be no recovery of damages for breach of an implied warranty until the property has passed (31).

The vendee, on discovering the breach of warranty, may return the article if the discovery be made within a reasonable time after its receipt; or if the facts warrant he may bring an action for deceit, in which it must be shewn, either that the defendant did not believe the statements made to be true, or that the same were made recklessly. Otherwise the vendee must first pay for the article and then bring her action for the breach of warranty, or, possibly, plead the breach in answer to an action for the price (32).

A company in 1893 sold a hay press upon credit, and upon the terms that the property should remain in them until payment. The contract was properly filed under s. 6 of 51 V., c 19. now s. 3 of R.S.O., c. 149. A few months afterwards the purchaser resold the press to S., who had no knowledge of the facts, and was told that it was paid for and free from any lien. After S. had used it for nearly four years, during which the original purchaser had made some small payments on account, the company seized it in S.'s possession under the terms of the contract. It was then held that S. was entitled to recover from his vendor upon a warranty of title, which he proved, the value of the press and the sum he would have received beyond expenses upon contracts actually made to press hay with the press in question, and which he was in course of executing at the time of the seizure, the use of the press in that way having been in the contemplation of the plaintiff's vendor at the time of the sale (33).

(31) Frye v. Mulligan (1885) 10 Ont. R. 509.

(32) Frye v. Milligan (1885) 10 Ont. R. 509; Joliffe v. Baker 11 Q.B.D. 255.

(33) Sheard v. Horan (1899) 30 Ont. R. 618, 35 C.L. J. 417 (Street, J.); The Argentine 14 App. Cas. 519; Cory v. Thomas Iron Works Co. L.R. 3 Q.B. 181 and Mullett v. Mason L. R. 1 C.P. 559 followed.

In a recent Manitoba case the defendant gave plaintiffs a written order for a second-hand horse power and threshing machine, "the same to be put in good running order by putting in a set of cylinder spikes.' The price was to be $250. After the acceptance of the order and the delivery of the machine, the set of cylinder spikes was put in, and plaintiffs' agent made several attempts to put the machinery into good running order, but defendant claimed the condition. was broken and returned the machine. Plaintiffs then sued for the price agreed on. It was held that the condition of the sale was not satisfied by the putting in of the new spikes, but that plaintiffs were bound to put the machine into good running order (34).

In Manitoba it is held that an action will lie for breach of warranty before the property has passed and that the cause of action arises at once just as in the case of an absolute sale (35). In Copeland v. Hamilton (36) the condition of the agreement was that the property in the horse, the subject of the contract, was not to pass to defendant until payment. The plaintiff had sued upon a promissory note given to him by defendant under the agreement for the sale. Defendant filed a counter-claim for breach of an alleged warranty that the horse was sound. The horse was delivered to the defendant and used by him for some time, but died before the note was due, from a cause not connected with the unsoundness complained of. The warranty was proved and a verdict for the defendant on his counter-claim was upheld for the difference between the value of the horse as it was when delivered, and what its value would then have been if sound. It was there held that the warranty being of soundness

(34) Abell v. Craig (1898) 34 C.L.J. 473.

(35) Copeland v. Hamilton (1893) 9 Man. R. 143 (36) 9 Man. R. 143. ·

at the making of the agreement, not at the date of the maturity of the note, and the unsoundness being such as to impair the usefulness of the horse from the time of its delivery to the defendant, there was then an immediate breach of the warranty and immediate damage and right of action therefor to the defendant ; and that the principle of decision in such a case must be the same whether the subject of the sale remains in existence or not (37). Mr. Justice Killam said in his judgment: "The defendant is absolutely bound upon "his note. If the article sold be wholly destroyed so "as to be incapable of sale when the note is paid, the "defendant would suffer no further damage, and then, "according to the argument for the plaintiff, he could "never have a cause of action for the greater part of "his claim. Even if as in the Ontario cases (38) there "were an express right to re-sell upon default and "credit the purchaser with the proceeds, these proceeds "could not be expected to be as large as if the article "were as warranted. The purchaser should

recover as general damages for the period of the bailment and for the proposed sale together, the same "amount as if there were an immediate sale. The "consideration for the note is in part the bailment, "and in part the promise of the vendor to sell. This "latter promise is worth less than if the article sold "were as warranted. To treat the matter upon the "principle of the plaintiffs' contention would seem to involve the liability of the purchaser for the whole purchase money, while precluding him, forever in many instances, from a right to recover for defects. warranted against" (39). If the purchaser of a (37) Copeland v. Hamilton (1893) 9 Man. R. 143.

(38) Frye v. Milligan 10 Ont. R. 509; Tomlinson v. Morris 12 Ont. R. 311.

(39) Copeland v. Hamilton (1893) 9 Man. R. 143, 146 (Killam J.); Frye v. Milligan 10 Ont. R. 509 and Tomlinson v. Morris 12 Ont R. 311 disapproved.

machine sold under a warranty providing for a three days' test thereof to ascertain its ability to fulfil the warranty, with a provision that the time may be extended by mutual consent, after testing it accepts it with a change in its arrangement, relying on his own judgment that with such change it will suit his purpose he will be liable for the purchase price (40).

Tenant's Fixtures.-As it frequently happens that a tenant sells out his chattels, including trade fixtures, upon a conditional sale agreement, it is important to consider the right of removal of such fixtures as between the landlord and the tenant.

A trade fixture owned by the tenant and attached to the freehold becomes a part of the freehold, subject to the right of the tenant to remove it if he does so in proper time (41); but if the parties make a special contract in variance of this rule, the contract will govern (42).

The right of a tenant to remove his trade fixtures is so far connected with the land that it may be deemed a right or interest in it, and, if the tenant transfers the right to another person, a subsequent voluntary act of surrender of the premises before the expiry of his term will not defeat the purchaser's right to enter and remove them. As regards strangers who were not parties or privies to the surrender, the estate surrendered will in law be deemed to continue (43).

The right must be exercised prior to the determination of his tenancy; and he cannot, after quitting the premises and giving up the key, re-enter to sever

(40) Hutches v. J. L. Case Threshing Mach. Co. (Tex. Civ. App.) 35 S. W. 60.

(41) Meux v. Jacobs L.R. 7 H.L. 490.

(42) Daney v. Lewis 18 U.C.R. 30.

(43) London & Westminster v. Drake 6 C.B.N.S. 798.

and remove the fixtures. with the consent of the landlord, remained in possession after the expiry of the term, and he actually severs and removes the fixtures during the continuance of his lawful possession, the tenant is entitled to them, and they do not become the property of the landlord (44); and he may, after such removal, lawfully contract for a conditional sale of them. The right may be exercised by the tenant, notwithstanding the fact that he has committed an act of forfeiture of the lease, if he removes his fixtures before judgment in ejectment has been obtained against them (45). The tenant has no right to remove his fixtures during the time in which he is wrongfully holding over (46).

If, however, the tenant has,

When not removed during the continuance of the tenancy, the tenant's fixtures become on its expiration part of the freehold, even though they are on the premises by the parol consent of the lessor; and although such consent might give the tenant a right of action for the value of the fixtures against the lessor if he refused to permit their removal, it will give no right to enforce their removal or to recover damages against the mortgagees of the realty (47).

If the lessor elects to re-enter for a forfeiture, the lessee has the right, while he remains in possession, to remove fixtures put up by him for the purposes of his trade, and he will be allowed a reasonable time after such election, within which to do so (48).

(44) Dewar v. Mallory 27 Gr. (Ont.) 303; Prouguey v. Gurney 36 U.C R 53, 37 U.C.R. 347.

(45) Pugh v. Arton L. R. 8 Ex. 626.

(46) Leader v. Homewood 5 C.B.N.S. 546; Roffey v. Henderson 17 Q. B. 574; Heap v. Barton 12 C.B. 274.

(47) Thomas v. Jennings 75 L.T. Rep. 274.

(48) Argles v. McMath 23 Ont. App. 44, affirming 26 Ont. R. 224.