I have not thought it necessary to comment on many decisions; and in addition to those which I have referred to I would merely mention The Attorney-General v. Gould, 28 Beav. 485, as supporting the view I have taken of the trusts of the deeds before us. But I have not failed to avail myself of the assistance of the very instructive judgments delivered in the American cases which were cited to us, among which I particularly refer to the judgment of Chief Justice Shaw in Earle v. Wood, 8 Cush. 430. We must, in my opinion, allow the appeal and decree in favor of the plaintiffs in terms of claim, with costs. OSLER, J. A.-I agree in the result. I think the plaintiffs have not departed substantially from the faith and doctrines of the society; and that they have made no alterations in its practice or discipline which the Yearly Meeting was not competent to make. ORDER."That the said appeal should be and the same was allowed, with costs to be paid by the respondents to the appellants together with the costs of the action in the court below, including the costs reserved by an order of that court bearing date the twenty eighth day of March, 1883, forthwith after taxation thereof, and that the said judgment should be and the same was set aside. "And the said court did declare that the appellants were and are the duly appointed trustees of the land in the statement of claim mentioned and described, as in the statement of claim alleged, and that they hold the said land in trust for the sole and exclusive use and enjoyment of the West Lake Monthly Meeting of Friends as represented by the plaintiffs as aforesaid. "And the said court did further order and adjudge that th defendants, their solicitors, attorneys, servants, and agents, be, and they are hereby enjoined from disturbing the plaintiffs or the West Lake Monthly Meeting of Friends as represented by the plaintiffs in the sole use and enjoyment of said trust property, and from molesting, injuring, or destroying the same." PETTIGREW V. THOMAS. Withdrawing case from jury-Sale of chattels Delivery of possession -Continuous possession-R. S. O. ch. 118. On In an interpleader issue it was alleged that the plaintiff (the claimant) had purchased a horse from S. B. S., a married woman carrying on business in her own name, the price of which was said to have been paid partly in a note of hand of S. B. S. and her husband, for money lent to them, and partly by a set-off of wages coming to plaintiff from S. B. S. the completion of the purchase the plaintiff took the horse, together with a cutter and harness belonging to S. B. S., and was absent for two or three days. On his return he put the horse in the stable of S. B. S. as before, and fed it with her fodder, &c.—no other act was shewn to indicate a change of ownership before the animal was seized by the sheriff under a fi. fa. goods issued against S. B. S. Per BURTON and PATTERSON, JJ.A., [affirming the judgment of the County Court,] that there was not such a continued change of possession as to satisfy the requirements of the statute, R. S. O. ch. 118, and that the Judge had rightly withdrawn the case from the jury: Per HAGARTY, C. J. O., and OSLER, J. A.-There being a jury the evidence was such as to require the case to be left to them. THIS was an appeal by the plaintiff from the County Court of the County of Dufferin. It appeared that under an execution issued on a judgment recovered by the present defendant against S. B. Simpson, a married woman, wife of one J. J. W. Simpson, the sheriff seized a certain mare as the property of the judgment debtor. The present plaintiff claimed it and an interpleader order was made directing the trial by a jury of a feigned issue in the usual form between the claimant as plaintiff and the execution creditor as defendant. On the trial the learned judge held that the plaintiff had failed to make out his title by any evidence proper for the consideration of the jury, from whom he accordingly withdrew the case and directed judgment for the defendant. An order nisi for a new trial was afterwards moved for on various grounds, and from the judgment refusing it the present appeal was brought, and the same came on to be heard on the 16th of October, 1885.* * Present.--HAGARTY, C.J.O., BURTON, PATTERSON, and Osler, JJ.A. 73-VOL. XII A.R. S. H. Blake, Q. C., and E. Myers, for the appellant. The points relied on by counsel and the other facts of the case appear in the judgments. December 23rd, 1885. BURTON, J. A.-The only point open in this case is, whether there was any evidence to go. to the jury of continued change of possession of the horse in question so as to satisfy the statute? It was incumbent on the plaintiff who claims by a transfer from the execution debtor to shew such a possession as the statute requires, to make it valid against creditors. It was shewn that on the day of the sale, and some hours subsequently to it, the plaintiff took the horse, together with a cutter and harness belonging to the execution debtor and drove to a neighbouring village to visit some friends, and when he returned he placed the horse in the execution debtor's stable the same as before, feeding it with her fodder, and that there was nothing to indicate any change of ownership up to the time of seizure by the sheriff. I quite agree that change of possession is generally and mainly one of fact, and when the testimony is conflicting, or any question at all in reference to the state of facts arises, it must be submitted to the jury to find the facts, or to find for the one party or the other on a direction from the judge as to whether certain facts in evidence, if found, did or did not constitute a sufficient change of possession to satisfy the requirements of the statute, or were of a character from which such actual and continual change of possession might be inferred, it being for the jury of course to draw the inference; but when, as in this case, there is no conflict of evidence and no controversy as to the facts it becomes a pure question of law, and as such to be decided by the court. I can see no object in sending this case down again, as I agree with the learned judge below that upon these uncontradicted facts there was no question to submit to the jury, and the judge would again upon the same state of facts have to decide the question himself. If it had been shewn that, although the horse was still kept in the execution debtor's stable, the plaintiff had from the time of the sale exercised exclusive acts of ownership, either by using it himself or letting it to others, acts quite inconsistent with the ownership of the execution debtor, such a change in fact as creditors or persons dealing with him could by reasonable inquiry have ascertained, such a divesting of the possession of the former owner as any man making a reasonable inquiry would be bound to know and to understand was a result of a change of ownership, then I think there would have been, as I pointed out in Scribner v. Kinloch, ante p. 367, a question to be submitted to the jury. Here there was admittedly no visible change and no such acts of ownership, and I am of opinion, therefore, that the question of change of possession was purely one of law and must be held to be insufficient. The appeal should therefore be dismissed. PATTERSON, J. A.-The question for decision is, whether the learned judge was right in withdrawing the case from the jury and giving judgment on the interpleader issue for the defendant. He could only be right in so doing, provided two events concurred: 1st, that the issue was on the plaintiff; and, 2ndly, that there was not evidence on which the jury could, as reasonable men, have found the -issue in the plaintiff's favor. If these two events concurred, the duty of the judge was to withdraw the case from the jury. The issue was clearly upon the plaintiff. He told his own story; and if in doing so he shewed a state of facts on which a verdict in his favor could not have been sustained, it was proper to give judgment against him without going through the form of submitting the case to the jury. A late instance of that mode of proceeding occurred in the case of Davey v. London and South Western R. W. Co., 12 Q. B. D., 70, which was discussed in this court in Peart v. Grand Trunk R. W. Co., 10 A. R. 191. The inquiry is, whose was the horse at the time of its seizure by the sheriff? because, although with us the execution binds the property from the time when it is delivered to the sheriff to be executed, the parties have done what seems now to be very frequently done, and followed in preparing the issue the form used in England where the writ does not ordinarily bind until actual seizure of the property. The plaintiff shewed very satisfactorily that the horse was his as against the former owner; and his case depends on what he shewed respecting the incidents which, und er the Act respecting Bills of Sale, were necessary to protect his title against the creditor. The plaintiff was working as hired man for Mrs. Simpson by whom a business was carried on, which was conducted to a great extent, if not altogether, by her husband. In the course of that business, one Marshall bought an organ from Mrs. Simpson in part payment of which he gave the horse in question. There were other horses belonging to Mrs. Simpson and used in her business, which were kept in a stable of which it is said the husband was immediate tenant to the owner. It was clearly for all purposes of the present inquiry the stable of Mrs. Simpson. Part of the price of the organ was paid by some hay which went to feed the horses. The organ was procured for the purpose of the sale to Marshall, partly by means of money borrowed from the plaintiff, to the extent of $95, for which he took Mrs. Simpson's note, her husband also joining in the note either as maker or indorser. The plaintiff bought the horse for $108, paying for it by giving up the $95 note, and foregoing some wages due him. The good faith of this transaction is not questioned, and |