the Civil Code of Lower Canada, respecting the registration of real rights was unnecessary, and if effected could not operate to secure to the vendee any right of priority of title in or to the timber as against a subsequent purchaser of the lands.

The case of Watkins v. Perkins, Q. R. 16, K. B. 471, was distinguished by the Chief Justice because in that case the question was as to the rights of the holder of a timber license with respect to timber cut in trespass on limits bought from the Crown, which rights were settled by a special provision of the statute regulating the sale and management of Crown Lands, under which the limits were bought.

Are fixtures an interest in land or goods, wares and merchandise? The case of Hallen v. Runder, 1 C. M. & R. 266 (1834), decided that a tenant who had agreed to sell to his landlord at a valuation the fixtures which he had a right to remove at the end of his tenancy could not sue for goods sold and delivered, but could sue for fixtures bargained and sold. They seem to have been put by this case in the category with fructus industriales, which even where the property passes before severance are not an interest in land. But the later case of Lee v. Gaskell, 1 Q. B. D. 700 (1876), decides that they are not goods, wares and merchandise within the 17th section of the Statute of Frauds. The tenant in this case had become bankrupt, and the trustee in bankruptcy had sold the fixtures to the plaintiff, who sold them to the defendant, the landlord. Cockburn, C.J., said: "Fixtures, although they may be removable during "the tenancy, as long as they remain unsevered are part "of the freehold, and you cannot dispose of them to the "landlord or anyone else as goods and chattels, because they are not severed from the freehold so as to become "goods and chattels." The result of these cases is stated in the headnote to the later case, "that the sale was not "within section 4 of the Statute of Frauds, as the sale of "an interest in land, nor within section 17 as the sale of "goods and chattels."

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The Canadian cases on the subject deal for the most part with the question as to the right to take such property under fieri facias. In Walton et al. v. Jarvis, 13 U. C. Q. B.

616 (1856), however, the question was raised as to the application of the Statute of Frauds. An engine and boiler had been in a saw-mill which was burned down and remained there set in bricks and bolted to timbers let into the ground. The sheriff offered them for sale, which was held to be clearly illegal, as they were then fixed to the freehold and could not be taken as chattels. On the return day of the writ the debtor sold them verbally to the plaintiff, who detached them from the mill and removed them. to another place. Robinson, C.J., stated the question whether while the things stood there attached to the freehold it was competent to the owner of the fee to make a verbal sale of them or whether the fourth section of the Statute of Frauds would apply, and said: "My personal

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impression is, that the fourth section of the Statute of "Frauds does not apply to anything of this nature affixed "to the soil, but deriving no nourishment from it, like trees "or grass growing; but the sale of such things so situated "would effect nothing more, while they continued attached, "than a license to enter upon the land and detach them "from it, and as soon as they were detached they became "chattels," etc.

There are two cases in the Supreme Court of Canada which raise the question as to the right of the sheriff to seize and sell under fieri facias, but do not bear directly on the question as to the application of the Statute of Frauds. They are La Banque d'Hochelaga v. The Waterous Engine Works, 27 S. C. R. 406 (1897), and Liscombe Falls Gold Mining Co. v. Bishop, 35 S. C. R. 539 (1904).

Stamp mill is a chattel, or at least, a trade fixture. Where a licensee of mining areas from the Crown under the Nova Scotia Mining law erects a stamp mill on the wild lands of the Crown for the purpose of testing ores all the various parts of the mill being placed in position resting upon the land by their own weight or steadied by bolts so that the whole installation could be removed without injury to the freehold, the mill is a chattel or, at any rate, a trade fixture, removable by the licensee during his license or lease, and is consequently subject to seizure under execution. Liscombe Falls v. Bishop, 35 S. C. R. 539.

Expenses of removing fixtures recoverable by purchaser. In Wilson et al. v. Mason, 38 U. C. Q. B. 14, the purchasers had bought two distillery plants, part of which was fixed to the distillery building. In order to obtain possession of this it was found necessary to incur expenses in removing the part so affixed. Plaintiffs were held entitled to recover the amount so expended as money paid.

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Contract to furnish a tombstone and put it up at a grave is a sale of goods. This was decided in Wolfenden et al v. Wilson, 33 U. C. Q. B. 442 (1873), on the authority of Lee v Griffin, Robinson, C.J., saying: "The fact that the seller may have agreed to place it in a particular graveyard or particular part of the cemetery would not make it any the less a chattel. The sale of a pump would be the sale "of a chattel, though the seller had agreed to place it in position on the grounds of the purchaser. The purchase "of a steam engine would be the purchase of a chattel, though the seller might agree to fit it up."

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Sale by a sheriff or his bailiff is within the Statute of Frauds. In Flintoft v. Elmore, 18 U. C. C. P. 274 (1868), Richards, C.J., said: "If a sale by an auctioneer comes with"in the section, I do not see any good reason for holding "that the sale by the sheriff should not; the reason for the "statute applying would hold good as much in one case

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as the other. If the sheriff is allowed to sue for the price "of goods sold by him, he and his bailiff have as much "interest in a sale as an auctioneer has when he sells and "has to sue in his own name. I see no good reason for creating a distinction between the two kinds of sale." The point had been decided in the same way in the Common Pleas in Mingaye v. Corbett, 14 U. C. C. P. 557 (1864), in which it was held that "a sale of goods and chattels by a "sheriff under a writ of execution comes within the 17th "section of the Statute of Frauds and requires a memoran"dum in writing or a delivery of the goods sold to bind the "sale."

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Is an agreement by insolvent purchaser after property has passed to hold goods for vendor within the statute? A difficult question arose in the case of Brassert v. McEwen,

10 O. R. 179, in which goods were sold by the plaintiff to McClung, Briggs & Co., in Toronto. Before the notice was given which would stop the goods in transitu, the purchasers had paid the freight and duty and removed the goods to their own warehouse. But negotiations took place between the plaintiff and the purchasers which resulted in a verbal agreement by the latter to hold the goods subject to the plaintiff's orders, and the purchasers on a later day wrote plaintiffs' agent to the same effect. The question arose whether this agreement was within the Statute of Frauds. Cameron, C.J., seems to have held that it was, and this is apparently the decision of the court, but the learned Chief Justice says: " In arriving at this conclusion "I cannot say that my mind has been free from doubt as "to whether the transaction is within the 17th section of "the statute or not. As a resale it would clearly be so. "But, though clearly the goods were in possession of McClung, Briggs & Co., it does not seem so plain that parties "situated as the plaintiff and McClung, Briggs & Co. were, "the latter could not be allowed to say, under the circum"stances, We do not wish to keep your goods; we cannot pay for them, and wish you to take them back,' and "plaintiff assenting thereto, why from the time of such 66 assent the former should not be deemed and treated as "bailees of the goods, holding them for the plaintiff's "benefit, without violating the said provisions of the "Statute of Frauds."

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Compare Mason v. Redpath, 39 U. C. Q. B. 157, where it was held that the goods had not passed to the purchaser and the contract for sale could be rescinded.

Sale distinguished from contract for work and labor. Contract to put up a building. As stated in the text, p. 16, the importance of this distinction is very much less now than it was when strict forms of pleading were in use. But the distinction is still of importance in determining whether a given contract is within the Statute of Frauds or not. Different criteria have been made use of for this purpose. The test applied by Pollock, C.B., in Clay v. Yates, 1 H. & N. "whether the work was the essence of the contract "or whether it was the materials supplied." This test

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was

was distinctly rejected by the Court in Lee v. Griffin 1 B. & S. 272, which has settled the law. No matter what relative value the work and labor may have as compared to the materials used, the contract is one for the sale of goods if the work and labor are to result in the transfer of the property in a chattel from one to another.

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In a case in Manitoba, Ross v. Doyle, 4 Man. 434, the contract was to put up a building with frame for tent ' according to plan for $500." It was held that, although the circumstances might tend to support the view that the contract was for work and labor, yet the plaintiff having, without the defendant's sanction, pulled down and carried away the building he could not be heard to say that it was not the sale of a chattel, the property in which had passed to the defendant.

Grain stored in

Sale distinguished from bailment. elevator mixed with that of others. In Lawlor v. Nicol, 12 Man. 224, it was held that where wheat or other merchandise was received in a warehouse or elevator nominally on storage for the person delivering it, but on such terms that the identical goods were so mixed up with others that they could not be returned, and the well understood course of the business was that, unless a price was agreed on, the party delivering the goods could only require an equivalent amount of the same kind and quality to be accounted for to him, the contract between the parties was really one of sale and not of bailment, whether the vendor was to receive the price in money or an equal quantity of goods, or had an option to do either, as the property in the goods had passed to the warehouse man. "In such a case the Statute of Frauds offered no bar to the recovery of the price or value of the goods so stored in case the warehouse man denied receipt of the same."

This case follows a case reported in 6 Moore. P. C. N. S. 341. Dr. Bennett says that this principle is adopted in the United States, and that Indiana is entitled to the credit of having first applied it to the case of a miller in Ewing v. French, 1 Blackf. 354 (1825). There the plaintiff delivered wheat to a miller to be exchanged for flour. The wheat was mixed by the miller with his common stock,