Petroleum warehouse receipts-Ontario. By the Mercantile Amendment Act of Ontario (9), the following special provision is made regarding transportation and warehouse receipts for crude petroleum in this province :

All transportation and warehouse receipts, accepted orders and certificates for crude petroleum, issued by any company heretofore, or which may, at any time. hereafter, be incorporated under competent authority, and authorized to carry on the business of warehousing, shall be transferable by endorsement, either special or in blank, and upon being endorsed in blank shall become transferable by delivery, and every such endorsement or transfer by delivery shall transfer all right of property and possession of the petroleum mentioned in any such transportation or warehouse receipt, accepted order or certificate, to the endorsee or transferee thereof, subject to the terms and conditions of such transportation or warehouse receipt, accepted order or certificate, as fully and completely as if a sale of the petroleum mentioned therein had been made in the ordinary way; and on the delivery of any petroleum mentioned in such document, by such company, in good faith, to a person in possession of such transportation or warehouse receipt, accepted order or certificate, endorsed or transferred as aforesaid, the company shall be freed from all further liability in respect thereof, and the endorsee or transferee or holder of every such transportation or warehouse receipt, accepted order or certificate, to whom the property in the petroleum mentioned therein passes by reason of such endorsement or delivery, shall have transferred to and vested in him all rights of action and be subject to the same liabilities in respect of such petroleum as if the contract

(9) R.S.O. 1897, c. 145.

contained in the transportation or warehouse receipt, accepted order or certificate had been made by the company with himself (10).

Wharfinger's lien.-The lien of a wharfinger is a commercial one and not founded on the common law. By usage long established it is considered as a settled point that a wharfinger has, in like manner to a factor, a general lien for the balance of account due him from the customer, and he is not restricted to a lien for charges or advances in relation to the particular property (11). The lien does not attach until the goods. are landed at the wharf (12), and the claim for a general balance can be maintained only where the customer is the owner of the goods at the time of their arrival (13), So where the consignee sold the goods before their arrival it was held that the wharfinger could not hold them for the general balance due him from the consignee, although he had no notice of the sale until after the goods were landed (14).

If a wharfinger, in course of business with a customer, parts with the goods from time to time, receiving payment at the end of every six months or every year for all his dues, that course of business will prevent him from maintaining a lien as against such customer (15). It is not necessary that the proprietor of a wharf upon navigable waters, used for the loading

(10) R.S.O. 1897, c. 145, S. 12.

(11) Naylor v. Mangles 1 Esp. 109; Spears v. Hartley 3 Esp. 81; Rex v. Humphrey 1 McClel. & Y. 173, 194.

(12) Syeds v. Hay, 4 T.R. 260.

(13) Richardson v. Goss 3 B. & P. 119; Crawshay v. Homfray 4 B. & Ald. 50.

(14) Crawshay v. Homfray 4 B. & Ald. 50.

(15) Crawshay v. Homfray 4 B. & Ald. 50.

and unloading of vessels, should have a warehouse, or shed, or other convenience for the storage of goods and protection thereof from the weather; and as such wharfinger he is entitled to a lien on goods unloaded at his wharf for money already due to him for wharfage (16).

If goods are landed in obedience to revenue regulations at a particular wharf or dock, the wharfinger becomes the master's agent and the goods remain in the constructive possession of the master, and may be held not only for the wharfage charges but for the freight due to the master of the ship (17).

And where goods are not required to be landed at any particular dock, and the common practice is to land them at a public wharf and to direct the wharfinger not to part with them until the freight charges are paid, the wharfinger becomes the master's agent, and the goods remain constructively in the possession of the master so as to preserve his lien (18).

The power of legislation concerning the collection of freight and of wharfage and warehouse charges in respect of merchandise rests solely with the Dominion Parliament and a Nova Scotia Provincial Act (19), was in consequence disallowed as ultra vires, on the recommendation of Sir John Thompson when Minister of Justice in 1887 (20).

Waiver of lien.-The mere fact of a warehouseman, who has a lien on goods for a certain sum for

(16) Sills v. Bickford 26 Grant (Ont.) 512; Renald v. Walker 8 U.C.C.P. 37; Llado v. Morgan 23 Ú.C.C.P. 517.

(17) Wilson v. Kymer 1 M. & Sel. 157, 162, Faith v. East India Co. 4 B. & Ald. 630.

(18) Angell on Carriers, 372; Kay on Shipmasters, sec. 313.

(19) N.S. Laws, 1886, c. 56.

(20) Lefroy's Legislative Power in Canada, 643 n; Hodgins' Provincial Legislation 2nd ed. 558.

storage, claiming also to hold them for an untenable claim as payable to himself or to a third person, does not dispense with a tender of the sum due, nor amount to a conversion of the goods, unless the evidence fairly warrants the conclusion that such tender would be useless as it would be refused (21).

Where a firm stored wheat in warehouse and gave in payment of warehouse charges a draft on their own firm payable in another city, whereupon the warehouseman receipted the account, but after acceptance of the draft but before its maturity the firm became insolvent, it was held that the warehouseman could not enforce a lien during the currency of the bill (22).

A right of lien is not lost by delivering the goods to common carriers for carriage subject to it, or by accepting from the carriers the amount of his charges thereon with authority to the latter to collect same at destination (23). And where goods are received from the same owner in one transaction, the warehouseman may release a part of them and hold the remainder for the charges against them all (24).

(21) Llado v. Morgan 23 U.C.C.P. 517.
(22) Renald v. Walker 8 U.C.C.P. 37.
(23) Hayward v. G. T.R. 32 U.C.R. 392.

(24) Schmidt v. Blood 9 Wend. (N.Y.) 268; Steinman V. Wilkins 7 W. & S. 466.

CHAPTER XI.

LIENS OF CARRIERS.

Carrier has a specific lien.-A common carrier has a specific lien upon the goods carried, for his hire in carrying them (1). It is a common law right to retain the goods until he is paid for his services but confers no right of property. It attaches only to the specific goods in the possession of the carrier and secures only the unpaid price for the carriage of those specific goods (2). The carrier can only acquire a lien by a contract express or implied for a general balance of account or for transportation charges on goods previously delivered (3).

If the consignee on receiving a railway freight advice note calls at the railway warehouse and obtains permission to leave the goods there, nothing being said about storage, the railway company thereafter holds the goods with the liabilities of warehousemen only, and not as carriers (4). And when a shipper stores goods from time to time in a railway warehouse, loading a car when a car-load 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 (5).

The payment of the freight and the delivery of the goods are ordinarily to be concurrent acts.

(1) Skinner v. Upshaw 2 Ld. Raym. 752.
(2) Leonard v. Winslow 2 Grant (Ont.) 139.

(3) Rushforth v. Hadfield 7 East 224.

(4) Mayer v. Grand Trunk Ry. U.C.C. P. 248.

(5) Milloy v. Grand Trunk Ry. (1894) 21 Ont. App. 404.

The