occasioned by other causes which might have been foreseen and guarded against, and that consequently the company were liable in damages. In my opinion, the defendant has not negatived the most probable cause of the accident, namely, that the cleat was split when it was being nailed to the wall, nor has he accounted for its splitting in such a way as to discharge the onus resting on him of rebutting the inference of negligence which not only may, but, it seems to me, ought to, be drawn from the above mentioned facts. Apart, therefore, from any personal negligence on the part of the defendant, in that he, as his own superintendent of the building, did not see that the scaffold was in a safe condition before sending the plaintiff to work thereon, I find that there was negligence on the part of the defendant's employees, other than the plaintiff, in the construction of the scaffold, and that such negligence was the cause of the injury which the plaintiff sustained. As the Ordinance makes the defendant liable for the negligence of the plaintiff's fellow-servants, he is liable for the damages suffered by the plaintiff, on whose part, I also find, there was no contributory negligence. Those damages I fix as follows:- Dr. Young's bill General damages $ 21 00 300 00 1,500 00 $1.821 00 There will be judgment for the plaintiff for $1,821 and costs. SASKATCHEWAN. MACLEAN, DIST.CT.J. APRIL 8TH, 1911. DISTRICT COURT OF BATTLEFORD. PETERSON v. JOHNSTON. Sale of Goods-Conditional Sale-Lien-notes-Repossession General In an action for damages for the alleged wrongful and illegal seizure and retaking of a team of horses sold to the plaintiff by the defendant, for which the plaintiff gave two lien-notes: Held, upon the evidence, that the defendant did take the horses out of the plaintiff's possession against his will; and that his so doing constituted a seizure; no precise act or form of words is essential to a distress or seizure. 2. That the defendant had no lawful right to retake the horses. The lien-notes provided that, if he deemed himself insecure, he might repossess himself of the horses; but, upon the evidence, the defendant had no proper and sufficient reason to deem himself insecure which would warrant him in repossessing himself. 3. That, as no special damage was alleged, the plaintiff was confined to general damages, which were assessed at $50; the liennotes to be delivered up for cancellation. The plaintiff claimed damages for alleged wrongful and illegal trespass, seizure and retaking of a team of horses sold to him by the defendant, and for which the plaintiff gave two lien-agreements or lien-notes dated the 6th April, 1910, for $250 each, payable on the 1st November, 1910 and 1911. The defendant denied the seizure and alleged that the plaintiff made false and fraudulent representations as to his financial condition, which were material, and pleaded an agreement or consent on the part of the plaintiff to deliver over to the defendant the horses and harness, which the defendant received with the knowledge and consent of the plaintiff, under the terms of the agreement. The defendant further pleaded, alternatively, that he deemed himself insecure, and, pursuant to the lien-agreement, did demand the purchase-price mentioned therein, or further and better security, and that the plaintiff authorised him to repossess himself of the horses, and that he received the same with the knowledge and consent of the plaintiff; or that, if he seized the same, he did seize and repossess under and pursuant to the terms of the lien agreement. He further denied that the seizure was wrongful and denied that the plaintiff had suffered any damage. A. M. Panton, for the plaintiff. MACLEAN, DIST.CT.J.:-In this action I have 3 questions to consider: first, was there a seizure? second, if so, was it lawful, or had the defendant any valid ground for deeming himself insecure? and third, what damages, if any did the plaintiff suffer? From the evidence of the plaintiff, corroborated by the witness Murphy, I find that the defendant did take the team of horses out of the plaintiff's possession against his VOL. XVII. W.L.R. NO. 7-39 will. The plaintiff admits that, if the defendant had given him the lien-notes, he would have consented to let the horses go sooner than have any trouble; but the defendant in his evidence testifies that he wanted from the plaintiff a certain sum of money for the use of the said team. He says: "After supper, when we came out to the stable, he says, 'Johnston, where are those notes?' I told him they were in the bank at Radisson. I said: 'How much are you going to let me have for this month's work. You have worked the horses and impaired their value. If you give me $2 a day for every day, I am satisfied to give you the notes.' It was arranged that we would meet at the bank so that we could settle about giving up the notes, and he would give me a certain sum of money, or I would have to advertise the horses for sale." The plaintiff positively says he never agreed to and would not pay the defendant anything; and in this the plaintiff is corroborated by the defendant, who further in his examination says: "I asked him what remuneration he was going to give me for the horses' work, and on account of their ill-usage they would not bring the amount which I sold them for. He said he would not give me anything." The plaintiff and Murphy both swear that the defendant took the horses out of the stable and put the harness on them and led them away; that the plaintiff forbade him to take the team, saying he could not have them. Johnston denies this, and says that Murphy gave him the ropes to put on the horses, and the plaintiff said he could take them. The preponderance of evidence is in favour of the plaintiff, and I must find his version to be the true one. In the Am. & Eng. Encyc. of Law, vol. 9, p. 68, I read: "No precise act or form of words is essential to a distress, and the distress may be made without actual seizure." The cases cited are: Wood v. Nunn, 5 Bing. 10; Thomas v. Cameron, 8 O. R. 441; Cramer v. Nott, L. R. 5 Q. B. 357. In Wood v. Nunn, 5 Bing. 10, the law is laid down: "No particular form or precise terms are absolutely necessary to make a distress; any distinct expression of intention on the part of the person distraining being sufficient." The principle of law about quoted applies in this case; and I find that there was a seizure. Second, had the defendant a lawful right to retake and repossess himself of the horses? There was no default in payment on the part of the plaintiff under the terms of the lien-agreement, but, under that agreement, the defendant, if he deemed himself insecure, had the right to take possession of the horses. The lien agreement reads as follows: "The property in and the title to the goods and chattels above-mentioned, which I hereby agree to buy, shall remain in J. Johnston, and shall not pass to me until full payment of the purchase-price thereof and all other obligations given therefor have been paid and performed. If I sell or attempt to sell the said goods and chattels or any of them, or if I attempt to sell the undermentioned lands which I own, or if I make default in payment of this note or any other note or notes or obligation or obligations given on account of the said purchase-price, or of any renewal or renewals thereof, or if J. Johnston shall deem himself insecure, the whole amount of the said purchase-price and interest thereon and all obligations or notes given therefor, and all renewals thereof, shall forthwith become due and payable, and the said J. Johnston may forthwith, without making presentment or demand, take action against me therefor, and the said J. Johnston may, by himself or his agent, at his own option, enter into and upon any land, house, room, building, or premises occupied by me and take possession of the said goods and chattels and retain the same, or sell the same at private sale or public auction, the proceeds, less costs and expenses of finding, keeping, repossessing, and selling them, to be applied on the debt, all of which shall be without prejudice to the right of the said J. Johnston to collect the balance remaining unpaid, which I agree to pay forthwith, and for which action may be taken against me by the said J. Johnston. I agree that the said goods and chattels shall be at my own risk as to damages or destruction from any cause, and that I will pay the said price therefor and interest thereon and all obligations given therefor, notwithstanding that the said goods and chattels may become damaged or destroyed." The defendant says that the plaintiff told him that there was no mortgage on the land. The plaintiff testifies that he did tell him, before he purchased the horses, that there was a mortgage of $2,000 on his half-section. In this he is corroborated by the witness Nutting, who says that the defendant told him (Nutting) that he sold the team to the plaintiff and knew he had a $2,000 mortgage on his farm, but did not know that he had a mortgage on his horses, until they told him in the bank. The defendant asserts that the plaintiff told him that there was no mortgage on the horses. This the plaintiff denies. These representations, even if made as the defendant asserts, were not the main grounds why the defendant deemed himself insecure, for he says: "Some of the prominent men in Fielding had said that some one ought to post old Mr. Johnston, as he had made a bad sale. Q. Did you pay any attention to these rumours? A. Yes; I was paying attention all the time after I first went to see the horses. Because I knew, if he was no good, all my security lay in the horses and the care he took of them, and, when I saw how he was abusing them, I felt very insecure." Again he says: They looked poor-I came to the conclusion that the team were ill-used, and a man that intended to pay for them would not abuse them that way." I find that the defendant had no valid reason for coming to that conclusion. The evidence of Murphy and John Campbell is to the effect that the horses were well-cared for and did not depreciate in value; and perhaps the best evidence in this connection is that of Ira Davis, who testifies that the defendant moved the horses from Thomas Ferris's to Robert Ferris's because, he said, "They were feeling so good they were kicking the stable down." He further says: "We looked the horses over. I made an offer of $500. The horses were in fair working condition." This amount, $500, the defendant afterwards received for the horses on a resale. The defendant wanted more security from the plaintiff. To satisfy him, the plaintiff offered him a second mortgage on his half-section. This the defendant refused, but insisted on the cash or payment of at least one note. I cannot think that he was reasonable in so acting; he should have been content with his lien-agreement, duly registered, under which his claim would be protected, and, in addition, the further security offered. He could have inquired as to the value of the plaintiff's half-section. The only evidence. is, that the plaintiff values his place at $20 an acre; that it is situated only a few miles from Fielding. The defendant was, no doubt, worried when he heard certain remarks affecting the financial standing of the plaintiff, but he could have ascertained the value of the farm which the plaintiff offered to mortgage as further security. Again, he knew that the plaintiff had a large acreage under crop, and prospects were favourable for a large yield of grain, and the probable ability of the plaintiff to pay a good part of his |