Q B. Div. 263, does not apply here, and the rule on which it is based does not apply in this case.

The appeal came on for argument on the 8th of September, 1882.

C. Robinson, Q. C., for the appellant.

McBeth, for the respondent.

The other facts and cases cited appear in the judgment.

September 16, 1882. WILSON, C. J.-It appears to me the finding of the jury was manifestly against evidence. McKay, in April, got a cultivator from Randall in exchange for a horse, and he, McKay, told one of the plaintiffs of it, who answered not to bother about it. Again, Randall traded a cultivator with Dan Macpherson for a watch and $6 or $7. One of the plaintiffs says Randall returned a note against Daniel McKay for the cultivator given to Dan Macpherson.

Randall was arrested on the 30th of April, for passing Burke's note, which was a forgery, to the plaintiffs, as a genuine note. Burke bought the horse which was got from McKay. McKay's transaction was before the arrest, but the plaintiffs had only McKay's word for the matter. There was no complaint before the McKay transaction, and that was allowed to stand. The same day Randall traded with McKay for a horse he traded also with Dan Macpherson for the watch and money.

As there was a trade with McKay and Dan Macpherson, the defendant says the trade with him should be allowed. to stand. It was only McKay's trade which was allowed to stand by the plaintiffs, because for Macpherson's trade a note was put in by Randall

The defendant also says his trade should stand because on sale of new reapers old reapers were taken on account. The plaintiffs say that no exchange was ever allowed to be made upon faninng-mills, or cultivators. The defendant, however, contends that there was evidence of authority to exchange generally.

Lindsay, one of the plaintiffs, said he did not discharge Randall after the McKay transaction because he knew of no irregularity till Randall went out with the last load; and he was discharged as soon as he could be got hold of. I think there is no evidence of power to trade or exchange.

Upon that evidence the Judge might have directed the jury to find a verdict for the plaintiffs; and from the cases referred to under the rule the Judge was authorized to enter the verdict he afterwards did, although unquestionably that power must be most sparingly and cautiously exercised: Jenkins v. Morris, 14 Ch. Div. 674; Hamilton v. Johnson 5 Q. B. Div. 263; Dixon v. Simmins, 48 L. J. C. P. 343, affirmed 41 L. T. 783, 28 W. R. 129; Jones v. Hough, 5 Ex. Div. 115.

OSLER, J.-I think the appeal should be dismissed. The evidence is clear that Randall was an agent having a limited authority only to sell the plaintiffs' cultivators for cash or for notes; and that he had no authority to barter. Those were his instructions, and the onus rests on the defendant to prove that the agency was of a more general character; and not, as the defendant urges in one of his reasons of appeal, on the plaintiffs to shew that the defendant knew it was restricted. The defendant has, however, attempted to prove that the plaintiffs have so acted as to hold Randall out to the world as a general agent, or as having authority to barter their cultivators.

*

In Smith v. McGuire, 27 L. J. Ex. 465, Pollock, C. B., said, the question to be decided in cases of this sort is, "has the person who is to be charged with liability authorized and permitted the person who has professed to act as his agent so to act in such a manner and to such an extent as that from what has occurred publicly, persons dealing with him have a reasonable right to conclude and to draw the inference that the person so acting is a general agent."

The only evidence of this character was of a single

transaction with one Mackay, in which Randall traded a cultivator for a horse, which he afterwards sold, and gave the plaintiffs a note which purported to be the note of the purchaser, but which was in fact a forgery. The plaintiffs had prosecuted Randall for the forgery, but had not repudiated his act. It did not appear that the defendant knew of the transaction when he dealt with Randall, or that the plaintiffs had become aware of it before they received the note which he said he had taken for the horse.

I think the jury could not upon this evidence have reasonably found that there was any holding out of Randall, either to the defendant or to the world in general as having authority to barter or to act in disregard of instructions which were never withdrawn, but were on the contrary insisted on after the Mackay transaction came under the plaintiffs' notice.

In the cases of Ockley v. Masson, 6 App. R. 108; Hazard v. Treadwell, 1 Str. 506, cited by Mr. Robinson, there had been previous dealings between the agent and the person sought to be made liable, so that there was evidence of an express holding out by the principal, which distinguishes those cases from the one before us.

The only other question is, whether the learned Judge was right in entering a verdict for the plaintiffs. Rule 321, J. A., provides that, upon a motion for judgment or for a new trial, the Court may, if satisfied that it has before it all the materials necessary for finally determining the matters in dispute or any of them, give

judgment accordingly.

This Rule ought not to be acted on where there is any reason to suppose that on a second trial further evidence may be adduced, or that the facts may be more fully brought out.

There is no suggestion that this is at all probable in the present case. No additional facts remain to be proved, and no jury would be justified in finding a verdict against the plaintiffs, apart from the evidence of the Mackay transaction. I have already expressed an opinion that no

inference can be reasonably drawn from that evidence adverse to the plaintiffs, and therefore I think the learned Judge of the County Court was right in directing judgment under Rule 321. See Milissich v. Lloyds, 46 L. T. N. S. 423, C. A.; Daun v. Simmins, 40 L. T. N. S. 556; S. C. 41 Ib. 783, C. A.; Clark v. Molyneux, 3 Q. B. D. 237, C. A.; Hamilton v. Johnson, 5 Q. B. D. 263, C. A.; Yorkshire Banking Co. v. Beatson, 5 C. P. D. 109, C. A.

The appeal will be dismissed, with costs.

GALT, J., concurred.

Appeal dismissed, with costs.

REES V. MCKEOWN.

Replevin--Boarding-house keeper-Distress—R. S. O. ch. 147.

In an action of replevin the defendant, for a second plea, avowed for board due by plaintiff to him as a boarding-house keeper; and for a third, avowed for a lien on the goods of plaintiff under R. S. O. ch. 147, sec. 2. On the trial, before the Judge of the County Court (York) without a jury, the evidence as to whether the defendant was the keeper of a boarding-house was contradictory, but the learned Judge decided in favour of the plaintiff, holding that the defendant was not a boardinghouse keeper. On appeal this finding of the County Court Judge was affirmed, although, had the matter come before this Court in the first instance, it would have decided otherwise, and under the circumstances, no costs of the appeal were given to the respondent.

APPEAL from the judgment of the County Court of the county of York, discharging an order nisi to set aside the verdict entered for the plaintiff, and to enter a verdict for the defendant, or for a new trial.

The action was in replevin for detaining the goods of the plaintiff.

Pleas: (1) Did not detain. (2) Avowry, that plaintiff was a boarder in defendant's house, and defendant detained goods for arrears of board due. (3) Avowry of a lien on plaintiff's goods under R. S. O. ch. 147, sec. 2.

Case tried without a jury.

The plaintiff was examined on her own behalf, and swore that the defendant's wife was her cousin, and had come on a visit to her house in Montreal. She had come down to Montreal on business or on a visit to the plaintiff at the hotel as the guest of plaintiff, at plaintiff's expense. When at the hotel she invited plaintiff and wrote for her to visit her house at Toronto, saying plaintiff was to go up and stay with her awhile: she wrote twice to plaintiff, who paid her first visit to Mrs. McKeown in October, 1880. Plaintiff further stated that defendant's husband was employed in the Grand Trunk. She never understood them to keep a boarding-house in her life, although plaintiff knew a gentleman to stop there-to have a rented room. Plaintiff was there for about four 66-VOL. VII A.R.