HAULTAIN,
C.J.S.:—The
plaintiffs,
during
each
of
the
years
1925
and
1926,
carried
on
business
as
lumber
manufacturers
within
the
defendant
municipality.
In
each
of
the
years
mentioned,
the
plaintiffs
were
assessed
by
the
defendant
in
respect
of
their
"‘stock
in
trade’’.
No
appeal
was
taken
from
the
assessment
either
in
1925
or
1926,
and
the
taxes
levied
were
not
paid.
On
August
13,
1927,
the
defendant
distrained
for
the
taxes
alleged
to
be
due,
and
seized
a
quantity
of
lumber
belonging
to
the
plaintiffs.
The
plaintiffs
thereupon
brought
this
action
for
the
recovery
of
the
lumber,
and
obtained
possession
by
writ
of
replevin.
The
defendant
defended
and
also
counterclaimed
for
return
of
the
lumber.
On
the
trial
of
the
action
the
trial
Judge
allowed
the
plaintiffs’
claim,
and
dismissed
the
counterclaim
with
costs,
but
gave
no
reasons
for
his
decision.
So
far
as
the
1926
assessment
of
‘‘stock
in
trade’’
is
concerned,
it
was
clearly
illegal
and
of
no
effect.
For
some
years
prior
to
1926,
the
property
in
a
rural
municipality
subject
to
taxation
under
The
Rural
Municipality
Act,
R.S.S.
1920,
c.
89,
and
amendments,
was
"‘land,
buildings
and
stock
in
trade’’.
By
the
amending
Act
of
1925-26,
c.
21,
see.
12,
it
was
provided
that,
upon
the
coming
into
force
of
the
Act
on
April
1,
1926,
the
property
subject
to
taxation
should
be,
"‘Land,
buildings,
and
business’’.
The
business
assessment
was
based
on
the
floor
space
of
buildings
used
for
business
purposes,
according
to
certain
classifications
of
business
provided
in
the
Act.
The
assessment
for
1926
was
not
made
until
after
April
1,
consequently
the
assessment
of
‘‘stock
in
trade”
was
of
no
effect,
as
it
affected
to
tax
property
which
was
‘no
longer
liable
to
taxation..
The
assessment
for
1925
stands
on
a
different
footing.
In
that
year,
as
the
law
then
stood,
"‘land,
buildings
and
stock
in
trade’’
were
liable
to
taxation.
"Stock
in
trade’’
under
the
Act
was
stated
to
be
the
"‘stock
in
trade
of
a
mercantile
business”,
and
the
assessor
was
directed
to
assess
every
person
who
was
‘‘engaged
in
mercantile
business’’
in
the
municipality.
The
plaintiffs
contend
that
the
business
of
a
manufacturer
is
not
a
mereantile
business,
and,
as
they.
were
engaged
in
a
purely
manufacturing
business,
that
they
were
not
liable
to
be
assessed
in
respect
of
their
stock
in
trade.
The
difference
between
"‘merchant’’
and
"‘manufacturer’’
has
been
dealt
with
by
my
brother
Martin,
and
there
is
ample
authority
for
saying
that
the
word
"merchant’’
must
generally
be
construed
in
its
ordinary
and
common
sense,
as
meaning
one
"‘who
deals
in
an
article
by
buying
and
selling
it
and
that
there
is
no
ground
for
construing
it
as
including
a
manufacturer
who
confines
himself
to
selling
his
own
manufacture’’.
Per
Eve,
J.,
in
Lovell
and
Christmas
v.
Wall
(1910)
103
L.T.
988
at
591,
27
T.L.R.
94,
approved
by
the
Court
of
Appeal
in
S.C.
(1911)
104
L.T.
85,
27
T.L.R.
236.
See
also
Josselyn
v.
Parson
(1872)
L.R.
7
Ex.
127,
41
L.J.
Ex.
60,
which
was
followed
by
Eve,
J.
in
the
case
above
cited.
While
the
difference
between
"‘merchant’!
and
"‘manufact-
urer’’
is
well
defined
by
authority,
it
does
not,
in
my
opinion,
necessarily
follow
that
that
difference
must
be
imported
into
the
construction
of
the
more
comprehensive
term
"‘mercantile’’.
In
the-
cases
cited
above,
the
question
in
each
case
turned
on
the
construction
of
a
contract
in
restraint
of
trade,
and
for
that
purpose
distinctions
between
words
and
phrases
depended
upon
the
contract
and
circumstances
in
each
case.
In
such
cases
the
meaning
to
be
attached
to
particular
words
and
phrases,
iii
the
light
of
the
whole
agreement,
would
depend
very
largely
upon
‘whether
the
business
engaged
in
in
alleged.
breach
of
contract
was
‘‘so
like
the
other
as
seriously
to
compete
with
it*’
:
27
Halsbury,
p.
574.
See
also
Castelli
v.
Middleton
(1901)
17
T.L.R.
373
at
378;
Harms
v.
Parsons
(1862)
32
Beav.
328,
32
L.J.
Ch.
247,
55
ER.
129;
Automobile
Carriage
Builders
V.
Sayers
(1909)
101
L.T.
419.
The
derivative
words
‘
mercantile
commercial
‘‘and
‘‘mer-
chandise””
are
all‘broader
in
their
signification
than
merchant”.
Mercantile
law
deals
with
a
variety
of
subjects
which
have
no
special
relation
to
‘‘merchant’’
or
the
business
of
a
‘‘merchant’’,
in
the
strict
sense
of
that
term,
as
will
be
seen
by
the
various
matters
dealt
with
in
The
Mercantile
Law
Amendment
Act
ot
1856.
In
Grainger
and
Son
v.
Gough
[1896]
A.C.
325,
65
L.J.Q.B.
410,
at
pp.
413
and
418
;
Lord
Herschell
said,
at
p.
413
:
“How
does
a
wine
merchant
exercise
his
trade?
I
take
it,
by
making
or
buying
wine
and
selling
it
again
with
a
view
to
profit.”
Lord
Davey
in
the
same
case,
at
p.
418,
said
:
“Now
what
does
one
mean
by
a
trade,
or
the
exercise
of
a
trade?
Trade,
in
its
largest
sense,
is
the
business
of
selling,
with
a
view
to
profit,
goods
which
the
trader
has
either
manufactured
or
himself
purchased.
‘‘
Bouvier
defines
mercantile
law
as
:
"‘That
branch
of
law
which
defines
and
enforces
the
rights,
duties
and
liabilities
arising
out
of
mercantile
transactions
and
relations.
‘
‘
.
Can
it
then
be
said
that
the
business
of
a
manufacturer
is
not
a
mercantile
business,
or
that
the
sale
of
his
product
by
a
manufacturer
1
is
not
a
mercantile
transa
‘
?
Lord
Herschell,
as
above
quoted,
refers
to
a
wine
merchant
as
one
who
makes
or
buys
wine
and
sells
it
again..
In
this
country
a
lumber
merchant
is
commonly
known
and
understood
to
be
one
who
manufactures
or
buys
lumber
and
sells
it
again.
I
am
therefore
of
the
opinion
that
the
plaintiffs
were
engaged
in
mercantile
business
in
the
municipality,
and
that
their
stock
in
trade
was
consequently
liable
to
assessment
and
taxation
in
the
year
1925.
The
position,
therefore,
when
the
distress
was
made,
was
that
the
defendant
was
entitled
to
distrain
for
a
very
considerable
portion
of
the
taxes
for
which
distress
was
made.
Under
those
circumstances
the
distress
was
not
illegal.
In
the
analogous
case
of
distress
for
rent,
if
some
rent
is
due
levy
for
more
than
is
due
makes
the
distress
probably
excessive,
but
not
illegal:
Forty
v.
Imber
(1805)
6
East.
484,
102
E.R.
1354;
Stevenson
v.
Newnham
(1853)
13
C.B.
285,
22
L.J.C.P.
110,
138,
E.R.
1208;
White
v.
Greenish
(1861)
11
C.B.
(N.S.)
209.
142
E.R.
776.
The
same
rule
applies
to
a
levy
for
taxes:
Robertson
v.
Hopper
(1909)
2
Sask.
L.R.
365,
368,
12
W.L.R.
5;
Smart
Hardware
Co.
v.
Melfort,
10
Sask.
L.R.
40,
[1917]
1
W.W.R.
1184.
Following
the
cases
on
landlord
and
tenant,
the
defendant
municipality
was
not
bound
by
the
amount
claimed
when
the
distress
was
made,
and
although
it
claimed
for
more
taxes
than
were
due,
it
was
not
liable
to
an
action
unless
the
distress
was
excessive
for
the
amount
actually
due:
Tancred
v.
Leyland
(1851)
16
Q.B:
669,
20
L.J.Q.B.
316,
117
E.R.
1036;
French
v.
Phillips
(1856)
1
H.
&
N.
564,
26
L.J.
Ex.
82,
156
E.R,
1327;
Glynn
v.
Thomas
(1856)
11
Ex.
870,
25
L.J.
Ex.
125,
156
E.R.
1085.
In
the
present
case
the
defendants
sought
their
remedy
in
replevin,
but
replevin
only
les
where
the
distress
is
wholly
illegal,
and
cannot
be
supported
where
some
rent
or
taxes
are
due
:
Johnson
v.
Upham
(1859)2
El.
&
El.
250,
28
L.J.Q.B.
292;
White
v.
Greenish,
supra.
In
the
present
case
the
plaintiffs
rested
their
whole
case
on
the
ground
that
the
distress
in
question
was
illegal,
and
on
the
authorities
above
cited
their
action
wholly
failed.
The
appeal
should
therefore
be
allowed
with
costs,
and
the
judgment
below
should
be
set
aside
and
judgment
entered
for
the
defendant.
dismissing
the
action
with
costs,
but
I
would
allow
no
costs
on
the
counterclaim.
Martin,
J.A.:—The
plaintiffs
are
lumber
dealers,
and
are
owners
of
certain
timber
limits,
sawmills,
and
stock
in
trade
of
lumber,
in
the
defendant
municipality.
During
the
years
1925
and
1926
they
operated
a
sawmill
at
Peesane,
within
the
limits
of
the
municipality.
In
each
of
the
years
1925
and
1926
the
municipality
assessed
the
plain-
tiffs
in
respect
of
"‘stock
in
trade’’,
the
valuation
of
which
was
placed
at
$7,500,
the‘total
taxes
for
1925
being
$200,
and
for
1926,
$165.75.
The
assessment
purported
to
be
made
under
the
provisions
of
The
Rural
Municipality
Act,
RS.
S.
1920,
c.
89,
and
amendments
thereto.
The
plaintiffs
refused
to
pay
the
taxes,
on
the
ground
that
they
are
carrying
on
a
manufacturing
business,
and
not
a
"mercantile
business’’,
and
that
they
were
not
owners
of
a
"stock
in
trade’’
liable
to
assessment.
No
appeal
was
taken
to
the
Court
of
revision
from
either
assessment,
but
it
is
contended
by
the
plaintiffs
that
the
assessments
w
ere
void
ab
initio.
On
August
13,
1927,
the
defendant
distrained
upon
40,500
feet
of
lumber
owned,
by
the
plaintiffs,
and
valued
at
$931.50.
to
recover
the:sum
of
$445.95,
being
the
taxes
in
arrears,
penalties,
and
costs.
of
distress.
The
plaintiffs
then
commenced
this
action,
alleging
wrongful
distress
of
the
lumber,
and
claiming
its
return
or
payment
of
its
value.
No
claim
is
made
for
excessive
distress.
A
writ
of
replevin
was
issued,
and
the
plaintiffs
recovered
possession
of
the
lumber.
The
defence
of
the
municipality
is
that
the
plaintiffs
were
properly
assessed
in
accordance
with
the
provisions
of
The
Rural
Municipality
Act,
that
the
assessment
roll
of
the
defendant
municipality
in
each
of
the
years
1925
and
1926
was
duly
completed,
and
that,
as
no
complaint
or
appeal
was
filed
by
the
plaintiffs,
the
assessment
roll
as:
completed
binds
all
parties.
The
learned
trial
Judge
gave
the
plaintiffs
judgment
for
the
return
of
the
lumber,
with
costs.
From
this
judgment
the
defendant
has
appealed.
For
the
reasons
set
out
in
Harris
Co.
v.
B
jorkdale
R.M.,
decided
at
the
present
sittings
of
the
Court,
and
in
which
the
appropriate
provisions
of
The
Rural
Municipality
Act
are
fully
Set
out,
I
am
of
the
opinion
that
the
assessment
of
the
stock
in
trade
of
the
plaintiffs
in
1925
was
void
ab
initio.
There
was
no
jurisdiction
to
assess
the
stock
in
trade,
unless
the
plaintiffs
were
carrying
on
a
‘‘mercantile
business’’,
and
the
business
of
manufacturing
lumber
does
not
t
fall
within
the
meaning
of
this
term.
In
1926
an
amendment
contained
in
c.
21
of
the
statutes
of
1925-1926,
sec.
12,
was
in
force,
under
the
terms
of
which
“stock
in
trade”
was
no
longer
assessable,
but
instead
authority
was
given
to
assess
business
’
’.
There
was
therefore
no
jurisdiction
in
the
municipality
in
1926
to
assess
stock.
in
trade,
and
such
assessment
was
void
ab
initio.
As
there
was
no
jurisdiction
to
make
the
assessments
in
question
in
either
of
the
years,
confirmation
by
the
Court
of
revision
could
not
validate
them:
London
v.
Watt
&
Sons
(1893)
22
S.C.R.
300;
Toronto
Ry.
v.
Toronto
Corpn.
[1904]
A.C.
809,
13
L.J.P.C.
120;
North
Battleford
v.
Brehaut,
13
Sask.
L.R.
202,
[1920]
1
W.W.R.
1053;
London
v.
G.
W.
Ry.
(1859)
17
U.C.Q.B.
262;
Chant
v.
Regina,
19
Sask.
L.R.
188,
[1925]
1
W.W.R.
65,
at
75.
I
would
dismiss
the
appeal
with
costs.
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