must be something more, i. e., an actual change. The legal change would be effected by a formal delivery, and as between the parties the purchaser might take and remain in possession, although the vendor remained in the store and in apparent possession. But otherwise it seems to me under the statute as against creditors. I agree that the change must be such as would prevent fraudulent dealing with the goods, and so that a stranger would not be led to deal with a person in apparent possession, or who had been in possession as owner, and whose apparent possession had not by unequivocal acts and conduct been put an end to. What such acts and conduct in each case must be, cannot, I think, be laid down. On each state of facts being presented it will become necessary for the Judge who tries the case without the assistance of a jury, or for the jury under the direction of the Judge, to determine. I venture to think that a direction to the jury cannot be made more full than to say that they must be satisfied that on the facts presented by the evidence there was an actual change of possession from the vendor to the vendee, so that the vendor no longer remained in possession and control of the goods, and so that a stranger who might desire to purchase or otherwise deal with the goods would not be misled by the apparent possession of the vendor into dealing with him as the owner, and that such actual change must have continued. The statute has not defined the time of continuance, and I do not think the Judge at the trial is required to fix the limit. I am not prepared to say that the vendor may not be employed by the vendee. Probably he may be if the change of possession is so evidenced as to leave it free from reasonable doubt that the change is actual and continued. My learned brother Burton has forcibly illustrated such a state of facts as would evidence such a change. Other acts will readily occur to the mind. If, as in many cases, the whole appearance of a store is changed, the old sign taken down, a new sign put up, the window filled with hand-bills, the new proprietor takes the actual management, welcomes his customers, directs them to the various departments, gives directions to the clerks, the old proprietor being relegated to a subordinate position, so that one entering the store would readily see that the purchaser was the proprietor and the vendor his employee-in such a case very possibly a Judge or a jury would be able to find an actual, and if it continued, a continued change of possession; and yet, even on such a state of facts, could a Judge direct the jury that as a matter of law there was an actual and continued change of possession? I think not. The learned Chief Justice presiding in the Court below has so fully stated his views on this point, in which I fully concur, that I cannot usefully add anything. If on such a state of facts as here, such a finding as that of the learned Judge is to be reversed, then it seems to me equally so would be a similar finding, where, say for instance, a merchant on King street in this city, who has carried on business for a quarter of a century, sells out, formally hands over possession, and the next day is found in his old position apparently managing and controlling the business. I think the finding of the learned Judge at the trial should not have been disturbed, and that the appeal should be allowed, with costs. The Court being equally divided in opinion the appeal was dismissed, with costs. MCLEAN V. BREITHAUPT ET AL. Stoppage in transitu-Goods warehoused by carrier-Attachment— * * * The plaintiff sold to G. a quantity of leather, which was to be sent to the purchaser at P. by railway. The shipping bill contained, amongst others, the following conditions: "In all cases the delivery of goods will be considered complete and the responsibilities of the company shall terminate when the goods are placed in the company's shed or warehouse, when they shall have arrived at the place to be reached upon the railway of the company. The warehousing of them will be at the owner's risk," who was to be liable for any charges for storing them otherwise than in the warehouse of the company. "Storage will be charged on all freight remaining in the depots over fortyeight hours after its arrival." While the leather remained in the warehouse of the Railway company at P., the purchaser requested the station agent that it might be kept for him by the company until he could find time to remove it, and asked him not to charge storage, but the agent made no promise; and subsequently the sheriff paid the charges thereon, seized the leather under a writ of attachment sued out by the defendants, and removed the same from the stores of the railway company to the shop of G. Held, that this did not deprive the vendor of his right to stop the goods in transitu. THIS was an appeal from the County Court of Waterloo, in an interpleader issue to try the right of the defendants. to seize and sell a quantity of leather, sold and consigned by the plaintiff to one William Gilles, to satisfy a debt of $518, due by Gilles to the defendants. 100' One Ferguson, book-keeper in the plaintiff's employ proved that he had shipped a roll of leather valued at $167 by the Great Western Railway, on the 17th of August, 1882, to the address of Gilles, at Preston, who absconded without paying therefor; and that he (witness) on going to Preston after notice of the absconding, had found the goods in the hands of the sheriff at Gilles's store, whereupon witness served the sheriff with a notice on behalf of the plaintiff claiming the leather as never having been delivered to Gilles, and offering to pay the sheriff for freight and charges disbursed by him. On the back of each of the shipping bills was indorsed the following notice : "10. That in all cases where not otherwise provided, the delivery of goods will be considered complete, and the responsibilities of the company shall terminate when the goods are placed in the company's shed or warehouse (if there be convenience for receiving the same), when they shall have arrived at the place to be reached upon the railway of this company. The warehousing of them will be at the owner's risk and expense, and if the company be unable to store or warehouse goods received by them, it shall be lawful for them to place them in any warehouse that may be available, at the risk and expense of the owner of the property so stored, and the charges for so storing, warehousing and conveyance shall form an additional lien upon said goods." "19. Storage will be charged on all freight remaining in the depot over forty-eight hours after its arrival." * * One Jell, agent of the Great Western Railway at Preston, proved that four or five days before Gilles ran away he had been at the station, " and I urged him to remove them with other goods of his, and pay his freight. I told him that if he did not take them away I would have to charge them storage. He asked me to allow them to stay for him, and that he would take them away as soon as he I could find time. * * The sheriff seized them in my possession. Gilles wished me to keep them, and he wanted to arrange that I should not charge him storage. I did not promise anything." William Weiler was also examined as a witness, and swore: "I was at one time in the employment of Gilles. Got these goods at the station, I was in Gilles's employment when he left. I had been with him a year. I worked the second year by the month. He had not discharged me when he left. I got some goods from the station and gave a receipt, September 4th, 1882. I paid the charges. I used Gilles's money. The sheriff instructed me to get all Gilles's goods together, and as these goods were at the station I thought it my duty to get them." The other facts appear in the judgments. The Judge of the County Court (Lacourse) who tried the case without a jury, found in favor of the plaintiff on the ground that the plaintiff's right to stop the goods in transitu had not ceased; and afterwards, 25th April, 1882, refused to disturb that finding. Thereupon the defendants appealed, and the appeal came on to be argued before this court on the 26th and 27th of May, 1884.* Robinson, Q.C., for the appeal. Here the goods had arrived at their destination, and therefore this case is distinguishable from Smith v. Goss, 1 Camp. 282, and cases following it. What took place between Gilles and Jell, the agent of the railway at Preston, and the terms of the shipping bill and advice note, shew that the transitus had ended, and that the Railway Company held the goods as warehousemen. They had reached the place which, as between buyer and seller, was their destination, and were no longer held by the Railway Company for the purpose of carriage. Dixon v. Baldwen, 5 East. 175; Valpy v. Gibson, 4 C. B. 837; Smith v. Hudson, 6 B. & S. 431; Roger v. The Comptoir d'Escompte de Paris L. R. 2 P. C. 393; Bird v. Brown, 4 Ex. 786; Kendall v. Marshall, 11 Q. B. D. 356. Gilles intended to take them, and that is a material fact, James v. Griffin, 2 M. & W. 623; Bolton v. Lancashire and Yorkshire R. W. Co., L. R. 1 C. P. 431. The evidence also clearly shews an assent by Jell to hold the goods for Gilles, which gave Gilles at least constructive possession, and the vendor's right over them was gone: Whitehead v. Anderson, 9 M. & W. 518; Cooper v. Bill, 3 H. & C. 722, 727; Jackson v. Nichol, 5 Bing. N. C. 508. For that purpose only the assent of the agent to hold the goods for Gilles was requisite, and that was given: Wiley v. Smith, 1 A. R. 179, and cases there collected. If the court, however, should be of opinion that the transitus continued after the vendee had absconded, the goods, before the vendor claimed to stop them, had been taken possession of by the sheriff, who had paid the * Present.—HAGARTY, C. J. O., BURTON and MORRISON, JJ. A. |