^. *^.. ^. *->..sr, IMAGE EVALUATION TEST TARGET (MT-3) ^ 1.0 1.1 UilM |2.S ■ JO ■^~ ■■■ ^ Ui 12.2 ■UUI. IIIJ£ 1.25 1 1.4 |||||iiS < 6" ► <% f 7] 4^W y /^ Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 V iV ^ <^ Po «■ C^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Tachnical and Bibliographic Notaa/Notas tachniquas at bibliographiquas Tha Inttituta has attamptad to obtain tha bast original copy availabia for filming. Faaturas of this copy which may ba bibliographically uniqua, which may alter any of tha imagas in the reproduction, or which may significantly change the usual method of filming, are checlced below. L'Institut a microfilm^ la mailleur exemplaire qu'il lui a At* possible de se procurer. Les details de cet exemplaire qui sont peut-dtre uniques du point de vuo bibliographique, qui peuvent modifier une image raproduite, ou qui peuvent exiger une modification dans la mAthode normale de filmage sont indiquAs ci-dessous. □ Coloured covers/ Couverture de couleur □ Covers damaged/ Couverture endommag^e □ Covers restored and/or laminated/ Couverture restaurie at/ou pelliculAe D D D D D D Cover title missing/ Le titre de couverture manque r~n Coloured maps/ Cartes giographiques en couleur □ Coloured ink (ie. ether than blue or black ' Encre de couleur (i.e. autre que bieue ou notre) Coloured plates and/or illustratiorG^ Planches et/ou illustrations en couleur Bound with other material/ Reli6 avec d'autres documents Tight binding may ccuse shadows or distortion along interior margin/ La reliure serrde peut causer de I'ombre ou de la distortion le long de la marge intdrieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II tie peut que certaines pages blanches ajoutdes lors d'une restauration apparaissent dans le texte, mais, lorsque cela 6tait possible, ces pages n'ont pas dt6 filmies. Additional comments:/ Commentaires suppidmentaires: □ Coloured pages/ Pages de couleur □ Pages damaged/ Pages endommagies □ Pages restored and/or laminated/ Pages restauries et/ou pellicui^es & Pages discoloured, stained or foxed/ Pages d6color6es, tachetdes ou piqu6es I j Pages detached/ D Pages d6tach6es Showthrough/ Transparence Quality of prir Quality indgale de {'impression Includes supplementary materii Comprend du materiel supplementaire Only edition available/ Seule Edition disponible r~J Showthrough/ I I Quality of print varies/ r~| Includes supplementary material/ I I Only edition available/ Pages wholly or partially obscured by errata slips, tissues, etc., have been refiimed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont 6X6 film6es d nouveau de fagon d obtenir la meilleure image possible. This item fs filmed at the reduction ratio checked below/ Ce document est filmd au taux de reduction indiqu6 ci-dessous. 10X 14X 18X 22X 26X 30X / 12X 16X 20X 24X 28X 32X Th« copy filmed here he* been reproduced thenke to the generoeity of: Netionel Librery of Caneda L'exemplaire film* fut reproduit grAce it la gAnirosit* de: Bibliothdque nationale du Canada The imagea appearing here are the beat quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Les Images suivantes ont AtA reproduites avec le plus grend soin, cc^pte tenu de la condition et de la nettetA de rexempiaire film*, et en conformit6 avec les conditions du contrat de filmage. Original copies In printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or Illustrated Impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol —^ (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Maps, plates, charts, etc.. may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les ixempleires origlnaux dont la couverture en papier est imprimie sont fiim6s en commenpant par le premier plat et en terminant soit par la dernlAre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, salon le cas. Tous les autres exemplaires origliiaux sont fiimte en commengant par la premiere page qui comporte une empreinte d'impression ou d'iilustration et en terminant par la dernlAre page qui comporte une telle empreinte. Un des symboles suivants apparattra sur la dernl6re image de cheque microfiche, seion le cas: le symbols -^ signifie "A SUIVRE". le symbols V signifie "FIN". Les cartes, planches, tableaux, etc.. peuvent Atre filmte A des taux de reduction diffArents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA. il est fiim6 A partir de Tangle supArieur geuche. de gauche A droite, et de haut en bas. en prenant le nombre d'images nAcessalre. Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 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 distinl (((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-takin4 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('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 !:; 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 J '47 l8() 4-» 1 1 }.\ 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 \v\ \ \ \st> V lU^IV I ;»\\'.,M \ N»»\>t y>SiV»^ \i Maw K., 4^^ I ^->\w V-\. y :\* \. h \'* \ w ' .wi-. \ liu'v'NN SI V K %;'*> I , w s \ IVnu.'u. u> \ S K i ;^ I .x* ^ \ K»-.»,l » ; M \ \\ S;4 I uktvur>>\> \ >!;*'.»<'.< ; \ \\ c>;, > l K. iV< ; lUsU' \ M,<»^4U\ i; I V V r ^^;' U» vvUmi \ N \\ K\ \ H4»«k'U 7 M \ N 4v\« I .nut.'ti \ \\ «'.>((vni\'.t«>k \ Ofrtkv'V'V l" \ S 7\>^ I vui»-> \ I'v-uUou J H \ \ I u> l\tKt\ \ Uuklsi »7 I'a'aMV >4v> ^-Y»««'^'> \ siUv'u » ; r i A" r u> ,NUlnulv\ HattutUMt Tunuli^kU ^Uvl I \« SvvicSv i\i Ot>t. K. irn , ^ ^^53, ,i>^h ,i,i* *».* >» i>,i ^Jl/. (SsS \ '-*'. > iS M4 .«»,« tr '» >? f\ S. 7'.> • '. S >>*> J*7 .x»^* J d\) uj»7 .»\,N *S,;. >ss >4/ >S\-x viJ M 4S^{ »>J U)7 .U* .vi > « «^,^4 .Vi* uS\. »S\^ ,i;»^ M. IVv. • M» l.«»tu\ Mil';*; ii» Mi I i^.-ut M<»i> I o.-u> M.l .-.ft , Mv ,NL*'.i»^i M<*IUm\ v. M;a>»\ V . > Mai u»s^ i'l M«»^k^ V. I M4m«»»" Y, \^» •• WW \\\ u MyA'*H»»\ X V »> kM.J. ». >l V i A r M.r \ t^uU(u«^ \ I ,M*> \»v >\ mSSV'^ w v^«>t K M\ taUuV N < V\«xn','V >S.>x \ ^ |n7 « V M»t.\Vi'n \ Sn>»«>» -' III a' .^^> M» Trttu^tiiv \ H. » K :\\\\\\*i\' \ U.'t' vv>;iM \ •u -S) \ S K 1^ \ S K K i'> \|»lnUU^ \ S«A(1;» 4 I' V V V J^|S )l <\V A'.\\ V V ^ »<> ;V.< \ W ;Vi;VOM.*Nli i \.\iAi\X ■» < A" «>*> ^>' M, I ,*,-ui \ I'uvWiMUni ;• <^ot \j>t» ^,>. 5^ M. I a \\ I'MUtWWK >. K \ V i^Aw Sk K -S^ » u> 7 J, »r>j4, uxs \'(^7y >'«>7 Hi %UM.^-4c» N v;rttU»ui ;t I AA.r ,ii^>> S Out Vpp k M<»U\>Um \ H.-uais^ ^»Si.>4^ \ S K -fvj 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 •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. 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. 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 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: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. 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, •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 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<; vli<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.r other iii(:iiinl)rat)ra) 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 iiUn 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. /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 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 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\ th<> li.iilnr ut ,( sworn st.ilt-inciu nl the .tiiuunu rctn.iinin:^ diic on the uidrr. I'lu' niamilaiiurtr or It.iilor in», 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 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 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^, )aP4v 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\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 .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, 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 \(»id. and the sale or transfer shall be ileeiued to have betn absolute unless () R.S.O. i8(J7, 0. 148, s. 41 (4); R.S.O. iStj;, c. i4«;, ss. 1, 2. >M> • M MM I I II \s. 41 (/') lulrss siu h wrilin;; nr .1 !«■ (I I Vt-rilicil \ty n.llll is liliil in (lie ullin' nl |||«' < nllll'y ('i)iirt ( Irrk nt till' (Miini) or iiniun nt 1 itiiniiis ur in iIh- |in)|H't' nlliic in .1 distrit t in wliirh the i^immU .nr sitii.it<- .It the titn*- <»l making tlw .i^^rn intiil, .nnl .ils*» in the ul(i( r nl (lie < i>uni\ ( Oiirl ( l«-rk nf tin- (unnly or iniion ol ntiintirs nr in tin- |irii|Mr otluc in .1 district in wl)i« h swt I) tr.iiirr nr mlirr prrsnn nsi«Ns .it the liinr nl' n).ikin<4 llu- .i^^ncnw-nt, sik li lilin;; in In* witllin live (|,i\ s ol lin- «lrji\rr\ nl pnssrssinn m| .mv ol" [\\f j^onds iiiKJrr tln' .i^^niinrnt. A (nnditinn.il sale nl hnusrhnjd lurnitiir*- in. id) in .1 trailrr Inr piirjinsrs nl ri- s.ilr in tin- tmirsr n| Imsi- ncss, will (nini* within sriiinii .( 1 nl ih«- Mills nl Sale .Act and must !>«• tiled within 5 days nl the d\ |.| I I. i\ M , \| I .ll.lll l« tlli'il Ml lllr otllir tt| Mit It ( |i I K III llir r .1.. ( M • > |ti t)\ iMoii I', Ml. nil Itti i('i|Mii 11)^; llir \)'tiiltii', III i t ll.i|itri I |.^^ I III'. DMii'. '.l>>M MUl-.l litl(-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) 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 . 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 , 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. aiiy 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 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"lif 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» 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 thN\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\ 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 \ 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 lhurchasers' 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 (i5). .\ 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)' 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 pa\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) ( 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. / .■> 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 chattoo 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 (.'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 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 of ^aiiu' 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 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 verts {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 acti2). 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?>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 \. // 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 ^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- elan 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^ traul 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 \. /Vir\ n( thr trrni. and he adnalK severs and rfinmrs ihr tixiiins diirinj^ ihf unifintniNii 0/ /lis /iiu'/ii/ / 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 -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,'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 « 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<< \ /''.•/'■ 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 (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' ) 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\ sl 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 ss(>ssi(in thcrml inxlrr a rondiiinnal sale has siilVu itiit nniicj- ni tin- rights nl nrij^inal \(>nd(>r to put him ti|ilied 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 und2. 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; slra«l«r issiu* was irird ti> dturmiiU" th*' title, and it was lirld that I'., was entitled m the ;4<".(" 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\ 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; (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 assi)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. 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 < 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 Sal5) 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 (ioNAL 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 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 )and 1S9; ( 120). I hat section, as amended. rea\ future payments or otherwise, shall he in writii.^ si|L,nied hy the parties theret.^^ 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 ty 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 executeose 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( |S(>5, iilcntical with scctiun ^ <>! the Itritish ( nlinnhia I'arlnrs' Act, ////A pp, \ 2.\ rt s«"«|., I»y which .i p«tsy nj^istration see 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//ittoftatioti Co. "1879) Man. Rep. /«¥«/. Wood ^55. (a) AV, 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\l'l I lii\ M Mis Am ,i|)|>in|)ii.iiinn 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;\ 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» »taliil«- of I .nnit.itioiii ( i p. A wli.nrin^'i' ii tiilitl«(| to ,1 li»n lor ihr i^'»-n*ral baiam «• >. and his jirii ••xlriids rvrn to (^MKtds Iraiidiilrntlv ol»t.iin»d from a third party l»y the j^nicst (20). A ^t //.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\ 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 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>.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)) yn 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 possessiw 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 propOnt. 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 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)le 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 \vro|)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. 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'"*') ■ V. /•.'.••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 (includini 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|)('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 (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)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 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>). \\'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 \ 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 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 dut 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<*
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) 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. 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. 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)yAv 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, 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 ;;|, 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 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.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 <^ol 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«' for ihf' payment ol the price al a liiiure linie(\ making th«- s«-ller -» />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 , 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. / / 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 (!"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 |)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 iuiie to him in hond. A hill ol land 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 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 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 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, thy 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<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,\|,|> (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 lhni 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).i^r in tr.msitii is ^iMH lt\ tlx- .m;ll«'r lo thr rai'riro- 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 ■ 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 rescinr 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 reas6, 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 <;(;nMt| 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^' ). 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 lhrm^ 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\ 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 \) 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 nii^;hl iirc iiiixrolumbia 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 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/ U.C.C'.P. 37 ; Lhilo V. JA'/,c 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(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 thlevin ( ;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///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 thr\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|).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 \\\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 anai(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 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 drlivses>»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 ('. 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 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 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 .inlerson 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 staty 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 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«'saiy 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) 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 li29) 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' 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;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«'\ 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, whethecial 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 ovrd " 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.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«)^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 //l InNKKII'IUS ANI» hi)AI(>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 ;;'(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 « 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 \\ MiKeo7is 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 ( 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 };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,' ) 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 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 racsoti 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.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<(); ( '//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 (»vtaine(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,^); aner 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 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 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 ! 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, 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^ {irrr 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 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 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(io). 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«inlumbia. 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 ■1 W : -F.*! ;* % ■■;•; " ■V* J , < I #1 ii it ;>o4 ( 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. (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 marky 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«') 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) 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 (3f 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 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^ dislrainef>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 thery 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 (40een 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//»■ 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||. ('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 |)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 anri/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 chattn 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 th3o 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 thf (lislr) 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 //(///<»(<• 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 eniitlee 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 TEST TARGET (MT-3) <: '_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 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 loo). 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' the h.uliU or otiur person employer 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 .iilill llif .iinoiiiit, if .my. 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 lhITlr)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<'ciirH) 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. Utvebentiire 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 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 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(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(«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;reatr 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 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 askcerty 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 "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«My saiil Act, wiis iiixl is siiHc ilir ilcvnitli 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)ny72 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 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«; 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;, ( 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, «nats 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 . 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(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<• 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 cn ot this Act the word " creditors wh on behalf of themselves and other creditors, and to any assignee insoivtmcy of the mori^aiior. anil to an assignee for the gen. 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 pon />ir/ornt- aucv of any coudHion, nor where ^ooi 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»ailst 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 ""'« ''"'"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 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 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 in Ontario to l)c filed unless nana" of vendor is affixed, \^ Unit .111(1 |ilai e ', 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>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 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, < 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 beaid 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(>, 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 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 hia, 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 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 , 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!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 1.1 1.25 JjB |2.5 ■u 1^ |2.2 li£ 12.0 us I: I m U IL6 \^* Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716)872-4503 >.>^ T mm fw T 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'»;///« //<•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 »' 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 aMy 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 < '"////////<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 ' 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,