the plaintiff ought to recover, if the Bills of Sale Act is

not in his way.

There was no writing concerning the sale; therefore it was essential that there should be an immediate delivery, followed by an actual and continued change of possession.

There was a sufficient delivery, because the plaintiff shews that some short time after he made the bargain for the horse, and I believe on the same day, he drove it to another village, not on Mrs. Simpson's business, though he had her cutter and harness, and was away for a couple of days.

He continued in Mrs. Simpson's employment, and his evidence on the point on which the matter now turns is thus noted: "Went to Rosemont afternoon of 4th February, 1884, and came back to Simpson's, and put horse in Simpson's stable, and fed horse with Simpson's hay and oats just as before. The horse was to be used as before.

* The horse was used just as before in Mrs. Simpson's business. Said I would use it. Mrs. Simpson failed in business shortly after this, two or three days or weeks. Business stopped. I lived at Simpson's, and was engaged in the business. Parsons made the seizure on the street. I had been at the house-Henderson was at the stablesaid he had heard I had the horse. I was going to Riverview about the middle of the afternoon."

To understand the allusion to Parsons and Henderson, it may be explained from the evidence of those men, that they acted as bailiffs for the sheriff in making the seizure on the 26th March, 1884; finding the plaintiff at the house, one of them following him as he went to harness the horse, and refusing to allow him to take it.

Could a jury, upon this evidence of the plaintiff, have properly said that there had been a continued change of possession of the horse?

That evidence states very plainly, as I read it, that the possession of the horse when the bailiff came was precisely the same possession that existed before the sale to the plaintiff. There had been a change of ownership, and for a day or two an actual change of posses

sion, but that change had not continued, the former possession being restored.

The statute requires not only that there shall be an actual change of possession following the sale, but that that actual change shall continue, otherwise the change of ownership shall not avail against creditors unless the alternative requirement of a registered writing is complied with.

In my view of the effect of the statute, the incident of the plaintiff's absence with the horse at Rosemont for the two days, does not assist his claim as against the statutory right of the creditor.

If he had not taken that trip, but after buying the horse had continued as Mrs. Simpson's servant to work the horse for his mistress in connection with her business, keeping it as before with her horses in her stable, it would not be possible to say that an actual change of possession had taken place, or any change but one merely constructive. It is equally impossible to say that an actual change continued after he returned from his trip and resumed the former conditions. As far as the statute is concerned, it was just the same as if no actual change had taken place.

I may apply to these facts, as detailed to us by the plaintiff himself, the language in which Sir J. B. Robinson expressed his opinion in the early days of the statute. I quote, changing only the name, from McLeod v. Hamilton, 15 U. C. R. at p. 113: "I take the statute to mean such a change of possession as shall be visible to others, and shall shew that the parties have acted openly and above board. Now, for all the rest of the world could tell, (Mrs. Simpson) was as much the owner of the goods up to the time of the sheriff's coming with the execution, as she ever had been."

The question before us being the application of the statute to the facts deposed to by the plaintiff, it is not to be expected that we can derive assistance from decisions in other cases where the facts were not identical. There are cases in our reports, in some of which the decision was in favor of the person asserting the actual and continued

change of possession, and in others adverse to him; but in none of them is the principle disputed which is expressed in the passage I have just quoted.

It will be recollected that until the year 1869, when the Act 33 Vict. ch. 13, (O.) was passed, there was no time (except during the short life of the statute 14 & 15 Vict. ch. 66, which was passed in 1851, and repealed the next year by 16 Vict. ch. 19), when a party to the record was permitted to give evidence unless called by the opposite party; therefore there was little opportunity for the question of procedure with which we are now concerned to arise in the earlier cases under the Bills of Sale Acts, at least in the shape in which it now comes up. Even in cases where a party was called by his opponent, the position was unlike that of the plaintiff stating himself the facts on which he relies, without depending on any other evidence to add to his own account.

The case of Tuer v. Harrison, 14 C. P. 449, decided in 1864, is an instance in which the plaintiff was called by the defendant. In Doyle v. Lasher, 16 C. P. 263, the present Chief Justice of the Queen's Bench, thus, at p. 268, summarizes the decision: "In Tuer v. Harrison, the claimant and purchaser had taken the horses, the property in dispute, into his own possession and kept them for a time. He afterwards let them to the vendor, who worked them. There was evidence both favourable and unfavourable to the plaintiff, and the jury found for the plaintiff. The Court would not disturb the verdict." The contest in Tuer v. Harrison was upon the bona fides of the sale as well as upon the question of possession. On the latter point the jury were directed to consider were the goods in the continuous possession of Tuer or in Charlton's possession, and in whose possession were they at the time of the seizure? If in Tuer's the jury were to find for him; if in Charlton's to find for the defendant. This charge was not objected to, and no question was raised or considered in term on any point except the judge's direction on the other branch of the contest. The case is therefore simply an

instance in which a jury found on the evidence before them that the goods were, when seized, in the possession of the claimant.

The question of continued change of possession must, of course, be decided on the facts of each case as it arises. I must not be understood to hold or to assert that the actual change of possession must in all cases continue unbroken from the time of the bargain by which the property first passes to the vendor until the intervention of the creditor or subsequent purchaser.

The two modes of securing a purchase against creditors of the vendor or his subsequent purchasers are by writing registered with the prescribed formalities, and by delivery followed by actual and continued change of possession. A defect in either mode, from want, in the one case, of some formality, or, in the other, from the possession not having been actually changed, or having been allowed to revert to the vendor, renders the conveyance voidable; but, in either case the title may be made safe by a fresh conveyance, either by writing duly registered or by a delivery of the goods, with actual change of possession continuing from that delivery onwards. The remarks which I made with reference to defective or insufficiently registered deeds in Parkes v. St. George, 10 A. R. at p. 535, and in Smith v. Fair, 11 A. R. at p. 758, apply equally to purchases without writing, where the change of possession has not been actual and continued.

If I could see in this case that there was really any question of fact for decision by the jury, I should not for a moment hesitate respecting the plaintiff's right to a new trial; but after all the consideration I have been able to give the case, both by myself and in discussion with my learned brethren, I remain of opinion that there is nothing for the jury to decide, unless they decide something different from what the plaintiff himself tells us are the facts, and we have no evidence differing from that given by the plaintiff.

It is merely putting the conclusion in another form to

say that, if the jury were asked to find the facts, they must necessarily find them as they are stated by the plaintiff. At least the plaintiff could not ask for a more favorable finding.

The effect of that finding would be what I have already stated as the evidence given by the plaintiff.

Upon that finding of fact the defendant would, for the reasons I have given, be entitled to judgment.

If I am right in that opinion, it follows that there was nothing to leave to the jury, and a new trial would be merely adding the expense of the trial, and probably of another appeal to settle the same question of law which is presented now for decision.

I think the learned judge was right in withdrawing the case from the jury, and that this appeal should be dismissed.

OSLER, J. A.-The only question we have to consider is whether under all the circumstances the judge was right in taking the case out of the hands of the jury. He could only do so if there was no evidence fit to be submitted to them in support of any question of fact on which the plaintiff's case might depend. His case was, that he was the owner of the mare, or that he had such an interest in it as entitled him to resist the seizure under the defendant's execution.

Now, that in point of fact he bought the animal from J. W. Simpson, the husband of the judgment debtor, was not denied, and he might have maintained his title by proving that it belonged either to the husband or to the wife, and, if to the latter, that the sale was by her authority and (as she was the judgment debtor,) that it was also accompanied by the usual formalities of a duly registered conveyance, or of an immediate delivery followed by an actual and continued change of possession.

The material facts disclosed by the evidence are that the judgment debtor carried on, at the village of Shelburne, the business of a fancy store and of selling organs 74-VOL. XII A.R.