A lease provided that the lessees might, during the term, erect machinery upon the premises, and that such machinery might be removed by them, but not so as to injure the building. The lessee affixed the machinery, and some time afterwards made an assignment of his property and effects for the benefit of creditors. The lessors then elected to forfeit the term under a clause in the lease, giving them that privilege in case the tenant made an assignment for creditors, but they permitted a person who had purchased the machinery from the assignee for creditors to remain in possession of the premises, and received rent from such purchaser until the latter vacated the premises, leaving the machinery there. It was held that, under the provisions of the lease, the machinery continued to be chattel property, although affixed, and that the same passed as chattels to the assignee for creditors, and from him to such purchaser, and that the forfeiture of the term did not affect the right to the property nor the right to remove it (49).

Effect of Re-taking the Chattel. If the If the property in the goods passes at the time of the contract to the vendee, but a right of re-sale is reserved in default of payment, then the vendee, on the default happening and the right being exercised, remains liable for the unpaid price, or damages equal to the unpaid price in an action for not accepting and paying for the goods (50).

The distinction between such a case and one of conditional sale is that the vendor in the latter is dealing with his own property, and in the former he is dealing with goods which are no longer his but his vendee's; and if the sale is wrongful, the vendee has his action for conversion of the property. But the

(49) Scarth v. Ontario Power and Flat Co. 24 Ont. R. 446. · (50) Lamond v. Davall 9 Q.B. 1030.

conditional vendee to whom no property has passed can have no such action; and if the vendor resumes possession and elects to re-sell, the conditional vendee may treat the same as an abandonment of the original contract by his vendor (51).

If provision is made in the contract for resuming possession in case of default and for selling the machinery, but it does not further provide that the purchase money is to be applied pro tanto on what is due, and that the purchasers are to remain liable for the difference, then the re-sale of the machinery by the vendors deprives them of their claim for any part of the price as against the conditional purchaser; and a judgment recovered by the vendors before such re-sale upon notes given for the price cannot be enforced afterwards (52).

A promise to extend the time for payment of an instalment due on a conditional sale or lease of goods has been held to be a waiver of forfeiture for default which will prevent asserting it before the expiration of the extended time (53).

The vendee cannot recover from the vendor payments made by him which were stipulated to be retained by the vendor as compensation for the use of the article in case of default, if it appears that the payments do not amount to an unreasonable compensation (54).

Jus tertii. The bailee can only set up the title of another, if he defends upon the right and title and by

(51) Sawyer v. Pringle (1891) 18 Ont. App. 218.

(52) Arnold v. Playter, Waterous Co.'s Claim (1892) 22 Ont. R. 608.

(53) Cole v. Hines (Md.) 32 L.R.A. 455.

(54) Wheeler v. Jacobs 2 Misc. Rep. (N. Y.) 236.

the authority of that person (55). Where the true owner has by legal proceedings compelled a delivery to himself of the goods bailed, such delivery is a complete justification for non-delivery on account of the bailor (56).

An actual delivery to the true owner having a right to the possession on his demand is a justification for the bailee. The bailee's contract is to do with the property committed to him what his principal has directed, to restore it or to account for it; and by yielding to title paramount, he does account for it (57).

But a bailee cannot avail himself of the jus tertii for the purpose of keeping the property for himself, even though the title he sets up is that of the true owner (58).

Registration of Discharge N.W.T.-By an Ordinance passed in 1897 (59), now chapter 44 of the Consolidated Ordinances of 1898, it is enacted that the seller or bailor shall, upon payment or tender of the amount due in respect of such goods or performance of the conditions of the bailment, sign and deliver to any person demanding it a memorandum in writing, stating that his claims against the goods are satisfied, and such memorandum shall thereupon operate to divest the seller or bailor of any further interest or right of possession, if any, in the goods (60).

(55) Biddle v. Bond 6 B. & S. 225; Kingsman v. Kingsman 6 Q.B. D. 122; Rogers v. Lambert (1891) 1 Q.B. 318.

(56) Watson v. Anderton 1 B. & Ad. 456.

(57) Cheeseman v. Exall 6 Ex. 341; Beven on Negligence, 918. (58) Beven on Negligence, 918 (n).

(59) No. 39 of 1897, s. 6.

(65) Con. Ord. N.W.T. 1898, c. 44, s. 6.

Such a memorandum may be registered in the proper office for registration of conditional sale agreements, if its execution is proved by the affidavit of an attesting witness (61).

Assault during Seizure of Chattels. If the conditional purchaser or any other person be assaulted by the bailiff or employee sent by the vendor to re-take possession of the chattels, the vendor as well as the assaulting party may be responsible in damages therefor, if the assaulting party were acting in the ordinary course of his employment with the intention of doing what he was employed to do, and not for purposes of his own. An act done by an agent may be so criminal that no jury would say that it could have been done in furtherance of his master's business; but if an agent who was authorized to do a thing properly, while acting within the scope of his authority, exceeds his authority by doing the thing improperly, the mere fact of the excess of authority, involving a criminal act, does not relieve the master from liability (62).

If a charge of assault or battery is preferred by or on behalf of the person aggrieved, and is tried summarily before a justice of the peace upon a hearing upon the merits, the payment of the fine or the undergoing of the sentence imposed will release the person convicted from any civil proceedings for the same cause (63; and if the accused is acquitted upon a summary hearing upon a complaint similarly laid by or on behalf of the person aggrieved,' the magistrate's

(61) Sec. 6.

(62) Dyer v. Munday (1895) 1 Q. B. 742, 64 L.J.Q.B. 448.

(63) Criminal Code (Can.) sec. 866; Nevills v. Ballard 1 Can. Cr. Cas. 434; Hardigan v. Graham 1 Can. Cr. Cas. 437; Miller v. Lea 2 Can. Cr. Cas. 282.

certificate of dismissal will bar a claim for damages set up in a civil action (64).

But it would seem that the summary conviction of the bailiff for an assault committed while forcibly removing goods under a conditional sale agreement, and the payment of the fine imposed will not relieve the employer from his liability to pay damages for the bailiff's wrongful act committed in furtherance of the employer's business, and while acting within the scope of the employment (65).

Criminal Proceedings against Conditional Vendee. The statutory offence of theft is committed by a bailee who fraudulently and without colour of right converts the chattels to his own use or the use of any person other than the owner (a) with intent to deprive the owner or any person having any special property or interest therein, temporarily or absolutely of such thing or of such property or interest; or (b) with intent to pledge the chattel or to deposit it as security; or (c) with intent to part with it under a condition as to its return, which the person parting with it may be unable to perform; or (d) with intent to deal with the chattel in such a manner that it cannot be restored in the condition in which it was at the time of the conversion (66).

The offence is complete, notwithstanding that the chattel was at the time of the conversion in the lawful possession of the person converting (67).

(64) Criminal Code (Can.) sec. 866.

(65) Dyer v. Munday (1895) 1 Q.B. 742.

(66) Criminal Code, sec. 305.

(67) Cr. Code (Can.) 305 (3).