In the case before us there was five day's delay on account sickness in the family. In that case the delay was indefinite, and was not accounted for by any such necessity. In that case the plaintiff knew of the execution. In this case there is no such evidence. In that there was concurrence between plaintiff and the tenant. In this their interest and attitude were hostile throughout. In that there certainly were suspicious circumstances. In this not a shadow of evidence can I find in the report of anything but perfect good faith on the part of the plaintiff. And if the Court of Exchequer in that case set aside the verdict of a jury, I think we should not hesitate in this case to reverse the decision of the Judge of the County Court.

At the last argument it was suggested that the plaintiff' was estopped from disputing the defendant's right to levy by the fact that after the distress and after an inventory had been taken, the bailiff withdrew from the actual custody of the goods until the tenant's children should be sufficiently recovered to permit of their removal, trusting to the tenant's word that the goods should not be removed, during which period the sheriff entered and levied on the goods. It was argued that finding no bailiff in possession he had a right to presume conclusively that there was no distress, or that if there had been any it was abandoned. Without discussing whether there would be any ground for such an extension of the doctrine of estoppel under the above facts, I may observe that the contention was very effectually met by Mr. Frith, the plaintiff's counsel, by the suggestion that if such would be a sound application of the doctrine of estoppel, then on the same grounds, viz., the laches of the defendant's agent, to whom he committed the custody of the goods, the defendant himself was estopped from denying the plaintiff's possession under the distress. It appears by the evidence that the sheriff's deputy did not himself retain actual custody of the goods, but contented himself with walking about the premises in a casual way in the day time, and abandoning them at night; and that while the sheriff's deputy was absent, in the day time, the bailiff, urged by the plaintiff, who had ascertained from the physician that the tenant's children were convalescent, re-entered the premises and resumed actual

custody of the goods, removed them out of the house and placed them in a vehicle; and while they were so in their actual possession and in course of removal the sheriff's officers came and took possession of the goods by force. Without giving serious attention to the question whether there could be an estoppel in either case, which I would scarcely consider necessary under this evidence in any state of the discussion, I am of opinion that Mr. Frith's contention is sound that if either party be estopped it is the defendant, and if there are grounds for an estoppel in both cases, the last estoppel, that in favor of the plaintiff, must prevail.

I am clearly of opinion that the appeal should be sustained with costs.

WEATHERBE, J.-When this case was first argued the Court were so far convinced that the judgment below was right that counsel for respondent was not called on. Having afterwards been heard it was thought proper, the Court being equally divided, to hear the matter again. The case is this:—

There were goods belonging to one Stevens in possession of Byrne, a tenant of plaintiff, and the defendant, the Sheriff of Halifax,-took them under a writ of replevin.

The present action by plaintiff against the Sheriff is supported on the allegation in the declaration that plaintiff, by his bailiff, had taken these goods for rent and was about to impound them with intent to appraise and sell them according to the statute, and had the goods in his custody under the distress when defendant took them and thereby prevented plaintiff from impounding the same as he would have done, whereby the plaintiff has been delayed in recovering his said rent, &c. The warrant of distraint was given to the plaintiff's bailiff on the 5th April and the goods were then left in the tenant's charge with the warrant. At the time of the levy there were children sick in the house and this is mentioned as a reason for this course, Byrne, the tenant, at the time of the visit of the bailiff, told him that he could pay if he had time, when the bailiff replied that he had five days.

At the expiration of five days, if the testimony is to be understood to be credited by the Judge below, Byrne proposed to the bailiff to remove the children, as he had not the

money. This proposition does not appear to have been accepted, and five days further seem to have passed without any demand of the money, or any actual taking or appraising or impounding of the goods. The only explanation we have on the subject is from Dunnaford, the bailiff's assistant, who seems to have transacted all the meagre business done in relation to this "distraint." He says he left the goods in the house on the guarantee that the goods would be there or the money paid. This state of things continued till the 16th of April, when the goods were levied on by the sheriff. His bailiff went into possession and watched the house for three days, during which time the landlord's bailiff and tenant aro found to be communicating with each other, and the former, though aware of the sheriff's levy, waives any right to the possession, and the sheriff and his bailiff are ignorant all this time of any distraint or claim of rent whatever. During this time the tenant is endeavoring to get a "return bond," so as to obtain the goods from the sheriff, but as soon as he fails in this Dunneford then makes himself known to the sheriff's officer and claims that the goods are, and have all along been, in his possession, and, in the language of the declaration, I suppose that he was about to impound the said goods with intent to appraise and sell the same according to the statute, and had them in his custody under distress when taken by the sheriff.

The sheriff refuses to credit this story, and now the plaintiff retires on the statement that there was sickness in the family. Cary, his agent, however, swears that when the sheriff got possession, and, I suppose, when the tenant failed to get the return bond, the plaintiff told him that the tenant had told him the children were better; though Byrne had offered, eight days before, to the bailiff, to remove the children if he wished it. The sheriff was in possession for three days, and so completely had the distress been abandoned that the landlord's bailiff, as is observed, was not aware of the levy.

To support this form of action, the authorities shew, as I understand, that there must be:-1st. A taking by the landlord's bailiff. 2nd. The custody of the goods by some person

other than the tenant. 3rd. The custody for the purpose of impounding to appraise and sell.

I think the evidence for plaintiff to support the declaration was of so suspicious a character that the exercise of an intelligent discretion in the Judge below, enabled him to find, as he has done, and as, I think, should have done.

None of the cases cited conflict with the views which I hold, and I think this case turns entirely on the peculiar facts presented. The case should be dismissed with costs.

MCDONALD, J.-As I understand this case there would not have been the same difference of opinion on the bench after the first argument, but for the case of Harrison v. Barry, 7 Price, 690, which turned upon the question whether or not there was collusion between the landlord and the tenant in distraining when rent was not due, the jury having found that there was collusion, while the Court held that the evidence was quite sufficient to show that the rent was due, and that therefore there could have been no collusion. The Court were of opinion that it was sufficient for the plaintiff to prove the occupation by the tenant; and that it was for the defendant to prove that all the rent was paid, in order to establish his plea of collusion, and that the mere fact of the landlord's not selling within the five days was not per se evidence of collusion; and further that the landlord had a right to distrain in order to protect himself against the claim of any execution creditor, he having established the fact that the rent was due, and that therefore there could not have been the collusion alleged in the pleas. In this case the Judge found in favour of the defendant, not because there was no rent due nor because there was collusion, but because the plaintiff abandoned the distress before the defendant levied the execution. The distinction between this and Harrison v. Barry is very clear, and it will no doubt be conceded that what is evidence of abandonment is not necessarily evidence of collusion as between landlord and tenant. Collusion or no collusion,rent due or not due,-the sheriff had a right to levy the execution the moment the distress had been abandoned. And in addition to the delay in taking steps towards selling the property we have other evidence as well, upon which it was

the duty of the learned Judge who tried the cause to decide as a jury might do. He found that there was an abandonment and I do not think that we have either the right or the power to interfere with his decision upon that point. The word "collusion" as used in Harrison v. Barry, means a secret agreement between the landlord and the tenant for a fraudulent purpose; while the word "abandonment" as used in this cause means the act of giving up freely and without reserve a claim of right, or a right acquired by the landlord, and which may be without the privity or concurrence of the tenant or any other person than the landlord himself.

Having reference to the grounds taken in the order for appeal, I think that under the rule which we have adopted in other cases of appeal from County Courts, we could only, if at all, reverse the decision of that Court for the reason that it is against, not the weight of evidence, but against the whole evidence. In other words, because there is no evidence whatever to support it, the appeal not having been taken on the ground that it is against the weight of evidence. For these reasons I think the appeal must be dismissed with costs.

REYNOLDS v. DECHMAN.

PLAINTIFF, in July, 1870, agreed to sell certain land to one Reynolds, who entered into possession under an agreement to pay the purchase money in October, 1870. Reynolds removed a house to the land and continued in possession for a period of about eight years, after which he left the land and sold the house to defendant, who assisted in removing it from the land. Plaintiff, subsequently to the agreement to purchase, executed a mortgage of the property, the date of which does not appear, but the mortgagee never entered into possession. The evidence as to the nature of the attachment of the house to the soil was conflicting, but it had been occupied as a dwelling house, had a cellar under it in which vegetables were protected from the winter, rested partially on stone, and had a drain at a depth of five feet to a neighboring brook. Plaintiff brought trover for the house and the jury found for defendant.

Held, That the house was part of the realty, and, on being severed, became the personal property of the plaintiff; that the plaintiff was the proper party to bring the action, as the mortgagee could not do so before entry.

SMITH, J., hesitante.

MCDONALD, J., dissenting, held that the mortgagee had the legal title to and constructive possession of the property, and, therefore, plaintiff could not sustain the action.

PLAINTIFF, about the year 1870, entered into an agreement with James H. Reynolds to sell him a piece of land. James H. Reynolds entered into possession under this agreement and