close to the lumber yard, and from which some of the lumber could be seen; and it was alleged that after it was signed by Bickford, he and the plaintiff went outside, and in sight of the lumber he (B.) declared its delivery to the plaintiff, as also the logs then in the boom; but no piece of it seems to have been actually touched or delivered in the name of the whole, nor did it appear that it had been removed, or the plaintiff's possession continued, otherwise than constructively, from its remaining where it was at the time of the transaction undisturbed by either party.

Colborne was at this time absent in the United States, and does not seem to have been at Belleville after the bargain of July, 1853, until the spring of 1854, Bickford and others carrying on or superintending his business at Belleville.

That in the spring of 1854 Colborne came, Bickford being then gone, and objected to the alterations that had been made in the agreement, declaring he had not before seen it, though a copy was left with Bickford. He denied Bickford's authority to make such alterations. That plaintiff did furnish more logs in the spring of 1854; that Colborne did find men to boom them for a short time, and that the lumber made thereout was piled with the lumber of the previous year. Also, that though often spoken to respecting the drafts, he did not repudiate. Signed by Bickford & Colborne.

It appeared further that after Colborne came to Belleville in 185 he confessed judgment to Clark, upon which a Fi. Fa. against his goods issued, the 19th May, endorsed to levy £3000 and upwards. It was received by the sheriff the same day, and the lumber in question seized and sold under it to the defendant, who was acting in behalf of Clark, after which it was replevied and this action brought. The lumber was said to have been delivered in security for the three acceptances which Colborne should have retired-not sold to the plaintiff and remained piled on the same ground where it had been originally placed, being upon part of the premises demised to Colborne.

It was contended by defendant's counsel:

1. That there was no evidence of a change, and continued change of possession.

2 x

VOL. V.

2. That it was not shown that Colborne and Bickford were in partnership.

Colborne and Bickford were then both called and examined for the defendant.

Colborne said it commenced with Bigelow & Gilbert, whose place he took, and to whom he paid the $5000, as per agreement. That he drew on Clark for payment thereof, and was indebted to him over $8000. He denied Bickford's being a partner or interested in the premises,-or another,otherwise than as engaged to serve him (Colborne) at a salary of wages. But he admitted they had been in partnership previously, and that it was known to the people in Belleville, -alleging that it ended in March or the 1st April, 1853, but not publicly notified. He denied Bickford's authority to accept drafts in their joint name, or in his (Colborne's) name, with respect to the transactions with the plaintiff.

He said he had left three drafts with Cross amounting to $3000 and paid them, and that such $3000 and the $5000 to Bigelow & Gilbert overpaid plaintiff, because the logs fell short; that the $800 draft had since been paid, he thought, by the $1000 draft of September or October.

He, said plaintiff, had given Bickford paper to meet what he (C.) had overpaid, and that Bickford gave the plaintiff paper. He also spoke of other drafts, and money or paper transactions, the object of which was to show that the three drafts first mentioned had been paid; but he seemed to admit being bound to take up those drafts.

Bickford said his partnership with Colborne ended the 1st April, being dissolved in Kingston, and no notice thereof given, after which he served at a salary. That he gave acceptances in the name of Bickford & Colborne, to retire plaintiff's paper from the bank; that Colborne was not consulted about it, nor did he know of it till some time afterwards; that it was talked over at the bank whether he had authority to accept in the partnership name, and that he could not do so in Colborne's name alone, but considered he had authority to sign the acceptances.

He admitted giving a memorandum upon the lumber, being informed by plaintiff that the bank would not carry on the

notes unless it had some security on the lumber-he thought in December. That the memorandum was to give a lien on the lumber, to the plaintiff to satisfy the bank. That plaintiff said he did not want a bill of sale, and only wanted to satisfy the bank, and was told by B. he had no right to give a bill of sale. That he gave no other possession than the lien by the paper; that it was done in the office, and that they did not go out to the lumber, or make any delivery, and had no authority to sell or mortgage it, but that he intended to give a lien upon it, but did not tell Colborne. That plaintiff told him to keep it quiet and nothing could come of it. That by the agreement in October, Colborne was to procure $2300 not $5500, -which the $800 and $1500 bills would equal, and that the $1000 bill must have been one of the accommodation notes which plaintiff was to retire; and that if the $2000 draft on Hunt had been paid, it would have squared all due to the plaintiff. That he left for good on the 1st of May, 1854.

He said he had delivered $1000 draft to the plaintiff, which Colborne had retired, plaintiff saying he wished to show it to the bank, but, though asked for it, it had not been returned. Colborne said he also had the property insured.

The learned judge left the jury to decide:

First. Whether Bickford was a partner with Colborne, or had authority to pledge the lumber in security to the plaintiff. Second. As to the debt due-that the $2000 draft on Hunt was not paid, which left the old debt due to that extent at all events, and the amount due was not to be determined in this action.

Third. Whether there was a delivery of the lumber, and an actual or continued change of possession of this lumber. If not, or if Bickford was neither partner nor authorized to pledge it, plaintiff would fail.

And told the jury that the plaintiff must establish either a partnership, or authority aliunde in Bickford, and an actual and continued change of possession, or fail.

The jury found for the plaintiff.

No question was raised on defendant's part, that it was necessary for plaintiff to produce the written paper giving over the property.

Colborne & Bickford seem to represent that a $1000 draft given in September or October (and paid) covered the $800 draft, and that the $2000 draft on Hunt included $300 for rent, and $260 for horses. That plaintiff was only entitled to $2300 out of the two drafts (gy. $800 and $1000?) together with $300 and $260-$560; in all $2860

Whereas, 7700 logs at 4s. each, equal...... $6160 or £1540 The three drafts in July amount to

3300 or

825

Leaving

$2860 or £715

Excluding interest, charges, &c.

In Easter Term, 19 Vic., (1855,) Hagarty, Q. C., obtained a rule on the plaintiff to show cause why the verdict should not be set aside, as against law and evidence-the weight of evidence, and for misdirection.

In Trinity Term (Aug. 1855,) Wallbridge showed cause, and contended there was sufficient evidence of a delivery of the lumber, and that the partnership being disputed was left to the jury, and that Bickford had authority to mortgage the lumber as agent, if not as co-partner of Colborne. That the defendant purchased at sheriff's sale aş agent of Clark, and is therefore in the same position.

That no affidavit is filed, denying the merits of plaintiff's

recovery.

Hagarty in reply, contended-there was misdirection, if the evidence was insufficient. That the property vested in Colborne, and he was possessed of the land on which the lumber lay. That whether Bickford was a partner or not was of little moment, the property being vested in Colborne solely by the contract. That they were not partners quoad the plaintiff in this transaction, and nothing occurred afterwards to alter the case. That the paper containing the alleged lien was not produced for the Court to judge of the legal effect of it. That Bickford denied authority, though he did the act. That as a mortgage it would be invalid without registry or actual possession. That it is uncertain whether the memorandum imports a mortgage or a lien, and whatever

it might be, there was no delivery or change of possession in fact.

MACAULAY, C. J., delivered the judgment of the Court.

The plaintiff did not produce the memorandum, and in its absence it cannot be regarded as importing more than his witnesses and Bickford represent,-merely a pledge of the lumber to secure the three bills of July, 1853. In the conflicting nature of the evidence, and in the absence of bills and papers referred to but not produced, it is impossible to decide satisfactorily what Colborne owed the plaintiff. That he was indebted to him to a large amount was the only reasonable inference from the whole evidence.

Then, first, had Bickford authority to pledge the lumber, either as partner or agent?

2nd. If he had, was delivery made and possession rendered continued sufficient to support such lien.

It was, if anything, either a mortgage or a pledge.

As an oral mortgage, it would be invalid. As a written mortgage it required registration. As a pledge, the possession, if received, was not retained, but the goods remained in statu quo, where they were, on the pledgor's premises, and ostensibly in his possession, custody and control. Such an arrangement cannot defeat the rights of an execution creditor.

Per Cur.-Rule absolute for a new trial without costs.