(3) That an equitable claim like the plaintiff's in this action can now be entertained by a County Court.

(4) That no demand and refusal was necessary before action.

PER BAIN, J.-That at common law, also the plaintiff would have been entitled to recover from the defendant as for money had and received by the defendant for his use.

Appeal dismissed with costs.

ARGUED 30th November, 1900.

DECIDED: 9th March, 1901.

1901.

COUNTY Court appeal. The defendant shipped a quan- Statement. tity of wheat in two cars of the Northern Pacific Railway Company from Blake siding in Manitoba to Duluth in the United States, with directions to have it cleaned and dried. at Roland in Manitoba. It was unloaded, dried, cleaned and re-loaded at Roland. This was done through an elevator and a drying plant operated in the name of the plaintiff, but for the benefit of others as well as himself. When this occurred the plaintiff was buying wheat at Roland and putting it through the same elevator. After one carload had been dried and cleaned there remained of it for shipment 575 bushels. The employees in the ele vator, not knowing anything of the ownership, put these 575 bushels, with a further quantity of 260 bushels, into the car from which the 575 bushels had come, and sent the car forward.

After shipment of the wheat the defendant transferred it to one Brown, as security for the repayment of $500 advanced to him. Brown sold all the wheat in the two cars and obtained payment therefor. He effected delivery through bills of lading which had been handed over by Jackson. After retaining $500 to satisfy his own. claim, he paid the balance of the proceeds to Jackson. Apparently the wheat was not weighed or measured before shipment, but the defendant estimated the weight at 50,000 lbs., making approximately 833 bushels. There was no evidence that either Brown or Jackson knew or had

1901. the means of knowing, before receipt of the purchase Statement. money and the payment to Jackson, that any grain other than Jackson's had been sold or paid for.

The plaintiff sued the defendant for drying his grain and for the price of the 260 bushels, and obtained judg ment for both claims. The defendant appealed as to the second claim only.

H. M. Howell, Q. C., for defendant. The statement of claim is very bald and does not show whether the action is in contract or in tort. Defendant owned the wheat and loaded it on a car at a station where there was no railway agent and signed the shipping bill for it himself for shipment to Duluth, to be cleaned and dried at Roland. Defendant transferred the bill of lading with one of another car to one Brown to secure an advance. Brown says it was sold on the track at Blake Siding just as it was. It was sold to O'Reilly, who purchased from Brown. He had nothing to do with defendant. When O'Reilly bought, the wheat was in Duluth. Plaintiff showed the business at Roland was carried on in his name but for others. Brown sold the carload of wheat to O'Reilly, who paid Brown. Brown paid himself and gave the balance of the money to Jackson. There was no evidence he gave him the same money. There is no implied promise to pay when one man's money gets into another's hands: Addison on Contracts, 430; Foster v. Green, 7 H. & N. 886. If the wheat itself were being sued for there should have been a demand: Freeman v. Jeffries, L.R. 4 Ex. 189; Wilkinson v. Godefroy, 9 A. & E. 537. There was no privity between Jackson and plaintiff: Hurley v. Baker, 16 M. & W. 26; Robbins v. Fennell, 11 Q.B. 253. An overpayment cannot be recovered: Skyring v. Greenwood, 4 B. & C. 290. A payment for another without request cannot be recovered: Aiken v. Short, 1 H. & N. 214. Confeder

ation Life v. Merchants' Bank, 10 M. R. 69, was a case of mistake.

J. A. M. Aikins, Q. C., for plaintiff. Plaintiff is not suing for conversion, or trying to follow his money. Plaintiff claims an implied contract arising out of defendant's receipt and retention of money received for plaintiff's wheat. The contract for cleaning was between the plaintiff and the shinner, the defendant. The mistake arose in reshipping after cleaning. Plaintiff did not know Brown in the transaction. The transfer was to Brown as security only and may have been after receipt of wheat at Roland. The money was paid in error to defendant, who received the benefit of it. Defendant should be deemed to have known the quantity he shipped, and that there would be a shrinkage by cleaning and drying, and thus become. aware of a mistake at the time he received the price of the larger quantity of wheat: Best on Evidence, 265. Evidence of error was given in Freeman v. Jeffries, L.R. 4 Ex. 189; see also Kelly v. Solari, 9 M. & W. 57. There was an implied contract arising, as it would be unconscientious for defendant to retain the money: Kerr on Mistake, 520; Marriot v. Hampton, 2 Sm. L. C. 410; Durrant v. Ecclesiastical Commissioners, 6 Q.B.D. 234; Kendal v. Wood, L. R. 6 Ex. 243. This case might be compared with the case of an executor paying a legatee without providing for a creditor; in which case the creditor could sue the legatee: Lewin on Trusts, 356; Fordham v. Wallace, 10 Ha. 217. One cestui que trust can recover from another: Lewin on Trusts, 357; Harris v. Harris, 29 Beav. 110; Owston v. G. T. R., 28 Gr. 431. An action can be had for money had and received: Moses v. Macferlan, 2 Burr. 1005; that case is still cited as an authority: Johnson v. Johnson, 3 B. & P. 169; Marsh v. Keating, 1 Bing. N.C. 204; Allanson v. Atkinson, 1 M. & S. 593. As to a court of equity interfering: Godefroi on Trusts, 684.

1901. Argument.

1901. There was a fiduciary relation created: Sanderson v. Argument. Gairdner, 14 U.C.C.P. 330; Sessions v. Strachan, 23 U.

C.R. 492; Gaines v. Miller, 111 U.S.R. 395; Taylor v. Taylor, 20 Ill. 650. Brown, as holder and transferee of the bill of lading, became a trustee of the proceeds. The following authorities were also referred to: Taylor's Equity, & 1049; Story's Equity, vol. 2, § 1255; A. & E. Ency. of Law, vol. 6, p. 593, § 3; Lawrie v. Rathbun, 38 U.C.R. 275; Encyclopædia of Laws of England, vol. 3, p. 134; Jones v. Moore, 4 Y. & C. Ex. 357, 358; Lauri v. Renad, [1892] 3 Ch. 413, 414; Snell's Equity, 12th ed. 135; Sander's Justinian Ins., Lib. II, Tit. 1-28, p. 104; Banner v. Berridge, 18 Ch. 254, 269.

H. M. Howell, Q. C., in reply. Owston v. G. T. R. 28 Gr. 431, was a case of a party receiving the money being really a trustee. If by a wrongful or fraudulent act the property of one man gets into the hands of another it can be recovered back. Calland v. Lloyd, 6 M. & W. 26, turned on the relationship of husband and wife and also on the identity of the money. In Mason v. Waite, 17 Mass. 560, plaintiff handed his money to a stage driver accustomed to take charge of money. The case turned on the illegality of the defendant's transaction. In Hudson v. Robinson, 4 M. & S. 475, there was a wrongful act of selling. In Littlewood v. Williams, 6 Taunt. 278, defendant received the money with knowledge of the breach of trust. As to following trust funds:Thorndike v. Hunt, 3 De G. & J. 563. Re Carew Estate, 31 Beav. 41, turned on a trustee being a director, and so the company had notice. In Taylor v. Blakelock, 32 Ch. D. 560, there was a purchase for value. Defendant having settled with Brown he must be considered as having given value. The money in question here connot be followed: Denton v. Davies, 18 Ves. 499; Ex parte Hardcastle, 29 W. R. 615; Culhane v. Stuart, 6 O. R. 97. It was the wrongful act of

1901.

O'Reilly which created the difficulty. He was the wrongdoer. Brown intended to sell only his own grain. He Argument. did not know he was getting the proceeds of Roblin's grain. To create a trust there must be a contract. If Brown were a trustee for anyone it would be for O'Reilly. The action is only on the common counts and the Court cannot enforce in it such an alleged equity.

KILLAM, C. J.-The learned Judge of the County Court proceeded upon the view that Brown sold and received the purchase money as the agent of the defendant. In this view, with all respect, I am unable to agree. Brown sold in his own right as mortgagee or pledgee. The defendant gave him no authority to sell the plaintiff's grain, and it would have been inequitable to hold the defendant liable if Brown had retained the plaintiff's share of the proceeds.

But it appears to me that Brown received the plaintiff's share in a fiduciary capacity. It was not a mere case of wrongful conversion. There was a commixture of goods by accident, and Brown was co-owner of the mass with the plaintiff. The plaintiff's servants placed the whole carload under the control of the consignee. Although the railway company held the actual possession, the holder of the bill of lading was virtually constituted a bailee for the plaintiff of his share.

The judgment of the Court of Appeal in England in In re Hallett, 13 Ch. D. 696, shows that the proceeds of property held in a fiduciary capacity as agent, factor, or bailee, may be followed in equity to the same extent as if held upon an express trust.

It is clear from such cases as Harris v. Harris, 29 Beav. 110; Eaves v. Hickson, 30 Beav. 136, and Owston v. The Grand Trunk Ry. Co., 28 Gr. 431, that, where a trustee has paid over to one beneficiary a portion of the trust estate belonging to another beneficiary, without the