parties. I can see nothing in the evidence which goes to prove this, and in my opinion it remained personalty, as it was before it was taken to the mill. The verdict for the defendants must stand.

KILLAM, J.-I agree that the rule should be discharged. The only doubt I felt upon the argument was caused by the citation of certain expressions used by Spragge, C., in Dewar v. Mallory, 26 Gr. 618.

The learned judge before whom the cause was tried, found tha the machine in question was not affixed to the freehold by any fastening whatever. If he believed the evidence of Mackay, he was warranted in this finding. He evidently came to this conclusion with considerable hesitation, and upon reading all the evidence, I cannot help feeling a very strong suspicion against the correctness of the evidence of Mackay in this respect. The evidence is not, however, such that I can say that I have more than a strong suspicion, or that I can hold the finding of the learned judge in this respect to be erroneous.

The rule laid down in Holland v. Hodgson must then be applied. It has not, so far as I know, been questioned, and it is so thoroughly in accord with reason and the general current of the authorities, that I have no hesitation in adopting it. This rule is "that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to be chattels."

What then are the circumstances which show that the planing machine in question was intended to be part of the land?

I put aside at once the conversation between MacKay and the plaintiffs' agent. MacKay may have meant that he had made the machine a fixture, that the security was to be deemed to be, as between himself and the plaintiff, improved to that extent; he may have meant that the agent should receive that impression, while he had in his own mind no intention of making the machine a part of the land or subject to the mortgage; he may have meant no more than to explain that he was unable at the time to make a payment upon the mortgage, because his available

funds had been expended in this planer, just as he might have made the same explanation if he had invested his available funds in a stock of goods, and he may not have intended the agent to understand more than this. It certainly cannot be necessarily implied from the words said to have been used, either that he then admitted having made the machine a part of the land, or that he then constituted it such as between himself and the plaintiff, or that he intended the agent to understand him as having either of these meanings.

If the language of the Chancellor in Dewar v. Mallory is to be understood as meaning that, where a machine like this is not otherwise attached to the freehold than by its own weight, it is sufficient proof of its being intended to be part of the land, that it is a machine for perfecting for market the same material as is cut up in the saw mill, or that it is to be used for carrying on the business of the same owner upon the same premises as the other machinery previously there, I cannot quite agree with him.

It does not appear to me that the authorities bear out the proposition. That such a state of affairs exists is an element to be considered when the machine is in fact attached to the freehold, but I know of no authority that makes these circumstances sufficient from which to imply that the machine is intended to be affixed to the realty when there is no attachment in fact.

It does not appear from the report of the case of Dewar v. Mallory, whether the planing machine was actually fastened to the realty in any way; but from its being stated that portions of the machinery had been "severed" from the premises, from the Chancellor saying that the articles in question were “outside of the rule that prevails in reference to trade fixtures, from the natural inference to be derived from the character of some of the articles mentioned that they must have been in some way fastened to the building, and from no distinction in this respect being in any way spoken of, I have little doubt that all of the articles were actually attached more or less slightly to the freehold.

I think, on the contrary, that the view of Patterson, J., in Keefer v. Merrill, 6 Ont. App. p. 139, is the correct one. He there says: "I am not aware of any case in which articles unattached to the realty and merely standing upon it have been held to lose their character of chattels unless they are of the

classes described; or in which a chattel such as a machine complete in itself or even complete as a machine, though receiving motive power by connection by a belt or pipe with some other machine, has been held to belong to the realty merely because used in a building where a manufacture for which the machine was adapted was carried on. Decisions contrary to such a contention are numerous."

I cannot find that in the present instance the intention to make the machine in question a part of the realty has been proved, and as the onus of proving this lay on the plaintiff, the verdict for the defendant must stand.

GERRIE v. RUTHERFORD.

(IN CHAMBERS.)

What may be garnished.-Claim for damages.

A claim against a railway company for damages for injuries sustained may be attached by a creditor of the person injured.

The fact that a defendant has assigned his claim against the garnishee is no reason for setting aside the attaching order.

Although an assignee of a chose in action may sue in the name of his assignor, and not be affected by acts of the assignor, yet a cestui que trust cannot either in an application at law or by proceedings in equity, intervene to prevent the effect of a waiver by his trustee of an irregularity in proceedings at law to which the trustee is a party.

C. H. Campbell for plaintiff.

H. J. Clarke for defendant and J. Campbell.

Atkins, Culver & Hamilton, (W. Bearisto) for C. P. R.

[20th April, 1885.]

KILLAM, J.-Application to set aside a garnishee attaching

order.

The application is made by one of the defendants and one Campbell, the latter claiming to be an assignee of the liability attached.

The first point taken is, that the "money sought to be attached herein, is not garnishable or attachable."

The garnishee is The Canadian Pacific Railway Company. The liability attached is a claim of the defendant, James Rutherford, against that company for a personal injury alleged to have been sustained by him while travelling upon the company's line of railway through the negligence of the company or its employees. It is shown that no action has been brought in respect thereof, and that the amount of damages recoverable remains unsettled. This appears to me to be a liability within the meaning of section 44 of the Administration of Justice Act, Con. Stat. Man., c. 37, and to be attachable as such. If, in case of an application against the garnishee to pay over moneys under the attaching order, the garnishee should dispute the claim and it should be ordered that the plaintiffs herein proceed to the trial of an action against the garnishee, under the provisions of the Common Law Procedure Act, 1854, sec 64, it may be considered necessary that an affidavit be filed under the Act 46 & 47 Vic. c. 4., s. 4; but I see nothing to prevent the present plaintiffs from making and filing such an affidavit as is required. The next objection is that before the order the claim sought to be attached Campbell, one of the parties applying. objection can be raised in this way. anomalous to allow, as a ground for setting aside the attaching order at the instance of the defendant, the very fact that he has no interest in the claim attached and, therefore, that the order does not affect him. And as to the assignee, I cannot see that he has any claim to be heard on such a point. If his contention be correct, the attaching order cannot affect him. Even payment by the garnis hee under the order would not prevent the assignee from still asserting his right, provided he had taken care to notify the garnishee of his assignment. It is true that sections 29 and 30 of the Common Law Procedure Act, 1860, make provision for bringing before a judge a third person who claims. a lien or charge upon the claim sought to be attached, and for adjudicating upon the rights of such a claimant ; but this is to be

issue of the attaching had been assigned to I do not think such an It would certainly be

done "whenever in proceedings to obtain an attachment of debts, it is suggested by the garnishee that the debt, etc., belongs to some third person etc." These sections are evidently intended solely for the protection of the garnishee, giving him a right of interpleader analogous to that given by other statutes to sheriffs and others. Even before 1860 it was held in Hirsch v. Coates 18 C.B., 757, that the attaching order should not be set aside upon the contention that the debt was assigned, but that only the summons against the garnishee to pay over was to be discharged; and in Wise v. Birkenshaw, L. J. 29 Ex. 240, when upon such a motion against the garnishee the court held that it was not obligatory upon a judge to allow an action by the attaching creditor against the garnishee where an assignment, appearing to him bona fide, was set up, yet it was there stated by more than one of the judges that it would be different if there was reason to believe the assignment fraudulent. Here there is very good reason to suspect fraud, and to set aside the attaching order would be to deprive the plaintiffs of the opportunity to have this determined.

It is true that in Clark v. Clark, 8 U. C. L. J., 107, an attaching order was set aside on the ground of the debt being assigned, upon the joint application of the defendant and his assignee. For the reasons above given, I cannot follow that decision. It is based only upon Wintle v. Williams, 3 H. & N. 288, but in the latter case the order was set aside upon the motion against the garnishee for payment over, and not at the instance of either the defendant or the assignee. Rittinger v. McDougall, 10 U. C. C. P. 395, is an authority against the right of the assignee to make such an application.

The other objections are technical objections to the affidavit upon which the attaching order was issued, and are :

(1.) “That the affidavit. . . . does not properly describe the person making the same, and the deponent does not swear positively, nor that he has reason to believe some third party is indebted to the said James Rutherford."

(2.) "That the affidavit does not show that the judgment herein is unsatisfied as against both defendants herein, nor that the amount of the judgment is justly due and owing to the plaintiffs." (3.) That the said affidavit states that the garnishees are 'indebted or liable' to the defendant, James Rutherford, instead of stating one ground-either indebted or liable."