the purchase, but not to a lien for a general balance due him from his principal (23).

If an agent is entrusted by his principal with money to buy goods the money will be considered trust funds in his hands and the principal has the same interest in the goods when bought as he had in the funds producing them. If the goods so bought are mixed with those of the agent the principal has an equitable title to a quantity to be taken from the mass, equivalent to the portion of the money advanced which has been used in the purchase, as well as to the unexpended balance (24).

Consignor not the owner-Nova Scotia, British Columbia and N.W. Territories. By the Factors' Acts in force in these provinces it is enacted that where the owner of goods has given possession of the goods to another person for the purpose of consignment or sale, or has shipped the goods in the name of another person and the consignee of the goods has not had notice that such person is not the owner of the goods, the consignee shall in respect of advances made to or for the use of such person have the same lien on the goods as if such person were the owner of the goods and may transfer any such lien to another person; but this provision is not to limit or affect the validity of any sale, pledge or disposition, by a mercantile agent (25). This enactment is taken from the Imperial Factors' Act (26).

Waiver of lien.-Where the factor stands by and assents to the sale of the goods by his principal without

(23) De Wolf v. Howland 2 Paine (U.S.C.C.) 356.

(24) Carter v. Long 26 Caņ. S.C.R. 430.

(25) N.S. Laws 1895, c. 11, s. 7; R.S.B.C. 1897, c. 4, s. 8; Con. Ord. N.W.T. 1898, c. 40, s. 8.

(26) 52 & 53 Vict. (Imp.) c. 45, s. 7.

claiming his lien, he is estopped from setting it up as against the purchaser who bought in good faith without notice of same (27).

The lien may be waived by proving against the insolvent estate of the owner of the goods for the amount for which the lien is held, with knowledge that the goods on which the lien is claimed are included in the statement of the insolvent's assets as unencumbered, and without taking objection thereto before accepting a dividend from the estate (28).

The factor waives his lien by voluntarily giving up possession of the goods to his principal (29); and if, when the principal demands the goods, he refuses possession upon other grounds than his right of lien and fails to make a claim in respect of his lien, the lien is lost (30). So also, if the factor tortiously pledge the goods, he loses his right of lien (31); but a factor or agent is not guilty of theft, by pledging or giving a lien on any goods or document of title to goods entrusted to him for the purpose of sale or otherwise, for any sum of money not greater than the amount due to him from his principal at the time of pledging or giving a lien on the same, together with the amount of any bill of exchange accepted by him for or on account of his principal (32).

If the factor enters into a special contract which provides a mode of payment of his claim inconsistent

(27) Stevens v. Robins 12 Mass. 183; Gragg v. Brown 44 Me. 157. (28) Troop v. Hart 7 Can. S.C.R. 512.

(29) Kruger v. Wilcock, Ambl. 252; Bligh v. Davies 28 Beav. 211. (30) Scarfe v. Morgan 4 M & W. 271.

(31) Holly v. Huggeford 8 Pick. (Mass.) 76: Jarvis v. Rogers 15 Mass. 396.

(32) Cr. Code (Can.) sec. 305 (5).

with the continuance of a lien, the lien is waived (33); but drawing a bill of exchange for advances made is not inconsistent with a right of lien and is not to be considered a waiver (34).

A factor is bound to deliver to his principal within a reasonable time after demand thereof, a full and complete statement of his dealings with the goods, and of the account between them; and if he fails to do so he forfeits his lien (35).

Nova Scotia Factors' Act. By the Nova Scotia Factors' Act of 1895 (36) it is enacted, that where the owner of goods has given possession of the goods to another person for the purpose of consignment or sale, or has shipped the goods in the name of another person, and the consignee of the goods has not had notice that such person is not the owner of the goods, the consignee shall in respect of advances made to or for the use of such person, have the same lien on the goods as if such person were the owner of the goods, and may transfer any such lien to another person. The statute expressly provides that this enactment is not to limit or affect the validity of any sale, pledge or disposition by a mercantile agent (37).

(33) Cowell v. Simpson 16.Ves. Jr. 275.

(34) De Wolf v. Howland 2 Paine (U.S.) 356.

(35) Terwilliger v. Beals 6 Lans. (N.Y.) 403. (36) N.S. Laws 1895, c. II, s. 7.

(37) Sec. 7 (2).

CHAPTER X.

LIENS FOR WAREHOUSING AND WHARFAGE.

Warehouseman's Lien.-A warehouseman has, by the common law, a specific lien on the goods which he stores, in respect of the storage charges (1). He is not bound to receive every article offered to him for storage; he has a right of selection both of person and of property, and need take only those goods, and from such persons as he chooses. His lien is, therefore, of a different character, as regards the rights of third parties, to that of a carrier or an innkeeper, who is under a legal obligation to receive goods (2). And it has been held that the warehouseman with whom the chattel mortgagor mortgagor stores the mortgaged goods acquires no lien thereon for his charges as against the chattel mortgagee, if the mortgage is recorded so as to be valid as against a subsequent purchaser from the mortgagor (3).

When wheat or other merchandise is received in a warehouse or elevator nominally on storage for the person delivering it, but on such terms that the identical goods are so mixed up with others that they cannot be returned, and the well-understood course of the business is that, unless a price is agreed on, the party delivering the goods can only require an equivalent amount of the same kind and quality to be accounted for to him, the contract between the parties is really one of sale and not of bailment, whether the

(1) Jones on Liens, sec. 967; Steinman v. Wilkins 42 Am. Dec. 254.

(2) Baumann v. Post 12 N.Y. Supp. 213.

(3) Storms v. Smith 137 Mass. 201; Baumann v. Post 12 N.Y. Supp. 213.

vendor is to receive the price in money or an equal quantity of goods, or has an option to do either, as the property in the goods has passed to the warehouseman (4).

A workman who holds a chattel under detention in respect of his charges for repairing the same, is not entitled to an additional lien for himself storing the goods, although such a claim may constitute a debt from the owner for which an action might be maintained (5).

When a shipper

When carrier a warehouseman. stores goods from time to time in a railway warehouse loading a car when a carload is ready, the responsibility of the railway company in respect of such of the goods as have not been specifically set apart for shipment is not that of carriers, but of warehousemen, and in case of their accidental destruction by fire, the shipper has no remedy against the company (6). Where the goods are yet to be graded, classified, marked or set apart from others by the shipper before they are ready for shipment, they cannot be deemed to be delivered to the carrier for carriage (7). So long as the goods remain in the railway warehouse subject to the plaintiff's control and are not to be put in itinere until something further has been done, the character of warehouseman is not changed into that of carrier (8).

(4) Lawlor v. Nicol (1898) 12 Man. R. 224.

(5) British Empire Shipping Co. v. Somes E. B. & E. 353, 367; affirmed 8 H.L. Cas. 338.

(6) Milloy v. Grand Trunk Ry. (1894) 21 Ont. App. 404, reversing 23 Ont. R. 454.

(7) St. Louis Ry. v. Knight 122 U.S. 79.

(8) Milloy v. Grand Trunk Ry. (1893) 23 Ont. R. 454, 463, per Rose, J., affirmed 21 Ont. App. 404.