and in the present case the learned Judge who took the evidence has directly found that no such intention existed: Barron on Bills of Sale, pp. 86, 87; Gottwalls v. Mulholland, 3 E. & A. 94. Now the mortgage being on growing crops did not necessitate a change of possession. In Branton v. Griffith, 1 C. P. Div. 349, it was held that a sale of growing crops not being within the Bills of Sales Act in England could not pass as chattels.

Alton v. Harrison, L. R. 4 Chy. 622; Dalglish v. McCarthy, 19 Gr. 578; Smith v. Moffatt, 28 U. C. R. 486; King v. Duncan, 29 Gr. 113, were referred to.

Judgment of the Court was delivered on September 16, 1882, by

WILSON, C. J.-The chattel mortgage is dated 10th December, 1880, and covers among other property a quantity of hay, straw, pease, rye, and the straw of the rye some mixed rye and wheat, and a quantity of oats, and it includes also all the crops and hay which are sown, or grain on the premises therein set out during the year 1881, and the straw thereof, also one yoke of oxen, both dark red colour, four years old each past, and all the mortgagor's household furniture and household stuff, all which said goods and chattels are now lying and being on the premises, situate on the north east half of lot No. 14, in the 2nd concession of said township of Murray, and the north half of lot 14 in said concession.

The hay, pease, rye, mixed rye and wheat, and the oats and straw, I think, need not be noticed, because the evidence shews they had been consumed before the sheriff made the seizure. As to the crops and hay which were sown at the time of the execution of the mortgage, or which might be sown, or grown on the premises herein set out during the year 1881, it is said they are not covered by the mortgage, because the words are "all which said goods and chattels are now lying and being on the premises, situate on the north-east half of lot 14, in the 2nd concession, and the north-half of lot 14 in the said concession,"

and the crops and hay sown at that time and which were afterwards sown were not upon that land, but upon lot 13. The debtor and mortgagor, James McCormick, had before this given a land mortgage to the plaintiffs. The lands are not mentioned in the chattel mortgage, but it was in fact upon the land which he owned, being parts of lots 13 and 14, in the second concession of Murray.

In describing the locality of the hay which was mortgaged, it is said to be under the barn "on the premises. mentioned hereinafter," and in describing the locality of the crops, hay, or grain, which were then sown, or which might be sown in 1881, it is said they are on the premises herein set out," and then follows the clause, " all which said goods and chattels are now lying and being on the premises, situate on the north-east half of lot 14, in 2nd concession, and north-half of lot 14, in said concession of Murray."

The premises then are confined to the north half of lot 14, both as to the crops and hay sown at the time the mortgage was executed, and which were afterwards sown in 1881.

Those upon lot 13, in my opinion, did not pass, and were not covered by the mortgage. It is very probable there must be some mistake in the mortgage, and that lots 13 and 14 were meant to be described, and not the north-east half of lot 14 and the north-half of lot 14, repeating the same number of lot, while the description of the north half might be sufficient to cover both descriptions.

It is not necessary to say more as to such crops. Growing crops are not lands within the Statute of Frauds, but goods and chattels: Evans v. Roberts, 5 B. & C. 829; Sainsbury v. Matthews, 4 M. & W. 343. It is true, however, that the mortgage or sale of them need not be registered under the Chattel Mortgage Act, because the possession of them cannot while growing be changed, without changing the possession of the land also upon which they are growing, and that cannot in most cases be done.

65-VOL. VII A.R.

There is no doubt, I think, that a sale of crops to be sown upon certain land may be the subject of sale, which will pass the property in them when they are sown.

There can be no difference between dry goods, groceries, lumber, &c., and crops, in that respect, and after-acquired goods will pass by contract, both at law and equity, if they are described so as to be identified when they are acquired: Holroyd v. Marshall, 10 H. L. Cas. 191; Lazarus v. Andrade, L. R. 5 C. P. Div. 318.

The bona fides of this transaction was disputed, but the learned Judge in the Court below found expressly, that so far as the plaintiffs were concerned it was taken in good faith, and not for the purpose of defeating or delaying creditors, and we cannot say that such finding was not fully warranted

The land was an insufficient security for the debt, and the chattel mortgage was accepted and required by the plaintiffs in order to give them a better and sufficient security-part of which he had lost by the debtor's destruction and removal of timber from the land.

It was argued that if the plaintiff obtained the mortgage by pressure, that was evidence only that the giving of it was not voluntary, and was no evidence that it was free from fraud; but Ex parte Topham, L. R. 8 Ch. 614, and Ex parte Hall, In re Cooper, 19 Ch. Div. 580, are decisions to the contrary.

There is nothing fraudulent in giving a preference to one creditor over another at common law; such a preference is made void and fraudulent only by statute: Gladstone v. Padwick, L. R. 6 Ex. 203, at p. 211.

The appeal will be dismissed as to all the goods and chattels covered by the chattel mortgage, and allowed as to those not included in the chattel mortgage.*

*Under the circumstances the Court directed the respondent to be allowed only half the costs of the appeal.

STEWART ET AL. V. ROUNDS.

Principal and agent-Agency to sell will not authorize agent to exchange goods of his principal — Replevin — Practice · Order xxxvi - Rule 321, J. A. O.

The plaintiffs delivered to one R. some cultivators for the purpose of selling, as their agent, for cash or good notes. Three of these he exchanged with the defendant; who was aware of the fact of agency, for a buggy, which he sold and retained the proceeds. It was shewn that on a previous occasion R. had traded a cultivator with one M. for a horse, which he sold, and gave the plaintiffs a forged note purporting to be that of the purchaser; and on the same day he traded another cultivator with one D., for a watch and $7, but for this also it was said he returned a note to the plaintiffs. It was not shewn that defendant knew of either transaction, and the plaintiffs had prosecuted R. for the forgery. In an action of replevin the jury gave a verdict in favour of the defendant, but the County Judge in term set it aside, and directed judgment to be entered for the plaintiffs, which on appeal was affirmed, with costs.

Under Rule 321, O. J. A., the Court may, upon motion for judgment or for a new trial, if satisfied that it has before it all the materials necessary for finally determining the question in dispute give judgment accordingly: but

*

Per WILSON, C. J.-Unquestionably that power must be most sparingly and cautiously exercised.

APPEAL from the County Court of Oxford.

Action in replevin for three cultivators.

Pleas. 1st. Did not take the goods. 2nd. Goods not plaintiffs'.

The case was tried before his Honour Judge MacQueen and a jury, at Woodstock, December 14th, 1881.

Two of the plaintiffs were called as witnesses on behalf of the plaintiffs, and stated that they carried on business in the city of London as agricultural implement makers, and that one Frank Randall had been employed by them to sell fanning-mills and cultivators, his instructions being to sell them at a certain price; the cultivators for $27 cash and $30 on time, and he was either to return money or good notes; he had not any authority to barter at all: that Randall had returned a note purporting to be signed by the defendant for $28, which the defendant repudiated. saying that it was a forgery; that they had seen Rounds, the defendant, who stated that he had traded with Randall

for three cultivators, giving in exchange a buggy; and he refused to give up the cultivators when demanded from him.

The jury returned a verdict for the defendant, which the Judge in term set aside, and directed judgment to be entered for the plaintiffs with one shilling damages, referring amongst other cases to Hamilton et al. v. Johnson, 5 Q. B. Div. 263.

The defendant thereupon appealed, on the following grounds That the defendant was entitled to retain his verdict, because the Judge left the case to the jury entirely on the credibility of the testimony of the plaintiffs, and they had found for the defendant, and that was a question peculiarly for a jury to determine; in such circumstances the Court will not set aside the verdict: Lacey v. Forrester, 3 Dowl. P. C. 668, Doe dem Smith v. Pike, 1 N. & M. 385, 3 B. & Ad. 738: That the burden of proof was on the plaintiffs; without their evidence they could not recover, the jury disbelieved it, and gave effect to the presumption that the plaintiffs' agent was acting within the scope of his authority when he exchanged the cultivators for the defendant's buggy, contrary to the evidence of the plaintiff's themselves, and the verdict should stand: Wilkinson v. Payne, 4 T. R. 468; Cox v. Kitchen. 1 B. & P. 338: that the Judge left the matter of the plaintiffs' credibility as the sole question on which the jury should base their verdict, and could not, after the jury had expressly found against the credibility of the plaintiffs, set aside the finding of the jury and enter a verdict for the plaintiff's. The most the Judge could do would be to direct a new trial, and here a new trial ought not to be granted. Even if the Court would have been better satisfied with a verdict the other way, that is not a sufficient ground for setting aside the verdict: Nolan v. Tipping, 7 C. P. 324; Leith v. O'Neill et al. 19 U. C. R. 233; Swayne v. Hall, 3 Wis.. 45, Doe dem. McQueen v. McQueen, 9 U. C. R. 576; Brown v. Malpus, 7 C. P. 185: Solomon v. Bitton, 8 Q. B. Div. 176; and that the case of Hamilton v. Johnson, 5