prima facie evidence of the regularity of all proceedings at the time thereof, and antecedent thereto, but I do not think it can be fairly contended that the words of that section mean that the assignment would be evidence of the insolvent having been a trader. That question is not one of the regularity of proceedings or of any proceedings. His trading, or any other business of his cannot properly be called proceedings; otherwise the assignment would be evidence of the regularity of his trading as well as of the fact that he was a trader, which could never have been the intention of the legislature. It seems to me clear that that section makes the assignment evidence of the regularity of the proceedings taken with a view to its being made and nothing more. If it were otherwise, as contended on the part of the plaintiff, an assignment made by a farmer, grazier, common labourer, or workman for hire would be evidence that they were traders within the meaning of the act, although the act itself says that it does not extent to such persons. But, admitting that the assignment is prima facie evidence of the insolvent being a trader, how can we uphold that presumption in the face of the evidence given by the plaintiff himself, showing clearly that Mr. Fairbanks was not a trader?

I have carefully considered the other questions involved, but it is not necessary that I should include the opinions at which I have arrived in this decision, because, if I am right, as I think I am, in saying that Mr. Fairbanks was not shown to have been a trader within the meaning of the act, the plaintiff cannot succeed in this action.

I think that the defendants are entitled to our judgment in their favor with costs.

MCKAY v. BONNETT.

ONE Nicholson, being indebted to plaintiff, gave him a horse, to be sold towards the satisfaction of the debt. Plaintiff swapped the horse with one Hardwick for a colt, informed Nicholson of the trade, fixed the value of the colt at $5.40 more than the debt, and paid this amount to a creditor of Nicholson in final settlement. Hardwick afterwards became dissatış fied with the trade, insisted upon plaintiff giving back the colt and applied to M., an attorney, who wrote plaintiff. Plaintiff called off the attorney and, according to the evidence of the attorney, declared to him that the horse was Nicholson's; according to plaintiff's evidence, not contradicted, he stated to him the arrangement between himself and Nicholson in reference to the horse, (as above set out). On the same day, and previous to the interview, M., acting as attorney of other parties, had entered up a judgment against Nicholson, and the Judge of the County Court found that the attorney had, on the faith of plaintiff's statement that the horse was not his but Nicholson's, caused the defendant, the sheriff, to levy on it in plaintiff's possession, and that plaintiff had abstained from looking after other property of Nicholson, who was a mere transient employé. Before any expense had been incurred in keeping the horse, and before the sale, the plaintiff notified the sheriff that the horse was his.

Held, in accordance with the previous ruling of the Court, 3 R. & C., 137, that the plaintiff was not estopped from setting up his ownership of the horse.

Per WEATHERBE, J., that the representation was not made with the intention that the execution creditor or the sheriff should act on it by seizing the horse, and it could not be reasonably inferred that such was the intention; and, further, that the assertion of plaintiff had not been made baldly but with a qualification explanatory of the arrangement above referred to, from which it seemed reasonable that the attorney had acted rather on the belief that the horse could be shown to be Nicholson's, than upon the mere assertion of plaintiff that it was so.

THIS cause came before the Court on an appeal from the decision of SAVARY, J., of the County Court, in a second trial, his decision on the first trial having been reversed by the judgment of the Court delivered February 8th, 1878, and reported in 3 Russell & Chesley, 137, q. v. The following is the decision appealed from:

I am disposed to venture a regret that the Supreme Court, in reversing my judgment on the point which I held ruled this cause, did not, in place of ordering a new trial, remit the case to me to find the question of property on the facts actually proved, a question which I at first felt confident had, by the acts and declarations of the plaintiff, become immaterial. Such was the course pursued in the case of Hindhaugh v. Blakey, L. R., 3 C. P. D., 136, and it would, I think, be warranted by sec. 37, County Court Amendment Act of 1877, authorizing the Court of appeal " to make such order or direction to the Court below touching the judgment to Le given in the matter, as the law requires." It seems to me that all the law required was a decision by me upon the evidence already given. The costs of a new trial would thus have been saved, and I would have had the benefit of the important evidence of

Nicholson, whose whereabouts has since become unknown, to aid me in the enquiry, besides the obvious advantage of testimony taken when the circumstances were fresh, and the result of an appeal had not clearly indicated to the parties interested the cardinal points of the case. The former evidence is not even in my possession, but, if my memory serves me, its complexion in the case of one or two witnesses varies slightly from that given on the recent trial, two instances of which I shall have occasion to notice.

I must, however, now decide on the new evidence before me, the substance of which is, as I credit the respective witnesses, first, that Nicholson being indebted to the plaintiff, offered him a horse for or towards payment, which, although he did not want it for his own use, he accepted upon an agreement to sell it or trade it for one suitable, and allow Nicholson in account for the proceeds of the sale or value realized from the barter. I think this amounts in effect to a chattel mortgage, with a trust or power to sell, which, although oral, yet, being accompanied by actual transfer of possession, gave the plaintiff the same dominion over the property against all the world as a bill of sale with a defeasance and power of sale would have done without delivery if duly filed under the statute. At all events it was such a transaction as, I think, gave the plaintiff a title to the horse as against every one till his debt was paid. In this view of the case I think the plaintiff would have been entitled to recover if the case rested here. But there are further important features to be considered. The plaintiff, in pursuance of his authority, traded the horse with one Hardwick for a colt. Hardwick says the trade was a conditional one, but the plair.tiff considered it absolute, and I am satisfied from the conduct of the parties it was intended to be the latter. He very soon met Nicholson, informed him of the trade, fixed on the value of the colt, gave him credit for it in his book, and, as this showed a balance in favor of Nicholson of about $5.40, he at once paid it for Nicholson, and on his order, to one Crowe, whom Nicholson owed, and this I regard as a final settlement between the parties. I do not overlook the fact pressed on the trial, that the plaintiff did not return to Nicholson the note that formed part of his claim. It is obvious that he would not do so at

the time he first got the horse, for the effect of the transaction on the state of the account' was still doubtful. At the settlement it is quite clear to my mind that it was accidentally overlooked; and, that Nicholson, at least, so regarded its retention, or at all events did not consent to it, is evident from his soon advertizing it. The colt then became unquestionably the plaintiff's.

Hardwick

But now comes the second branch of the case. was dissatisfied with the trade, and thinking, or assuming to think that he had been deceived in it, undertook by bringing back the horse and threatening legal proceedings, to secure restitution of the colt. On receiving a letter from Mr. Mills, attorney-at-law, the plaintiff promptly returned the latter. I have thought the matter over in every light, and my conclusion is irresistible that the horse was now absolutely the plaintiff's, unless Nicholson voluntarily consented to re-open the settlement. It had become his as the colt was by an absolute indefeasible title, and if by a title defeasible as in the first instance, which is the least favorable view that can be taken of it, he could hold it even against Nicholson himself till the condition of the defeasance had been fulfilled, and most certainly against the sheriff acting for any creditor of Nicholson's, for if the latter could not reclaim it without paying back his $5.40 besides the original debt, how could his creditors acquire under an execution against Nicholson any greater title than Nicholson himself had? As the Court above holds that the question of property must decide the case, my judgment on the above facts will be for the plaintiff for $56.50.

But now comes the third, and what I consider the controlling feature of the case. Mr. Mills, Hardwick's attorney, happened to be the attorney of Messrs. Randall & Higgins, creditors of Nicholson, and the plaintiff, when he called on him to reply to his letter, declared to Mr. Mills that the horse was not his own property, but that of Nicholson, and that he would yield to Hardwick's demand rather than risk a lawsuit for Nicholson's benefit. It is immaterial to me whether he said this in sheer ignorance of his own rights or for the purpose of throwing off his own shoulders on those of Nicholson the reproach attaching to any supposed deception in the trade, or because,

supposing and desiring that he might induce Nicholson to re-open the settlement, take back the horse, and pay him otherwise, he imprudently anticipated the fact. I find affirmatively, that Mr. Mills, having every reason to believe the statement, did upon the faith of it, acting for Randall & Higgins, cause the sheriff on the 10th January, to levy on and advertize the horse, and abstained from looking after other property of this transient railway employe, whereby his clients necessarily had their recourse against him substantially weakened, if not destroyed, from the very first. The Court above, pressed by the explicitness of my finding as to the declarations of the plaintiff, and their influence upon Mr. Mills, or rather Randall & Higgins, his clients, and the sheriff, (who it must be borne in mind throughout is identical in interest with them), seem to think there was evidence by which I might have found the property in Nicholson, and regret that they cannot give effect to it in that way. I felt that I could not do so, for while the solemn. declarations of a party are most powerful evidence against him and, where the facts are obscure, often decisive, they cannot weigh down incontestably established facts which "speak louder than words." To allow them to do so, would be to give them the effect of an estoppel under another form, and would often lead to most unjudicial and inconclusive decisions. In the remarks I am about to make I must not be understood as contending for a single moment that my former judgment was right and the Court above wrong; I cheerfully and most respectfully bow, not only to their superior authority, but to their greater learning and experience. I merely desire to point out the process of reasoning and the authorities which led me, (erroneously,) to that judgment.

It is a principle of natural justice that a man should be bound by his own deliberate statements where these statements have been believed and acted on by another party to his detriment, and where both are equally innocent the party imprudently making the assertion ought in conscience to bear the loss. Such is the foundation of the doctrine of estoppel in pais or equitable estoppel, and which, although generally it need not be pleaded at all, is often relied on as matter for pleading on equitable grounds. However the maxim that