The purposes to which premises have been applied should be regarded. in deciding what may have been the object of the annexation of movable articles in permanent structures with a view to ascertaining whether or not they thereby become fixtures incorporated with the freehold (43).

In the absence of evidence of a contrary intention, machines affixed to the freehold merely for the purpose of steadying them, and used for the purpose of a manufacturing business for which the freehold is occupied, become part of the freehold even though the mode of affixing them is such that they can easily be detached without injury to the machines or to the freehold; but similar pieces of machines standing on the freehold, but not affixed except by belting for motive power, retain the character of chattels notwithstanding that the work done by them is an essential process in the manufacture to which the freehold is devoted (44).

But a fastening by cleats affixed to the building only and not affixed to the machine except by being placed close against it, is not an affixing of the machine at all, and is not sufficient in itself to make the machine a part of the realty (45).

A statute passed in Ontario in 1897, and now consolidated with the Ontario Conditional Sales Act, R.S.O., 1897, c. 149, enacts, as to that province, that where any goods or chattels subject to the provisions of the Conditional Sales Act are affixed to any realty without the consent in writing of the owner of the goods or chattels, such goods and chattels shall not

(43) Haggart v. Town of Brampton (1898) 28 S.C.R. 174.

(44) Longbottom v. Berry L.R. 5 Q. B. 123; Sun Life v. Taylor (1893) 9 Man. R. 89; Keefer v. Merrill 6 Ont. App. 132 discussed. (45) Sun Life v. Taylor (1893) 9 Man. R. 89, 101; Crawford v. Findlay 18 Gr. 51.

withstanding remain so subject"; but the owner of such realty, or any purchaser, or any mortgagee or other incumbrancer on such realty, shall have the right, as against the manufacturer, bailor or vendor of such goods or chattels, or any person claiming through or under them to retain the goods and chattels upon payment of the amount due and owing thereon. It is only by reference to the latter part of the enactment that it is made to appear that the rights of the owner of the realty are intended to be affected. The Act is, except as to this added section, one for the protection of persons other than the bailor as against his claim, and does not enlarge his rights, and for the statute to simply make chattels affixed to the realty still subject to its provisions would not, it is submitted, have the effect of preserving to the bailor a property in them of which he had deprived himself by a consent, whether written or verbal, and whether indicated by his conduct or otherwise. The context, however, seems to indicate that the intention of the Legislature was that the chattel so annexed should remain subject to the claim of the conditional vendor, unless the latter has waived the same in writing. The clause is retroactive, and applies as well to transactions before it was passed (1897) as to transactions thereafter.

By a statute passed in New Brunswick in 1899, 62 Vict., N.B, c. 114, it was enacted that where any goods or chattels have been sold or bailed under any receipt note, hire receipt or other instrument by which it is agreed that no ownership therein shall be acquired by the purchaser or bailee until the payment of the purchase or consideration money, or some stipulated part thereof, and such goods or chattels are affixed to any realty without the consent in writing of the owner of the goods or chattels, such goods and chattels shall not be or become part of the realty, but shall continue

to be and remain personal property; and the rights of the owner thereof are declared not to be in any way altered or affected by such goods or chattels being so affixed to the realty, except that the owner of the realty, or mortgagee, or other incumbrancer of the realty or a purchaser of the same is given the right to retain the chattel as against the manufacturer, bailor or vendor, and as against any person claiming through or under him, upon payment of the amount due and owing thereon. The enactment is retroactive, and applies to past as well as to future transactions, and excepts only from its operation litigation pending at the time it was passed (April 28, 1899).

Fixtures in Quebec.-If, the vendor himself affixes, or becomes a party to the affixing of the chattel to the freehold, the chattel will become an immovable by destination, and an attempted reservation of title thereof, or a license to remove the same, will not be effectual as against a third party entitled to the realty.

In Leonard v. Boisvert (58), the facts were as follows-B., the defendant, was the owner of a mill, and sold the same in 1891, with right of redemption (reméré) to one Desmarais. A few days after the sale B. ordered from the plaintiff an engine and boiler to be built, and they were delivered to him and placed in the mill, at the beginning of November. Time was given for payment, and it was agreed that B. should give notes indorsed by his brother for the price. The contract contained this clause:

"It is distinctly understood and agreed that the property in the "goods so to be furnished by you (Leonard) to me (Boisvert) is "not to pass to me until you are fully paid the price for same, and "that the notes so to be given are to be held by you as collateral security in respect of such purchase money. If default be made in the payment of said notes, or if the said goods are attempted

(58) Leonard v. Boisvert (1897) 10 Que. S.C. 343.

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"to be disposed of by me, or are seized in execution in respect of any debt due by me, then you are at liberty to take possession of "the goods, and resell the same by public auction or private sale, crediting me with the proceeds only, less all expenses."

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B., notwithstanding the sale a rémeré, remained in possession of the mill, as well as of the engine and boiler, until June, 1893, when he left the country. Desmarais then took possession and sold the whole to Mme. Hamel, who resold it to the defendant P., from whom the plaintiff caused to be seized by saisierevendication the engine and boiler on Nov. 26th, 1894. It was held that the contract in question was not a sale with a suspensive condition as to the transfer of property, but a sale pure and simple, which had transferred to B. the property in the engine and boiler; that the stipulation that the plaintiff should have a right to take back the things sold in case of non-payment had, at most, only the effect of giving him a personal right against B. to take them back with legal proceedings, but did not subordinate the transfer of the right of property to the payment of the whole price of sale. In placing the engine and boiler in the mill, B. had made them immovable by destination and they passed to the defendant P. by the sale of the mill. B. had a sufficient interest in the mill, in spite of the sale a reméré which he had made, to immobilize by destination the engine and boiler, and though his interest was gone he would still be deemed to have placed them in the mill on account of the owner, and the immobilization, therefore, would be valid (59).

Lien Note-Negotiability. The Canadian Bills of Exchange Act, 1890, defines a promissory note as "an unconditional promise in writing made by one "person to another signed by the maker, engaging "to pay on demand or at a fixed or determinable.

(59) Leonard v. Boisvert (1897) 10 Que. S.C. 343.

"future time a sum certain, in money, to or to the "order of a specified person or to bearer" (46).

An instrument in the form of a promissory note given for part of the price of an article, with the added condition "that the title and right to the possession of "the property for which this note is given shall remain "in the payees until this note is paid," is not a promissory note or negotiable instrument, and a transferee takes it subject to any defence available between the original parties; for such a condition imports that unless the maker gets the property with a good title at the date of maturity, he could not be required to pay (47).

The Bills of Exchange Act contains a special provision (sub-section 3 of section 82) that a note is not invalid by reason only that it contains also a pledge of collateral security with authority to sell or dispose thereof.

In a recent Manitoba case the instruments sued on contained the usual provisions of a promissory note with additional provisions to the effect that the title, ownership and property for which they were given should not pass from the payees until payment in full, that if the notes were not paid at maturity the vendors might take possession of the machinery for which they were given and sell the same at public or private sale, the proceeds, less the expenses, to be applied on the notes, and that such action should be without prejudice to the right of the vendors to forthwith collect the balance remaining unpaid. The Court of Queen's Bench of that Province held that the instruments could not be regarded as negotiable promissory notes because, firstly, the added provisions qualified the absolute and

(46) (1890) 53 Vic. (Can.) c. 33, s. 82.

(47) Dominion Bank v. Wiggins (1894) 21 Ont. App. 275.