ciuods Act," Kiaisik Siatitks (»i-
Humsii CoM'MiiiA 1S97, (. 169.
25. Formalities requisite to valid conditional sales.
i'Voin and aflcT lln' comin^^ into force o' lliis Act.
(■vt:ry n^cifpt-iiolc, hire receipt, or order for < hatl<rls
}^n\en by any bailee of chattels where the; con(htion of
the l)ai]nient is such that tht; possession of the chatt(;l
should pass without any t)wnership therein hein;j^
ac(|uired by the baih'e until the payment of the
|)urchas(; or consideration money, or somi; stipulat(;d
part tlien.'of, shall be void as aj^ainst any subs(!(|uent
purcliasers or mortj^agees of such chattels without
notice in gooil faith for vakiable consideraticjn, unless
a true coj)y of any such receipt-note, hire receipt,
order, or other instrument evidencing the baihnent or
conditional sale given to secure the purchase money,
or part thereof, shall be filed with the proper offic(.'r,
not later than twenty-one days after the delivery of
the goods, or the first portion thereof, to the bailee
or conditional purchaser ; and no such bailment or
» 1 ^? -i ' f
360
Ari'K.Nhix.
li.C.
oMulitioDal piirtliJisc shall Iw valid as .ij^aiusl siit h
siil)sr(|in'iit |)iir<lias«'r ur innrtj;aj;<'<' as alnnsaiil, iinlrss
it is rvidciurd in vviitiny, si^^tUHl l») llu* l»ail<«'. or
coiidilional piiiihaHrr, ur liis aj^trnl. Ihr |»n»|>(r
ottlcrr wiih whom any iustrunnrnt as afonvsaid shall l»c
tWt'A shall he ihr otViccr with wIkhm a hill of salt;
affci-linj^ prtHHTly siliialr al lln* placi; whi'iJ- llu* hailrt:
or (MHuliiional piiri.hasrr rrsidrs at th<' time of iho
hailtnciit or conditional purchase would hy law be
rt'(|uircd to he rcj^isliTcd. iS()6, i'. 9, s. 1.
I I'Or names of |)lac(:s at which tiling must lu; made
see ant«'. pa^e 22. |
26. Statement of amount due to be given on
request, livery manufacturer, bailor or vendor shall.
on .ipplitaiion hy any proposed purchasi-r or other
interested p(!rs«)n, within five days furnish full infor-
mation respectin;,^ th(! amount or balance du«' or unpaid
on any such manufactured j^oods or chaltt:Is, and the
terms of payment of such amount or balance, and in
case of n-fusal or nejj^lect to furnish the information
asked for, such manufacturc'r, bailor or vt.-ndor shall bt:
liable to a (mv not t»xceedin}^ fifty dollars on summary
conviction befortt a StijuMuli.iry or Police Magistrate
or two Justices of the Peace. 1S92, c. 21, s. 2.
27. Address to be given by person demanding
statement. I he person so incjuirinj.^ (if by letter) shall
give a name and post office address to which a reply
may be sent, and it shall be sufficient if the information
aforesaid Ik; j;iven by registeretl letter d<;j)osited in the
post office within the* said five days, address(;d to the
person inquiriii)^ at his proper post office address, or
where a name and address is given as aforesaid,
addresseil to such person by the name and at the jjost
office so given. 1S92, c. 21, s. 3,
li.C.J
AliK.NDIS.
.^'>l
28. Power to redeem chattel. Ifain tnaiuifactiirrr,
h.iilor, or vendor, of such chatirl or (h.ittils, or his
siH(<ss<»r in int«T«si when' thm- li.ii iM«n i lomli-
tion.il sale, or proniis*' ul sale, take |M»sM'ssioii tlirrrul
lor iircach ot (ondition. he shall retain the same lor
twenty days, and the Kailee, or his siuiessor in interest,
may retlenn the same within sut h |>«riod on paynuiii
of the lull amount then in arrear. to;;«'ih«r with
interest and the aeliiai losts and e\|)«Mses of takinj;
possession whidih.iM: l)c«'n inenrrt'd. iS^i.c. ji.s. 4.
29. Notice of sale. When tlie j^jood'^ or chattels
have l)een sold or haiKnl ori;;inally tor .t j;reat<r sum
than thirty dollars, the same, when taken possession
of, as in the pr«'c«'din^ section menti«»ned. shall not he
soKI without live days' notice of the intended salt;
I)einj4 first ^^iveii to the- hailec, or his successor in
int(.'rest. The noticj* may lie personally served or
nii'.y. in l\w ahsence of such l)ail«'(! or his succ«ssor in
interest, he h'ft at his resideiu:e or last known place of
ahodi; in British Columhia. or ma) Ix; st;nt h) rejjjis-
ter<!d letter dej)osited in tlu.' post office at least seven
days hefore the lime when the saitl five {lays will
(.'lapse, addressed to the bailee, or his successor in
inten.'st, at his last known post office addn'ss in
Canada. I'he said live days or seven days may he
part of the twenty days in the previous section
mentioned. 1S92, c, 21, s, 5.
30. Officer to file copy of receipt. The proper
officer, on receipt of the copy mentionetl in s(!ction 25
of this Act, shall duly file the same; and causi; it to i)e
properly entered in an index book to be kept for that
purpose, and shall be entitled to charge twenty-five
cents for every such filing, and ten cents for every
search in respect thereof. In the event of any vari-
362
Al'I'KNDIX.
H.C.
ance bt'twt'tiii tho original docunK'iU aiul ihc copy
which has hocn fiU'cl, the copy tilcil shall prevail.
1892, c. 21, s. 6.
31. Copy of receipt to be left with vendee. 1 lie
inanutacturer. bailor, or veiul«>r shall have a coi)y of
the reci'ipt-note, hire receipt, t)riler, or otiier iiistru-
nu'iit by which a lien on the chattel is retiiiiunl, or
which provides for a coiulilional sale, with the bailee or
coiulitional veiulee at the time of the execution of the
instriiMient. or within twenty days thereafter. iS()2,
c. 21, s. 7.
32. Risk prima facie passes with property.- I'liless
otherwise aj;reetl. the ljooiIs riMiiain at the seller's risk
until the property therein is transferred to the l-'iNcr,
but when the propert) therein is transferri'd to the
buyer the s^ooils are at the buyer's risk, whether
deli\ery has bei'n made or not : I'rovideil that where
delivery has been delayi'il through the fault of either
buver or seller, the uootls are at the risk of the partv
in fault as reijartls any loss which mij^ht not have
occurred but for such fault : Provided also, that
nothino- in this H^'ction shall affect the duties or
liabilities ot either seller or bu\er as a bailee or
custodier of the jj^oods of the other party. 56 ^ 57
\ ict. (imp.) c. 71. s, 20.
'Jtatisfcr of title.
33. Sale by person not the owner. Subject to
the provisions of this Act, where *>0(xls are sold by a
[)erson who is nt)t the owner thereof, and who does
not sell them under the authority or with the consent
of the owner, the buyer accjuires no better title to the
t>oods than the seller had, imless the owner of the
tjoods is by his conduct precluded from denying the
seller's authority to sell :
«.c.
AI'l'r.MUX.
363
(2) IVoviiUnl also, that luuhiiiv; in this Act shall
affect —
{(t) Vhr provisions of thr " I'actors' Act. " or any
enactment cnablinj^ the apparent owner of ^ooils to
dispose of them as if he were the true owner theri'of :
{/>) The validity of any contract «)f sale under any
sjH'cial common law or statutory power of sale, or
inuler thi- order of a Court of compi'teiu jurisiiiction.
50 ^s: ^y \'ict. (Imp.) c. 71. s. 2\.
34. Market overt. — Where j^oods an- sold in market
overt, accordinij to the usaji;e of the markcl. the buyer
ac(|uires a i^ood title to the j^oods, proxiileil he buys
them in j^ood faith and without notice of any ilefect or
want of title on the part of the seller ;
(2) Xothinij^ in this section shall affect the law
relating to tin* sale of horses. 5() t^\: ^j \'ict. (imp.),
c. ;i, s. 22.
35. Sale under voidable title. When the seller of
gooils has a voidable title thereto, but his title h.is not
been voiiled at the time of the sali". the bu\ er ac(|uires
a gooil title t(^ the L;()ods, providetl he bus s tht'in in
i;"ooil faith and without notice o( the. sell(>r's defect of
title. 56 ^v: 57 \'ici. (Imp.), c. 71. s. 23.
36. Revesting of property in stolen goods on con-
viction of offender. Where goods have been stolen
and the offender is prosecutetl to conviction, the pro-
perty in v.; i^ootls so stolen revests in the person
who was the owner of the i^iunls. or his |)ersonal
repres(Mitative. notwithstandinij ain intermeiliate deal-
ino" with them, whether by sale in marki:t overt or
otherwise :
(2) Notwithstanding any enactment to the con-
trary, where goods have been obtained by fraud or
other wrongful means not amounting to larceny, the
H
i;ii
.V>4
Ali'KNhlX.
I w.c.
propcrix in siuli j^oods shali not rcvost in the |» rson
wlio was llic owner of the j^oods, or liis |icr.sonal
rcprcsi-nlalixc, hy ic.ison only ol' llic conviclion ol the
orfi'nilcr. 5() iS: 57 X'ict. (Imp.), r. ; 1 , s. 2.}.
37. Seller or buyer in possession after sale.
\\ lure a person lia\ ini^ sold j^oods conlinues or is in
possession ol llie |L;(><>ds. or ol llie docunKMils ol title-
to the «>oods, tlie deli\«'rN or transfer l)\ that person,
or 1)\ a mercantile assent actinj^ lor him, of the v^oods
or ilotMMUents of title inuler any sale, piedj^c or other
disposition thereol". to an\ person recei\ inn the same ''i
LjootI laith and without notire ol the pre\ ious sale,
sliall ha\-e the same elTeil as if tiie person making the
deliM'rx or transfer xxcre espressl) anthori/ed hy the
owner of the i^oods to make the same :
(2) Where a person liaNini; hoiij^lu or a^iraf lo
buy !4(>ods obtains, with the consent of the seller,
possession of the i^oods or of the docnments of title to
the*»()(Kls, tile deli\i'r\ or transfer I )\' that person, or
!)V a mercantile ai>ent aetin<' for him, of the POods or
docnments of title, uiuler any sale pledi^e or other
disposition thereol, to an\ person refeivinn the same
in s^ood faith and witlfout notice of any lien or other
rii^ht of the orij^inal seller in respect of the i^oods,
sliall have the same effect as if the person makini; the
delivery «)r transfer were a mercantile ai^cnt in posses-
sion of the snoods or docnments of title with the
consent of the owner :
(3) In this section the term " mercantile a^ent " has
the same meanini; as in the " I'acKjrs' Act. " 56 & 57
\'ict. (Imj).). c. 71. s. 25.
T^
lU'.l
AI'I'KNDIN.
3^>5
'I'm; " I'"a( loKs' Arr," Ki.\ isi i» Sim i n >, oi Hkirisii
C'ol.l MI'.IA lS(>7, ( . .J.
10. Disposition by buyer obtaining possession.
When; a person liHvinj^ Nought or (fi^rcn/ lo hiiy
j^oods obtains with tlic consent ol the seller |)oss(;ssion
ol the j^oods or the docuinents of title to the ;^foo<is,
the (leliv('ry «)r transfer hy that jMrson or hy a
niereantile a^criit aetinj^ for him, of the j^oods or
docinnents of title, under any sale, pleil^^c, or (►ther
disposition thereof, or under any ai^niiiicul for sale,
p/edj^e or oilier disposition lliereof\ to any person
reeeivinj^ th(' same in j^ood faith and without notice of
any lien or other rij^dit of the original seller in n.'spect
of the ^oods, shall hav(; the same eff(!cl as if the
person makin<^ the delivery or transfer were a m(.'r-
cantile aj^ent in poss(;ssion of the ^oods or documents
of title with the consent of the owner. 52 tS: 53 Vict.
(Imp.) c. 45, s. 9.
!^
TiiK " LANi)h(jki) AND Tknant A( t," Kkviskd
Statutks oi- British Col(j.mi:ia 1S97, (. no.
2. Limitation of right to distrain. The rij^ht of a
landlord to distrain for rent owing to him by his tenant
on goods in possession of the tenant, which said <;(X)d:i
have been sold to the tenant under a duly filed agree-
ment for hire, contract or conditional sah;, shall be
limited to three months' rent ; and payment by the hirer
or owner of such goods of three months' rent as afore-
said, or so much thereof as shall be sufficient to satisfy
the landlord's claim, shall discharge the claim of the
said landlord as against the said goods. 1896, c.
18, s. 2.
nrp
,1 -, '
366
AIM'KNDIX.
Man.
I»K(^VINCK or MANITOHA.
Ri:visi;i> Statiitks (M- Manh'(Hia 1S91, Ciiai'TKk 87,
An Act Kiisi'iutinc I.ikn Notks.
Her Maii'stv, l)V ami with the advice and amseiit
*
of the Ix'j^islative Assenihly of Maiiitoi)a, enacts As
foll»)ws :—
J. Short Title. This Act may he cited as " The
Lien Notes Act."
2. Manufactured g^oods to have name stamped, etc.
— On, from and after the twenty-seventh day of July,
in the year one thousand eii»ht hundred and eij^hty-six,
receipt notes, hire receipts and orilers for chattels
j^iven hy bailees of chattels, where the coiulition of the
bailment is such that the possession of the chattel
shoulil j)ass without any ownership therein hein}^
accjuired by the bailee, were and shall be only valid in
the case of manufactured snoods or chattels which, at
the time the bailment is entered into, have the manu-
facturer's name or some other distinjj^uishinj;" name
painted, printed or stampetl thereon or otherwise
plainly attached thereto ; and no such bailment shall
be valid imless it be evidenced in writinji^, sij^^ned by
the person thus taking" possession of the chattel. 49
Y. c. ^2. s. I.
3. Manufacturers to furnish information. -K very
manufacturer and his ajj^ents shall forthwith, on appli-
cation, furnish to any applicant full information respect-
ini»" the balance due on any such manufactured jj^oods
or chattels and the terms of payment of such balance,
and in case he or they refuses or refuse, nej^lects or
Man."]
AI'I'KNDIX.
}>f^l
n(!jj^Icct to furnish the information askc<l for. such
manufacturer or a^j^cnt shall Ik; liahio to a hnc of not
less than ten dollars nor more than fifty dollars on
conviction hcforc any justice of the peace. 49 V.
i
StATUTKS ok MaNITOHA 1S93, ClIAITKK 1 7.
An Act Puohiimiinc tiik ki:(;isruATi()\ (»i- Likn
NoTKs, lliKK Ri:( r.ins, AM) Ouiuks iok Ciiat-
TKI.S IN RlKWSTKV AND i.ANI) TlTMS OlFHKS.
\ Assented to, March nth, iSijj.
Her Majesty, by and with the advice and consent
of the Legislative Assembly of the l'rovinc<; of
Manitoba, enacts as follows :
1. Registration of lien notes prohibited. On and
after the day ^ )n which this Act comes into force, no
lien notes, hire receijUs, orders for chattels or docu-
ments or instruments which contain as a portion
thereof or have anne-\etl thereto or endorsed thereon
an order, contract or ai^reement for the |)urchase or
delivery of any chattel or chattels, shall be r(,'<^istered
in any Rej^istry Office or Land Titles Office in the
Province of Manitoba, anythinjjj contained in any
statute of the Province of Manitoba to the contrary
notwithstanding.
(2) Application to caveats. -This section shall
apply to caveats re|^istered under " The Real Pro[>erty
Act," and no caveat shall be rej^istered or filed in any
Land Titles Office which has annexed thereto or
endorsed th.. reon, or which refers to or is founded
upon any instrument or document, or part thereof, the
registration of which is prohibited by this section.
^':''l
;
I
,
,;()S
M'I'INhix.
\\\\.
2. Ref^istrars to refuse to register. It ''ii.ill I*- iIm-
iU\{\ «»r «'\('iy Kcjuisliiir ami |)is(ri»i !<« ;^isir.ir ii»
wlmin an\ siuh licti note, hire inciid. <*nlfT lor
tli.Uti'is. «ln«iiinrnl. insiiiinunl ni ».i\c.u ilu- ri^^is
liiUioM uluTcor is |nnlnl»i(r(l \>\ iIh- \u\i |»r«-»iiliiij»
smion, is |)r<'scnl('il In rrliis*- In nirixr tin SMiiiif.
3. Registration if effected to be void. K noittiih
stamliuj; ihr Inrc^ninM |>rn\isinns nl this ,\«i. I>y
inadvcitciuc. iucidciu. misl.ikc nr ihr nnn ]M-rforin.ini-t>
nl «Iu(y nn the pail n( a Kcj^istrar nr |)is(ri<i Kr;^is-
irar, any sncli lien n«»tc, hire receipt. nrJer for duii iris.
(Ineiiinent, instrnmeiU. nr caxcat. the r< i^isiraliiMi or
lilini; wherenf is prnhiliited h\ llie lirst s<-4 (ion «if this
All, l»e rej^islereil nr liletl in an\ Ue^isiry < MJut' or
I -and lilies ( )rru{' in ihe Prnvince nl ManitnUi. nrvrr-
theU'ss sneli reijislralinn nr lilini^ shall Ik- alrsoliurly
null anil void.
4. riiis ;\(l shall ennie intn Inree (m the <lay il is
assenled In.
SiATi ri:s OK Manitoiia 1S94, ('iiAi'iik 14.
An A( t to ami;m> "An /\( i l'i«»m!tiii\«. tiii;
Kkcistkation ok Lii;n Noris, IIiki Kk i.irrs
AND OUDKUS roK C'll A I' ll.l.S IN KH.IMkV .\M»
Land Tni.Ks Okik i.s.
[ .Assented to, 2nd Manrh. |S«>|.
Whereas ilnnhts have arisen as to the o|x.'niti«>n
and effect nf the Act passed in the fifty-sixlh year of
Her present Majesty's reign, and Chaptereil 17 ;
Therefore Her Majesty, by and with the advice
ami consent of the Legislative Assembly of the
Province of ^Llnitoba, enacts as follows : —
Man.
Ai ri-.M»i\.
3^>9
1. Declaration as to effect of S<5 Vic, c. 17. it is
luirliv (|r(l;m(| tli.il rvrrv liiii iiuir, l)in- r«M<i|il,
iirilcr lur i liattrls, m- dtx ninriii or insiniinrtit iIh*
n'^ishiiiinn nl wlii« h w.is or is proliiliiicil l>y saiil Act,
wiis iiixl is siiHc ilir ilcvnitli <lii\ •»! Man li. iX(^^, and
shall hn<allrr In-, in s«» far as ihr s.inir purports to
atlrti lan<l, altsoliiicly null and void as a;;ainst any
person or corporation ( laiinin;; an intrrrst or rslalc in
ian<ls nnd«r a r« j^istrnd insinnnrnt.
2. Notice to person claiming under registered instru-
ment not to prevent operation of preceding section.
No noliic, j)ast. prcsrni or lulurr, artiial or (onstriic-
tivc to the person or 'or|Miration riaiminj^ under sik li
rej^islered instrument shall a\ail to prevent the ojier
ation o( the preceding; s<( i!(»n. \oti« e whether a( tiial
or ((Mislriu tiv<' in su( h cases shall he void and of no
elTeel whatever.
i'lii; "S,M.i;oi (i(»(»i»s A« I." MwiiMi'.A SiNii IIS
iHi)(), Cm Milk 25.
24. Seller or buyer in possession after sale.
( I ) VVh(!re a person havinj^ vild j^oods continues or is in
possession of the ^oods, or of the documents of title to
the ^oods, the; delivery or transfer l)\ that person, or
hy a mercantile aj^crnt aclin;^ for him. of the ;roods or
documents of lith,* under any s;ile, pledjrc, or other
disposition thereof, Ut any |M*rson receiving the same
in ^ood faith and without notice of the j)r(;vious sale,
shall hav(; the same (,'ffect as if the |)ersf)n making the
delivery or transfer w(.*r(,' (expressly authoriz(;d hy the
owner of the ^oods to make the s;une.
(2) Where a person havinj^ houj^'ht or aj^^reed to
i>uy goods obtains, with the consent of the seller.
m
I
37"
\l'l'KNIt|\,
Man.
possession of the ;^«>(mIs or the ilociimcnts of tilN' (o
the j;<)0(ls. ihc ih'lixciy or iranslcr by that person, or
l>y a nu'rcantile aj^jiit actinj^ lor liini. of* the ^oods or
(loeiinu-nls ol" title, under any sal«', ph-dj^c, or other
«lisposition thereof, to any person recei\in;4 the same
in ;;<>od faith and without notice of any \'\v\\ or other
rij^ht of tlie orij^inal seller in respect of the j^oods,
shall have the same effec'. as if the person makin;^ the
delivery or transfer were a menantile aj^cnt in posses-
sion of th«' jnoods or documents of title with the
consent of the owner.
(,;) in this section the term "mercantile a)^ent "
means a mercantile aj^cnt having.", in the customary
course (jf his husiness as such a^cnt, authority either
It) sell j^oods, or to consij^n j^oods for the purpose; of
sale, or to l)uy yoods, or t<» raise money on th(;
security of ^ootls.
SiATrrrs OK Mamtoma 1S99, CiiArriiu 36.
A\ A( T TO AMI'NIi " TlIK SaI.K OK (iooDS A( T."
' [ Assented to, 13th April, iSyg.
Mer Maiestv. hv and with the advice and consent
of the Legislative Assembly of the I'rovince of
Manitoi)a, enacts as follows : —
I, Sale of Goods Act, 1896, s. 24, s-s. 2, amended.
—Sub-section (2) of Section 24 of Chapter 25 of 59
Victoria, shall not apply in the case of j;t)ods in the
possession of any person who has boujjjht or ajj^reed
to buy the same uiuler a contract or au^reement in
writino". si^jned by him. providinjjf that the property in
or title to the ooods should not pass to the buyer until
payment in full of the price thereof.
Man.
Ari'KMflX.
37'
2. Amendment retrospective except in certain cases.
S<'(linn I ul this Act shall lir (unstriud as if il had
Ih'cii passed at tin* sainr limr as said ( haplcT 25 *ii 5<>
Victoria, «\<<|»l in the case <»! any ^oods or ( hattcis
that hav«' ix'cn hclori' the passing; nf this Act a( tiially
sold to and posscssinn thereof taken l>y ;i piin haser in
j^ood faitii from tin* l)ny<r referr<'(l to in said set lion,
and except where there is any litij^aiion pending
n'spectin;; any of such j^oods and < hattels.
3. Commencement of Act. i liis Ad shall come
into force on the day il is assented to.
n
^
tk
;>72
AI'I'INhlN.
N.li.
I
n<()\ IN( i: Ol- NI'W HkUNSVVK K.
Staitun «ii Ni:\\ huiNswn k iS(>(>, (jiaitik 12.
An At I KKsi'i:( ii\(i ('(»M)|iii»nai. Samis
01 Chat IK I. s.
I l'n!iNC(l jKtIi April, 1H91;.
lie it rii;iil»'(l l)y llir l.iciilcnaiU-v lovcrnor and
I.t'j^islalivt; Assi'inbly as folKiws :
1. Receipt notes, etc., for chattels, kcccipt notes.
hir<' nx'fipts aiul orilcrs lor ilialtrls ;^ivt'ii l)y l)ail«'<'s
of cliallfls, vvlnTf llic condition of tlur hailnirnl is sucli
that tin* possfssion of tin; cliattcl passes without any
ovviUTsliip therein Ixrinj; ae(|iiired by the l)aile(.' until
the payment of llu' purchase or consideration money,
or some stipulated |)art thereof, shall only he valid as
aj^ainst sul)se(|uent purchasers or mortjjjaj^ces without
notice in good faith for valuable consideration, in the
case of manufactured goods or challt'Is, which at the
lime pt)ssession is given to the bailee have the name
and address of the manufacturer, bailor or vendor
of the same' painted, printed, stamped or engraved
ihen^on, or otherwise plainly attached thereto, and no
such bailment shall hv. valid as against such sub-
secjuent purchaser or mortgagee as aforesaid, unless it
is evidenced in writing, signed by the bailee or his
agent, and a copy of such writing filed as provided in
thV' next section of this Act.
2. Copy of written evidence to be filed. A copy
of such writing shall be hied with the registrar of
deeds of the county in which the bailee or conditional
purchaser resided at the time of the bailment or con-
N.|{.
AI'I'I Nl»l\.
fc/.t
(lititinal piinliiis*'. within lo il.ivs frnin tin- cxrciuion
of ihr n'(ri|)i Muir. hip' ri'cripi, (inirr, or oilur iiistrii-
iiK'iu rvidrncin^ ilic h.ulinciit or (otulitioii.ii s.ilc ^i\(.'n
lo scciin- iIh' iMircliasr moiu^y, or .i p.iri ilM-rtol.
3. Rcgfistrar's fees. — I'lx- l<<'L;isir.ir, on nccipi .»(*
siuh (-o|i), shall (Idly tile lh(* sinic and (aiisr it t(» Ix;
pr(»|)crly cntrrrd in an index hook to he krpt lor that
|Hirpos«', and shall hr <ntill«'d to (harL^c t«'ii < cnts for
rvtrry such lilin;^. and live <rnts lor <\rry search in
respect tln-reof. A clerical error \vhi( li does not mis
lead, or an <;rror in an inun iti^rial or non essential part
of said copy so tiled, shall not invalidali; the said tiling
or destro) th(; ellecl thereof.
4. Copy to be left with bailee, i'he minulat turer.
hailor or vendor shall leave a copy of the receipt noK',
liir(! receipt, order or other instrument hy which a lien
on the chalti'l is n-tained, or which provides for a
conditional sale, with the bailee or conditional vendee
at the tiiiK! of the execution of the instrument or
within twenty days thereafter.
5. Creditor may require sworn statement, luery
manufacturcT, hailor or vendor shall, on d«Miian<l by
any cr(;ditor or interested person, file with said regis-
trar, within 20 days from the makinj^ of said demand,
a sworn statement of the amount dti(; on any such
rec(;ipt note, hire reccripl or order, and, on failure to so
lih; said stat(Mnent, shall forf<Mt all rights accruinj^^
under said receipt-note;, hire receipt or order, as ay;ainst
such cn^ditor or interested person.
6. Bailee's right of redemption. I n case any
manufacturer bail()r or vendor of any chattels in
respect of which there has been a conditional sale or
promise of sale, or his successor in interest, takes
possession thereof for breach of condition, he shall
i'-
W-
1^'
■It
374
AI'rKMHX.
N.M.
mmi
r<'l;iiii ihr sainr (*nr 20 «lays and ilir hailir or his siir-
(cssor in intrrtst niav n<l«rni ihr sanu- wiilnn siu h
pcrind nn paxtnrni nt tin- lull anuxini tlxn in arrcar,
luj^ctlu'r with intrrrst ami tlu* ailiial cosls and rx|M'nsrs
ol takin;4 pnssrssinn which have luj-n iiuiirrcd.
7. Notice of sale. \\'h«rc ^onds or chaiirls have*
Ih'cm sold «»r h.iilfd uri;;inally Inr a yjrcatcr smn than
$;«). and the sanir haxc Ix-cn lakcn pnsscssinn n( as
in the pnccdin;; scition nimtinncd, siith ;^nnds or
( hattcis shall nut he sold without 5 days notice of the
inirndt'd sale hcinv; lirst j^ivcn to the Itailc*' or his
siurcssor in interest. Ihe n«»tii'e may he |)ersonally
served, or may, in the ahsence of such haih-e or his
successor in interest, he lel'i at his n'sidence or last
kn«n\n place ol ahode in New Itrunswick. or may he
sent hy registered letter deposited in the post oMice at
least 7 ilays hefore the time when the said live dass
will ela|)se, adilressinl to the hailee or his successor in
interest at his last known post ot't'ice address in Canada.
Ihe said 5 da\s or 7 days may he |)art of the 20 days
in the last precedinj; section mentioned.
8. Chattel affixld to realty. ( 1 ) Where any -^oods
or chattels ha\{' been sold or hailed under an\ receipt
note, hire reci'ipt or other instrinnent hy which it is
aj^rei'd that no ownership therein shall he ac(|uired hy
the purchaser or hailee until the payment of the pur-
chase or consideration money, or some stipulated part
thereof, and such _n<)ods or chattels are affixed to any
realty without the coiiscii/ in w^ifinii of the owner of
the j^oods or chattels, such j^^mkIs and chattels shall not
be or become part of the realty, but shall continue to
be and remain personal property ; and the rijj^hts of the
owner or owners thereof shall not be in any way
altered or affected by such j^oods or chattels beinj^' so
affixed to the realty, but the owner of such realty, or
%i\
N.M.
AITKNDIS.
^75
any piiri baser nr ai»\ mnri^.i;^*!-, or utijir iix iiinltr.iiu n
on sill li nalty. shall ha\f ihr r\<^\n as a^^ainst thr
niaiuirarturrr. hailnr nr vindur ol siirh ;;ninls <>r
rhatirls. or aiu |Mrsnn rl.iimin;; ihrmi;;!) nr luulrr him.
til retain the saiil ^nmls ami thattcis ii|M>n |i.i\nu'nt of
the antniint ilur and uwin;; tlicriiMi.
(2) The provisions <»( this settion are to l>r
(tccninl rrtroacii\e, and shall apply to past as well as
to riiturc transartions, hut shall not appK to or altcil
any suit either at law or in ei|iiit\ now peiidin;;.
I)eni}4' so
t^iST-
2>7(>
AITHNDIX.
[N.W.T.
THK NORTH WKST TERRITORIES.
CONSOLIDATEO ORDINANCES 1 898, ClIAl'TER 44.
An Ordixanck resi-ectinci Hire Receipts and
Conditional Sales ov Guods.
The Lieutenant Governor by and with the advice
and consent of the Legislative Assembly of the
Territories enacts as follows :
J. Conditional sales of g:oods. — Whenever on a
sale or bailment of goods of the value of $15 or over
it is agreed, provided or conditioned that the right of
property or right of possession in whole or in part
shall remain in the seller or bailor notwithstanding that
the actual possession of the goods passes to the buyer
or bailee the seller or bailor shall not be permitted to
set up any such right of property or right of [wsses-
sion as against any purchaser or mortgagee of or from
the buyer or bailee of such goods in good faith for
valuable consideration or as against judgments, exe-
cutions or attachments against the purchaser or bailee,
unless such sale or bailment with such agreement,
proviso or condition is in writing signed by the bailee
or his agent and registered as hereinafter provided.
Such writing shall contain such a description of the
goods the subject of the bailment that the same may
be readilv and easily known and distinjjuished :
Provided that nothing in this section shall apply to
any bailment where it is not intended that the property
in the goods shall eventually pass to the bailee on
payment of purchase money in whole or in part or the
performance of some condition by the bailee. No. 39
of 1897, ^- I ; No. 18 of 1898, s. I.
wm
N.w/r]
ArrKNi)i\-.
177
2. Registration. — Such writing" or a true copy
thereof shall be registered in the office of the rei^istra-
tion clerk for chattel mortgages in the registration
district within which the buyer or bailee n^sides within
thirty days of such sale or bailment and also in the
registration district in which the goods are d(;livered
or to which they may be removed within thirty days
of such delivery or removal vt^riried by the affiilavit of
the seller or bailor or his agent stating that the writing
(or copy) truly sets forth the agreement between the
parties and that the agreement therein set forth is
lx)na fide and not to protect the goods in (juestion
against the creditors of the buyer or bailee as the case
may be. No. 39 of 1897, s. 2 ; No, iS of JS9S, s. 2.
3. Renewal of Registration. The seller or bailor,
his executors, administrators or assigns or his or their
agent, shall within thirty days next preceding the
expiration of two years from the date of such regis-
tration file with such registration clerk a ren(!wal state-
ment verified bv affidavit showin<; the amount still due
to him for principal and interest, if any, and of all j)ay-
ments made on account thereof and whether and to
what extent the condition, if any, of the bailment is still
unperformed and thereafter from year to year a similar
statement similarly verified within the thirt\' days next
j)receding the expiration of the year from the filing of
th'> last renewal statement, and in default of such filing
the seller or baiK)r shall not be permitted to set up
any right of property or right of possession in the said
goods as afjainst the creditors of the buver or bailee
or any purchaser or mortgagee of or from the buyer or
bailee in good faith for valuable consid(;ration.
of 1897, s. 3.
No. 39
4. Penalty for falst statement. — Any seller or bailor
or agent of such seller or bailor making any false
i»"
378
AI'I'ENDIX.
NAV.T.
staU-'inent in such renewal statement shall be j^uilty of
an offence and liable on summary conviction thereof
to a fine not exceeding $100. No. 39 of 1S97, s, 4.
5. Seller bound by statement made in renewal. -
Any such seller or bailor shall be bound by any state-
ment made bv him or his awnt in such renewal state-
ment and the j^oods shall be liable to redemption and
the seller or bailor lo be divested of his j)rO|)erty and
right of possession if any in the j^oods upon payment
of the amount actually due and owini^ in respect thereof
or upon performance of the condition of the bailment
by the buyer, bailee or any jjerson claiming; by, through
or under the buyer or bailee. No. 39 of 1897, s. 5.
6. Memorandum of satisfaction of seller. The
seller or bailor shall uj)on payment or tender of the
amount due in respect of such goods or performance
of the conditions of the bailment sign and deliver to
any person demanding it a memorandum in writing
stating that his claims against the goods are satisfied
and such memorandum shall thereupon ojierate to
divest the s<;ller-or bailor of any further interest or
right of possession if any in the said goods. Any
such memorandum if accompanied by an affidavit of
execution of an attesting witness may be registered.
No. 39 of 1897, s. 6,
7. Retaking possession. — In case the seller or
bailor shall retake possession of the goods he shall
retain the same in his possession for at least twenty
days and the buyer, bailee, or any one claiming by or
through or under the buyer or bailee, may redeem the
same upon payment of the amount actually due thereon
and the actual necessary expenses of taking possession.
No. 39 of 1897, s- 7'
M
N.W.T.]
APPENDIX.
;79
8. Five days' notice of sale to be given. I lu;
•jfoods or chattels shall not bt; sold without live tlays
notice of the intended sale bcMni; first t;i\('n to the
buyer or bailee or his successor in interest. The notice
may be personally served or may in the absence of
such buyer, bailee or his successor in interest lu; l(;ft
at his residence or last place of abode or may be sent
by rejjfistered letter deposited in the post office at least
seven days before the time when the said five tlays will
elapse addressed to the buyer or bailee or his successor
in interest at his last known post office address in
Canada. The five days or seven days may be part o(
the twenty days mentioned in section 7 hereof. No.
39 of 1897, s.'S.
9. Copies of instrument to be evidence. Copies of
any instrument filed imder this Ortlinance certifieil by
the registration clerk shall be receivetl as i)rima facie
evidence for all purposes as if the orij^inal instrument
were jjroduced and also as prima facie evidence of the
execution of the original instrument accordintj to the
purport of such copy. And the clerk's certificate shall
also be prima facie evidence of the date and hour of
registration or filing;-. Xo. 39 of 1S97. s. 9.
10. Registration fees. The registration clerk shall
be entitled to charge a fee of 25 cents for each regis-
tration ; 10 cents for each search ; 10 cents per 100
words for co|)ies of documents and 25 cents for each
certificate. No. 39 of 1897, s. 10.
I (ill
" Tiifc; Sale OF Goons Okdinani e." Consolidated
Ordinances 1898, Ciiaiter 39.
25. Seller or buyer in possession after sale. Where
a person having sold goods continues or is in posses-
sion of the POods or of the documents of title to the
^^^
!" 1
380
AI'F'ENDIX.
[N.W.T.
goods the delivery or transfer by that person or by a
mercantile agent acting for him. of the goods or
documents of title under any sale, pledge or other
disposition thereof to any person receiving the same
in good faith and without notice of the previous sale,
shall have the same effect as if the person making the
delivery or transfer was expressly authorised by the
owner of the goods to make the same.
(2) Where a person having bought or agreed to
buy goods obtains with the consent of the seller pos-
session of the goods or the documents of title to the
goods, the delivery or transfer by that person or by a
mercantile agent acting for him of th(; goods or docu-
ments of title under any sale, pledge or other disposi-
tion thereof to any person recei\ing the same in good
faith and without notice of any lien or other right of
the original seller in respect of the goods shall have
the same effect as if the person making the delivery
or transfer were a mercantile agent in possession of
the goods or documents of title with the consent of the
owner.
(3) In this section the term " mercantile agent "
has the same mejuijng as in Tlw Factors Ordinattcc.
No. 10 of 1896, s. 24.
" Tmk Factors' Ordinanck," Consolidated
Ordinances 1898. c. 40.
10. Disposition by buyer obtaining possession. —
Where a person having bought or agreed to buy
goods obtains with the consent of the seller possession
of the goods or the documents of title to the goods,
the delivery or transfer by that person or by a mercan-
tile agent acting for him of the goods or documents of
title under any sale, pledge or other disposition thereof
or under any agreement for sale, pledge or other dis-
position thereof to any person receiving the same in
N. W.T.J
APrKNDIX.
;.si
good faith and without notice of any Hen or other right
of the original seller in respect of the j^oods shall have
the same effect as if the person making the delivery
or transfer were a mercantile agent in possession of the
goods or documents of title with the consent of the
owner. No. 9 of 1896, s. 9.
Ordinance REsi'EcriNci Distress for Rent and
EXTRA-JUDICIAL SEI/URK, CONSOLIDATED ORDI-
NANCES 1898, Chapter 34.
2. Seizure under chattel mortgagfes, etc., costs
regulated. — ^No person whosoever making any seizure
under the authority of any chattel mortgage, bill *>(
sale or any other extra-judicial process ivliat soever nf)r
any person whosoever employed in any manner in
making such seizure or doing any act whatsoever in the
course of such seizure or for carrying the same into
effect shall have, take or receive out of the proceeds
of the goods and chattels seized and sold, from the
person against whom the seizure may be directed or
from any other person whomsoever, any other or more
costs and charges for and in respect of such seizure or
any matter or thing done therein or thereunder than
such as are fixed in the schedule hereto and applicable
to each act which shall have been done in course of
such seizure, and no person or persons whosoever shall
make any charge whatsoever for any act or matter or
thing mentioned in the said schedule unless such act.
matter or thing shall have been really performed and
done. R.O. c. 52, s. 2.
3. Penalty for taking excessive costs. — 1 f any person
making any distress or seizure referred to in sections
I and 2 of this Ordinance shall take or nxeive any
other or greater costs than are set down in the said
382
Al'l'ENDIX.
[X.W.T.
schedule or make any charj^a- \n hatsf >cver for any
act, matter or thini; mentioned in the said schedule
and not really performed or done, the parly a^^grievtrd
may cause the party makino- the.' said distress or
seizure to be summoned before the Supreme Court
of the judicial district in which the ^^oods and chattels
distrained upon or seized or some ])ortion thereof lie,
and the said court may order the parly making the
distress or seizure to pay to the party ag;j[rie\ed treble
the amount of moneys taken contrary to the prf>-
visions of this Ordinance and the costs of suiL R.O.
c. 52, s. 3.
[Section i referred to relates to distress for rent.]
4. Distraint for rent limited to property of tenant —
^ "eptions.— A landlord shall not distrain for rent on
i^e '^oods and chattels the property of any person
L,.v,< pt the tenant or person who is liable for the rent
although the same are found on the premises ; but this
res' -ictit ' hall not apply in favour of a |>ers<j»n claim-
ing title un-^ler or by virtue of an execution against the
tenant, or in favour of any person whose title is derived
by purchase, gift, transfer or assignment from the
tenant whether absolute or in trust or by way of mort-
gage or otherwise, nor to the interest of the tenant in
any goods on the premises in the possession of the
tenant under a contract for purchase or by which he
may or is to become the owner thereof upon perform-
ance of any condition, nor where goods have been
exchanged between two tenants or persons by the one
borrowing or hiring from the other for the puq*o»se of
defeating the claim of or the right of distress bv the
landlord, nor shall the restriction apply where the pro-
perty is claimed by the wife, husband, daughter, son,
daughter-in-law or son-in-law of the tenant or by any
[X.W.T.
r for any
I schedule
ajjgrievtfd
lisiress or
me Court
id chattels
liereof lie,
akinjj the
^ed treble
the pro-
iJL k.O.
or rent.]
f tenant —
•r rent on
y person
the rent
; but this
on claim-
rainst the
s derived
From the
of mort-
fcnant in
•n of the
which he
Pcrfomi-
ive been
■ the one
jrpose of
s by the
the pro-
iter. son,
' by any
N.W.T.
AIIEMUX.
l^l
Other relative of his in case such other relative lives
4.
5.
I.
2.
3-
SCHEDULE.
Levyin<r distress
Man \w possession, per day
Appraisement, whether by one appraiser or
more, two cents on the dollar on the value
of goods up to $500, and one per cent, on
the dollar for each additional $500 or frac-
tion thereof up to $2,000. and one-half per
cent, on all sums over that amount.
All reasonable and necessary disburse-
ments for advertising.
Catalogut!. sale, commission and delivery of
goods, three per cent, on the net proceeds
of the goods up to $1,000. and one and
one-half per cent, thereafter.
$1 00
I 50
It
r-' 3
3S4 Al'I'KNDIX. [N.S.
PKOVINCK OF N(WA SCOTIA.
Reviski) Statutes (iMftli Series) 1S84, Cifapter 92.
Ol' TIM', I'UKVKNTION ()!• FuAl'DS ON CUKDITORS IIV
Sl,( KKT Hu.LS OV SaI-K.
[In force until the proclamation of the 1899 Act.]
3. G)nditionaI sale agreements. — I'^ very hirinj;, lease,
or Mgreeinent for the sale of goods and chattels accom-
panied by an immediate delivery, and followed by an
actual and continued change of possession, whereby it
it agreed that the property in the goods and chattels,
or in case of an agreement for sale, a lien thereon for
the price or value thereof, or any portion thereof,
shall remain in the hirer, lessor, or bargainor, until the
payment in full of such price or value by future pay-
ments or otherwise, shall be in writing, signed by the
parties thereto, or their duly authorized agents, in
writing, a copy of which authority shall be attached to
such agreement, and shall set forth fully, hy recital or
otherwise, the terms, nature and effect of such hiring,
lease, or bargain for sale, ajid the amount to be paid
thereunder, whether expressed as rent, payment, or
otherwise ; and shall be accompanied by the affidavit
of either of the parties ; or in case such agreement has
been signed by an agent or agents of the parties, duly
authorized as aforesaid, then by the affidavit of the
agent of either of the parties thereto, stating that the
writing truly sets forth the agreement between the
parties thereto, and truly sets forth the claims, lien, or
balance due to the hirer, lessor, or bargainor therein,
and that such writing is executed in good faith, and
for the express purpose of securing to the hirer, lessor,
or bargainor, the payment of the claim, lien, or charge
thereon, at the times and under the terms set out in
N.S.]
AI'I'ENDIX.
;>«;
K
the writing, and for no other purpose ; aiul sucli
agreement and affidavit shall be rej^istcri-il at the time
and i)lace, and in every respect according to the
provisions of this chapter ; othtTwise the claim, lien,
charge, or property intended to be s«!cured to the
hirer, lessor, or bargainor, shall be null. void, and of
no effect as against the creditors and subsecpient
purchasers and mortgagee's (jf the person tt) whom
such goods and chattels are hired, leased, or agreed to
be sold. I As amended by 1886, c. 32, s. i ; 1S93,
c. 40, s. I.]
6. Affidavits, before whom to be made. The affi-
davits mentioned in the first section and the three next
preceding sections shall be made before a judge of any
court, any commissioner for taking affidavits, or any
justice of the peace or notary public, and if the same
is made by the agent or attorney of the party recpiired
to make the same, it shall be set out in said affidavit
that the said agent or attorney making the same is
personally cognizant of the facts therein set out. | As
amended by 1886, c. 32, s. 5J.
TiiK " Factors' Act", Statutks of Nova Scoti.v,
1895, Chai'tkk II.
9. Transfer of title. — Where a person having
bought or agreed to buy goods obtains with the
consent of the seller possession of the goods or the
documents of title to the goods, the delivery or
transfer by that person or by a mercantile agent acting
for him, of the goods or documents of title, under any
sale, pledge, or other di.sposition thereof, or under any
agreement for sale, pledge or other disposition thei-eof,
to any person receiving the same in good faith and
without notice of any lien or other right of the original
seller in respect of the goods, shall have the same
I
386
AI'I'KNIUX.
[N.S.
effect as if the person makiiij^ the delivery or traiisf(rr
were a mercaiuile aj^ciil in possession of the j^ootls or
documents of title with the consent of the owner.
Statutks ok Nova Scotia, 1899, Ciiaitkr 2S.
An Act to Pkkvknt Frauds on Ckkditoks iiv
Skckkt Him,s of Salk.
[To come into force at a date to be proclaimed, see sec. 13.]
Be it enacted by tlie Ciovernor, Council, and
Assembly, as follows : —
J. Act, how cited. — This act may be cited as
"The Hills of Sale Act."
2. Interpretation and expressions. I n this chapter,
unless the conte.xt otherwise retjuires :
The expression of "bills of sale" includes bills of
sale, chattel mortj4aj^es, assijjjnments, transfers, declara-
tions of trust without transfer, and other assurances
of personal chattels, yjid also powers of attorney,
authorities or licenses to take possession of personal
• chattels as security for any debt, but does not include
the following documents, that is to say : assignments
for the general benefit of the creditors of the person
making or giving the same, deeds of trust or mort-
gages made or given by any incorporated company
for the purpose of securing its bonds or debentures,
marriage settlements, transfers or assignments of any
ship or vessel or any share thereof, transfers of goods
in the ordinary course of business of any trade or
calling, bills of sale of goods in foreign parts or at sea,
bills of lading, warehouse keepers' certificates, warrants
or orders for the delivery of goods, or any other docu-
ments used in the ordinary course of business as proof
I
■j
N.S.
AI'I'INDIX.
387
i
of the |M)sscssi()n or conlrol of ;;ootls, or aiiihori/inj^,
or purporting to autliori/c, cither by {'mlorscnK'nt
or l)y ilclivory, tlic possfssors of siiih iloiimu'uis to
tnmsftT or rcctrivt! j^oods lhcr(;l)y rrpnscnud, or
assij^ninciUs of ptrrsonai propcrt)' to crcilitors iiiulcr
proccfilini^s for the rclittf of iiuli^cnt ilchiors.
Tilt! cxpr(!ssioii " personal cliatt<'ls" means j^roods,
furniture, fixtures anil other articles capable of com-
plete transfer by delivery, ami does not include chattel
interests in r«'al estate, nor shares or interests in the
stock, funils or securities of any {government, or in the
capital or property of any incorporated or joint stock
company, nor choses in action.
The expression " purchasers " nu:ans bona fide
|)urchasers, and includes the assij^nec of the grantor
under the Indij^^ent Debtors' Act, the official assignee,
or any assignee for the general benefit of creditors.
The expression " creditors " includes execution
creditors, and sheriffs, constables ami other persons
levying on or seizing under j)rocess of law personal
chattels comprised in a bill of sale.
The expression " filing " when applied to a bill of
sale includes filing a copy of a bill of sale under the
provision of this chapter.
The expression "chapter" means Act."
R.S. c. 92, s. 10 i)art ; 1886, c 32, s. 7 ; 188S,
c. 23, s. I ; 1893, c. 38, s. I.
8. Hiring, leasing or bargaining for sale. {i)K very
hiring, lease or bargain for the sale of personal chattels,
accompanied by an immediate delivery, and followed
by an actual and continued change of possession,
whereby it is agVeed
(a) That the property in the personal chattels ; or
{/f) In case of a bargain for sale, a lien thereon for
the price thereof or any portion thereof,
,^ss
AI'I'KNIUX.
N.S.
shall rrrnain in ihr jM-rson Irtlinj; t«> hirr. ihr lessor nr
th<* l).ir>4.kii)<>r until the payment in i'lill ul the hire,
rental or price agreed upon 1)) tiitiire payments or
otherwise, shall Ix; hy instrtnnent in writing, and he
sij^jned hy the parlies thereto, or their duly aiithori/etl
aj^ents, in writinj;, a copy of which authority shall In-
attached to such instruintrnt.
(2) Such instrunuMit shall sv.t forth fully, l»y rec
or otherwist:. the terms, nature and effect of sucn
hirinj;, l<:as(;, or bargain for sale, and the pn>pert\ or
lien remainin)^ in the ju-rson letting to hir*-, the lessor
or l)ar)4ainor, and the amount i)ayal)l(r ther< umUr,
whether express«;d as hire, rent, price or otherwistt,
(3) It shall he accompanied hy the affidavit of either
of the parties thereto, or if it is signed by an agent
duly authorized as aforesaid, hy the affidavit of such
agent, stating :
{(I) That such instrument truly sets forth the
terms, nature and effect of such hirin*;, leastr
or bargain for sale, and tht* proptTty or li
remaining in the pt!rson le'tting to hire,
lessor or bargainor, and the amount payaou.
thereunder.
{/>) That such instrument is executed in good
faith and for the express purpose of securing
to the person letting to hire, the lessor or the
bargainor, the payment of such sum at
the times and under the terms set out in
the instrument.
(4) Such instrument and affidavit shall be filed in
the registry of deeds for the registration district
in which the personal chattels art; at the time the
instrument is executed, otherwise the agreement that
such property or such lien shall remain in such person,
■■
N S.
AIM'KNIMN.
>H9
shall as aj^ainst ihi* rmlitors, piirchasrrs and nu>ri-
uam'rs <)( ihv |M'rsnu hiring, ilu; It^srr or i»ar)^Miiu<%
l)«' mill aiut void. U.S. c. i)2, s. 3 ; iSSO, c. 3 J, s. 1 ;
189.;, c. 40. H. I.
9. If grantor not a resident of Nova Scotia. \\ li< tt;
the j^Tantor is not a nsidciu ol \(i\a Siuti.i, in thi:
<'V»'ni()l"iln pcnnanrnt r<'niovaln(|»ri'>>unal i hattrls Ironi
tin* rt'^M'strali«ni distriti in which thi-y arr at llu- tinw of
lh(! t'xcciilion of the hill of s.iK* nr uthrr insinnnrni to
another r(';^isiralion ilistrici hc-lorr the p.iynunt and
diseharj;*' of ihr hill ot salt; or insirunu-nt, a io|)y ol
the sanu! and of tht! alVulavits aiul docununis nl.ilin^
lli(!r<*i(), ccrtilufd undt;r ihr ham! of liu.' r«'j;istrar in
whose rcj^istrs ihv. same wen- hrsi (ijrd. sliall l>«; tiled
in lh<' rejristry of de«'ds for the rei^istr.iiion district to
which lh(! person. d chattels an* r«*nioved. within two
months from such remo\al. otherwise the hill of sah;
or instrument as a]L,Minst creditors or purchasers shall
he. null and void.
10. Duties of registrars of deeds. I lie re^n'strar
of deeds shall cause the hills of sale or copies and
instruments rt.'C|uired by this chapter to he tiled, to
he numhered and indexed. ^\u\ a list thereof i<< he
made in a hook kept hy him tor that pur|)()se. contain-
in".; the names and tiescriptions of the parlicts in al|)ha-
hetical order, the dat(! of execution and tiling, and the
amounts of the consideration for which the s.imc! have
heen ^iven. K.S. c. (>2, s. 7 part.
J J. Release or discharge provided for. — Wht-ret a hill
of salt; or cnher instrmncMit is dischar}j;ecl or released,
an entry of such dischartjt! or release; may he made; in
the reL(isiry list upon the production of a certificate
from the; holder of such bill of sale, duly attested to
bv the affidavit of a subscribing witness, and such
*/Jl
.V)0
aim'i:ni>i\.
N.S.
cirtilualt' or rcK'asc shall Ik* iiulcxcil ami cntiTtnl on
the list aiui on the filfs kept l)y the ri'j^istrar. U.S.
c. i)2, s. S part ; iSS(). r. 3.', s. ().
(i) riu' atfulavils incntioiu'il in this ch.iptcr may
he inatlc l)flV)rt' tiu" rci^istrar of lU'ctis, a jniii^e of any
lourt, a coinniissioiu'r lor lakinij altiilavits, a jiistitr ol
the ptNuc. or any notary piihlii", whcllu'r vviihin ihi*
province or ahroail.
{2) If the aftiilavii is niaiK' hy the ai^t'nt or attorney
of the person ri'(|nire(l to niaki* the same, it siiall he
set out in such afrulavil tiiat such at'cnt or attorntrv
makinj4 tile same has a personal knowitni^c of the
matters ileposeil to. k.S. c. ()?, s. () ami s. S part ;
|SS(), c. 32. s. 5.
\2. Fees of registrar. The rej^istrar shall for his
services under this chapter hr entitled to tin; fees
mentioned in the tahle in the sclu'dule. U.S. c. 92. s.
7 part. s. () part.
J3. Act, when to come into force. (1) I'his
chapter shall come into force at a date to he pro-
claimeil in tin' /\0V(i/ iuizifh' hy the doveinor-in-
Coimcil.
(j) I'pon such ilati' tlu' iMiactments mentioned in
the following tahle will hv repi-aletl.
1 Aiti.K : Re\ised Statutes, chapter q2 ; Acts of
iSSb. chapter 32 ; Acts of 1SS8, chapter 23 ;
Acts of 1S93, chapter 39 ; Acts of 1S93,
chapter 40.
[N.S.
cntiTt^tl on
tiar,
K.S.
h.ipicr may
ilj^f of any
a jiislitr of
vv'iihin
ih(
or alloiiu'v
. it shall l)('
i)r altornirv
iis>(' o
ic
s. S pail
N.S.
M'l'KNDlX.
391
TAIil.l 01 \'\:\S lOk kliilslKAK
I'or lilini-. inilcxin<' ami t-nt
t'riny vvvvy hill of
sale or ropy, cvrry inslrunicni of hiring,
'casi' or jjarj^ain. cvcrv rcrlifu-d coi
thereof and every tlisrhar
)V
R<'
;o
or .ulinniisterni^ every oath o
or (!very inspection, whether of a sinj^lc hJH
of sal
e. eopy. or oilier msiriimeiit. or of
a single title, made on one .iiul the sa
d
me
ciav
I''or tiling every renewal statement
o 20
o 10
lall for his
to the fees
S. C-. C).\ s.
(') -n
lis
to I)
)e pro-
oveinor-in-
intionetl in
2 ; Acts of
hapt
o
er 2
f 1S9.
Ill
M>2
AI'I'I'.NMIN.
( )N I.
I'KONINCI' OF ONIAIM').
Ki visi n SiMiris ni ( )NTAi<in i.S(>;, ( iiM'i i;k i,|().
An A< r KKsi'iniNc (Onim i KtNAi, Sai,k,s ov
( 11 Ml i:i.s.
I l<'r Majesty. I>y .itui with llir advicf-aiid <:(>ns('iU
<>r tin- I .< i^islatiN*' Ass«'inl)ly ol tin- l*n>\in(«' ol
Ontario, «na<ls as Inllovvs :
{. Conditional sales of manufactured goods, when
to be valid. K«'( cipt notes, hir*- rei<'i|>ts and oiders loi
chattels, !^i\cn hy l)ail<'es ol chalti'ls. \vher«' the eon-
thtion ol the h.iilnu'nt is such thai the possession of
the ch.Ulel pass(.'s without any ownership therein lieini^
ac»|iiired hy the bailee nnlii the payment ol the pur-
chase or consider.ition money or some stipulated part
thereol, shall only he \aliti as against sul»se<|uenl
purchasers or mortj^ai^ces without notic<' in <l;oo<I laith
lor \alual)le consideration in the case ol manulactiired
^ooiis or chatt<'ls. whiyh at the time possession is j;i\(!n
to the bailee, have the name and address of the manu-
laclurer, bailor or vendor ol the same paint«il. printeti.
slampeil or eni^raxt'il thereon or otherwise plainly
attached thereto, and no such bailment shall be valid
h subse(|uent purchaser or inortL;av;ce as
as aviamsi sue
aforesaiil. unh'ss it is evidenced in writini:. signed
the l).iilee or his a!L:<'nt. 51 V. c. K). s. i
2. When section J not to apply. TIk: precedinj;
section shall not apj)ly to household furniture, other
than pi.mos. organs, or other musical instruments ;
or shall it apply to any chatti^ls mentioned in any
n
such recei
m.
noti'
lire receipt, order or otiier instru
ment when' tlie manufacturer, bailor or vendor withi
n
ten days from the execution of the receipt note, hire
On I. I AI'I'KNIHX. ^<y^
rrrripl, ordrr nv ollirr inslriiinriu rvidriM iii^' ihr hail
mrnt or ((Mi<litioiial s.ilr j^ivni (n sim mc llic pun Ims<-
inom-y, or a part thrn-ol, shall lil*- with ih«' ( h-rk o(
the ( oiiiily < oiirt ol the (oiinty in which the hail'c
or roiniilional piirrhasrr rrsidcd ,ii ihr time ol thr
h.iihncnl or ( oiiditioiial pure hasr, a < opy of di<- said
rccripl nolr, hirr rrcripi, order <tr other instniiiieiit
cvideiM iti^ the haihnetil or < oiiditiotial sale. 51 V.
( . if>. s. ().
3. Filing of instruments in unorganized districts.
(!) When llu" haih-e or « ondilioiial pun haser resides
at the time of the haihnent or conditional pMr( hase in
an iniori^ani/ed district, all instruments may he tiled
with tin- ( lerk o( the ( Ourl with wlion> morlj^a^es
and sales o( < lialt<ls arc- to he re^^istered in su< h
tiislrirt, under the law at the tinwr in lore «-.
(2) This s<'<;tion shall apply to instruments tiled
with tlu" said oiricer prior to ilu; ;th day ol April
iS(>(j. 5;, v. (-.30. ss. I, 2,
4. Clerk to file copy of receipt note. I he (lerk ol
the Coin't, on receipt ol such copy, shall duly hie the
siuui: and cans** it to he properly entered in an index
ho<»k to he kept lor that pur|)ose, and shall he entitled
to chari^c- t<:n cents lor ev(,'ry Tiling and lu'e (cnls lor
(;very search in respect thereof. A clerical error
which does not mislead, or an error in an immaterial
or iKjii-essential part ol the said copy so filed, shall
not itualidati^ the said lilini' or destroy the «;flect
thereof. 5 1 V^ c. 19. s. 7,
5. Copy of receipt note to be left with vendee.
I'he manufacturer, bailor or vendor shall h^ave a copy
of the receipt note,', hire rec(;ij)t, order or other instru-
ment hy which a lien on the chattel is retained, or
which provides for a conditional sah;, with the hailee
or conditional vendee at the time of the execution of
tm
r
394
AI'I'KNDIX.
[Ont.
the instrument, or within twenty clays thereafter. 51
V^ c. 19, s. 8.
6. Statement of amount due to be given on request.
— (i) Hvery manufacturer, liailor or vendor shall, in
answer to an in(|uiry maile by any proposed purchaser
or other interested person, within five days furnish
full information respecting the amount or balance due
or unpaid on any such manufactured jnoods or chattels,
and the terms of |)aym(;nt of such amount or balance,
and in case of his refusal or neglect to furnish the
information asked for. such manufacturer, bailor or
vendor shall, on conviction before a Stipendiary or
iV)lice Magistrate or two Justices of the i'eace, be
liable to a fine not exceeding $50.
(2) Any person convicted under this Act shall
have the right to appeal against such conviction to the
Judge of the County Court without a jury. 51 V.
c. 19, s. 2.
7. Address to be given by person requiring
statement. — 1 he person so inquiring shall, if such
in(|uiry is by letter, give a name and post office adilress
to which a reply may be sent, and it shall be sufficient
if the information aforesaid be given by registered
l(;tter deposited in the post office within the said five
driys, addressed to the person inquiring at his proper
post office address, or where a name and address is
given as aforesaid, addressed to such person by the
name and at the post office so given. 51 V. c. 19, s. 3.
8. Breach of condition. — \n case any manufacturer,
bailor or vendor of any chattels in respect of which
there has been a conditional sale or promise of sale, or
his successor in interest takes possession thereof for
breach of condition, he shall retain the same for
twenty days, and the bailee or his successor in interest
may redeem the same within such period on payment of
^WP
[Ont.
ifter. 5 1
n request*
shall, in
jjiirchaser
ts furnish
ilancc clue
r chattels,
ir balance,
irnish the
bailor or
indiarv or
Peace, be
Act shall
tion to the
y. 5' V.
requiring
11, if such
ice address
t sufficient
re<j^istered
le said five
his i)roper
address is
;on bv the
c. 19. s-S-
nufacturer,
of which
of sale, or
hereof for
same for
in interest
)avment of
Ont.
AI'l'KMMX.
395
the full amount then in arrear, to},^eth<;r with interest
and the actual costs ami expcnsi-s of lakinj^ jiosscssion
which have been incurred. 51 \'. c. 19. s. 4.
9. Notice of sale. Where the ja[()ods or chattels
have becMi sold or bailed originally for a j^reater sum
than $30. and the same have been taken |)os«essi<»n of,
as in the prt;cedinjj[ section mentioned, such ^oods or
chattels shall not be soUl without 'iwv days' notice of
the intended sale being first jj^ivtMi to the bailee nr his
successor in interest. The notice mav be |Krrs«niallv
served or may, in the absence of such baih-r or his
successor in interest, be left at his residence or last
known place of abode in Ontario, or ma\ b(; siMit by
registered hotter, deposited in the post office at least
seven days before tht; time when the said five days
will elapse, addressed to the bailee or his successor in
interest, at his last known post office address in
Canada. The said five davs or sev(!n davs mav !><•
4 • "
part of the twenty days in section 8 mentione-d.
51 V. c. 19, s. 5. '
10. Chattels affixed to realty to remain subject to
lien.— (i) \\ here any goods or chattels subject to the
provisions of this Act are affixed to any realty w ithout
the consent in writing of the owner of the goods or
chattels, such goods and chattels shall notwithstanding
remain so subject, but the owner of such reahv. or any
purchaser, or any mortgagee, or other incumbrancer
on such realty, shall have the right as against the
manufacturer, bailor or ven^^'^r of such goods or
chattels, or any person claiming through or under
them, to retain the said goods and chattels upon pay-
ment of the amount due and owing thereon.
(2) The provisions of this section are to be deemed
retroactive and shall apply to past as well as to future
transactions. 60 \ . c. 3, s. 3 ; c. 14, s. So.
w
396
AI'I'KNDIX.
[Ont.
TiiK " liiM.s 01 SaM'. and Ciiattm. MokTi;A«.i;
Act," Kkviskk Statutes oj Omakim 1897,
ClIAl'TKK I4S.
37. Goods not in possession of bargainor. Vhf.
provisions of this Act shall fxtcnd in m«irl;4a«^fs ami
Srilcs of j^oods and chattels, iiotwithstaiidin;; that such
l^oods and chattels may not he the proiwriy of. or may
not be in the; possession, ciistoiK or c<uitnil of the
niort}j;a;j^or or bart^aiiior or any one on iiis Itehalf at the
time of the making of such moriuaiic or s;ile. and not-
withstanding that such gootls or chatl<-ls may Ik,*
intended to he delivered at some future lime, or that
th(! same may not at the time of ihe m.ikiny of s;iid
mortiLjai^e or sale he actually procured or ]»r<Aitl«-tI, **r
fit or ri;ady for (leli\ery. and noiw ithsiamlinj;; that
some act may be re(|uired for the makinj^ or o-mjlel-
in}4 of such i^oods and chattels, or rendering the siime
fit for delivery. 5" V. c. :?7, s. '^
J/'
J/
38. " Creditors,^ meaning of. I n tin- a|»|ilicati«>n
ot this Act the word " creditors wh<T<' it «x:ciirs,
shall (!Xteiul to creditors of ihe morii.;agor or biirjjainor
suin«> on behalf of themselves and other creditors, and
to any assignee insoivtmcy of the mori^aiior. anil to
an assignee for the gen<Tal benefit of crc<lit«»r>. within
th(! meaning of '///c . Ic/ ri-s/>ir/{f/<^ . Issixnwciity ami
PrcfcniiCi's by lusolvcnl Persons, as well as to creditors
having executions against the goods and chattels of
the mortgagor or bru-gainor in the hands <»f ihe Sheriff
or other officer. ^-^ V. c. 37. s. 38 ; 60 \'. c. 3, s. 3.
39. Change of possession. The " actual and con-
tinued change of possession " mentioned in this Act
shall be taken to be such change of p(»sses*»ion as is
open, and reasonably sufficient to afford public notice
thereof. }^'] \ . c. ^7, s. 39.
■V
Ont.J
AIIKMUX.
m
40. Subsequent takings of possession. A inortj^Mj^o
or sal<' tlcclaretl liy ihis Acl l<» Iw voiil or which, uiulcr
iht; provisions of section iS has ceased to l>e valid, as
a^^ainsi cn^ditor; and sul>se(|iieni purchasers or niorl-
};ajjfees, shall not by tile subsecjiieni taking ol posses-
sion of the things niortj^iij^ed or sold hy or on hehalf
of the niortj^^aj^ee or harj^ainee he thereby inach; valid
as a<^ainst p(*rsons wiio become creditors, or pur-
chasers, or m<)rt}^a;4ees lx;fore such takinj^ of j)osses-
sion.
57 V.
J/
s. 40
60 V.
»>•
s.
41. Agreements where possession passes without
ownership. ( 1 ) In case of an aj^reinient for the sale
or transftT of merchandise of any kind to a trader or
other person for the purjMise of resale by him in the
course of business, thi; possession to pass to such trader
or other person, but not the absolute ovvnershij) until
certain payments are made or other consicUrrations
satisfied, any such proxision as to ownership shall as
against creditors, mortgagees or purchasers be void,
and the sale and transfer shall be deemed to have been
absolute, unless
{a) The agreement is in writing, signed by the
parties to the agreement or their agents, and
{b) Unless such agreement or a duplicate or copy
verified by oath is filed in the otifice of the County
Court Clerk of the county or union of counties or in
the proper ofifice in a district in which the goods are
situate at the time of making the agreement, and also
in the office of the County Court Clerk of the county
or union of counties or in the proper office in a district
in which such trader or other person resides at the
time of making the agreement, such filing to be within
five days of the deli\ery of p<jssession of any of the
goods under the agreement. 57 \'. c. 37, s. 41 (i) ;
58 V. c. 24, s. 2.
AC'i
\ 'i, -M
I
r?
wmm
39S
AI'I'KNDIN.
Ont.
(2) In llu' li'rritorial district of Miiskoka, Nipissinj;',
AIj^n)ma. 'riiuiulcr hay and Kainy River tin* aj^riu'-
iiu.'iu shall l)(' lilt.'d in tin* ot'ticc of tin* Clork of the
IVacc in the district, and in the districts of I'arry
Sound anil Manitoulin in the office of the rejjfistrar of
dt.'eds for the district ; Provided that if a Clerk of th(*
I'eac*' shall be appointed for the district of l*arry
Sound or the district of Manitoulin then any aj^rtu*-
ment n'(|uirin}; thereafter to he [\\vx\ in such district
shall he tiled in tin; office of such Clerk of the Peact;.
( ;) Such an a«;re(Mnent, thoujj^h sij^ned and liUnl,
shall not affect |)urchases from the trader or person
aforesaid in the usual coursi; of his husiiK.'ss.
(4) I'he provisions of this anil the four next pre-
ceding sections of this Act shall not affect the case of
manufactured j^oods and chattels which at the time
possession is 141 ven have the name and address of the
manufacturer, l)ailor or vendor of the same painted,
printed, stamped or engraved thereon or otherwise
plainly attached thereto, nor any goods or chattels
where the receipt. note, hire receipt, order or other
instrument is filed and for which cases resj)ectively
pro\isions is made by '//ic .h( respecting Conditional
Sales of Chattels. 57 V. c. I'jy s. 41 (2-4).
TiiK " Landlorp and Tknant Act," Revisku
Statutes of Ontario, Chapter 170.
31. Goods on premises not property of tenant to be
exempt. — (i) A landlord shall not distrain for rent on
the ooods and chattels the property of any person
except the tenant or person who is liable for the rent,
although the same are found on the jjremises ; but this
restriction shall not apply in favour of a person claim-
ing title under or by virtue of an execution against the
tenant, or in favour of any person whose title is
H
Ont.]
API'KNDIX.
M)i)
(Icrivrtl l)y purchase, ;^it'i, transfrr. or assi)j[nim;nl (Voin
ihr tenant, wliether ahsoliilir or in trust, or l)y way of
inortj^aj^i! or otlu-rwise, nor to the iitlvrcsl of Ihc tcuattl
ill any ^ooils on the |)remis(!s in the possession of the
t<Miant uiul(;r a contract for purchast-, or by which he-
may or is to Ix^conie th(! owner tliereol uf>on />ir/ornt-
aucv of any coudHion, nor where ^oo<ls have heen
exchanj^ed hetwtMMi two t(rnants or persons by th<.' ont;
borrowinj^ or hirinj^^ from the otiier for tht; purpose; of
defeating \\\v. claim of or the right of distress by the
landlord, nor shall the; restriction apply wlu;re thtr
jiroperty is claimerd by the wife, husl)an(l, daughter,
son, daughter-in-law, or son-in-law of the tenant, or by
any other relative of his, in case such other relative
lives on the premises as a member of the tctnant's
family, or by any person whose title is derived by pur-
chase, gift, transfer or assignment from any relative
to whom such restriction does not ai)ply. 57 V. c. 43,
s. I ; 60 V. c. 1 5, Sched. A (60).
¥
^
4(io
ai'I'F.nhix.
IIM'.I.
n<()\ i\t I'. ()!• n<i\( !•: i-dwakd
ISIwXNI).
Si ATiTi's (H Prim i: Pjiwai.-.d Isi.wn iSgO,
ClIM'IIK (i.
An An ki:si'i;( tini; ("n\i>i ih>n.m, Sai.is
|>I ("lIMIII.S.
I Assented to, ^ptli April, iS(/i.
he it enacted l)y the Lieiiten;mt-( Governor and
Legislative Asseinl)ly as follows :
1. Conditional sales of manufactured goods, i'roin
anti alter llie conuun into I'oree ol this Act, reeeipt
notes, hire reeeipls, anil orders for ehaltt^ls j^iven hy
bailees of chattels, where the condition of the hailnient
is such that the possession of the chattel shoiilil pass
without any ownership therein heinj^ ac(|iiired hy the
bailee tnitil the |)aynient of the purchase or con-
sideration money, «)r some stipulated part thereof, shall
only he valid as a«;ainst siil)sc(|ticnt purchasers or
inortj^a^ces, without notice in ^ood faith for valuable
consideration in the case of manufactured j^ootls or
chattels which, at the lime j)ossession is jj^iven to the
bailee, have the name and atldress of the manufac-
turer, bailor <»r vendor of same painted, |)nnted,
stampeil, or enj^raved thereon, or otherwise plainly
attacluHJ thereto, aiul no such bailment shall be valid
as aj^ainst such sul)se(|uent purchaser or mortjuaj^ec as
aforesaiil, unless it is evidenced in writin«», sij^iied by
the l)ailee or his a<;ent.
2. Statement of amount due. I'ivery manufac-
turer, bailor or vendor shall, on application by any
proposed purchaser or other interested person, within
fifteen days furnish full information respectinij^ the
IV
im:.i.|
AI'I'INIUX.
401
iiMKHiiK nr IkiI.iiu (' dill' or iii)|iaiil <>ii .iiu sik h mmimi-
l;i( tiind ^^oods nr ( luiiirls, iiml iIh terms nl |i.i\m(Ml
ol such .itiiuiint or Italiincc, .in*l in (.isc of rdus.il or
iicj^lctt lo (iirnish ihc inroriniition .iskcd lor, sm l»
tnaiiiiractiircr, liailor or vendor sh.ill Itc li.dilc to a line
not r.Ncrcdin^ lilty dollars on (on\i(tion Ixtorr a
Sti|nndiar\ or I'olicc Ma^isiralr, or two jiisiiirs ol"
ihc l'ra«<'. .\n\ person convicted und( r this Act
shall ha\«' the ri;;hl lo a|»|>eal to the Siijirenic ( oiirt
of this Island against such conviction. In addition to
his hein;.; liaMe to said line, no person who rdiises or
iHj^lecls to hirnish the inlorination re(|tiired l»\ this
section, shall he entitled to the Itenelit ol his lien on
the |>roperty in <|iiestion under an\ receipt note, hire
receipt, or order as aforesaid. The ap|(li(atioii nx-n-
lioned in this section may he made |)ersonally or hs
rei^istered letter deposited in lh<- Tost < )Hice, and the
l*osimast<'r's <-ertiricate thai such letter was rii^isiered,
to'^clher with the oath ol the |»erson who deposited
the letter, shall \h' f^rinm facie evidence ol the dale
and service of such ap|)licalion.
5. Enquiries by letter. The jhtsou so eiu|iiirinL;
(il l)\ Idler) shall '^\\v a name and post olVice address
to which a reply may he seni, and il shall he sutl'icieni
if ihe inlormalion aforesaid he i^ixcn hy registered
Idler deposited in ihe |)osl olVice within the said
riftc'cn days, addressed lo the person en(|uirinLi at his
proper posi otfice address, or where a name and
address is ^^iN'cn as aforesaid, addressed to such |)erson
hy the name and at the post olfice so i^ixcn, j'ro-
vidcil always that the person or persons making su( h
eii(|uiry hy letter shall, at the lime of maUiiiLi such
en(|uir\, enclose with his leiK-r of en(|uiry. postage
siamps sufficient to pay the postai^^e on a rcL^isiered
rej)ly to such en<|uiry.
402
.\i'ii;M>i\.
IM'.I.
4. Power to redeem chattel. It inn m.mtil.K mnr.
bailor ur \rml«ir nf mkIi iliiittd nr ihatuls, i»r his
miiTi'ssor in inn-rcsi wlurc ilicir has hccn a inn
(litioiial sale or |)roinisr of sale, lake (insscssion th« ri nl"
t'nr l»riaili «»r (ntHhtinn, hr shall rciain th«' sam»' lor
lw«'m\ tla\s, and the l»ail<c nr his siiccrssor in interest
may r('tl<< in tin- same within siuh period on pasnient
of the lull ain<»unt tluii in arrear. to;;cther w iih interest
and th«* atiiial costs and t'Xpt'nses ol takin;^ possession
vvhiili have heen incurred.
5. Notice of sale. W hen the ;4«»ods or chattels
ha\e lH«n soKI or hailed ori^inall) for a j^nater sum
than thins dollars, the same, uhen taken possession of
as in the precedinj^ section mentio'ied. shall not he
sold without live das s' notice of llu; intended sale
l»ein,n tirst i,d\en to the hailee or his sucicssor in
interesi. The notice mav !»<' personally served, or
ma), in ilie ahsence of such hailee or his successor in
interest, l»e N-ft ;Tt his residence or last known place of
al)o<le in this Island, or mav he sent l)\ rejiistereil
letter. tlep<»sited in the post office at least seven days
before the time when the saiil five days will elapse,
aiKlressed to the hailee or his success»)r in inii-rest, at
his last known pt>st office address in Canatla. The
said t"i\e days or seven days may he part of the twenty
ilays in section four mentioned.
6. Filing the receipt note, etc. Section one of this
Act shall not apply to housi^hold furniture, hut pianos,
or^^^.ms or t)ther musical instruments are not incluiled
in the term " household furniture." when it appears in
this section ; nor shall section one Jipply to chattels
where the manufacturer, bailor or vendor, within ten
ilays from the execution of a receipt note, hire r .cipi
order or other instrument evidencinj^ th* ' „ lU or
conditional sale j^iven to secure the pur ^ money,
im:.i.
Mil Nl»l\.
A^S
or part ilunuf, shall t'lN- with tin- Pmthonotar) nr
|)r|)iit\ rinlhuiiularx n(' thr ( MimtS iliwhicll the liailrr
or ruiidiiiiin.il punnascr nsitlctl ,it ilic timr ..j tlu-
hailint nt or ( unditional |tiir(hasr, a (o|i\ ol the said
r«'i«ipi Hole, hiri' n-ccipl. order or oilur insiniinriu
«\ idciuin); llic Kailinciil oT c ondiiional sale.
7. Prothonotary to file copy. I In- iVotlmnoiarv
i»r I )(|>ui\ I'roilioiioiarN , on nicipt of siuh tops . shall
duly tile the same and caiisj' it to he proprrK rntrred
in an index hook to he In(-|)1 lor th.it purpose, and shall
he entitled to charge liltx cents I'or evcrN such tilin;',
and iwi-ntv cents lor every search in resiieii tlureol'.
A clerical error which does not mislead, or an error in
an immaterial or non-essential part of the s.iid top) so
tiled, shall not invalidate the said tilini^ or destroy the
etiect I hereof.
8. Copy to be left with conditional vendee. I he
manulinturer, hailor or vendor shall leave a copy of
the receipt note, hire recei|)t. order or other instrument
hy which a lien on the chattel is retained, or which
|)ro\ ides for a conditional sale, with the hailei- or con-
ditional vendee at the time of the execution of the
instrument, or within twenty days thereafter.
9. Commencement of Act. This Act shall not
come into force until the first dav of lulv. one thousaiul
eight huiulred anil ninety-six.
• l<!
FT
INDEX.
Abandonment
ol' distress, 33^
And see I-andlord
Acceleration
or time of payment in certain events of a promissory note
does not affect its negotiability, 19 ' '""'"'°'> ""'«
''"'"al)soiu;e,',''s'^ '"°''' "' '"' *'^'''''^" '" '^^•'''' •^>*'' •'*«'<-' ^'
Acceptance
expression of, not necessary if the promise i- >nade l)y deed 8«;
revocation before, 85 ^ » j-
reasonable time to be allowed for l)efore revocation, 85.
I>y vendee relying on his own judgment, as a waiver, 92
Accountant
lien on i)ooks of account for work done thereon, 1^9
Acknowledgement
of indebtedness under a conditional sale, when kept good as
aganist Statute of Limitations, 19 ' ^
by carrier to hold for buyer, ends the transit, 184
Action
rigiit of, when lost on re taking possession, 70
against the l)uyer »or goods sold, recovery in by seller not a
waiver of his hen, 168 ' r ^ v.i nui a
Address
See Name
Ag-ent
authority to execute contract of conditional sale in Nova Scotia
must be in writing, 30
assault by, principal liable for, 65
entrusted with possession of goods, valid contracts of purchase
may he made with, 104
the consideration of such contracts may be cash, or other
goods, or partly of each, 104 , ner
4*
4o6
INDKX.
Agfent — C 'ontiniictl.
agricultural, not in the courscof his business to trade impkinents
for horses, 105
sales 1))', when he has obtained possession, 122
of conditional vendee, sheriff selling under execution is notan, \2},
buying at his own risk, entitled to a lien as vendor, 154
under Ontario I'actors' Act, 104, 15S
right of, to stop goods in transitu, kji
if unauthorized, authority must be ratified before transit
ended, 192
to make purchases, lien of, for advances, 208
money intrusted to him impressed with a trust in favour of
his principal, 209
and extends to the goods bought, 2oy
distress by, in his own name, ratified by landlord, 313
directing illegal distress by bailiff, mortgagees held liable lor, ^54
Agristors
of cattle, lien of, 281 et sccj.
'* Agreed to buy "
meaning of, 1*25
does not apply to a person having a mere option to purchase. 1 25
Agrreement
for purchase of furniture on the " hire system " is a conditional
sale, I
"hiring" agreement may or may not be an agreement to buy, 2
may be deemed a chattel mortgage, 4, 5
not a chattel mortgage if transfer to the hirer is a distinct
transaction, 5
nature of. may be shown by oral evidence, 5
construction of, for the court not for the jury, 1 1
leaving copy of with vendee, 54
if inconsistent with continuance of lien, may defeat seller's
lien, 170
right of distress may be given by, 311
extent of right so given, 311
Animals
natural increase of, subject to the conditional sale agreement, 67
damage feasant, right to distrain exists at common law, 140
lien created by exercise of, 140
liens upon, 281 et seq.
fero: naturae, exemption of from distress, 317
INDKX.
407
feat seller's
Appraisement
See I-ANUi.oRi)
Appropriation
of ji(?ods susceptible of delivery, to create a lien thereon, must
he etiuivaleiU to a delivery at law, i^)
property j.asses upon, 155, 162
hy the contract, and acceptance by the buyer, eipiivalent to
delivery, 155
Approval
sale on, passing of the property under, 161
in ISritish Columbia, N. W. Territories and Manitoba, ifij
property passes upon acceptance by the buyer, Kt?
Assault
in retaking possession of chattels where entry was refused, 65
by bailiff or agent, principal liable for, ft^
during seizure of chattels, 97.
vendor may be responsible for as well as his agent committing
sanie, 97
payment of fine a bar to civil proceedings, 97
acquittal upon a charge of, when a bar to civil proceedings, ^)^
Assig'nee
of a J)ailee, included in the term purchaser, 35
for creditors, seller has title to unsold goods as against, though
he had given the purchaser power to sell, and appropriate
proceeds, 109
Crown has no lien on goods of insolvent estate in the hands of,
for custoiiis duties on goods previously imported and
sold, 142
unpaid seller may re-sell as against, and recover any loss, 11)5
in insolvency, stoppage in transitu as to, 189
for benefit of creditors, mortgagee's right of distress for interest
as against, 353
entitled to be reinibursed for moneys paid mortgagee to release
goods from distress, 353
Assigrnment
of the benefit of a lien, 139
Attachment
of rent by garnishee process against landlord suspends right of
distress, 311.
m
^o8
INDKX.
Attornment
by mortgagor, relationship of landlord and tenant created thereby
so as to give mortgagee power to distrain for interest, 347
termination of tenancy when created by, 350
Auction
reservation of right of re-sale on a sale at, 178
seller then entitled to profit on a re-sale, 178
original buyer liable for any loss and expenses of re-sale, 17S
if no reservation of right of re-sale, goods are re-sold as property
of the buyer, 178
buyer entitled to any profit, 178
Auctioneer
has no lien on maps left with him to aid in the sale of land, 141
liable for conversion though selling for the conditional vendee in
good faith, 100
goods in hands of for sale, not subject to landlord's privilege for
rent in Quebec, 344
Bag-grag-e
lien of carriar on, 230
responsibility of carrier for, on failure of passenger to remove
it, 230
Bailee
signing of the contract by, 7, 8, 9, 10
time of, II
assignee of, included in the term purchaser, 35
contract of bailment to be signed by, 36
conversion by, 86
delivery by, to the true owner is a justification for the bailee, 96
may set up a delence of jus tertii, 95
but not for the purpose of keeping the property for him-
self, 96
care of chattel held by, under a lien, 86, 139
right of redemption of, 394
for hire, has a lien, for additional value imparted by him to the
chattel, 139
Bailiff
assault by, principal may be liable for, 65
landlord may purchase at sale by, if tenant consents, 105
but distress must be legally made or the sale may be treated
as a conversion, 105
iM)i:\.
409
rented thert'l)y
Uerest, ;;47
;-sale, 17H
Id as property
of land, 141
nal vendee in
» privilege for
;er to remove
le l)ailee, 96
erty for him-
»y him to the
Its, 105
ay be treated
BailifT Continiii'd.
r\^\\X of, to break into enclosure to distrain ^oods fraudulently
removed, 316 '
mortgagees held liable for illegal distress by, under direrticr. of
their agent, 354
Bailment
under conditional sale, 7, 36
defmition of, 45
different classes of, 78 "
liability under contracts of, 78
form of contract of, 80
SeeCoNinTioNAi. Sau:s
Bailor
name of, to be affixed or contract registered, 37
information to be furnished by, 39
to whom, 39
penalty for refusing, 39
name of not affixed and contract not registered, effect of, 39
affixing name of, 102
what is a com|)liance with the law as to, 102
tmie of affixing is when possession is given, 102
Bank Act
meaning of " warehouse receipt" under, 252
meaning of " goods, wares and merchandise " under, 252
statutory form of security under, may be given by certain per-
sons, 252 -^ •
Barter
sufficient consideration for a sale by an agent under Ontario
b actors Act, 104
Bill of lading
aasignment of, effect of on vendor's right of stoppage in
transitu, 187, 190
transfer of, in Ontario, effect of, 203
Bills of Sale Act (Ont.)
Conditional sales of merchandise to a trader for re-sale included
in, 40
Boarder
lien on goods of, 265
whose goods have been seized under distress against his land-
lord, rights of, 270
4IO
IXDKX.
Boarder I'lmtiniud.
mode of securing; release of goods, 270
exemption of goods of from ilistress for rent, in X<na > otia, 3,^8
in Mat)itol)a, .^42
landlord's privilege for rent as against good!i of, m •Juci«ec, 545
See InNKKI'.I'KKS and UoAKIMNt; llotSK KkKJEK».
Boardingr House Keepers
See Innkki:i'i:ks ani> r.OAKiUNii lloisi: Ktfci'i.R*
Boat
owner of, when liable to fmder for expenses oi lunqnn^ and
re|)airing, 142
Bond
goods in, effect on right of stoppage in transitu, 189
See Stoi'I'ai;k in Tkansiii'.
Books
of arcoiint, an accountant has a lien on, for work d*mc thereon,
while he retains possession, 139
Brickmaker.
lien of, on bricks made by him, 298
British Columbia
conditional sale in, must be "evidenced "" in wriinv- 7
signed by the bailee or conditional purchaser or hi* a^cnt. 8
registration of conditional sale agreements, the place* int, 22
effect of non-registration, 23
purchase from conditional vendee in, 121
market overt in, 121
Sales of (loods Act, 359
accpiiring title under, Irom a person who has tif^re/J /«► tuy, 122
Factors' Act, authority of a " mercantile agent " "ituder,
123, >24
sale by conditional vendee or hirer, 126, 128
pledge or sale by vendor in possession valid in. 159
passing of the property upon a sale " on approxal ~ in, 163
reservation of right of disposal in, 168
who is an " unpaid seller " under Sale of Cioods Act, 171
lien of unpaid seller, 1 74
re-sale by unpaid seller in, 177
stoppage in transitu in, 198
re-sale in, by seller after stoppage in transitu, 202
IXhKX.
411
lone iHicrcon,
British Columbia ('ohUhiiuI.
lien of factor, when i nnsi^nor not ihc owner, 20y
woodman's lien in, 2y». 2.;S
Crown's lien for tiinl>cr dues in, 25 j.
liens of innVee|iers and lioardin^ house keepers in, 272
lien »)n cattle in, under Cattle l.ien .\«:t, 2.>5
workman's power of sale in, to cnfone his lien, p 5
landlord's lien l)y distress in, statutory provisions, ^^5
Brolcer
when entitled to a lien for the |)rire as vendor, 154
ri(;ht of, to stop goods in transitu, H)2
Care
of chattel bailed, 86
degree of, to he exercised, 79
of chattel, held under a lien, 159
Cargo
drawing hill of exchange against, 141
carrier not hound to deliver, unless consignee is ready to nuke
payment of freight at same time, 21.S
master's lien for expenses of preservation of, 221
Carrier
lien of for freight, right of stoppage in transitu subject to, i(>4
notice to, to effect stoppage in transitu, 194
wrongful refusal of, to deliver, 196
in the capacity of warehouseman, responsibility of, 213
waiver of warehouseman's lien by delivery to, 217
lien of, is specific, 21S
a common l.^w right. 218
payment of freight and delivery of goods should bo concurrent
acts, 218
effect of delivery of part Ijefore whole freight paid, 219
by water, 219
liabilities of under Canadian Act, 219, 220
lien of, for freight, 220, 221
lien of, for cost of presenation of cargo, 221
no lien for wharfage, 221
or for pilotage or port charges, 221
or for damages for failure to load a full cargo, 222
possession of the ship necessary to support right of lien
apart from contract, 222
412
INDKX.
i
Carrier ( 'ontinmd,
carrier's lien dcpcnilcnt on perforntancu of contract, 222
^()odK damaged tiy carrier's fault, 222, 23.^
statutory rights of under the Railway Act (Can.), 22\
to recover '' tolls " hy action, aa^
ri^ht to detain ^oods until payment, 324
sale of unclaimed goods, 224
separate consij^nments under one contract, 335
se|)arate liens changed to one general lien, 225
refusal of consignee to pay freight or accept the goods, 225
lien of carrier not affected, 225
carrier must kee|t goods afrplace of destination for reasonable
time, 226
when goods are left in his hands without fault on his part, 226
lien for expenses of preservation, 226
connecting lines, when goods ship|)ed over, 226
rights of last carrier who has paid charges of the preceding
* carrier, 12A
when consignor's contract is with first carrier alone, 22C*
authority of first carrier as agent of consignor to forward the
goods, 227
lien of last carrier for his own and prior charges, 228
when he receives goods with notice of payment to
former carrier, 228
when carrier employs another in hif^ stead, 228
when payment made in advance and contract does not
imply delivery to another or connecting carrier, 229
last carrier's lien for prior charges restricted, 23y
demurrage, 221, 229
lien of, on passenger's baggage, 230
lost by passenger's taking possession, 230
passenger must remove baggage withiti a reasonable time
after carrier is ready to clehver, 230
waiver of lien by, 231, 232
exemption from distress of goods delivered to, 317
Cattle
liens on, 281-295
Chattels
fixtures to realty, 13, 1 16, 117
onus of proving article to be such, 13, 14
Ontario statute relating to, 14
INI>KX.
4>3
sonahle time
Chattels Contiinnti.
(lerinitioM of, ^i, ',/. 45
t-nnditioMul sale «)f sliarc in, within the Ontaru) Art. .\-
hal)ility of lender for defects in, 54
destriM tion o^ 5')
insurance of, 5^)
retaking possession of, 64, 65
retaking posM-ssion of, effe<"t of on the lontrart, ()(\ '18, t>|
vendor t(. retain j;(kmIs for certain period, oH
redemption of, after retaking of possession hy the bailor, dS
care of l>y bailee, 34, 86
wrongful sale or pledge of, by the vendee, t^R, <;«j
pawned by the hirer may l»c recovereti from theiiawnbrnker, 100
auction sale of, at the instance of the conditional \endec,
auctioneer is liable to damages, 100
atVixing of nanie of manufacturer or bailor to, loj,
name of manufacturer upon, puts purchaser or pledgee npon
notice, 130
inno«ent purchaser of, acquires good title in Manitoba if manu-
facturer's name is not aftixcd, 131
liens on, 134 et se<|.
care of, held under a lien, \%^
obtained by fraud, no lien on, 141
lost, lien of finder on, 143
waiver of lien on, 146
when the property in, passes, 154
vendor's right of possession not lost, if price not paul, though
property has passed, 153
marking of, with the name of the buyer in the preseiu e of the
parties, does not divest the seller of his right of possession
until the price is paid, 154
transfer of, by an agent, under Ontario I'actors' Act, 157
implied warranty of title on laie of, 103
lien of workman upon, for work done thereon, jij;
Chattel Mortg-ag-e
distinguished from conditional sale, 4
transfer absolute in form may be <onsidered as a, j, f^
but not if the transfer and hiring are distinct tiansa< tit iis, 5
priority of workman's lien over, 300
priority of thresher's lien over, in North West ierritories, 307
in Manitoba, 30S
urr
I
4»4
Claim
lNi»i:\.
c\«'c'S»ivi<, in rcspcrt of a lien, ilnes not dispense wilh the nccii-
Mty of tendcriiiK the nin«iiint k'Kally due, 147
Cloth
tailnr nlakln^; it up, L.is a spe<i(u" lien for his charges, 1 ^S
nianulai tiirer's lien on, j^S
Colt
lien of owner of stallion upon, in Manitol)n, 3ijj
in NorthWesi TerritorieH, 294
Commission Merchant
See l'"\(,iit|<.
Compositor
has no lien for hiH wages on type set up, 3^J^
Condition
suspensive, under (^>uel)er I, aw, 20
tender o( nioney shoulil not he clogged with a, 147
payment or tender of the prite on the part of the buyer is a
condition preredent to his ri^ht of possession, 13^^
under what, the right of stoppage in transitu is exerciseahle, u)2
Conditional Sale of Chattel
definition of, 1
purchase of furniture on tiie " hire system," 1
" hiring " agreement may or may not he an agreement to
buy, 2
evidence of, 3
distinguished from a «hattel niortgage, 4
nature of, may he shown by oral evidence, 5
in British ( 'olumbia, statutory retjuisites, 7, 8, ^^59
in New Urunswick, 8, 372
in the North-West Territories, 8, 74, 376
in Nova Scotia, y, 30, 34, 384
in Ontario, 10, 392
in I'rincc Kdward Island, 10, 43, 44, 400
construction of, for the court not for the jury, 1 1
registration of, in British Columbia, 23
places for, 22
effect of failure to register, 23
registration of in N. B., 26, 27
IM»H\.
4 '5
|\ llll- IIL"^0«-
agreement to
Conditional Sale of Chattel ("n/imm/.
regi!»ir.untii of, in the North Wisl lirr. , iS
tiiia'aiui |il;ii c tiir, iH
whci) ^ikhIh arc removed to aiiotlur diitm t, iS
rt•l^l^tratll•ll 'il', in Nova Scolia, ^H
l>la< c for, jS
rf<iiiiriniLMits of Ontar o htatiitc, ,V>
in Ontario to l)c filed unless nana" of vendor is affixed, \^
Unit .111(1 |ilai e <if registration in Oiilaru), ]H
error in copy filed not fatal, ,jS
elVert of non renislration when name of \i ndnr is not affixed
to the ( hattel soUl, yt
re•re^il^tratl(ln, no provision for in Ontario, 40
of iiienhandise to a trader for re sale, 40
with a char^jc on land, 54
|irohil)ition against rej^istration against laiuts in Nfatiitolia, 55
iiK-Tease of animals sultjett to, fi;
at aiK'tion enforced liy vendor, 71
resct'ssion of hy retaking possession under a power of sale, 71
refusal of atteptance of goods under, ^ives a rulit to claim
ilama^es, 71
loss of lien under, 70
vendee's rights and liabilities under, 7S
the form of, 80
signed and sealed hy the purchaser, 85
rescission of on default of the vendor, .S7
for misrepresentation not protested against, S8
retakin;; chattel under, effect of, ^4
discharge of, may In: registered in the North West 'I'erritories, y6
wrongful dealing hy vendee with goods held under, 98, «;y
rights of third parties regarding, 99
registration of, as notice, no
made ahsolute, by vendor's election, 115
Conditional Vendee
rights of creditors, 106
sul)se<juent purchasers and mortgagees, rights of, 106
obliteration of vendor's name by, not an esto[»pel against the
vendor, 1 14
purchase from, in British Columbia, 121- 131
TT
416
INKKX.
Conditional Vendor
.Vc('oNIHII()N,\l. SVI K
Conduct
CHti)|i|ii.'l !•>', I li
lcaviii({ a rcrctpt note in poHHCHtioii of tin < omliti mal
veiuli-e ii|iiiri tho taking of a rciu'witl tiott' will not alono
amoinit to an, 1 1 j
Hc'i'iiM, il vcnili)r Ikih itc-cn lu-^li^cnt, 11 {
Consent
ol vuiulor to ati'iMM^ ot rlmttcl comlitionally voUl in < >ntari<>. 1 n*
in N'ltw llninHwirk, 110
of owner to a sale l»y the agent nmler lattors' Ait of II (',, ijj
poHHesHion with ron><ent of owner, i)y one who huit agreed to htiy,
Nova Stotin, i.vt
Consideration
Inua piirrhase Ironi an a^ent entruste*! willi the pi^^e^Hion of
^oods under tlie Ontario l''a<tors' Art may he nsli, or other
;;o<m1s, or partly ol each, io.|
money or anything that iK-arsa known vahie is a vahialik-, 105
tlisi'harge of a pre-existing dulit is n vaUial)le, 105
Consignment
lien of carrier upon ^oo«ls carried under one contract luit at
ditTerent time.s, tie;
lien on. each of Hevural, changed to one general lien, 2^5
Consigrnor
if responsihle to a primipal for the |)rice, may have a lien 154
control of, over goods and their proceeils as against factor < l.iiiii
ing a lien, 207
lien of factor when consignor not the owner, in Nova Si otia,
llritish Coluinhia and N.W. Territories, jo«;
Construction
of contract j.;overiicd l»y the law of the place of contract, f,i
Contract
for work done distinguished a conditional sale, (
of hire purchase, 7, So, H ;
reeiss.on of, hy retaking possession, 71
not rescinded where goo«ls are taken and sold under express
power of sale, 71
of haihnent, liahiliiy under, 78
of hiring goods, with an ojuion of ()urchahe, 127
IM»K.X.
4J7
)utan<i, iKj
S'ova S( ntia,
Contract ('i>n/inu,i/.
fHuHalili- lieii may aritr from, 1^5
not rL-«i iiulfti liy Mclk'r » i-xvrri<«c ol hi'* n^ht ol rctiiitioti, iri;
rvNniuK'tl Ity Hollcr fXi'ri:i»mK nnht oi n- «»ali' n-siTViMl liy tlu-
I iiiitrai't, 107
Hvllcr may rcHnml on (Iflaiilt of luymnit in Uriii^li ( 'nliimliia.
N.NV. TcrritiirivH ami Mamlolia, I'lS
rcnnntliMl li\ •Mrnsr ol Miiilor^ ri;;l>t uf n- sale dm ilelault
iiiulcr Alls ftl IK'., N.U. r. aixl Mamtolia, 177
cfltM't «wi, of viMulor's o\i niHf of riulit of siopiu^i.- m tratiHitii, iHj
ri'lati(iMslii|> III lanilli)rtl ami tenant uh livtwccn mort^aKi'^' ami
mnrt>;.inf»r rn.ilnl l>>, VW
Conversion
liy liailcc, may (ItliTimnc ihc <ontra< t, H7
Ity romlitional vcmli'c, may amoimt to tluA, i)8
may In* < iMiipk'tf though tin- noods smti- at thr timo of i onver
sion in tlir law till |iosscsm»im n\ tlic pcrvm 1 onvirlin^, i>S
anion for will lie upon a wrongful ilcalini; with ^o(hIh l>y vcndcu
or liirrr, 100
of pro|iiTly Ity trustee, ortlering rustitution, 145
Corporation
ineluilecl in the term " ititereste«l person," 51
Costs
in proceedings against a vendor fur refusing information, ^»o
of exir.i juilii lal sci/ures in N.W'.'I'., .jSi, jHj
Counterclaim
lien not destroye«l Ity, unless set off was aureed upon, ^02
Credit
riKht of retention Ity seller for the price, when goods sold with(tut
stipulation as to, 153
Creditor
meaning of the term in Nova Scotia, .^5
of conditional vendee, rights of under Ontario I tills (tf Sale
Act, 106
under Conditional Sales Acts of Ontario, New Itrunswick Uritish
Columltia, l'rin«e luiward Island, North West 'I'erritories,
Nova Sc(ttia, 106, 107
meaning of the term in Nova Scotia Hills of Sale Act, 108
non-registration of conditional sale cannot he taken advantage of
Ity, if sale was made in another province where the chattel
then was, loK
4iS
i\i>i \.
Creditor Continual.
rinlits of, in Ni»va Sci)ii;i, \\\
t)l person ( lanninn ;i lien, ili-livery of the goods to, as a security
to the I'Vtcnt ol tin- lu-ii, \^^
atttirnnu-nt l>v mortgagor to niort^-aufi', validity of, as against, w'^
statutory provisions in Ontario as to niortnancc's rinlit ol ilistrcss
lor intcrt'st as against, ^52
priority of distress liy mortgagee as against, when no rent
reserved, ,^52
Criminal Proceeding's
against a londitionai vendee, <<S
Crops
ngli*. I') distrain lattle doing injury to, exists a eoiniiKHi lasv, i.jo
dis.ress of, allowed for rer.l, ,^i(>
right of sale of, under chstress, \\k)
growing, haWility for rent of purchaser of, at sale Ity landlord
under distrtss, 520
claimed by third |)ersons, liable to distress for rent uiuL-r certain
conditions, in Manitoba, \\\
Crown
no lien on goods the property of, 14 j
lien for custom iluties, 142
order of preference as to claim of, in (^)iiebec, 150
lien of for tind)er dues, in llritish CoUunbia, 25,^
in ( )ntario, 255
Custom
of trade, leaving g<)oils in possession of vendor under, 159
Customs Charg-es
receiving vendee's bond for is delivery to him, and ends the
transitus, 1S9
Crown's lien for, 142
Damaffes
for non acceptance when contract rescinded, 71
for breach of warranty, SS
vendor may be liable for, on an assault committed by his agent
seizing chattels, 97
payment of fine a bar to an action for, 97
action lor, by owner on conversion by conditional vendee, or
hirer, 100
in:'1.\
4">
as a security
Jicn no rent
iinon law, 140
Damag'es ( '»n//,itt,i/.
a.li<.n r..r l.y purchaser a.^ainst the .•..nditinnal vendee uhen the
owner has retaken possession, 101
measure of dainaj^es, 101
unpaid seller may recover on re-sale l.v him at a loss, ,r,;, „,,
r.ir iK.i loadiiiK lull larB". lien ..1 slii|,i,iaM,.r l„i -.,
"' "'::l;'.-,,u'!'.,'i.:r''"' "'""" "■'^'"' '" -' "> "-
interest after maturity recoverable as, ^(,
Damag-e Feasant
riKht to distrain cattle exists at comuioi. law, i ,o
lien created by exercise of, i.|o
Days
nmnberof, how calciilatetl, 50
Debt
tender of. discharj^es a possessory lien. 1 jf.
"' "l^'l^^a lien/l^^'^'"'"' """^^' ^^'^"''"" '" ^"^'^ '^'^ «'"
a preevistini-, consideration for iransler of l.ili oijadinmo d..f...,t
nn\n of stoppane in transitu, iSS ^ '"-''^
Debtor
Deed
promise made l.y, irrevocable, 85
unless promisee rejects 01, its coming to his knowledue Sc
Default ' ^
of vendor, rescission of contract u|)on, S7
retakin|;pnssess:on upon, effect on action for !.alance of |.ri.e, f.n
tielay alter, as affecting vendor's rights, 70
m payment, waiver of, 67
Defects
liability of lender for, 54
Delivery
immediate, meaning of, 31
something more thaii a symbolical delivery recpiired, it
'" bailee.V"" *"" '"' ''""''"'^ '" " justifH-ation for the
T^
420
INDKN.
Delivery — Continuai.
approprintioi) of goods sustL'|itil)le of, must 'nc t'(|iiivalcnt to, at
law, lo rrcatc a lien, 136
of clialtcls held for, under a lien, to a «re']itor as security, 1,^9
promise to pay a reasonable price upon, implied, 152
aii|tropriati()r) and acceptance by the terms of the contract
e(|uivalent to, 155
to a carrier for transmission to the buyer, |)roperty passes upon,
unless theio is a reservation of the ri};ht of disposal, if)2
of part of the j;oo(is, as a constructive delivery of tiie whole, will
tiefeat vendor's lien, iTmj
seller IS not bound to make, to buyer be<oming insolvent during
currency of negotiable instrument given as conditional pay-
ment, 172
uii|>aid seller may wiilulraw, where property has not passed, in
!!.("., \.W. r., and Manitoba, 17^
of i>art ol goods, not a bar to lien of unixiid seller on niniin* cr
in 15. C., N.W.'I'., and Manitoba, 174
unless circumstances show waiver 175,
consignee may re(iuire, at any stage of journey, 1S5
of a part, effect of on rigiit of stoppage in transitu of remain-
tier. 186, 1(^6
of goods, vendor entitled to, on exercising his right of stoppage
n transitu, 195
wrongfully refused by carrier, effect of, 196
transfer of document of title by, in Nova Scotia, 204
of goods and payment of freight to carrier, to be concurrent
acts, 21S
Demand
to be made before property is retaken, 64
necessary after a waiver of default, (>~,
Demurragre
shipmaster's lien for, 221
claim of carrier for, 229
Destination
of shipment of goods, meaning of, 184
Destruction
of the chattel conditionally sold, 56
Detention
of goods for different claims, owner must tender the amount
properly due in respect of the lien claimed, 147
right of agents, consignors and persons in the position of sellers
for the price, 154
1M)K\.
421
iiivalent to, at
Diligrence
decree of to l)c exen-ised, on the i)art of a bailee, 79, 86
ordinary, to l»e exercised in llie care of a cliattel lield under a
lien, \7,u
Disbursements
trustee has a lien on trust property for, 140, 141
Discharg'e
ret;istrati()n of, in the 5<orth West Territories, 96, ^;g
of 1)111 of sale, etc., in Nova Scotia, jSy
Disposal
reservation of the riglit of, 1^6
a condition of the contract, 1O6
effective to prevent property i»assing, 1^16, 16S
hy taking hill of lading to the order of the seller, \(>(>, i(»8
unless contrary intention is shown, 167
by sending bill of lading accompanied by bill of exchange
for the price, 167
by reserving a right of re-sale on default, 167
reservation of right of, in British Cohniibia, \ W. Territories and
Manitoba, r()8
may be provided for by the contract, 16S
vendor loses his lien on delivery to a carrier for transmission, if
he fails to preserve the right of, ifig
by buyer obtaining possession, in IJritish ("oluuibia, ^05
by buyer or seller in possession, in N.W. T., ;7i)
of goods or documents of title thereto, by buyer obtaining posses-
sion, in Nova Scotia, ,^85
Distress
of cattle damage feasant, lien by, 140
of chattels by landlord for rent, lien by, 140, ^10
priority of threshers' lien over landlord's right ot, in North-West
Territories, 307
in Manitoba, 308
nature of the right of, ^o
mortgagee's lien by, 3.. 7
for interest in arrear, license to mortgagee to make, 351
proviso fcir, in mortgage, controlled by inconsistent i)reccding
clause, 355
and printed proviso, controlled by written inconsistent
clause, 356
r
42:
INDIA.
Distress ( 'ontin:uii.
power of, in a mortgage, extends only to inltrest stipulated for in
the niortj^age, 356
when no provision for interest after maturity, not re<'overal»lc
under distress clause, 356
for rent, limitation of right of, in IJritish Cohnnhia, 365
for rent, when limited to goods of tenant, 3H2, 3i>S
eNceptions in N.W.'r., 3S2
exceptions, under Ontario Act, 39S
Documents
evidencing conditional sale, form of, ;
construction of, for the court not foi a jury, 1 1
soli( itor's lien upon, 140
documents received l)y him as a land agent, 140
* received to keep for safe custody, 140
Documents of Title
to goods, meaning of under .Acts of !{.(!., N.W. Territories
and .NIanitoba, 17')
transfer of, as collateral security, in Ontario, 179
transfer by buyer, effect on stoppage in transitu, i8y
transfer of in Nova Scotia, effed on stoi)page in transitu, 204
effect of disposition of, by seller or buyer in possession after sale,
in I'ritish ("ol\nnl)ia, 364, 365
in Manitoba, 3O9
in North-West Territories, 379, 380
in Nova Scotia, 385
Dues
on timber, Cnw'n's lien for in Hritish (,'olumbia, 253
in Ontario, 255
Duties
paid by vendor for the purchaser, covered by vendor's lien, 153
Dyer
has a general lien for a general balance due him, 13,
lien of, on cloth dyed, 29.S
Election
vendo- filing a mechanic's lien against the realty to which the
article sold has been affixed, 114
vei' dor's, making a conditional sale an absolute one, 1 15
by vendor, to treat sale as absolute, when he sues for the whole
balance, 115
f
INDEX.
4t ■»
V. 'IVrntorics
to which the
Eng-ine
affixed to soil Ijcld to l)e a fixture, 117
lien of Crown on, for timber dues on wood used in running in
n.C, 254
in course of construction, priority of lien, 301
Engraver
lien of, on plates eiij^raved hy him, 298
Enquiry
hy proposed purchaser or other interested person, 51
purchaser from a conditional vendee, |)ut upon, 105
frf)m conditional vendee, not sufficient. iof»
purchaser failing to makC; is chargeable with noti<e, no
l)y purchaser or pledgee if manufacturer's nana- affixed, 1 ;o
as to amount due, 51, 394
Entry
right of, to re-take possession, 64
by fon-c, may constitute an assault, 65
if under the contract and bona fide it is a mere trespass, 65
manner of, in making a distress, ^^26
Error
in copy of conditional sale agreemc-nt filed not fatal, ;,S
of ofhcer as to registration, party not liable for, in
liability of officer for, U> person misled, in
Estoppel
by conduct, n2
what amounts to an, 1 12
delivery of lien note to conditional vendee, and taking a renewal
note will not alone amount to an, 1 12, 113
placing purchaser's name on chattel, n3
obliteration of vendor's name, n4
registering a mechanic's lien, n4
Evidence
oral, as to nature of the transaction, 5
of conditions of the sale, receipt note is, 7
of conditional sale, 7, 8
of specific lien, 137
as to lien where a written contract exists, 2^)^)
certified copies of instrument to be, in N.W.'i'., 379
Hi
i
"Sit
'^'"
424
iNi)i:\.
Execution
of t'ontracl Ity propo';>(l piirchascr, S5
sei/urc and sale iiiulor at vciulor's own suit, deitn»ii* hi« hen, 170
priority of threshers lien over, in Norili West IcmUin**. 30;
in Manitoba, ,{oS
mortgagee's right of distress for interest limited to '^on«i4 of
mortgagor not exempt from seizure under, 351. 354
Executors
of landlord, right of distress of, ^^15
of landlord, distress lor rent hy, in Nova S«otia. 540
Exemptions
from distress, ^^17
from distress imder Ontario Statute, ,po, ^yS
o[ lodger's goods from distress, in Ontario, .V4
from distress for rent in North>\'est 'IVrntories. ;j6
in Nova Scotia, ^^,^8
in Manitoba, 341
in (Quebec, ,?4.V 345
Factor
when entitled to a lien for the price as vendor, 154
transfer by, under Ontario^ lactors' Act, 104, 157
right of, to stop goods in transitu, 191
principals' goods not subject to distress against, 317
has a general lien, 137, 205
on what goods it attaches, 205
actual possession necx'ssary, 2of)
possession must be exclusive and lawful, 2c/»
when he has received notice of ownership by third |un>. 207
lien as against assignee'in insolvency, 207
rights of factor's assignee for creditors, 207
no right to sell the goods, 207
control of consignor, 207
lien attaches againstjproceeds after sale, 207
princij^aVs instructions as to disposal of the goods, 207, 20S
purcl>aser tannot set ott" against price a dcljt due Jitm from
the principal, ewvpt subject to tactors licii, 2cA
purchasing agent, hen fr* advances, 20S
no lien tor general balance, 209
moneys entrusted to him regarded as trust moiie«~s, 209
IM»K.\.
4-^5
Factor ( 'ontimtfU.
principal has. orreH|Kindm^; u.terfsi i„ ,hc jroods l.oiiKht. -'oy
nimtal.lc , merest of prinnpal whc. «<)o,ls mixed with
anciits own h<mk1s, 209
''■'''" ;;;;'vH';"';.''''«''-'"**''t'r, ... \ova Scotia. Uritlsh C.hm.hia
.ui«i A.\\. I frritorics, 209
waiver of thr lien, jo<;, an
under N.)va Stotia Kartors' A< t, 211
'"'^tTrn''"!!''' ''''''•■'^'' '/y •'^••'"•K "rtaj-amst the prue a deM
due Iroiii the prim ipal, joS *
Fairlep
lien of, 2H2
Fees
arhitrator has a lien upon the award (or his, 1 {(,
of registrar, in New IJrunswi.k, 373
for ref^istration, in N.W.T., ^79
of registrar, in Nova S.«.tia, 390. 31^1
for (iliiin in Ontario, yii,
" •' " ltritishColuml>ia, x(n
Filing-
See Kii.rsiKAiM.N. CoMinidNM Smk
Finder
of lost chattel, lien of. 142
Fire
liability for loss by, as to goo^ls stored with carrier, -iS
Fixtures
onus of proving article to l)e, I ;
circumstaiues relating, to will lie looked at, 14, 117
in Ouehec, lO, 119
what are under Nova .Scotia Act, 31
to realty, 13, 116
.vhen conditional vendor may remove, 116. 117, nS
annexation alone does not cause chattels to hecome, 117
de facto fixture always a fixture, i iS
test as to removal of, under conditional sale agreement, 1 iS
form of judgment for recovery of, 119
chattels sold under conditi..nal sale and affixed without written
<onsent o( the vendor do not become, in Ontario and N It
owner of realty may retain on paying l.alanre due
thereon, 120,395, 375
exemption of, from distress. 317
to
426
iN'i»i;\.
Flour
inilliT has ;» lion oti, for his ( har^es for Krimliii;; j^rain dehvorcd
to llllil, l,{S
Force
not jusiil'ialilL' to iisr, in retaking |n)HScssioM, 6\
entry liy, may < onsiitiitc* an assault, 1*1;
under the contrail ami on a hona tide claiiii is u mere
trespass, 65
Forfeiture
upon re entry Ity landlord lor, tenant has reasonaUle time to
remove trade fivtures, ij^
remosal of fixtures alter, \>y purchaser lron> the tenant's
assignee, 94
for default waived by extending tinie for payment, 95
of lien, I4'»
of V(?ndor's lien, 16S
Form
of conditional sale fontra<"ts, So
Forthwith
meaning of, 61
Fraud
goods obtained hy a guest from a third party by, are subject to
the innkeeper's general lien, 1 ^7
no lien on chattels obtauied by fraud of claimant, 141
carrier's lien for freight not lost when goods taken from his
possession by, 2.^1
distress of gooils removed by, 3.5
Frelgrht
• arrier's lien for, right of sto])page in transitu subject to, 194
wharfinger, when shipmaster's agent, may detain goods for, 216
payment of, and delivery of the goDds, to be concurrtiUacts. 21S
carriers lien for, 218
contract to j)ay implied from delivery of shipment, 220
shipmaster's lien for, 220
payal)le on arrival of goods at destination, 220
payment (A\ when goods not delivered at i)lace of destination, 221
may be earned by master though ship disabled, by repairing
within reasonable lime, or transferring goods to another
vessel, 221
right of carrier to recover, under Railway Act (Can), 223
refusal to |)ay, rights of carrier upon, 225
rights of the several carriers as to, when good', are shipped over
connecting lines, 226
IMiK.N.
p:
in ilelivcri'il
II IN u lucre
L-n Ironi his
linntion, 221
Furniture
salt- (>r Ity a married wninau to her hiishaiid, ^.»
housdinl.l, Coiwhtional Sales An not to ai.ply t.. sales u(. 11. •
( 'iitario, ^»>2
in I'riiKv Kdward Island, 402
I'xrcptioiis, 3^2, 402
Future Property
c<|iiitaltlc liiMi in rcspcrt ol, may he miitractcd lor, 133
;md attaches when same comes into the hands (if the person
Kiving the hen, 1 55
sold Ity «lescription, property in. passes 011 appropriation to the
contract of ^oods answering that des< riptioii, ir.j
Garnishment
.iKainst landlor«l, when rent attached liy. ri^ht of <listress is
suspended, ji i
General Averag'e
shipmaster's lien for, j.m
General Lien
lien for general balance hy usage, 1 />, n;
of vvharliii^;er, 137
of calico printer, 137
of a tlyer, 137
specific lien holder retaining goods for a, does not thcrebv waive
his lien, 14S
failure to tender amount of the specific lien, 14S
Good Faith
act is done in, if done honestly, whether nenligently or not. under
Actsol ll.C, N.W.I'. and Manitoba, 177
purchaser from conditional vendee in, iij, 1211J1
Goods
law of situs of, governs as to registration, 52
when removi'd from another Province, re registration of ton-
tracts not provided for, 53
retention of, for work and labour expended, 135
holder of, for charges, may interplead where liis right to lliein is
disputed, 135
but not if his claim is upon a debt from one of the parties, i ^5
ap|)ropriation of, to create a lien th'-reon, must be e(iuivalent to
a delivery at law, 136
42«
IM»KX.
Goods ( 'iintimn'ti.
({fia-ral lii'ii (in, liiniu-d to aiMoiint ( harKcalili.* a((aiiiM, iH-forc
• notice tliat llu' owner has vtld, i.;;
vendor's has hen on lor the price, when sale is not on rredit,
while he retains possession, i ^H
no t hariie a^alnst i reated hy notn e ol drawing Itill ore\<'han}{u
against, 141
htopped III transitu, re sale ol, !(/>
duties of carrierH hy water to re<"eive and ronvey, jn^
refusal l»y eonsinnee to ancpt, rights of earner upon, 115
Grain
delivered to a inilli-r, he has n lien on the Ihiur for his rharges, 1 fH
cereal, to lie delivered in spe<'ie or made into llotir. pledge of
warehouse reeeijtts, etc., given for, in Ontario, lyi;
delivercd^to warehoiisenian not to he returned in spci:ie, nature
of such transaiition, 2x2
tliresher's lien on, in North West Territories, jofi
in Manitolia, ,;oH
th stress of, allowed, ,}ni
right of sale of, under ilistress, \\it
growing, lialiility for rent of purchaser of, at sale liy landlord
under distress, \20
distraint of, for rent, in Nova Scotia. ,^.v^
clainied hy third person, liable to distress for rent, under rertain
Guest
conditions, in Manitolia, ,^l
innkeeper has a general lien ujion the goods of, 1^7
even if such goods have heen fraudulently olitained liy the
guest from a third party, i^^7
rights ard liahihties of innkeeper as to, 205
lien of imikeeper or hoarding house keeper on goods of, 263
no right to detain guest, until payment of cost of lodging, 269
nor clothes then heing actually worn hy the guest, 2(\i)
Hire-purchase
Skk Covdiiionai. S\i,k
Hirer
wrongful dealing with the goods hy, may terminate the hiring, 100
rights of creditors of, 107
if under no ohiigalioii to buy, is not one who has "agreed to
l)uy " and has no power to pledge, 126
under obligation to huy, has power to sell or pledge, 12ft, 128
"lien" of original owner, 128
IMiKA.
4»9
Hire-receipt
re- rf^i!<tratinii III, no proviNioii tor in Ontario wlicn ^oodk have
Itt't'M roiiiovcd, 40
ofttnr tn Ilk' < <)|>y ol", III h ('., \(it
(0|»y lo lie Idt with vt'iiilfc, 54, ^M
void il rcnistiTitl in Ki'^islry or I. ami IuIon (ithri-, m
Maniliilu, \(»t
tttatutory rci|tiirciiii'i)tii uit to, in New Itrtiiiswick, .^ji
III Nova Scotia, ,jH;
Holidays
to lie t'oiinted in the time limited lor IiIimk. 50
Horses and Cattle
lien on, ol livery stalde keepers, horse lireetltrs, and a^islcirs if
rattle, j8i
livery st.iliie kiepers not within the rule kivimh lien lor heneru of
trade, jHi
not insurers, jSi
liun of hnrsu trainer, 3Hj
when owners servants have control from time to time, .S.»
horse shiier or farrier, (piestion of lien on the horse, 2^2
power of sale, of livery stohic keeper in Ontario lor cost of
horse's keep, iH^
nnht exists only if he already has a lien, jS^
statutory provisions as to, jS^, iA.\
waiver of lien on, 384
hy giving up possession, JS4
on sale of stahle and H'ving possession of customer's animal
to the purchaser, 3S4
continuing right of possession necessary to support trainer's
lien, 2S5
trainer resuiping possession under new aureeiiient, 2S5
in Manitoba, statutory lien of stahle keeper, iH(t
in North-West Territories, statutory lien of stahle keeper, li'ti^
in Manitoha, horse breeder's statutory lien, H)o
in North- West Territories, 'horse breeder's statutory lien, J93
in Hritish Columbia, statutory lien on, 2*)$
sales of horses, in market overt, law as to not affected by Itritish
Columbia Act, 121, 363
provisions of Imperial Acts as to, 122
Ueu of innkeeper on horses of his guest, 268
horses l>eing ridden, exemption of from distress, 318
IMAGE EVALUATION
TEST TARGET (MT-3)
1.0
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1.25
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li£ 12.0
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Photographic
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Corporation
23 WEST MAIN STREET
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(716)872-4503
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430
INDKX.
Hotel Keeper
See Innkkei'ers
Household Goods
excepted from statutes of Ontario and Prince I'klward Island
respecting Conditional Sales, 10, 37, 402
definition of, 10
sale of, by a woman to her husband, ^2
form of contract for conditional sale of, 83
And see Chattiu.s.
Husband
wife has no lien on chattels of, for the cost of necessaries, 141
nor can she make a valid sale of his chattels to buy neces-
saries, 141
and sale of goods by wife to, 32
Identification
finder of *lost chattel insisting on, 143
particulars sufficient for, should be given carrier to stop in
transitu, 195
Impounding*
of goods by landlord after distress, 334
Improvements
possessory lien for labour, skill or expenses incurred in making, 138
for timber driving in rivers, lien for use of, 257
Incumbrancer
See Mort(;agee
Information
to be furnished by manufacturer, bailor or vendor, 39
enquiry for, by proposed purchaser or other interested person, 51
in British Columbia, 59, 360
in New Brunswick, 62, 373
in Ontario, 59
in Manitoba, 61, 131, 366
in New Brunswick, 62
in Prince Edward Island, 62, 400
in North-West Territories, 377
vendor not required to give in the case of a sale to a trader for
re-sale coming under Bills of Sale Act, 42
Injunction
to restrain threatened force in re-taking possession of chattels, 64
as to goods bought with money stolen, 146
KmBK
INDKX.
43'
a trader for
Innkeepers and Boarding" House Keepers
lien of innkeeper, a general one, 137, 265
definition of " inn," 265
when the guest is not a traveller, 265
when he receives goods which he is not hound to receive, 265
when the guest is a hoarder, 265, 266
statutory provisions in Ontario as to, 266
power of sale of guest's goods, 266
lien extended to goods of a hoarder, 267
extent of the lien, 267
to what goods it attaches, 267, 268
lien of Jjoarding house keeper, 269
provisions of the Ontario Act, 269
right of sale, 269
upon horse for its keep, 269
for hoard of a relative hy person not in husiness of keeping
hoarders, 269 °
goods of third party hrought hy the hoarder, 270
on wearing apparel of servant or laljourer, 270
enforcement of the lien, 271
criminal liahility of guest removing goods after notice of
seizure, 271
care of goods detained, 271
right of innkeeper to use property to pay cost of keep, 271
lien of, under British Columhia statute, 272, 273
lien of, under Manitoba statute, 273, 274, 275
lien of, in North-West Territories, 276, 277, 278
lien of, in Quebec, 278, 279
waiver of lien by, 279
by allowing guests to depart with the goods without pay-
ment, 279 '
after goods are taken away they cannot afterwards be
detained for same debt as against third party, 279
lien revives on return of guest with the goods, 279
not necessarily waived by taking security, 279
allowing guest access to the goods after seizure 280
Insolvency
of the buyer, right of retention by the seller for the price
upon, 153
of buyer during currency of negotiable instrument given as con-
ditional payment, 172
432
INDKX.
Insolvency Conlinucd.
of buyer, right of stoppage in transitu dependent upon, 183
of consignor before factor acijuires possession, effect on claim of
general lien, 207
of factor, rights of assignee in respect of factor's lien, 207
Instalments
retention of, when paid by way of rent although possession is
retaken, 66
suit for balance of, by vendor, 1 15
Insurance
of the goods the subject of the contract, 56
factor's Men on proceeds of, 206
lien for premiums in Quel)ec, 150
Intention
as determining whether a chattel is a fixture or not, 116
of parties as to when property is to pass, 154, 155
rules governing ascertainment of, 161
Interest
distress for, by mortgagee of land, 347
i" arrears, license to mortgagee to distrain for, 351
".ortgagee distraining for, in Manitoba, 354
only that stipulated for in mortgage recoverable under proviso
for distress, 356
Interested Person
See Information
Interpleader
i)y holder of goods for charges, 135
Inventory
required to be given of goods distrained, 329
And see Distress
Jeweller
statutory lien of, in New Brunswick, 304
And See Workman
Jockey
lien of, on horse for exercising and training, 281
Judgment
recovery may be a waiver of lien, 77
for recovery of chattel affixed to realty, form of, 1 19
INDEX.
433
jossession is
Jurisdiction
See Terkitoki.m, Jtrisdiction
Jus Tertii
when l)ailec can set up, 95, 96
And see 'I'fiiRD I'aktv
Labour
specific lien for, on a chattel on which it has h.-en bestowed
137, 297
only arises as against the person aiithori/ing the work to be
Land
charge on under a conditional sale contract, 54
prohibition against registration in .\ranitol)a, 55
entry on to re-take possession of chattels, 64
distress for interest by mortgagee of, 347
Landlord
purchase by from his tenant after distress, 105
claim on chattels left on the premises by an outgoing tenant, 142
nature and effect of lien by distress, 310-313
preferential lien of, in Ontario, on tenant's assignment for benefit
ot creditors, 312, 313
distress after termination of the tenancy, 313, 314
distress by executors of, 315
distress of goods fraudulently removed, 315, 316, 327
right to distrain cut grain and growing crops, 319
when growing crops may be sold, 319
liability of purchaser of growing crops for future rent, 320
exemptions from distress at common law, 317
exemptions from distress under Ontario statute, 320
selection by tenant of the goods claimed to be exempt, 321
goods of person other than the tenant, 321, 322
tenant claiming must give up possession, 323
tenant's offer to surrender possession, 323
statutory notice demanding possession, 323, 324
exemption of lodger's goods in Ontario, 324, 325
proceedings in distress, 325
mode of effecting entry, 325
illegal to break open outer door or gate, 326, 327
entry through an open window, 326
forbidding tenant to remove goods, effect of, 326
: ;( im
434
INKKX.
Landlord— c'»;///« //<•</.
validity of the distress, ^^27
distress of cattle on highway, ,^27
of cattle on premises other than those demised, 327
retaking of possession by bailiff after being expelled l)y
force or induced to leave by fraud, 32S
holding possession of goods distrained, ,^28
chattels taken may l)e impounded on the premises, _^2S
what is a sufficient imimundirtj;, 328
delay in the sale of the goods, 329
tenant holding possession for the bailiff, 329
inventory and notice of distress, 329. 330, 331
appraisement of goods distrained, 330, 331
after five clear days from distress and service of the
notice, 331
appraisers must be disinterested pnrties, 331, 332
waiver of statutory re(|uirements by the tenant, 331
swearing appraiser after appraisement, effect of, 331
right of sale of goods distrained, 332
landlord's liability for keeping the goods on the premises for
an unreasonable time, 332
five clear days n essary Ijetween notice of distress and
sale, 332
title of landlord under sale by his own bailiff, 332
abandonment, withdrawal or waiver of the distress, 333
waiver by landlord of right to distrain specific goods, 333
second distress for same rent after abandoning a seizure, 333
effect of withdrawal by arrangement giving tenant time to pay, 333
wrongful user by landlord of thing distrained, 333
user by tenant of things distrained, 334
abandonment as regards chattel mortgagee, 334
landlord taking chattel mortgage for the rent, 334
suspension of right of distress, 335
in British Columbia, statutory provisions, 335
in North-VVest Territories, statutory provisions, 336, 337
in Nova Scotia, statutory provisions, 338-340
in Manitoba, statutory provisions, 340-343
in Quebec, statutory provisions, 343-346
when liable for illegal distress by his bailiff, 355
right of removing fixtures as between tenant and, 92
mortgagee as landlord by attornment of tenant, 347
scd, .^27
expelled by
ses, .^28
vice of ihe
2
331
premises for
distress and
132
333
L;oods, 333
1 seizure, 333
»e to pay, 333
337
INDEX. 433
Lease
See illKKk, ("ONI.MIONAI, Sai.k, r,A\n(.OHD
Lien
effect of, on contract when retained hy vendor, 6
waiver of, 76
for repairs, lost l)y giving up possession, 77
for work and labour, 135
definition of, 134
evidence of general lien, 134 136, 137
evidence of specific lien, 134, 137-140
ccpiitable, 135
does not depend upon possession, 135
may be contracted for in respect of future pro.)erty, 135
appropriation of goods to create, must be equivalent to a
delivery, 136
statutory, 136
agreements for, not affected by Statute of Frauds, 1 56
claim of lien allowed, 139, 140
of finder of lost chattel, 142, 143
{)urchaser of stolen property has no, for the price paid, 144
on goods bought with stolen money, 146
waiver and forfeiture of, 146
of seller, waiver of, 168
right of unpaid seller to, in B.C., N.W.T. and Manii^ba, 173
of carrier for freight, right of stoppage in transitu subject to, 104
of factor, 205
for warehousing and wharfage, 212
of carrier, 218
of carrier on passenger's baggage, 230
of woddmen, 233
of Crown for timber dues, in British Columbia, 253
in Ontario, 255
of innkeepers and l)oarding house keepers, 265
on horses and cattle, 281
of workman, 297
of landlord, by distress, 310
of mortgagee, by distress, 347
chattels affixed to realty to remain subject to, in Ontario, 395
f
rt|
h I
436
INniiX.
Lien note
iK'K<>tial)ilily of, 17
time of Kiviii^, it
the form of a, Mo
registration of, aj^ainst lands proliiljitcd in Manitoba, ,^67, 369
Liquors
restriction of innkeeper's lien as to, in Mritish Cohnnhia, 27a
in Manitoba, 274
in Norlb-West 'I'erritories, 276
Livery Stable Keeper
lien of, 2.S1
Lodg-er
lien of innkeeper or lod^inj^ house keeper against, 265
exemption of goods of, from distress, 324
And Set: I-andi.ord
Lodg-ingr House Keeper
lien of, 269
Logs
See TiMUKK
Lug-g-age
lien of innkeepers and boarding house keepers upon, ^65
Lumber
when liable to sale as perishable property, 165
pledge of warehouse receipts, etc., given for, in Ontario, 179
lien on, for cost of sawing, 299
And see Tim her
Machinery
affixed by conditional vendor, right of removal, 117, 119
repairs to, mortgagor's authority to create lien for, 301
Manitoba
conditional sales in, 8, 24, 55, 129, 366 f
woodman's lien in, 241
lien of innkeepers and boarding house keepers in, 273
statutory lien of stable keeper, 286
lien of horse breeder, 290
thresher's lien, and right of sale, 308
landlord's right of distress, 340
Sale of Goods Act, 157, 171, 198, 369
mortgagee's right of distress for interest, 354
Act Respecting Lien Notes, 366
Acts prohibiting registration of Lien Notes against lands, 367, 368
INDEX.
437
Manufactured Goods
what articles arc, 48, 41;
Manufacturer
name of to l.c alVixed or contract r.Kistcred, 24, 37, loi, 130, 131
intorinatioM to be furnished hy, v;, 1 ?i, \(>o 166
Market
exenmtioi, from distress of goods l)roiiKht into, for sale, in Nova
Scotia, 33S '
Market Overt
title of buyer at, in 15. ("., iji, 363
what is a, 121
Married Woman
sale of household furniture hy, to her husband, p
Mechanic's Lien
registering of, by the vendor, for price of articles affixed to the
realty, 114
See Workman
Mercantile Agrent
meaning of, under Sale of (loods Act, 122
Merchandise
conditional sole of, in Ontario to a trader for re- sale, 40. 397
what the term includes, 42
Miller
lien of on flour, 13H, 2y8
Misrepresentation
recission of contract on ground of, 88
damages for, 89
no lien on chattels obtained by, 141
Mistake
effect on vendor's lien if buyer obtain possession by, 169
Mortgragree
lien of warehouseman as against chattel mortgagee, 212
when lien created on chattel, for repairs, as against, 300
right of, against landlord distraining, 334
of land, rights of, when fixtures the subject of a conditional sale, 15
lien of land mortgagee by distress, 347
termination of the tenancy, 350
license to distrain for interest in arrear, 351, 355, 356
effect of receiving proceeds of illegal seizure, 355
43«
INDEX.
Musical Instruments
conditional sales of in Ontario, 37, 392
in Prince Kdward Island, 402
form of conditional sale contract for, .S4
Name
name and address of inaniifactiirer to be affixed, 24
" distinguishing name," meaning of, 25
a substitute for registration, 26, 37, 130
whose name should be affixed, 37
effect of omission to afTix, 39, 103
manner and time of affixing, 102
not the bailor's duty to keep it afifixed, 102
effect of ol)literation after sale, 103
with knowledge of vendor, 114
of purchaser on the chattel, effect of on vendor's rights, 1 13
Necessaries
sale by wife of husband's chattels to buy, 14 1
Negrligrence
of i)ailee, 54, 78, 79, H7
when vendor estopped on account of his, 113
liability for, in the care of a chattel held under a lien, 139, 271
gross negligence, 79
Negrotiability
of lien note, 17
of note containing acceleration clause, 19
New Brunswick
conditional sules in, 8, 15, 25, 372
fixtures in, 120
woodman's lien in, 240
lien of timber drivers in, 264
jeweller's lien and right of sale in, 304
North-West Territories
conditional sales in, 8, 27
re-registration upon removal, 73
renewal statement in, 74
registering a discharge, 96
purchase from conditional vendee in, 128
pledge or sale by vendor in possession, 159
INDKX.
439
ts "3
. >39. 271
North-West Territories Contiuued.
passidK of the property upon a sale "on approval ' in, 163
reservation of right of dis|)osal, if)8
"unpaid »<Iler," rinlits of, 171, 174
re-sale !)>' unpaid seller in, 177
stoppage in transitu in, kjS
re sale after stoppage in transitu, 202
lien of factor when consignor not the owner, 209
lien of innkeepers and hoarding house keepers, 276
lien of stable keeper, 28H
lien of horse breeders, 293
workman's power of sale in, to enforce his lien, ,^o.^
lien of thresher, ,^06
distress for rent, statutory provisions as to, ^^36
distress by land mortgagee, 354
Ordinance of, respecting Hire Receipts and Conditional Sales of
(loods, 376
Sale of goods Ordinance, 379
The Factors' Ordinance, 380
Ordinance of, respecting costs of Extra- Judicial Seizures, 381
Notice
of re-sale, 72
to purchaser from a conditional vendee, 105, no, iii
registration as, no, 133
affixing manufacturer's name as, 130
to a purchaser from the hirer, 128
to carrier, to effect stoppage in transitu, 194
of ownership of third party, effect of on factor's lien, 207
of landlord's distress, required to be given, 329, 323
of sale of chattel by bailor in British Columbia, 361
in New Brunswick, 374
in N. \V. Territories, 379
in Ontario, 395
in P. E. Island, 402
Nova Scotia
requirements of conditional sale contract in, 9, 29
operation of the statute, 33
registration of conditional sales in, 28
effect of failure to register, 31
"personal chattels" meaning of, 31
jii:
rr^
440
INDKX.
Nova SoOtla Cm/inual.
what are lixtiircn, {i
re rc'nistratioi) upon rt'innval, 74
purchase from roiidittniial vciulct- in, 1 ^i
creditors, inortna^ees aM<l ■iul)se(|uciit purchasers, t .^i
sale l>y one who has agreed to hii •, \\j^
notice hy registration 1 j_^
transfer ot document of title, cfTccl of on the rij{ht of stoppane in
transitu, 2o.\
lien of fa«:tor when <;onsinnor not ihv owntr, aoy, an
landlord's licii by distress, .^,^7
Secret Mills of Sale Act of 18S4, .^84
The I'actor's A<-t of iS(>5, ^85
Secret Hills of Sale Act of iSyy, 3H6
Offer
shotild l)c a<"cepted within a reasonable time, ^
notice of acce|itance ot,*.^
Ofllcer
when liable for neglect of duty as to filing conditional sale con-
tracts, 1 1 1
Ontario
contracts of conditional sate in, 10
registration of conditional sale agreements in, ,37, 38
fixtures in, i U)
transfer under Factors' Act, 157
pledge of warehouse receipts, etc., in, as collateral security, 179
transfer of hill of lading in, effects of, 203
transfer of warehouse receipts for petroleum in, 214
registration in, of agreement for purchase of timber, 235
woodman's lien in, 243
timber liens in, 257-262
Crown's lien for timber dues in, 255
lien of innkeepers in, 266
workman's statutory power of sale, 302
distress for rent in, 310-324
exemption of lodger's goods from distress, 324
land mortgagee's, power to distrain for interest, 351
Conditional Sales Act, 392, 395
Bills of Sale Act, as affecting certain conditional sales to
traders, 396, 398
Landlord and Tenant Act as affecting conditional sales of
goods, 398
INt)K.X.
44»
nal sale ron-
security, 179
Option
iwnton hnviDK option to punhniic ia not one who luu ••aKncil ti)
Diiy , I jj
form of lontratl of hiring with, li;
Orgran
••■inditional sale of, ,^7, j(>a
Owner
of stolen nioru-y invested in floods, lien in favor of, 146
''^'" kI »'?.'."■ ^ ''*-'" *-"""''ti'>"r not the. in Nu\a Scotia. H.C, ami
N.W . I ., joi;
authority of, for doin^ the work for which workman rlaim-i a
lien, ,}oo
Passeng'er
lien of carrier on ha^Knue of, imj, 2\o
Pawning"
l»y hirer as a termination of the rontrart. 100
Payment
contract of weekly payment with o[)tion of punhase, 83
recovery of payments made My vendee S;
extending time for, ;. .iiivur of forfe '.ure for defauh, 95
hy way of rent, ncovery of, >ix
special mode of, when a naiM;r of lien, 147
of price in part, effert on unpaid seller's lien, 168
in part, no har to stop[)age in transitu, 193
Penalty
for refusinj^ information in Ontario, 59, 394
in British ('oliimhia, 59, 3^0
in Manitoba, 61, 367
in New nrimswick, 62, 373
in Prince lOdward Is.iand, 63, 401
for false statement in a renewal statement (N.W.T). 76, 377
against watchmaker or jeweler under Jewelers" Act N.B.;, 306
for removing grain retained under threshers lien, 309
for taking excessive costs on extrajudicial seizure (N.W.T.), 381
Perishable Goods
sale of, by unpaid seller, 165
Personal Chattels
See Chattels
442
INDKX.
Petroleum
transfer of warehouse receipts for, in Ontario, 214
Piano
a form of coiUract for condMnnnI sale of, 84
hired l)y a guest, lien of innkee[)er upon, 26S
conditional sale of, 37, 3y2, 402
Pledge
wrongful, l)y the vendee, 99 •
hy mercantile agent, 123
by conditional vendee, 135
by hirer not under an obligation to buy, 125
by vendor in possession, 159
of gooJs by a parly receiving them on " sale or return ", 16 ■^
of warehouse receipts, etc., in Ontario, 179
tortious, by factor 210
of goods or documents of title thereto, by buyer obtaining pos-
session, in Nova Scotia, 385
what warranty of title on sale of, 164
Possession
"actual and continued change of," meaning of, 31
effect of reservation by vendor of the n'j^/i/ 0/, 45, 47
of goods with consent of the owner, 121- 131
in Hritish Columbia, 121
in North-West Territories, 128
in Manitoba, 129
in Nova Scotia, 131
equitable lien does not depend upon, 135
as regards lien of unpaid vendor, 153
allowing buyer to obtain, before payment of the price, effect on
vendor's lien, 169
parting with, defeats vendor's lien, 170
secured by buyer, effect of, on right of stoppage in transitu, 187
necessary to found factor's claim of lien, 206
of goods distrained, retention of, 328
And see Re-takinc. Possession
Power of Sale
re-taking possession under, effect on the contract, 71
Preservation
lien of carrier for expetjses of, 226
lien of finde.* for expenses of, 143
INDEX.
443
irn", 1 6,^
ihtaining pos-
47
rice, effect on
1 transitu, 187
fi
Price
ri^ht to recover after re-taking the property, 66, 68
action for, though property has not passed, 6«;
no action for, when contract rescinded l)y vendor, 71
recovery of judgment for, may l)e a waiver of lien, 77
recovery of instalments paid upon the, 87
liability for, when chattel returned, 88
lien of unpaid seller for, 152
reasonable, to be paid in the absence of agreement, 152
seller's lien for, priority of, 154
part payment of, will not defeat vendor's lien, 168
Prince Edward Island
statutory recpiirements relating to contracts of conditional sale,
10, 43, 400
Principal
duties of a, on receiving notice to stop goods in transitu in
actual possession of an agent, 195
Printer
lien of, 297
Priority
of thresher's lien, in North- West Territories, 307
in Manitoba, 308
Proceeds
of stolen property, restitution of, 146
Profit
on re-sale after default of buyer, 1 78
Promissory Note
taking or discounting of, effect on lien, 76
Property in chattel
reservation of on agreement of sale, 11, 13
before passing of, action for breach of warrant, 90
belonging to the Crown, no lien on, 142
when it passes, 154, 155
passing of, ascertainment of intention, i6t
in growing timber, J33
risk prima facie passes with, 362
in stolen goods, revesting of, on conviction of ofTender, 363
power to order restitution ot stolen property, 144
444
INDEX.
Purchase Money
See Price
Purchaser
subsequent, rights of, on conditional sale, 7, 34, 106, 131
enquiry by proposed, 51
execution of contract by, 85
recovation l)y, before acceptance, 85
of fixtures from the tenant's assignee, 94
from conditional vendee or hirer, 100, 105
notice to subsequent, no
placing name of purchaser on chattel, 113
if insolvent, seller not bound to make delivery to, 172
liabilities of as to factor's lien, 208
of timber, effect of registration of agreement by, 235
Quality
breach of warranty regarding, effect of, on conditional oale, 8S
Quebec
fixtures in, 16, 119
conditional sales of goods, 20
liens and privileges on chattels, 148
priority of right of retention in, 150
unpaid seller's privileged rights of revendication and preference
in, 178
woodman's lien in, 251
liens of innkeepers and boarding house keepers in, 278
statutory provisions as to landlord's right of distress in, 343
Railway
right to recover freight charges, 223
responsibility of company for goods stored with them preparatory
to shipment, 213, 218
goods shipped over connecting lines, rights of the parties, 226
Crown lien on engines, etc., for timber dues in B.C., 254
Realty
fixtures to, 13
registering mechanic's lien against, by vendor, 114
removal of chattels affixed to, 13, 116, 395
Receipt note
See CoN'DiTioNAL Sale.
INDEX.
445
md preference
2m preparatory
Redemption
after conditional vendor takes possession, 68
in Hritish Columl)ia, 361
in New Brunswick, 373
in N. W. T., 378
in Ontario, 394
in Prince Edward Island, 402.
Regristration
of conditional sale agreements not required in Manitoba u
01 conditional sale agreements in British Columbia 22 ^o
m New Brunswick, 25, 372 '
in Nova Scotia, 28, 385, 388, 38-
in N. W. Territories, 28, 377
in Ontario, 38, 393
in Prmce Edward Island, 402
time for filing, 50
when goods removed from another Province, S2, 108
as notice, 110, 133
officer's error in, m
of lien notes against lands, prohibited in Manitoba, ^6^ ,68
Relatives "*
^^''Srfo^lL''"'"^'^ by, liability of, to distress for rent, in
in Manitoba, 341
in N. W. Territories, 336
distress for rent on goods obtained by transfer from, 3^6, 34,, 342
Keiease
See Discharge, Waiver.
Remedies
enforcement of concurrent, not favoured, 60
Removal ^
of goods from one province to another, 53, 108
of tenant's fixtures, 92
°' 'aclpt'^,7r"'^ ''' '''' "^^^P-g' -ft- buyer's refusal to
fraudulent, by tenant, of goods to evade distress, ,ic
Renewal ^ ^
oflien note^and delivery of old note to the conditional vendee,
of conditional sales registration in the N. W. Territories, 74
?i;.r^« ! '
446
lNi>i:x.
Rent
See I,\Ni>i,ORi).
Repairs
lien for prire of, on the chattel repaired, 77, i,?S
Rescission
l)y retaking possession, 6^^, 67, 71
on default of vendor, 87, 88
by conditional vendor on default of payment, 167, 168
liy agreement of the parties, 194
Re-sale
right of, notice of exercising, 72
improvident, may l)e impeached, 72
by unpaid seller, 165, 167
l)y inipaid seller, in M.C, N.W. T. , and Manit()i)a, 177
of goods stopped in transit, 196
Re-taking* Possession
effect of, on the contract, 63, 68
entry on land of another for the purpose of, 64
force not justifiahlc in, 64, 65
instalments by way of rent may be retained upon, 66
after waiver, must be after demand made, 67
retention of goods by vendor afttft, to give an opportunity to
redeem, 68
effect on right of action for balance of price, 69, 71, 94
under a power of sale may not rescind the contract, 71
liability of conditional vendor for an assault committed in, 97
Reversion
as affecting landlord's right of distress, 310
Reward
finder's lien for, 143
Rislc
of destruction of chattel agreed to be sold, 56, 362
River Drivers
lien of, 233
Royalty
on timber, Crown's lien for, 253
Sale of Goods Acts
in British Columbia, N. W. Territories, and Manitoba, 171,
359. 369, 370. 379
imjkx.
447
68
•77
ipportunity to
. 94
. 71
itted in, 97
anitoba, 171,
Sale or return
when property in floods passes under contractor, 161, iUi
effect of pledj;e of goods sent on, 163
Sale
" hiring " af^reement may or may not he a cot)tract of, 2
in whom the property is, under a contract of, 2
absolute, lien note K'ven to vendor after, 1 1
of merchandise to a trader for re- sale, 40
wrongful, by the conditional vendee, 99
conditional, made absolute by vendor's election, 115
by conditional vendee in British Columbia, 121
in North-West Territories, 128
in Manitoba, 129
in Nova Scotia, 131
of husband's chattels by wife, 141
by vendor in possession in British Columbia, N. \V. 'Territories
and Manitoba, 159 '
implied warranty of title upon, 163
of perishable goods by an unpaid seller, 165
of goods by carrier to pay freight charges, 224
of timber seized for default of payment of Crown dues, 256
of guest's or lodger's goods by innkeeper or boarding house
keeper, 265
power of, given livery stable keeper, 283
workman's power of, to enforce lien, in Ontario, 302
in British Columbia, 303
in North West lerritories, 304
of goods distrained, landlord's right of, 332
of goods distrained, exercising power in mortgage after notice
of, 355
notice of, by bailor after retaking possession, 361
in New Brunswick, 374
in N. W. Territories, 379
in Nova Scotia, 385
in Ontario, 395
in Prince Edward Island, 402
Salvaffe
Iten for, 140
SftW^flfS
Sm T'Mber.
448
INDKX.
Security
taken for rent, riglit of distress siis|)ended during currency of, 335
Seizure
retention of goods alter, to give an opportunity to redeem, 68
of chattels, assault l)y vendor or his agent during, «j7
of goods, effect of, on sellers right of stoppage in transitu, 187
by sheriff of goods under distress, 310
costs of extra-judicial, in \.\V. T., 381
Seller
reserved title and claim of, 128
lien of unpaid seller for the price, 152-154
implied warranty of title hy, 164, 165
reservation by, of tlie right of resale, 166, 167
waiver of lien of, 168
rescission of contract by, on default of payment, 167, 168
rights of unpaid seller.in B.C., N.\V.'i".,and Manitoba, 171, 181
Set-off
against rent, of debt due from the landlord, in Ontario, 311, 312
Share in Chattel
conditional sale of, within the Ontario Act, 47
Sheep
exemption of, from distress, 318
Sheriff
selling under execution, not an agent of the conditional ven-
dee, 123
Shingrles
lien on, for cost of sawing, 209
Ship
lien on, by a shipwright for repairs made, 138
delivery ot goods upon, effect on vendor's right of stoppage in
transitu, 185
duties of owner of, on receiving notice from vendor to stop
goods in transitu, 195
Sigrnature
to contract, by conditional vendee, 7- 10
time of, 1 1
a statutory requirement in British Coh-' ibi:; 360
in Manitoba, 366
in New Brunswick, 372
INDEX.
449
jncy of, 335
luem, 68
isitu, 187
, 168
3a, 171, 181
io, 311, 312
itional ven-
stoppage in
ior to stop
Signature -dmUmwd,
in N. \V. Territories, 376
in Nova Scotia, 384, 388
in Ontario, 392
in Prince Kdward Island, 400
Solicitor
lien of, 140
Stable Keeper
lien of, 281, 286, 288
Statement
creditor may reciuire, of amount due on conditional sale in New
Urunswick, 373
renewal, filing of, in N. W. Territories, 377
penalty for false statement in, 377
seller bound hy, 378
of amount due to be given on reciuest, in Ontario, 24, 394
in New Brunswick, 26, 373
in Prince Edward Island, 400
in Hriiish Columbia, 360
in Manitoba, 366
Statute of Frauds
provisions of, do not apply to agreements for liens, 136
Statute of Limitations
as affecting liability of purchaser under a conditional sale, 19
general lien covers a debt barred by, 137
Stolen Goods
title to, 144-146
carrier entitled to lien on, 219
Stoppag-e in Transitu
what constitutes the right of, 182
dependent upon insolvency, 183
when the transit terminates, 183-187
transfer of the bill of lading as affecting, 187
of goods in bond, 189
parties entitled to exercise the right of, 191
notice to the carrier, 194
re-sale on recovery under, 196
Storagre
charge for, by lien holder, 139, 213
lien of warehouseman or wharfinger for, 212
wrr
450
iNi)i:x.
Subsequent Purchasers
rights of, on noii-compliaiice by the vendor with conditional
sale statute, 103
vendor's title only displaced to the extent of the claim of, 103
seller's lien for unpaid purchase money as affecting sub purchaHer,
'54i 155
Sub-Tenant
See DisTRKss. '
Sunday
when last day for filing conditional sale agreement falls on, 50
to be counted in the time limited fur filing, 50
Surety
rights of, as to unpaid seller's lien, 172
right of, as to stoppage in transitu, 192
Tavernkeepers
See Innkeepers.
Teamster
lien of, for hauling timber, 233
Tenancy
See Distress, Landlorij.
Tender
of the debt, possessory lien discharged by, 146
should be of the exact amount, 146
money should be actually produced, 146
must not be conditional, 147
waiver of formalities of, 147
Tenure
necessary at common law to give right of distress, 310
under Ontario Act relationship of landlord and tenant not
dependent upon, 310
And see Distress, Landlord.
Territorial Jurisdiction
law of situs of the goods governs as to registration, 52
Theft
vendee may be liable for, upon an unwarranted dealing with the
chattel, 98
of chattels, restitution upon conviction for, 144
factor pledging ^oods for amount not greater than that of his
lien not guilty of, 210
by guest removing goods seized by landlord in exercise of his
lien, 271
mm
INDEX.
45'
conditional
tenant not
Third Party
when right of, may he set up hy l)aikc', 95
rights of, regarding coriditional sales, 99
action hv against the conditional vendee, when goods have l)ecn
retaken by the vendors, 101
note of, acte|)ted in payment, a har to stoppage in transitu, 193
effect of notice of ownership l)y, on factor's claim of lien, 207
Thresher
statutory lien in North- West Territories, 306
in Mai'itohn. 30S
priority of lietj over landlord's right of Jisf ess, 337
Timber
pledge of warehouse receipts, etc., given for, in Ontario, 179
registration of agreement for purchase of standing timber in
Ontario, 235
woodmen have no common law lien upon, 233
property in growing timber, 233
lien of landowner for price of, 233
extent of woodman's statutory lien, 235, 236
lien of woodman upon, in British Columbia, 23^), 237
in New Brunswick, 240, 241, 264
HI .Nfanitoba, 241, 242
in Ontario, 243, 251
in Quebec, 251, 252
dues to Crown upon, lien for, in British Columl)ia, 253-255
in Ontario, 255, 256
lien upon, for tolls in river driving, Ontario, 257-260
person making improvements not to have exclusive use
thereof, 257
may be enforced by seizure and sale, 258
priority of, 259
lien for expense of breaking "jams " of, in Ontario, 259
clearing and driving intermixed logs, in Ontario, statutory
lien, 261, 262
separating intermixed logs, in Ontario, statutory lien, 262, 263
Time
for filing under Conditional Sale Acts, how calculated, 50
length of, required for notice of re-sale, 73
of affixing manufacturer's or bailor's name, 102
reasonable, what is, is a question of fact, 162
452
INDKX.
Title
under conditional sale, a
when floods n-placcd l)v otliers under the terniH of aKreenient, ^i
breai^h of warranty of, damages for, 8y
on sale by conditional vendee, loo
on a sale by person who has agreed to buy and has obtained
possession with consent of the owner, in Itritish Columbia,
121, 362
in the North- West Territories, 128
in Manitoba, 129
in Nova Scotia, 133
artixinj^ of manufacturer's name as notice of, 130
tochatte'. when it passes, 154
implied warranty of, 89, 163, 165
,to goods, on re-sale by unpaid seller under Acts of IJ.C, N.NV.T.
and Manito!)a, 177
to goods, transfer of, in Nova Scotia, 385
Tolls
Sec 'I'IMIIKR.
Trade
general usage of, 137
exemption from distress, of goods delivered to a person to be
aealt with by him in the way of his, 317
tools of, exempt from distress, 318
Trader
conditional sales of merchandise to, for resale are subject to the
Ontario Hills of Sale Act, 40, 397
purchasers from, in the usual course of business protected, 41
Trainer
lien of, on horse, for exercising and training, 281, 285
Transfer
tortious, by a person holding a chattel under a lien, 139
of goods under the Factors' Act of Ontario, 157, 158
of warehouse receipts, etc., as collateral security,^i79
of bill of lading, effect of, on vendor's right of stoppage in
transitu, 187
Transit
when goods deemed io be in, 183
And see Stoppage in Transitu.
INDKX.
453
aKrccinciit, 3
Traveller
lien of innkceptr on noods of, 365
ImKKaKt' of, in an inn, landlonl'H privilcgr for rent in ( )iielic< docH
not include, 344
Trespass
enterinK on land of another to retake possession of chattels, 64
if (orre lined to effect entry, 65
Trustee
has a lien on the trust property for dishurseinents properlv
made, 140, 141 11/
Unpaid Seller
See SKi.i.h:'.
Usag'e
general lii.n -.nay l)e proved hy evidence of, i^^6
an impli^;u term of the contract, 137, 173
proof of, not admissible to control, vary or contradict express
terms of a contract, 173
admitted to explain meaning of terms used, 173
Valuable Consideration
See CONSIDKRATION. •
Vendee
under conditional sale, insurai.ce by, 56
rights and liabilities of, 78, 98
conversion of the goods by, 98
rights of third parties under wrongful sale by, 98, 100
copy of receipt note to be left with, 362, 393, 403
Vendor
upon a conditional sale, name of to be affixed or contract recis-
tered, 37-39
time when to be affixed, 10-', 103
information to be furnished by, 39, 44, 59
penalty for refusing, 39
insurance by, 56
rescission of contract upon default of, 87
liability of, for assault committed by his agent in sei ;inii
chattels, 97 / » b
estoppel against, 112, 113
registering of mechanic's lien by, against realty to which
chattel has been affixed, 114
Ill
i^i
454
INItKX.
Vendor < '"////////<</.
unpaitl vcndiir, lien of, for the priic mi ^ooUh miUI, i,{K, 15 j
n^lit of, of MtoppaKc ill trannitti, 1,^8, ii>i
«laiiii «)f, oriliT of itri'fiTciHc in «.Mit'lK'' rcnanlin^, 1 (<)
in possL'HHioii, pledge l»), in llrilihh Coliiiiiliia, N. VV. Tcrri-
torifN and Manitolia, 159
iinpaiil, re Half hy, i'i5
Wages
Sec WoKKMAN
Waiver
ot lien, 1))' ^ivin^; ii|) poHHCHninn, 76
1))' taking He<'iirity. 70
hy recovery of judnment, 77
of warranty liy vendee accepting goods relying on hiH own jndg-
inent, t>3
of forfeiture for default, 67, «>5
of poHscMsory lien diHcliarncd liy lender of the tlcl)t, 146
effect of claim for more than <» legally due, 147
contracting for a mode of payment inconsistent with the lien, 147
l)y a claim of retention for a debt of another than the rightful
owner, 14S
or under another right than the right of lien, 14H
of vendor's lien, 168 170
by delivery of part as a constructive tielivery of the whole, iCnj
by delivery to a carrier for transmission without reserving right
of disposal, i6y
by allowing buyer or iiis agent to take possession, 170
by entering into new agreement inconsistent with the continuance
of the lien, 170
of right of sto|)|)age in transitu, 197
of lien by factor, 209
of lien by warehouseman or wharfinger, 216
of lien by shipowner, 222
of lien by carrier, 231
of lien by innkeeper or i)oarding house keeper, 279
of lien on horses and cattle by livery stable keeper, etc., 284
of workman's lien, 301
of distress, 333
Warehousing- and Wharfage
liens for, 137, 212-217
warehouseman's lien, 313
Wap«houilnir and Wharfafre ( .////>///. ^.
• npi'fill. heri lorHtor.iKC < lurni*. .Mi
where ncxuU ( oimuitiKk'tl, a I '
<arritr as a wari'luniHi-ruaii, ji j
pIctlKoo.^ war-house rcci,... as .olla.eral M^urity. in O.uario.
pelroleiini warehouse recciptN, Ontario, 914
wharJiiiKer's hen. ij;, 1,$, ii6
wharlaKecharKc \>y Nhipmaster, 331
•n respect of n.er.ha.ulise. leKislalive jur.sdKtum n-»l» with
I'oniimon r«rhament, 316
woivcr of hen, 2\(t, ji;
Warranty
breath of, HH
rejection of goods for, K8
completed sale laiinot he rescinded for. K8
of title, 8(;, ir.;, 164
c'anjagcs for breach of, 89
imphed, no damages for breach of after pro,,c-rtv hn, paiwcd 8.>
passing of property as affecting right of action for breach yo '
waiver of, if vendee rely on his own judgment. 92
Watchmaker
lien and right of sale of, in New Uruns-vick. wi
And see Workman
Wife
has no lien on husband's chattels for price of necessaries, 14,
"'" and^wifet'^ks"" ^'"^''''^ °'"' ^°^ ''''' °^»«^8'"« «' ^uslx^nd
Withdrawal
of a distress, 333
Woodman
See TiMUEK
1
456
INDKX.
^^ i
Workman's Lien
for charges of manufacture or repairs of cliattel, 297, 298
extends to expense of repairs let out l)y him to other work-
men, 297
possession of article necessary, 298
evidence of verbal collateral agreement for a lien, 299
instances where lien denied, 300
priority of lien of, over chattel mortgage, 298, 300
implied consent of mortgagee to creation of lien for repairs,
termination and waiver of lien of, 301, 302
revival of lien on regaining possession, 301
effect of taking security, 302
statutory power of sale in Ontario, 302
in Hruish Columbia, 303
in North-W'est Territories, 304 '
jeweller's lien, in New Brunswick, 304
thresher's lien, in NorthWest Territories, 30^, 307
thresher's lien, in Xfanitoba, 308, 301)
Wrltingr
See CoNuiTioNAi, Sale.
Wi ongrful Act
no lien in favour of holder of chattels if possession obtain.d by,
141
I
16
44 .17 4
298
other work-
> for rt'pairii,
obtain. J by,