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Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 5 6 Ch A COMl iVlorti AND Wl liARKISI Al Chattel Mortgages ANIJ BILLS OF SALE. A COMPLETE ANNOTATION OK THE STATUTES OK ONTARIO, NOV-V SCOTIA, NEW BRUNSWICK, PKINCE EDWARD ISLAND,' MANITORA, liRlTISH COEU.MlilA, AND THE NORTH-WEST TERRITORIES, DKALINT, wnil Mortgages and Sales of Personal Property AND ALSO SUCH STATUTES OK CANADA AS AKKECT THE S XMF WITH A TREATISE ON THE GENERAL LAW OF CHATTEL '' mori(;a(;es and hills ok sale; and a COMPLETE COLLECTION OK KOR.\LS. /jS^ A Xeii, Edition of liarron on liilh of Sale. BY JOHN A. BARROlN, OK .wr.nonh; mall, un,-: ,„.■ hkk ,MAj:.:sn-'s cou.n.ski., AM) A. H. O'BRIEN, IVI.A., ' lURK.STKK.AT-I.AW, ASS.STANT ,.AW .-..KKK ..K vm- .,OU..K OF COMMONS OK rilK "CANAHA I. AW JCIIKNAL," KIT. TORONTO : CANADA LAW JOURNAL COMPANY. .897. kE.. I 637 O^-'t o Entered according to Act of the Pari eight hundred of Agriculture eight hunSred";;d";;;:t;rsei:rbr A H ri.o • ■"••""""= "'"usana A. H. O Brien, at the Department app tim( upo and 1 PRINTED IIY KOHT. G. McLean, 32 AND 34 LOMHARD STKEET. Toronto PREFACE. ear one thousand the Department It IS now nearly ten years since the second edition appeared of " Barron on Bills of Sale," and up to the present time that work has remained the only Canadian text book upon a subject so important as the law respecting mortgages and sales of personal property. It was originally the intention of the authors of the present work to publish merely a third edition of the previous one but m the decade that has passed since the second edition the law has m many respects been completely changed, and such of It as remams the same is so modified by judicial decision and statutory enactment, that an entirely new work was found to be necessary. All that appeared in the former work, and which* yet re mains good law, will still be found, while a great deal of obsolete matter, including insolvency legislation, has been ehmmated, and its place taken by modern law. Even such as ,s retamed of the previous work has been put in more careful sequence, and duplication avoided. The space saved ui th.s way and the increased size of the pages, produces a book, which, while .t omits nothing of any value, gives more matter m a more convenient form. _ Until the 30th of May, 1849, there was no statute in force m Upper Ctinada, requiring registration of mortgages of per- sonal property. On that day, the statute, 12 Vict c 74 became law. This statute is the foundation of the sub'sequen; Acts relatmg to mortgages of goods and chattels. The present time seems opportune for a new work on this subject. Smce the previous work was issued, the Ontario law was first amended several times, then consolidated in 1804 and IS now being revised for the new Revised Statute^ to be .ssued next year. It is owing to the kindness of the Commis- sioners who are making the revision, that " The Bills of Sale and Chattel Mortgage Act," which has finally passed through the.r hands, has been placed in ours, thus enabling us to anticipate the Revised Statutes, the expectation of the early VI PRKFACE. issue of Which has prevented this work from being given to the profession before this date st:: ^hat '^'T T ''''' '''" -'' ^^'"^ thoseo ot :; states that use has only been made of modem cases and thi only where fundamental principles are involved Each province of the Dominion (except Quebec) is senar ately treated, and the law of each given in its own p e ,vith this exception, that where the In,,, «f • . "^ ' is applicable generally, oTtl^^X Ll^^crr de7^°^'"" the provincial courts will be found .Le Ontario ^Ti^h having a 'greater number of decided cases than tile ote; provinces, was thought a convenient place in wh ih o "ol the cases containing general law ^ ^ cantfelv t";'"" h' ^^"'" *'^" ''^ "" '^^ ^y ^^'^^ -oney -aw is that province whir:::\vi:::::,::—--: clauses lor special cases have been very carefully col e'cted The conveyancer will, we think, find them to be compl e ter-at-.aw, who extracted a .irg^nl-btr^Trr'a'::^"^- many ot er ways rendered most valuable assis ai ce a 1 the more valuable from his thorough knowledge of t e 'su e and his practical experience of chattel mortg'age law ^"' rhe Canadian and English case? were verified in the fina^proofs and the table of Cases Cited compiled by Mi A^ M. Read, librarian of the County of York Law Associ" November 15th, 1897. -ing- g-iven to Hnd the many ed in the past ipplied. The s are so fre- lose of other ises, and that t>ec) is separ- n place, with jiar province i decisions of ario, which, n the other ich to group I'hich money nal chattels, onsequently cope of this iiially found the special y collected. )mplete. 'aI acknow- ear, barris- 'es, and in ice, all the "le subject, iV. ied in the d by, Miss w Associa- i CONTENTS. Page. PREFACE y CONTENTS "."."". ^,„ ABBREVIATIONS [ ,j^ CASES CITED xiii CHAPTER I. Bills of Sale and Mortgages j CHAPTER II. Goods and Chattels CHAPTER III. The Consideration g CHAPTER IV. Fraud 36 CHAPTER V. The Parties - 46 CHAPTER VI. The Right to Possession ' CHAPTER VII. The Place of Contract CHAPTER VIII. Sale by the Mortgagee CHAPTER IX. Landlord's Rights „, CHAPTER X. Rights and Remedies of Creditors CHAPTER XI. Redemption and Foreclosure o CHAPTER XII. The Operative Parts... 104 CHAPTER XIII. The Date 107 CHAPTER XIV. Insurance 109 VIII CONTENTS. CANADA— Statutes of 189.. c. ^, ... ,. 368. 3,,, 3^^ ^ ^^ BRITISH COLUMBIA- "^ Consolidated Acts, 1888, c. 8 Statutes of 1892, c. 3 "^ '893,0.3.;;;;:;; ^36 1894,0.2 '37 1895, c. 2.... '37 1896.0. 3....;; '38 MANITOBA— ' '42 Revised Statutes, i8gi, 0. 10. • • ,, I4'i c. 46, ss. ii-n 7 NEW BRUNSWICK- '^^ Statutes of 1893, c, 1; ^895, c. 6,"s;";2;;;; '^^ 1897,0. 1, '90 NORTH-WEST TERRITORIES- '^' Ordinances of 1893, No. 6 '895, No. 7.;;;;;; ^'« " No. 8.. "'9 1896, No. 24 '^^3 NOVA SCOTIA— ^'^ Revised Statutes (Fifth Series), ,884, c 02 ONTARIO— °4, c. 92 220 Revised Statutes, 1897, c 148 < ' , , 406 PRINCE EDWARD ISLAND- ''"*' ^ '^^ Revised Statutes, i860, c. 9 Statute of 1869, c. 7 4o8 " "i878,c. 7;; 417 " "1889,0.9.... 419 FORMS -^^ INDEX 423 481 Gr. f .. 114 •• "5 .. ii8 • 136 • 137 • 137 • 138 . 142 • 143 162 ■ 165 190 . 191 218 219 193 216 220 406 236 408 417 419 422 423 481 AHHRIiVIATlOXS OF CANADIAN RI-PORTS, STATUTKS, ETC. A- R Ontario Appeal Reports. All Allen's New Hrimswick Reports. B. C. R . British Columbia Reports. C. L. J . . , . C. L. T.... C. S. M . . . . C. S. N. B. Can. Ex. Rep. Exchequer Court of Canada Reports. CasselsS.C.Dig.Cassel's Digest of Supreme Court cases. Ch. Cham Chancery Chambers Reports. . .Canada Law Journal (Toronto). . . .Canadian Law Times (Toronto). . . Consolidated Statutes of Manitoba 1880. ...Consolidated Statutes of New Brunswick (1876). Con. Stat. U. C.ConsolidatedStatutes ofUpperCanada(i859). ^ Dominion of Canada. Drap. K. B. Rep. Draper's Kings Bench, Upper Canada, Re- ports. ^•^'^PP-'^ <^'-^"t's Error and Appeal Reports, Upper Canada. Gr. Grant's Chancery Reports, Upper Canada and Ontario. Han. (N. B.). . . Hannay'.s New Brunswick Reports. ^^" Kerr's No. a Scotia Reports. Man. R Manitoba Reports. N. B. Eq. R. . . . New Brunswick Equity Reports. ^- ^- ^ New Brunswick Reports. N- S- R Nova Scotia Reports. N. W. T. R . . . . North-West Territories Reports. ABBREVIATIONS. Old. O. R O. S Oldri^^hts- Nova Scot.a Reports. Ontario Reports. ^'^ -'^'-''■'■" l-Vper Canada Reports. PR*' ^'"""^ K^^vard Island Reports. Pv '. ■„■■■■ ^"^•'"■'" '''■'":''" Reports. Pu..sley&Hnr. ,V.,,, and Bur.id.e's New Brunswick Reports. ports. "^ I't'c ^""!-^'''' Laws of British Columbia (,87,) R S- M fr-^^^ Statutes of Canada (.886). '^• RS o ••^'^"^^''^'^"''-"fManitob (,89,) Russ. & Ches. Russ. & Geld. S. C. R u. c. C. P u. c. L.J u. c. R w L. T 1 Revised Statutes of Ontario •Russel & Chesley-s Nova Scotia Reports. Russell & Gelderfs Nova Scotia Reports. Supreme Court of Canada Reports. Upper Canada Common Pleas Reports Upper Canada Law Journal. Upper Canada Queen's Bench Reports Western Law Ti mes (Winnipeg). -Ttr. ts. orts. w Brunswick runswick Re- i86). 189,). ^ Reports. I Reports. irts. Reports. eports. REVISRO STATrins OF ONTARIO. 1887 AND 1897. A TABLE SHOWING THE CORRESPONDINO Nl'MBERS OF VARIOL'S CHAPTERS IN EAlH REVISION. In view of this work beinj,' published two months prior to the date when the Revised Statutes of Ontario, of 1897, will be issued, It is thouj^ht well to f,Mve a table showing the cor- respond. M},- numberin^r in ,|,e Revision of xHqy of such statutes of R. S. O. .887 as relate to or affect the law con- cerning- mortgages and sales of personal property. R. S. O. 1887. Chapter. <( II II II II II i< II II 11 li 51 Vict. c. I 64 96 97 100 102 122 123 124 125 128 126 127 »43 R. S. O. 1897. Chapter 19. I 77 "5 116 119 121 '45 146 147 148 150 153 156 170 '49 i I ADDENDA ET CORRIGENDA. Paj,'-e 35, note (q) read 7 U. C. R. ^' 59- " (u) for 30 O. R, read 3 O. R. 71. " (o) for />///- read /^//r//>. '' 227, line 5, for construction read consideration. -54. " 16, for mortyai,'-or read morti,'-ag-ee " 283, note (j)for 10 We>d. 5,5 read 19 Wend. (N Y)-,s II 317. " (\v)fori3G, read 13 Gr. " '' "" ^' " 329. " (c) for Suu^c V. Ei,shiH>od 19 VVend. S7; read Siingcr V. Eastwood 19 Wend (N.Y.) 514. ' ' ' " 44«. line next to last for 430 read 440. The case of liaco,, v. Rice Lewis Co. (noted on p. 243) de- eded subsequently to part of this work being printed, alters the law aK^ down on p .3, lines 8 -:.. .nd p. 377, p,,a. IX. 1 he law IS now as laid down in Baco/i v. Rice Lcivis Co. CASKS CITED. ^DA. 311. •(N-V.)5i4. ^- 575. '■ead [4. ' P- 243) de- d, alters the '. para. IX. )is Co. Abbott V. Goodwin, 64 Adams v. Com. Bank, 373 % V. Pratt, 346 V. Wildes, 376 Adamson v. Peterson, 370, 37 Agra. V. Masterman's Bank, 35 Albert v. Grosvenor Investmen Co., 60 Aldridg-e v. Johnson, 27 Alexander v. Covvie, 1G9 Alg-er V. Farley, 84 Allam, ex parte, 268 Allan V. Lathrop, 306 ex parte, 55', 268 Allen V. Allen, 47 V. Arme, 93 V. Cowan, 72 V. Thompson, 260, 261 Alton V. Harrison, 40 Ames, ex parte, 25 Ancona v. Roofers, 56, 398 Anderson v. Holmes, 71 V. Howard, 366 Andrews, re, 149, 275 Andiis V. Nelson, 32 ' Annes v. Dornan, 80 Appleton V. Bancroft, 46 Archer v. Cole, 348 Archibald v. Hofden, 200 Archibald v. Hubley, 226, 227 231, 261, 262 Armstrong- v. Moodie, ^go Arnold v. Robertson, 291, 292, 296 Artistic Color Printing- Co., in re, 277 Arundell v. Phipps, 291 Ashley v. Wright, 62, 69 Atkinson v. Bell, 27 V. Settree, 34 .■) ^enborough's Case, 245, 396 5 Atwater v. Mower, 7 t Austin V. Storey, i u Ayers V. Home'lns. Co., 109 B Babcock v. McFarland, 59 Bacon v. Rice Lewis, 243 Bailey v. Croft, 28 V. Godfrey, 57, 62 Baldwin v. Benjamin, 263, 264, 270 Balkwell v. Beddome, 362 Ballew V. Sudderth, iT Ballon V. Cunningham, 82 Banbury v. White, 334 Bank of B.N. A. v. Mcintosh, Bank of Hamilton v. Tamblvn, 271 Bank of Montreal v. McWhir- ter, 280 V. Munro, 317 Bank of Toronto v. McDougall, 7. 40. 54. 259, 264 Banks v. Goodfellovv, 50 V. Robinson, 240 Bannon v. Bowler, 45 Barber v. MacPherson, 295, 298, 301, 302,304 XIV ».Asi:s I rii:n. Barber v. .Maui,'-li;m, ^152, ^^54, Barker V. I.eeson, 173, 277, 281 V. Richardson, 354 Barnard v. liaston, 66 ' ' Barnes v. Ihilciimb. 4 Barnett v. Mason, 10 l>arnliarl v. Patterson, :;, 6 Barr v. Barr, 5 Barrows v. Turner, 27^ Barry v. Bennett, 285,40^ Bartlett v. Tliynes, i"o2 ' Bates V. W'ill'ur, 326 Bathi,'-ale v. Merchants Bank, '47. N9 B'each v. Derby, 68, 352 Beall V. Williamson, "74 Beaman v. Wliitney, 380 Beaty v. Fowler, 331 ' Beaumont \. Cramp, 338 V. Thorpe, 280 Beavan v. McDoneil, 50 Becher v. Dunham, 68 Becker v. Anderson, 382 Beckett v. Tower, 5,7 Beecher v. Austin^ 238, 238, 26c), 270 Beeknian v. jarvis, 108, 252, -4-1 7^5, 3.V Beeman v I.awton, -5 Beers v. Waterhurj-; :,j:;^, 334 ne^^bie v. lissL«ll V. Hopkins, 7 ' ' V. Pearce. 58. 346 Bissicks V. Bath Colliery Co., '73 Biteler v. Baldwin, 331 Bittlestone v. Cook, 29;^ Blackwell v. Overby, 5' Blackwood v. Cutti'ni^", 402 Blaiherj^-, ex parte, 277 V. Parke, 262, 266, 368 blake V. Buchanan, 334 V. Izard, 240 Blakely v. Patrick, 374, 373 Blaauwpot v. DaCosta, 112 Blodgett V. Blodgett, 7, loi Bloomfield v. Hellver. 2^9, -,86 Boddy V. Ashdowii, 147,' ,4^ Boi^-ley V. McMickle, 234 Boise V. Knox, 39 Boldrick v. Ryan, 307 Bolland, ex pa'rte, 242. 265 Bonin v. Robertson, 74,^197 , ^47 Booth V. Kehoe, 14 Boston Marine V. Lonf,'-ard, 221 Boiif,rhton V. Boug-hton, 9-,, 27H V Smith, 274, 307 bowers v. Ikadlev, 2^2 Bowlby V. Bell, 16 ' Boyd V Beck, 321 V. Beaudin, loi Boydell v. McMichael, 377 Boynton v. Bojd, 291, '326 Boys V. Smith," 26 Bracket! v. Bullard, 72 Brackmanv. McLaughlin, 120, I 24 Bradley v. Holdsworth, 16 V. Redmond, 82 w :'M CASKS flTHI). ettisoii, 43. >■>/ » 77 soil, 243 :• 3 '7. 35« :m.s, 7 x>. 58, 346 li Colliery Co., n'n, 331 'ook, 295 _orhy, 5" 'uttiiii^-, 402 rte, 277 :e, 2O2, 266, 368 '='"' 354 240 ^"l^; 374. 375 aCosta, 1 12 'Rett, 7, lOI ellycr, 239, 386 wn, 147, 149 cUie, 254 i9 n. 307 i, 242. 265 tson, 74, 197, '4 Lonj^ard, 221 gliton, 93, 278 til, 274, 307 •y. 352 6 !I lOI -■Iiael, 377 . 291, 326 5 rd, 72 -aiighlin, 120, ivorth, 16 3nd, 82 Brag^elman v. Dane, 101 Brandt v. Daniels, 349 Branlcy V. S.K.Ry. Co. 74 Brayley v. KIlis, 39, 40 ^ Breese v. Knox, 310 Breeze v. Ban^-e, 14 Brewster v. Baker, 10 Brierly v Kendall, 43, 60, ,0, Brink v. I-reott, 60 Britt V. Harrell, 3 Brockville R. W. Co. v Cen- tra! Can. R.VV.Co., 173 Broderick v. Scale, 334 ' "^ Brodie V Ruttan, 53, 54, ,^ 255, 260, 261, 264, 336 Bromfield v. Smith, 49 Brooks V. Lester, 297 V. Record, 64 V. Ruff, 347 Brown, ex parte, 24, 244 V. Bateman, 240 V. Bement, 4, 1 1 V. Dewey, 5 V. Jowett, 124, 125 V. Jones, 291 V. Peace, 146, 147 V. Phillips, 60 V. Saxe, 376 V. Sweet, 245 Browning", ex parte, 24^ Bryans v. Nix, 26 Bryant v. Pollard, 348 Buchanan v. Frank, 173 Buckley v. Landon, 354 Building- & Loan v. Betzner 262 ' Bullis V. Montgomery, 391 Bulmerv. Hunter, 291 Bunacleugh v. Poolman, 103 Bunker v. Emmany, 64, 6?' Bunn V. Guy, 23 Burdekin v. Potter, 382 Burdett v. Hunt, 107, 362 Burlandv. Moffatt, 150 Burnett v. McBean, 241 XV Burnham v. Waddell, go Burns v. Campbell, 25 V. McKay, 39 Burton v. Dawes, '105 V. Gore District, no, 1 1 1 Burrows v. Stebbins, 397 Butler V. White, 9 Byram v. Gordon, 348 Byrd v. McDaniel, 100 Cadbury v. Nolan, 397 Cadwell V. Prav, 62, 67 Caldor V. Dobell, 53 Caldwell V. Trowbridge, 77c Call V. Gray, 26 Calvard v. Waugh, 5 Cameron v. Gibson, 19 „ V. Stephenson, eo, ci Cammell v. Sewell, 197 Camp V. Thompson, 9. Campbell v. Campbell, 281 V. Durkin, 5 V. Hill, 50 V. Mersey Docks, 27 V. Patterson, 271 . ^'- St range ways, 331 Campion v. Cotton, 30, 291 Canada Permanent v. Todd 261, 262, 386, 387 Capen v. Reckham, 21 ^tt:^ '■"■'• '"■ '"'■ '°'- Carpenter v. Blote, 297 V. Bridges, 349 V. Deen, 366 V. Ins. Co., 112 Carr v r ''* ^^^^'■' ^^^7 carr v. Carey, 173 Carrington v. Roots, 19 Carruthers v. Reynolds, 393 Carscallen v. Moodie, 27c Carter v. Wake, 103 XVI CASES CITED. Case V. Jevvett, -527 Central Brancir R. W. Co. v. Fritz, 22 Chadvvick v. Lamb, 60, 6g Challinor, ex parte, 28, 267, 269 Chamberlain v. Green, 45, 70 V. Martin, 82, 84 V. Souvais, 102 Chapin v. Crane, 360 Chapman v. Knight, 241 Charlesworth, v. Mills, 119 Charter v. Stephens, 78 Cheney v. Courtois, 382 Cherryworth v. Darley, 276 Chesworth v. Hunt, 285 Chidell V. Galsworthy, 364 Chinery v. Viall, 43 Chisholm v. Shedden, 102 Citizens' Bank v. Nantucket, 402 Claflin V. Carpenter, 20 Clarke v. Bates, 270, 301, 321, 323 V. Hamilton Prov. , 42, 39 V. Tarbell, 76 Clarkson v. McMaster, 45, 277, 280, 281 Clavering v. Clavering, 93 Clayton v. Hester, 10 Clements v. Matthews, 17, 19, 91, 364, 378 Clemow V. Converse, 41 Clifford V. Logan, 152 Climpson v. Coles, 23 Cline V. Libbey, 37 Clint, re, 291 Close V. Temple, 170 Closter V. Headley, 64 Clute V. Robinson, 355 Cobb V. Chase, 255 Cobbett V. Oldfiefd, 260 Cochrane v. Boucher, 321 V. Rvmili, 286 Colam V. Pageti, 372 Colby V. Everett, 272 Cole V. Muddle, 355 Collyer v. Isaacs, 312, 365 Colman v. Croker,'94, 280 Coles v. Clark, 59 Colombine v. Penhall, 291 Colwell v. Reeves, 376 Com. Nat. Bank of Chicago v. Corcoran, 396 Commercial Bank v. Wilson, 271 Commercial Steamship Co. v Boulton, 331 Conard v. At. Ins. Co., 2 Congreve v. Evetts, i68, 366 Conkey v. Hart, 62 Conkling v. Shelley, 349, 363 Connard v. Colgan, 318 Connell v. Hickock, 288 Connover v. Ins. Co., 109 Consolidated Bank v. Bickford, 173 Con. Credit Corporation v. Gosney, 98 Consolidated Co. v. Curtis, 286 Cook V. Flood, 102 V. Gudger, 5 V. Stearns, 20 Cooksdn v. Swire, 45, 58, 247, 316, 328 Cooly, v. Hobart, 35, 50, 268 Coombs V. Beaumont, 377 Cooper, ex parte, 33, 243, 288 V. Brock, 7 V. Huggins, 366 V. Zeffert, 55, 26? Coppage v. Barnett, 53 Corbett v. McKenzie, 173 V. Sheppard, 79 Corcoran v. Webster, 22 Corneill v. Abell, 361, 370, 372, 375 Cornish v. Clarke, 291 Cottington v. Fletcher, 279 (.ASKS CITED. XVII reti, 372 rett, 272 I'e. 355 lacs, 312, 365 oker, 94, 280 <. 59 Penhall, 291 :eves, 376 mk of Chicago v, 196 3ank v. Wilson, Steamship Co. v I Ins. Co., 2 Evetts, 1 68, 366 rt, 62 Shelley, 349, 363 Jigan, 318 :kock, 288 ns. Co., 109 3ank v. Bickford, Corporation v. 2o. V. Curtis, 286 , 102 sr, 5 IS, 20 vire, 45. 58, 247, art, 35, so, 268 iumont, 377 ■te, 33. 243, 288 ck, 7 Xgins, 366 ert, 55, 26: rnett, 53 Kenzie, 173 ppard, 79 'ebster, 22 •1.361, 370,372, ke, 291 ^ivjtcher, 279 Cotton V. Marsh, 6g, 93 Coty V. Barnes, 72 Couch V. Smith, 20 Courtis V. Webb, 330 Coutul-Jer v. Hastie, 312 Covell V. Dalioff, 69 Coyne v. Lee, 17, 106 Cramer v. Mott, 87 Crane v. Paine, 349, -552 Craven, ex parte, 41 Crawcour, ex parte, 10, 240 V. Salter, 10, 240 Crawford v. Hunter, 109 V. Meklrum, 80 Credit Co. v. Pott, 269 Creighton v. Jenkins, 222 Crompton v. Pratt, 15 Crook v. Stephen, 354 Crosby v. Baker, 24 V. Chase, 347 v. Wadsworth, 19 Crossley v. Elvverthy, 40 Crossweil v. Allis, 375 Crowfoot V. London Dock Co., 12 Crown V. Chamberlain, 102 Culloden v. McDowell, 46 Cummingsv. Morgan, 17, 2S9, 366, 391 V. Tooly, 283 Cunningham, re, 245, 396 V. Morse, 221, 232 V. Rogers, 84 Curtis V. Perry, 279 Cutter V. Copeland, 62 D Dabney v. Green, 5, 100, 243 Dalglish, ex parte, 20 v. McCarthy, 39 Dalton v. Landahan, 8 Dairymple v. Darlymple, 291 Dajie V. Mallory, 82 Davi Dav Danford v. Danford, 145, 395 Darlow v. Bland, 147 Darvill v. Terry, 279 Davenport v. McChenesy, 79 Davey v. Bowman, 80 Davidson v. Ross, 41 Davis, re, 102 Davies v. Austin, 355 V. Jones, 172 V. Blume, 67 V. Burton, 350 V. Rider, 349 V. Wickson, 72, 275 Griffith, 2^5 Dean v. Davis, 72 DeCourcey v. Collins, 286 Dedrick v. Ashdown, 18, 59, 66, 73 Deffeil V. White, 54, 245 DeForrest v. Bunnell, 253, 255, 260, 261,336, 350 De Veber, re, 167, 183, 184 De Wolf V. Strader, 268 D'Eyncourt v. Gregory, 22 Dibble v. Bowater, 89 Dick V. Mowry, 354 Dickenson v. Clemow, 35 Dicker v. Angerstein, 61 Dillaree v. Doyle, 25 Dillingham v. Laduc, 284, 327 Dixon v. Parker, 5, 100 Dodge v. Potter, 358 Doll V. Hart, 124, 126 Dominion Bank v. Davidson, 241, 248 Donnelly v. Hall, 373 Doran v. Willard, 169 Douglas v. Siumnway, 20 Down v, Lee, 57 Downes v. Grazebrook, 78 Doyle V. Lasher, 393 V.Stevens, 389, 391,396 Uriscoll V. Green, 303, 304 Dukes V. Jones, 243 Duncan v. Cashin, 241 XVIII CASES (.ITKO. Duncroft v. Albrecht, i6 Evans v. Roberts, lo Dunn V. Ferfrusson, 19 y. Warren, 94 Dunning v. Stearns, 376 Eveleigh v. Purssward, -jq Durtee v. Grinnell, 57, 82, 318 Everett v. Hall, ic Durkee v. Flint, 231 Everman v. Robb, 16 Everston v. Everston, 355 E Exall V. Partridge, 88 ^ Eastern Canada v. Curry, 227, p 232 Earl v. Stamp, 352 Ebbett's Case, 49 Edwards v. Cottrell, 78 V. Edwards, 42, 285, V. English, 279, 282 V. Harben, 44, 170 Edgerly v. Bush, 76 Edmonds v. Blaina, 342 V. Hamilton Prov. , 92 Edmonson v. Welch, 65 Egleson v. How, 355 Elder v. Miller, 360 Elliott V, Freeman, 267 V. Gladstone, 302 Ellis v. Dellabough, 84 Ellison V. Jones, 10 Emanuel v. Bridges, 56 %■. Dane, 310 Embury v. West, 303 Emerson v. Bannerman, 200, 35< 25' Emmons v. Dowe, 352 V. Hawn, 84 Empress Engineering Co., re, 343 England v. Marsden, 87, 88, 221 Engelback v. Nixon, 241, 281 English v. Lane, 5 Erskine v. Townsend, 2 Eslick, re, 22 Esnouf V. Gurney, 119, 123 Evans v. Morley, 35 Fairbanks v. Blomfield, 74 Fairmann v. Budd, 310 Fallet V. Heath, 272 Falkner v. Equitable, 78 Farlinger v. McDonald, 273. 275. 284, 399 Farmers' Loan & Trust Co. v. ^ Hendrickson, 283, 285 Farmers' & Traders' v. Conk- lin, 147 Faulds V. Harper, loi Featherstone v. McDonell, 47, 49 Feehan v. Bank of Toronto, 276 Fenn v. Bittleston, 61, 68 Ferguson v. Clifford, 75, 76, 247 . V. Talt, 62 V. Thomas, 60, 69 Field V. Hart, 366 Finch v. Sink, 82 Finley, ex parte, 5 Fish v. Higgins, 270 Fishery. Bishop, 177, 229 V. Brock, 158 V. Friedman, 62 Fitch v. Cotheal, 355 Fitzgerald v. Johnston, 373, 377 Flagg V. Pierce, 395 Flanagan v. Whetan, 172 Flanders v. Chamberlain, ico Flemiken v. Scrugg, 63 Fleming v. Graham, 2s CASES CITKD. XIX ;rts, 19 ren, 94 irssward, 39 Dbb, 16 /erston, 355 dge, 88 ilomfield, 74 ucid, 310 "i 272 itable, 78 McDonald, 35, . 399 & Trust Co. V. . 283, 285 iders' V. Conk- er, lOI McDonell, 47, ik of Toronto, on, 61, 68 ■■'fford, 75, 76, it, 62 Dnias, 60, 69 66 '3 . 5 . 270 >, 177, 229 158 lan, 62 - 355 ohnston, 373, 395 etan, 172 imberlain, ico Li«:g-. 63 am, 25 Fleminj,-- v. McNaiigliton 38, 40, 269 V. Ryan, 341 Fletcher, ex parte, 56, 397 Flory V. Denny, 3, 50, 296 Foley V. Canada Permanent, 47. 48, 49 Forbes V. Shattuck, 19 Ford V. Cobb, 21 V. Kettle, 147, 253, 289 V. Ransom, 7, 61 V. Stuart, 291. Forman v. Proctor, 25 Forrestal v. McDonald, 240 Foshay v. Barnes, 169, 243 Foss, ex parte, 391 Foster v. Perkins, 108 V. Smith, 317 Foulger v. Taylor, 89 Fox V. Burns, 329 V. Kitten, 57 Frank v. Miner, 58, 382 Franklin v. Neale, 1 1 Fraser v. Bank of Toronto, 307, 333.335.363,368,369, 376, 377- V. Gladstone, 291 V. Lazier, 14, 288, 394 V. Thompson, 291 Freehold L. & S. Co. v. Bank of Commerce, 259 Freeman v. Cooke, 171 V. Freeman, 80 V. Pope, 40 French v. Bellew, 125 V. Rogers, 109 Frink v. Branch, 306 Frisbee v. Langworthv, 57, 69 Frost V. Allen, 9 V. Willard, 376 Fry V. Millar, 248' Fuller V. Acker, 348 V. Paige, 25, 282 i^ullon V. Brooks, 109 Furber v. Finlavson, ^56 Furley v. Bates, 312 G Gaar v. Hurd, 52, 61 Gage V. Cheesbro, 9 V. VVhittier, 6-5 Gale V. Burnell, 26, 366 V. I.awrie, 383 Gandy v. Gandy, 343 Gapp V. Bond, 239, '383 Garden City, The, 402 Gardner v. Lane, 287 V. McEwan, 363 V. Smith, 284 V. Shaw, 251 Garth v. Howard, 12 Gerry v. White, 296 Gibbons v. Hickson, 395 V. McDonald, 35, 40, 124 Gibson V. Gill, 170 Gilchrist v. Ramsav, 47 Giidersleeve v. Auft, 396 Gill V. Pinney, 306 Gillard v. BolleVt, 394 Gillet V. Balcom, 98 Glaze V. Blake, 15 Globe Works v. Wright, 58 Glover v. Black, 109 Godard v. Gould, 21, 22 Godell V. Dewey, 84 Godts V. Rose, 27 Goff V. Pope, 376 Goinez v. Kamping, 9 Gooderham v. Hutchinson, 3; Gooding V. Riley, 21, 282 Goodwin v. Kellv. 6 Googins V. Gilmore, 95 Gordon v. Clapp, 81 Gorham v. Summers, 358 Gosline v. Dunbar, 168, 247 Gotwalls V. Mulholland, 39 Gough V. Everard, 56, 250, 389 Goulding V. Deeming, 295, 297 Grace v. Whitehead, 47 Graham v. Furber, 93 XX CASKS irri:n. Graham v. lolinson, 34 V. Simimers, 317 V. W'ilcncksoii, 172 Grant v. McLean, 2H0 y. Skinner, 10 Grass v. Austin, 373 Graves v. Wild, u/ Green v. Hewer, 11 1 V. \'anbuskiri<, 76 Greene v. Caslleman, 259 Greenshields v. Barnhart, 4 Greet v. Citizen's Ins. Co., u i V. Royal Ins. Co ,111 Gre^'-ory v. Thomas, 329 G-eitherv. Alexander, 284,402 Grey v. Levy, 74 Griffin v. Cranston, 32 V. McKenzie, 91, 284, ., . . 3-2«. 33 ' Grindell v. Hrendom, 251, 306 Grove v. Wise, 57 Guest V. Diack, 224 Giinn V. Burg-ess, 25, 388 V. Ruttan, 105 Gurney v. James, 39V3 Hamil! v. Gillespie, 96 Haniilton v. Chain le, -JO J".T H Hackett v. Maulvere, 316 Haight V. Mclnnis, 276 V. Munro, 391, 392, „ „ 394. 395- Mall, ex parte, 41, 42 re, II, 242, 396 V. Collins' Bay Co., 246 278, 281 V. Ditson 81 V. Hazlitt, 23 V. Pillow, 75 V. Sampson, 59, 60, 71 Hallen v. Runder, 22 Halliday v. Holgate, 60 Halpenny v. Pennock, 50, 53, 54. 296 Hamet v. Dundas, 7 V. Harrison, '32, 152, 249. 262, 267, 268, 3«2 Hamilton Ry. v. Gore Bank, 177 Hamlin v. Jerrard, 25 Hammond v. Danielson, ^8 Hanford v. Archer, ^,90 ' Hansard Puh. I'nion, re, -,4 Hardinj,'- v. Coburn, 26, "363, 37^' V. Knoulson, 274, 292, 336 Harris v. Com. Bank, 293,362 374. 37'''> 39^^ V. Lynn, 85 V. Wall, 49 Harrison v. Blackburn, 288 v. Luke, 310 Hartley v. Tatham,' 355 Harvey v. Ashley, 30'' V. Mc.Adams, 57 Hathaway v. Braynean, 67 V. Howell, 318 Hatton V. Kng-lish. 334, 336 Hawes V. Leader, 279 Hawley v. Howe, 319 Hawtry v. Butlin, 20 Hay ward v. Thacker, 107 Head v. Goodwin, 346 Heath V. West, 47' Heilbut V. Hickson, 312 Henry v. Carroll, 355 Hepburn v. Park, 39, 270, 272 Herring v. Wilson, 88 Hersee v. White, 40 Hesseltine v. Signers, 16 Hethering-ton v. Groome, 298 Heward v. Mitchell, 263, -JoS 390 -* ' Hewer, re, 251, 303 Hewitt V. Corbett, 16 Heymann, ex parte, 255, 263 Hibblewhite v McMorine, 311 •^ ^pie, g6 laiiie, 305 ^irrison, 32, 152, ». 262, 267, 268, CioreBank, 173 lid, 25 >anielson, 58 her, 390 'nion, re, 34 iLirn. 26, '363, A l.son, 274, 292, Hank, 293, 362 7«, 39^ 85 49 :kburn, 288 e, 3'o ""' 355 V- 30 anis, 57 lynean, 67 well, 318 '1- 334. 336 . 279 . 319 , 20 ;ker,. 107 ' 346 ■7 )n, 312 355 39, 270, 272 1, 88 40 rers, 16 rroome, 298 ". 263, 308, 16 ^.255. 263 klorine, 311 CASES tlTEI). XXI Hickey v. Burt, 354 Hii,.-f,ri,is V. Senior, 53 ex parte, 371 Hill V. Beebe,'284, 329. 352 V. CJilmaii, 382 ' Hoaciley v. Hoadley, 108, 252 Hobbs V. Kitchen, 256 Hobson V. Gorrinj,fe, 243, 246 V. Thelusson, 221 Hogaboom v. Graydon, 399 Hodgins v. Johnston, 284,321, 324, 326, 327, 328, 329 Holland v. Hodgson, 239 Holman v. Doran, 108 Holmes v. Blogg, 49 V. Grant, 4 V. Hinkle, 272 V. Matthews, 5, 100 V. Penney, 29, 291,304 V. Sproiile, 319 V. V^ancamp, 2^7 Holroyd, v. Marshall, 17, 312, 387 Holt V. Carmichael, 360, 361, „375. 377 Honmers v. Dole, 380 Honore v. Lamar fns. Co., 112 Hooman, ex parte, 121, 389 Hope V. Hay ley, 18, 168' V. May, 3r3 V. Hope, 74 Home V. Hughes, 355 Horsfall v. Boisseaiu '386 Hosmer v. Sargent, 79 Hough V. Bailey, 306 Houghton V. Stringer, 257 Housatonicv. Martin, 28^, 401 Hoveyv. Whiting, ,45,, ^8, 201 Howard v. Ames, 79 V. Gresham, 354 Howden (Lord) v Simpson, -,4 Howe V. Kelly, 397 ''^ Howell V. Coupland. 27 V. Listowel Rink & Park Co., 2^ Howell V. McFarlane, 362 Howitt V. Gzowski, 242 Hubbard, ex parte, 11, 239 Hueber v. Koebe, 57 Hughan v. McCollam, 221 Hughes V. Graves, 25 V. Little, 244, 296 V. Shull, 268 Hull V. Carnlev, 95 Humbler v. Mitchell, 16 H ungate v. Reynolds, 84 Hurd V. Robinson, 306 Hutchinson v. Kay, 242 Hutton V. Cruttwell, 295 Hyman v. Bourne, 398 V. Cuthbertson, 270 I Inman v. Rae, 150, 159 Ins. Co. V. Woodruff,' 112 J Jack V. Lagles, 240, 241 Jackson v. Bank of N. S., 145 V. Green, 7, 8, 238 V. Kassell, 336 V. Stackhouse, 347 Jacques v. Worthington', 258 Jaffray v. Robinson, 268 James v. Murray, 355 V. Richards, 55 Jamieson v. Bruce, 71 Janes, ex parte, 40 Jay, ex parte, 56, 39S Jenkins v. Jones, 78 Jenkyn v. Vaughan, 280 Jewett V. Preston, 272 V. Warren, 11,31 Johnson, ex parte, 125, 297, 382 V. Crowfoot' 8, 238 V. Holdsworth, 354 V. Jeffries, 316 Johnstone, re, 267 XXII CASKS lITKn. Johnston v. HenJerson, 286 Jones V. Diinhar, loj V. I""lint, ii> V. Huf,>-fifesford, 3^:52, -553 V. Harris, 257, 26b, ^i^, 371 V. Hciitlerson, 246, 288, V. Herbert, 354 V. Howell, 32Q V. Smith, II V. Statham, 5, 100 V. Sway/c, 392 V. Turch, ()7 Jordan V. Farnsworth, zee, -246 Joseph V. Webb, 17 "^^ Kinfjston v. Chapman, los. 3f^9< 378 ^' kirby V. Schoomaker, 51 Kirchhoffer V. Clement. 151 Kirk V. Chisholm, 227, 232 Kissock V. Jarvis, 324, 338, 386 Kitchinf,r V. Hicks, 244, 282, ,^304. 3<'>5 KnagR-s V. Greene, 48 Knox V. Meldriim, 267 Koiigh V. Price, 298, 302 Kramer v. Hunk, 306' Kranet v. Simon, 35 Kulm V. Graves, 243 K Kahley, re, 51 Kanaka v. Taylor, 75 Kaplin V. Anderson, 282 Karet v. Kosher -526, 328 Keays v. Hroun, 41 Keenan v. Handley, 28 V. Simson, 321 Keetch v. Hall, 57 Kellog-g V. Secord, 284, 402 Kelly V. Macklem, 99 V. Reid, 375 Kelsey v. Rogers, 241 Kennedy v. Whittie, 221 V. Nat. Union Bk., ej Kent V. Allbritain, 4, 7 V, Liverpool Co., 401 Kerr v. Kinsey, 317 V. Roberts. 238 Kerry v. James, 3V5 Kessey v. McHenry, 283 Kevan v. Crawford. 28, 31 Kidney v. Coussmaker, 93, 280 Kilcup v. Belch Ki er, 232 ng v. England, 87, 90 v. Kiihn, ISO Laflin v. GrilHths, 396 Lai V. Stall, 252 Lai Hop v. Jackson. 123 Laing V. Ontario \ oan, 386 V. Perrott, O2, 66 ' Lamb v. Durant, ^i Landed Banking Co. v. Clark- son, 243 Langdon V. Biiell, 352 Langton v. Higgins^ 18 v. Horton, 5, 100 Langtry v. Clark, 87, gi Lanoy v. Duke of Athol, 291 Lantz v. Morse, 226 La Roche v. O'Hagan, 5 Latch v. Furlong, 80 Latimer v. Batson, 44, 327 v. Wheeler, 284, 327 Lavigne v. Naramore, 103 Lawter v. Griffin, 16 Lawrence v. Evatts, 360 V. Tucker, 35 Lawrie v. Rathbun, 319 Lazarus v. Andrade, 17, j8 364, 378 Leatham v. A mor, 17 Lee v. Barnes, 298, 305 v. Griffin, 31 1 V CASKS tlTKO. XXIII pman, 105, ker, 51 Tient. 151 227, 232 (24- 33«. 3«6 i, 244, 282, 48 267 8, 302 d6 5 3 96 , 123 lan, 386 , 66 . V. Clark- 52 , 18 5. 100 '. 91 hoi, 291 n. 5 4. 327 284, 327 '. i03 ;;6o 35 ii9 . 17. 18, 5. 6, I-e^-li V. F,ef,'h, 354 I.t'laiul V. follivcr, i i 1 V. Siira^nie, i<) I-cpard V. N'crnoii, 106 Leroux v. Mrown, 74 Le Tarj,^' v. De Tiiyll, 100 Le V'asseur v. Beaulieu, 173, 176 Levy V. Abercorris, 342 V. Log'aii, 2_'() Lewis ex parte, ^(>, 121, 389 V. D'Arcy, 57, 69 V. Dentoii, 224 V. Palmer, 283 Leys V. Mcl'herson, 30, 291 Libby v. Cushman, 1)4 Lincoln VVag-^'-on Co. v. Mum- tortl, 240 Livingstone v. Western Ins. Co., 1 10 Llewellyn v. Llewellyn, 32 Llojd v. European etc. Ry.Co., 168, 170 v. Lee, 34 V. Lloyd, 30 Lock V. Palmer, 6 Logan V. LeiMesiirier, 27 Logwood V. Hussey, g Lomax v. Buxton, 295 London Co. v. Drake, 69 London v. Kmmons, 59 Long V. Long, 102 Longbottom v. Berry, 24 Longman v. Tripp, 391 Longridge v. DorviUe, 32, 33, 34 Longuet v. Sea wen, 102 Loucks V. McSlov, 6-,, 64, 65 Love v. Blair, 14' Low V. Petergill, 317 Lucas V. Harris, 352 Lumsden's Case, 49 Lund V. Land, 4 Lunn V. Thornton, 26, 311,366 M 239 Madell v. Thomas, 5 MacCarlane v. N'orris, 74 Mackay v. Douglas, 40, 93, 123, 280 Magruder v. T.tate Bank," 28 Maitland v. Citizens's National Bank, 268 Malcolm v. Loveridge, 15 Mangles v, Dixon, 355 Manitoba v. Bolton, "157 Manning v. Cox, 354 V. Monaghan, 94 ALirch V. Culpepper, 28 Marples v. Hartlev, 252 Marriott v. Ancho'r, 81 Marsden v. Meadows, 242 Marsh, ex parte, 291 v. Lawrence, 7 Marshall v. Creen, 20 Marthinson v. Patterson, 150, 197. 247, 267, 268, 399 Martin v. Bearman, 2, 355 v. Porter, 376 v. Reid, 12 v. Sampson, 269 Martyn v. Podger, 94, 280 Martindale v. Booth, 44, 69 Mason v. McDonald, 105, 364, 370, 37^'. 377 v, Sainsbury, 1 12 v. Thomas, 274, 291, 292 Massey v. Clement, 150, 151 Mather v. Fraser, 24, 239 Mathers v. Lvnch, 26-,, 301, 307, 368 Matheson v. Pollock, 125, 126, 149 Matthews v. Feaver, 29, 292 v. Holmes, 5 V. Lynch, 81 v. W'ahvvn, -555 Maughan v. Sharpe, 3,^72 XXIV I'ASKS CITKn. Mawsoii V. HIain, 41, Maulson v. Com. Hank, J41) Mauser's Case, 4() Maxwell v. Ferric, 33(1 May V. Security lV&S. Co., 298, 3OJ, 37,1.' 3C)() McAllister V. Forsyth, 17,45, 22; McAskiil V. Power, 221 McAulay v. Allen, 43, 57, 59, 6S, 71 McCall V. VVolfT, 201, 202,361, 3^12. 374 McCalla v. Hullock, 14 McCartney v. Wilson, 34 McCarty v. Hlecvins, 23 M. -Collin V. McChiire, 47 McConej^-ny v. McCiaw, 94 McConnell'v. People, 65, 81 V. Scott, 61, 83 McCord V. Cooper, 375 McCormick v. Difji-hy, 354 McDonald v. Forrestal 240 V. McCall, 41 McDoiif,'-all V. Elliott, 27 McDowall V. Stewart, 282 McFadden v. Turner, 7 McFarlane v. McDonald, 41 McCiee v. Smith, 54, 245, 264, 267 McGillivray v. Keefer, 32 McGiverin v. McCausland, 94 McGre^^or v. Kerr, 224 V. McXeil, 85 Mclntyre v. I'nion Baii:v',3i,266 McKellar v. McKibbin, 398 McLaren v. Thompson, 318 McL;ui{jhlin v. Ward, ^5 McLean v. Ikll, 172 V. (irant, 239 V. Pinkerton, 107, 2:^1, ,- , ^93. 295, 298 VlcLc.>d V. Fortune, 96, 256, 264, 289, 290, 308, 309 Mcl.eod V. Mercer, 95 McMarlin v. M»Douj,'^all, 243, 251, 27*), 326, .^:','< 390 V. Moore, 24(), 388 McMaster v. Ciarland, 241, 39a McMillan v. McSherrv, 20, 392, 39b McMullen v. Williams, 5 McNeal v. ICmerson, 8^, 221 McNicholl V. l-:ilis, 337 McNi<,'ht V. CJordon", 8 McPartland v. Read, 389, 39a McPherson v. Frederict'on Hooln Co., 246, 392 V. Reynolds, ^64 McRae v. Cent. Nat. Hk., 21 McRoberts v. Hamilton, 173 V. Steinhotr, 42 McTaf,'-j,'art V. Rose, 251, 2^2 Mechanics' Hid. & I,. Ass'n v. Conver, 67 Meech v. Patchin, 284, 329 \'. Tutin, ^27 Meek v. Ward, r25 Melville v. Strinf,'-er, 257, 298 Mems V. Mems, 318 Menzies v. Dodd^ 31)1 Mercer v. Peterson, 279, 295 Merchants Hank v. The Queen, 37. 59. 7' Merchants \at. Hank v. Mc- Laughlih. 361 Meriden Silver C<\ > . Lee, 42 Merrills \. Suitt, 3^ Mersgat v. Pumpelly. 34S Meverstein v. Barber, 12 Michael v. Gav, 43 Michie v. Reynolds, 97 Michigan Ins. Co. v. Hrown, 306 Middlebrook v. Thompson, 39'. ^42 Midland v. Cowieson, 273 f lASKS CITEP. XXV )ini>4-all, J43, ii. -'7h, 326, re, J41,, ^HH iliul, 241, ^1)2 eriy, 20. 392, ams, 5 Ml, H5, J2I n, 8 acl, 389, 302 retlerictoii MdoIii Co., 246, 392 ;ynolcls, 364 at. Hk., 21 liltoii, 173 fill off, 4J e. 251, 252 L. Ass'n V. 284, 329 7 i r. ^.S7, 298 8 191 ;,-79. 295 The Queen, aiik V. Mc- ' • Lee, 42 er, 12 97 V. Hrown, Thompson, ". 273 Millar v. .Alien, (14 V, HIinebcrrv, 2^4 Miller V. Jones, 45', j^t^'^ V. Curry, 225 V. Ostrancler, 47, 49 Milligan v. Sutherland, 387 Mills V. Charleswortli, 394 V. Davis, 47 V. Kin^, 374 Milne V. Henry, 397 Milton V. Mosiier, 50 Mitchell's Case, 49" Moffatt V. Coulson, 150, 279, 282, 329 Mopjr V. Baker, 366 Molsons Bank v. Halter, 35, 40 Monnot v. Ibert, 34 Montefiori v. Montefiori, 279 Montgomery v. Wright, 375 Moody V. Kllebe, 352 Moore, ex parte, 24 V. I'limpelly, 7 Morgan v. Shinn, 4 Morrell v. Fisher, 105 Morris v. Martin, 308 Morrison v. Reed, 58 ex parte, re VVestray, 248 Morrow v. Reid, 398 V. Rorke, 275, 282 V. Tiirney, 7, 316 Morse v. Phiimey, 2t;^ " Mortimer v. Craig, 173 Morton v. Bernard, 32 Moses V. Walker, 316 Mott V. Palmer, 22' Moulton V, Camroux, 50 Mountstephen v. Brooke, 354 Mo'.vat V. Clement. 244, 262, 304 Mowry v. First Nat. Hank, loi Moyer v. Dandson, 25b, 260 336 Mulcahy v. Archibald, 227 Mumford v. Whitney, 19 Murphy v. Taylor, 5, 100 Murray v. ICrskine, 77 V. Ciilbert, i(n) V. (iovernor, 355 V. Mackenzie, 334 Murillo V. Swift, 269 N Nash V. Weaver, 239 National Bank, ex parte, 305 ., , . ^ V' ^prague, 331 National Guardian .Asso. Co., ex pa e, 68 National Mercantile Bank v. Fiampson, 18, 66, 73, 371 National Mercantile B.-iiik, ex parte, 20 Nattrass v. Phair, 71, 369 Nelson, ex parte, 55, 268 Newcastle, Sheriff 'of, re, 251. 33' Newell V. Warner, 331, 332 Newitt ex parte, 240' Newman v. Tymeson, 327 New \'ork Life Ins. ' Co. v. Smith, 353 Niagara Bank v. Rosenfelt, 355 Nicholls V. Lee, 354 V. Webster, 82 Nicholson v. Cooper, 261 V. Karpe, 375 V. Temple, 25, 169 Nisbet V. Cock, 25s, 262, 263, 274. 273, 380, 382 Noell V. Pell, 374, 3S0 Nolan V. Donnellv, 51, 367, 368, 371. 376 Nordheimer v. Robinson, 10 North V. Crowd 1, 2()8 V. Powell, 306 North Central Waggon Co. v. Manchester Ry.' Co., j 19, 238, 244 XXVI (.'ASES CITED. North-Westerii Hank, ex parte, 242 Norwich Ins. Co. v. Boomer, 112 O O'Hrien, re, 251 Odell, ex parte, 24^, 288 O^Doherty v. Ont.'nank, 54 O'Donohoe v. Wilson, 298,^301, Ogi:: V. Sluiter, 10, 287, 312 Ogden V. Montreal Ins. Co., 109, 1 10 O'Malloran v. Sills, 2;^2, 333, Olliver V. Kini,'-, 279 V. Robinson, 266 Omaiia Book Co. v. Suther- land, 4 O'Xeill V. Small, 325 Ontario Hank v. Milner, 149 V. Wilcox, 298, 302, 394 Oranye v. McKay", 170' . Ord V. White, 355 Oriental Hank vV Coleman, 279 Orme v. Wric^ht, 77 Ormshy v. jaVvis, 268, 293 Oswald V. Mays, 66 Otis V. Sill, 3i7, 366, 390 Otiey V. Manniiif^-, 279 Overton v. Hi_<;-elow, 6g Owens V. Thomas, 49 Packard v. Kinj,nnan, 348 Pai,^et V. Perchard, 70 Paine v. Benton, 306 Panama, etc.. Mail Co., re, 17 F'apineau v. Gurd, 5 Parker v. .Morrison, 304, 30:; V. V'ine Growers' Asso- ciation, 102 Parkes v. St. Geors,-e, 32, 55, '47. 173. ^f>7. -(>«. 295, ^505 Parks V. Hall, 5, 100 Parry v. Duncan, 89 Parsley v. Day, 59 Parsons, ex parte, 11, 238 Partridge v. Swazey, 107, 318. V White, 33, 54 Patchin V. Pierce, 348 Pato t File Co., re, 343 Paterson v. Maughan, 50, 296, 301, 386 V. Taylor, 66 Patrick v. Meserve, 396 Pattern v. Moore, 282, 283 Patterson v. Gillis, ^23< sVs v-Kingsl^y ,"239724 1 Patton V. I:^^ ^iS^ 379 Rhodes v. Thwaites, 27 Richards v. Holmes, 65 v. Liverpool & Lon- don Ins. Co. 109 Richardson \. Alpena Lumber Co., 361 V. Anthony, 85 V. Home Ins. Co., I ID Richmond \. L\ans, 81 Rider \. Powell, 64 Risk V. SIceman. 295, 297 Ritcheson v. Richardson, 306 River Stave Co. v. Sill, 74, 75, '97, 247 Road v. Jonos, 32 XXVIII CASES CITED. Robbins v. Parker, 45 Robins V. Clarke, 398 Roberts v. Fleming, 65 V. VVigi^ins, 47 Robertson \ . Hamilton, 109 \ . Stark, 272 \ . Thomas, 287 v. Wilcox, 401 V. Wrenn, 145 Robinson v. Briygs, 389 V. Cook. 24, 51, 239 V. Farrelly, 8 V. Macdonell, 26, q-j, 278 V. Paterson, 268, 297 V. Tucker, 395 Rodwell V. Phillips, 19, 20 Roe V. McNeill, 300 V. Roper, 87 Roff V. Krecker, 150 Rogers V. King, 61 Rogers Locomotive Works v. Lewis, ID, 239 Rose V. Hope, 22, 242, 329, 377 Koss, re, 317, 348 V. Conger, 363 V. Dunn, 270 V. Elliott, 326 V. Hamilton, 317 V. Xorvell, 5 V. Ross, 7 V. Simpson, 94 Roy v. Goings, 57 Roylance v. Lightfoot, 59 Rusden v. Pope, 281 Russell, ex parte, 123 \. Hutteriiefd, 62, 71 \. Hammond, 291 \. Wimel, 362 Rutledge V. McLean, -,00 Ruttan V. Heamish, 59, 71 V. Rowles, 389 Ryan V. Shields, 387 Saffery, ex parte, 252, 395 Sage V. Brownmg, 282 V. Wilcox, 28 Saint V. Pellev, 85 Samuel V. Coiter,'57. 59- 68, 71 Sanger v. Eastwood, 283 Sanders v. Malsburg, 54 V. Pepoon, 243 Sands V. Standard Ins. Co., 2 Sauge V. Eastwood, 329 Saulter v. Carruthers, 333 Sawyer v. Fisher, 1 1 Sayre v. Hewes, 283, 285 Scoble V. Henson, 279 Scovell V. Boxall, 19 Scribner v. Kinloch, 397 V. McLaren, 250, 389, beal V. Claridge, 121, 253, 289, 356, 3«9 Seamen v. Eager, 331 Seath V. Moore, 31^2 Segee v. Perley, 392 Segsworth v. M'eriden Silver PlatingCo.,4,,65, 369, 376 Severn v. Clarke, 99, 100, 257, 264 288, 309, 385 Sewal V. Henry, g Sexton V. Williams, 61 Sharp V. McHenry, 251 Lewis. 2^2 ^43 Shaughnessv v Shaw V. Cault, 276 v. Wiltshire, 11, Shearer v. Habson, 64 Shears v. Jacob, 54, 245 Sheflield v. Harrison, 22, 23 Shepherd v. Earles, 85 Sheppard v. Sheppard", 306 Sheraton v. Whelplev, 183 Sheriti'v. McKeen, I'jo Shirbyn v. Albanv, 28 Shirreff v. \'ye, i'74 Short V. Rut'tan, 17, 366, 391 CASES CITKD. XXIX ■' 252, 395 iR, 282 28 Is , 57- 59.68, 71 ood, 283 'urg, 54 )n, 243 'd Ins. Co., 2 od, 329 hers, 233 ■> II 283, 285 . 279 - '9 ch, 397 ren, 250, 389, 97 121, 253, 289, ' 331 ;i2 ;g2 eriden Silver ■ 65. 369. 376 99, 100, 257, «5 I IS, 61 ■- 251 evvis, 252 6 - I'' 243 .64 4. 245 on, 22, 23 i, 85 i.ird, -506 .ley, 183 170 28 + 7, 3''^6, 391 Snowegan Bank v. Karron, 360 Shutter's Case, 49 Sibley v. Higgs, 298 Sidner v. Bible, 71 Simmons v. Jenkins, 69 Simons v. Pierce, 23 Simmons v. Swift, 312 Simpson v. Wood, i Simsbury v. Matthews, 19 Singer Machine \-. McLeod, 168 260, 261 V. Sloan \-. Smith V. V. V. V. V. V. 224, 247 Sisson V. Hibbard, 21 SkifV \-. Solace, 69 Sladden v. Sergeant, Slade \. Rigg, 102 Slater v. Brady, 49 01i\cr, 41 Maiighan, 334 Algar, 32 Benson, 23 Butcher, 104 Coal bach, 15 V. Coboiirg, 94 V. Fair, 57, 60 Ins. Co., 1 12 jenks, 20 McLean, 26, 232, 2^3, 25'- 3*JO Mingay, 75 Moore, 391 Pilgrim, 40 Rice, 52 Siirman, 20 Waggoner, 21, 319 Snarrv. Smith, 282, 394, 397 Snell V. Heighten, 26, 242 Sovereign Ins. Co., v. Peters, II I Spaulding v. Barnes, 60 V. Mozier, 370, 37^ Spooner v. Sandilands^, 106' ' Sqiiair v. Fortune, 273 Stafford v. Whitcomb, 64 Stanford, ex parte, 350 Stanley v. Gaylord, V5 v. \ . \'. V. V. V. Steel V. Brown, 279 Steele v. Benham, 390 Steinhoff v. McRae, 20, 240 288 Stephens, ex parte, 40, 280 V. Mc.Arthur, 35, 124 V. Pence, 364 Stevens ex parte, 34, 326 v. Barfoot, 21", 22, -51 V. BuH'alo & X.V. City R. R. Co., 285 Stevenson v. Rice, 8, 10, 240, 287 Stewart v. Cowan, 72 \'. Ciates, 414 V. Morton, 5 V. Muirhead, 171 V. Wilson, 124 Stimson v. Smith, 197 St. John V. Bullivant. :;8-, St. Louis Drug Co. v." Robin- son, 67 Stockdale v. Dunlop, 109 Stoddanv. Denison, 79, loi Stonebreaker v. Kerr, 108, 252 Stoveld V. Hughes, 391 Strachan v. Barton, "42 Strnnd Music Hall Co., re, 342 • .'..iige V. Dillon, 298 Stuart V. Taylor, 52 Sugars V. Br'inkworlh, ^2 Sumner v. Bacheldor, J48 V. Dalton, 264', -505 Sussex Ins. Co. v. Woodruff, 112 Sutherland v. Nixon, 297, 370 Sutton V. Bath, 106 Swan V. Lord Falmouth, 87 Swetland v. Swetland, 4 Swift V. Thompson, 397 Switzer v. Wilvers, 53 Tadman v. D'Kpineuil, 18, 365 XXX CASES CITED. Tailby v. Omdal Receiver, 17, Tallman v. Jones, 68 Taniialiill v. Tiittle, 95 Tanner v. Scovell, 390 Tant V. Harvey, 373 Tapfield v. Hillinan, 105, ^^64 Tapley v. Butterlield, 51 Taylor v. Ainsley, 264, ^07 V. Blakelock, 286 V. Jones, 280 V. McKeand, 66 V. Whittemore, 249 Teal V. Auty, 19 Tempest v. Kilner, 16 Temple v. Nicholson, 25 Thayer v. Stark, 255, 346 Theviot v. Prince, 332' Thibadeau v. Paul,' 248 Thirkell, re, 363, 364, 366, 377, 37« Thomas v. Cotton, 173 V. Desang-es, 251 v. Kelly, 152, 233 Thompson, ex parte, 40J V. Bennett, 300 V. Blanchard, 10, 64. 65 V. Quirk, 201, 204 ^330. 33^, 367 V. Vanvechten, 327, 328 V. Webster, 29, 291 304 Thomson V. Walsh, 169, 243 Thorouyhj.food's Case, 49 Thornton v. Cochrane, 77 Throssell V. Marsh, 301 Tideyv. Craib, 32,^50, 264, 270, 283. 305 Tiflany v. Warren, 283 Tift v. Horton, 22 Tillman v. Delacv, 21 Tindall \-. Wasso'n, 360 Tomlinson v. Morris, 240 Topfield v. Hillman, 106 Topham, ex parte, 41 Totten V. Bowen, 41, 54 Touch v. I'arsons, 47 " Tousley v. Tousley, 306 Town V. Griffith, 318' Townshend v. Windham, 291 Trethowan, re, 24 Trueman v. Bain, 171 Trust & Loan Co. v. Cuthbert, 317 V. Drennan, I II v. Lavvrason 90 V. Wright, 145 Tucker v. Muirhead, 246 Tulley v. Smith, 306 Turner v. Cameron, 24 T \- Mills, 301, 304, 326 Tyas V. McMaster, 275, 292 Tyler v. Strong, 5, 100, 283 Twyne's Case, 37, 269, 292 U Union Bank v. Lenanton, 383 Uruguay Railway, re, 343 V Valentine v. Smith, 266,-301 Varney v. Hawes, 53 Vassie \-. Vassie, 168 W Wade V. Simon, 34 Wadsworlh v. Townlev, 300 Wait V. Baker, 312 Waite v. Denison, 8-„ 84 Walcott V. Sullivan,'333 Waldie v. Grange, 397 CASES CITED. XXXI (man, io6 rte, 41 -n. 41. 54 ns, 47 sley, 306 !i, 318 IVindham, 291 24 n, 171 ^o. V. Cuthbert, 317 V. Drennan, III V. Lawrason 90 V. Wright, 145 lead, 246 306 ron, 24 301, 304, 326 ^'f. 275. 292 5, 100, 283 7, 269, 292 ^enanton, 383 ^y. re, 343 til, 266,-301 168 34 3\vnley, 3CX) 12 I, 83, 84 an. 353 -. 397 Walker v. Burrows, 280 V. Cla\-, 18, 73 \. Hymaii, 10 V. Niles, 32, 263, 270, 301, 334 V. Radford, 63 V. Walker, 5, 100 Wallace v. Cook, 258 Wallard v. Worthm'aii, 347 Waller v. Tate, 64 Walrond v. Goldmann, 241 Ward V. Shallet, 291 V. Turner, 389 Ware v. Gardner, 40 Warner v. Don, 232 V. Jacob, 80 Warren v. Carleton, 397 Warwick v. Bruce, 19 Washburne v. Burrows, 20 Waterfall v. Penistone, 24 Waterous Eng. Works Co. v, Henry, 149 Waters %•. Cox, 15 V. Shade, 102 Watson, re, 1 19 V. Henderson, 95 V. Main, 89 V. Randall, 28 V. Spratley. 16 Watts V. Brooks, 279 Wayne v. Hanham, 102 Weatherby v. Bradford, 9 Webb V. Patterson, 7 V. Steele, 354 V. Stone, 272 Webster, ex parte, 304 Weed V. Stanley, 8 Welch V. Sackett, 57, 254 Weld V. Cutler, 396 Wells V. Chapman, 71 Werner v. Ber^^man, 57 West V. Skip, 389, 391 Westbrook v. kager, 19 Western Bank ^ v. Courte- manclie, 1 1 1 Western Milling: Co. v. Darke, 202 Wetherell v. Spencer, 329 Wheeler v. Nichclls, 392, 396 Wheeler & Wilson v. Charters, 171 Whimsell v. Giffard, 59, 62, 87 Whitcomb v. Sutherland, 6 White V. Brown, 24, 245, 26^, 3f'>. 377 V. Morris, 59, 94, 280 V. Philps, 65 Whitiny v. Hovey, 145, 069 i:;8. 201 Whitney \ \ \ I<^ irrar, 94 Lowell, 64 Tobev, 41 Whittaker v. Sigjer, 81 Wich V. Parker, 4^ Wick V. Hodgson,' 2'- Wild V. Williams, 354 Willey V. Snyder, ^61, 176 Willard V. Rice, 376 Williams V. Allsup, 58 V. Grey, 90 V. Leonard, 286, 367 V. Owen, 5 V. Sorrell, -iz: V. 1 homas, 249 V. Wheeler, 74 Williamson v. Berry, 78, 287 V. Clements, 28 V. Steele, 26 Wilson V. Brannan, 83 V. Carver, 7 V. Kerr, 367, 369, 377, 395 V. Kimball, 356 V. I,eslie, 276 V. Traer, 380 V. Weston, ;, 8 Wilt V. Lai, 252 Winchester V.' Ball, 102 Windrell v. Coney, 272 Winslowv. Mich.' Ins. Co., ^70 XXXIl CASES CITED. Winter v. I^aiulpliere, 25, 360 Witt V. Hanner, 373 Wolfenden v. Wilson, 311 Wood \-. Brunt, 253, 400 \. Dixie, 39 \-. N'unn, t be paid, the erformed, then the mortg-agee orti^-aged, and ; still the right 2 common law on of the prin- e debt is the It is not only a rty itself as a rmance of the Derty may be irporeal nature res therein. inies. I property. th mortgages particularly in tutes relating d although no >id, 2 Mass. 495. MORTGAGES HV PAROL. o transfer of possession of the chattel mortgaged has taken place (('). It may be valid if made by simple contract ( /"). Though there may be a verbal mortgage, such an agree- ment will only be valid as between the parties to the transac- tion. For the protection of creditors and others dealing with a mortgagor, the statute law requires, as an essential element -if such a transaction, that the mortgage shall be in writin-, and. m order that they may have notice of the true positio"n of h>s property, that the instrument shall be registered or the property mortgaged be delivered to and remain in the possession of the mortgagee, in which case the transaction assumes more the character of a pledge than of a mortga-e _ The d.stmction between a verbal mortgage and a pledge, IS that in the case of a mortgage, title in the propertv passes to the mortgagee, the possession remaining in the mort-a-or whereas in the case of a Hedge the possession of the property passes to the pledgee, he retaining a lien thereon, while the title to the property never passes from the pledgor (-) In those cases where a verbal mortgage is sufficient in law, any words which serve to transfer the propertv as security for a debt, or obligation of any kind, will sufV.ce to create a mortg-age. Though a writing is necessary to constitute a valid mort- gage as against creditors of the mortgagor, or his subsequent purchasers or mortgagees in good faith, yet no particular form of conveyance is requisite, so long as the formalities of the statutes respecting chattel mortgages are complied with A parol agreement to give a mortgage may be enforced, provided that money has been advanced upon it, or the con- dition or agreement on the part of the mortgagee performed ; but such an agreement is ot course wholly invalid as against those persons protected by the Act. (e) Maughan v. Sharpe, .7 C. B. N. S. 44^ : ,4 L I C " i N. S. 989. ■ -t+J- 34 I- J. C. . .^j ,, Jur. (f) Florry v. Denny, 7 Ex. 581. (g) Beeman v. Lanvton, -57 Me. sa-j «►,•// ,. u ,1 ». ^ 10 S. E. Rep. 902. ^^^' '• """'""• '°5 N- C- 10; 4 Bii.i.s ov SAI.K .wn .MOi). The law does not presume that anv man has acted or desires to act fraudulently, but presumes the contrarv until the fraud is shewn (,, 4 M. cV X. ,01 : Pari, v. //„//, 8 Pick. 206": Tyh-r v .S/n,>,jr,.. 2, Marh. ,98: llaUrr v. Walker, 2 Atk. 99: Dlxa,, v. Parker. 2 Ves. 225 : 1 ou„g V Pca./uy. 2 Atk. 207 : /.n„fr/on v. //or/on, s Heav. 9 • Joiu's V. Sfa//,am, 3 Atk. 3S8 : /Ml v. Car/er, ,7 Beav. 11 : }/,) Cook V. Gudgcr, 2 Jones \. C. Ecj. ,72: /■>,glisl, v. /.a,u; i Porter, 328. (p) .VaU.-llv. riwmas (1891) , O. H. 230: Brrkrll v. Tnirr (iSq,) , O R 638: /■:., parte Finlay, 10 Moirell 258: Tvler v. Slrnu^r^ 21 Harb (N. \.) .98: AW.S-V. .\\,rvell, . Wash. ,4: LaKorhey. (rihuran, i O. R 300: .UeA/„lle>, V. 1Flllla>„s, 5 A. R. 5,8: Pa/,i,uau v. G„rd, 2 Gr' 5.2: y.'.,n,l,arlv.Pa/lerso„, i Gr. 459 : /M,»es y. .Valll,e,vs, = Gr. .08- Bernarclv. Walker, 2 E. & A. ,2, : /.'arr y. Parr, .5 Gr. 27 : Ca>»p6e^l y'. Durkn,, 17 Gr. 80 : A'eai/ v. Jem-ll, 5 Me. 96. (q) MaNhe,,s v. Holmes, 5 Gr. 33 : Cahardy. Wau^r/,, 3 Jo.u-s (\. C ) Eq. 335 : Blackreell v. Overhy, 6 Ired. (N. C.) Eq. 38. ' (r) Ste^mrt v. Horton, 2 Gr. 45 : Papineai, y. Gnrd, 2 Gr. 5,2 : Bro-a.;i v.^.«rv 2lWb. 28: Engllsny.Lane, . Porter 328 : Beutley y. Phillips, n ^; ^fn ' " "■"■'""' ^ ^'""'' ^- ^'- ^-i- -549 : U'illiamsy. U7ir„, 5 .M. & C. 303 : Langlon v. Horton, 5 Beav. 19, mi.l.S OK SAI.IC AM) MOK n-.AC.KS. (v), tl,e corulitions and circumstances of the conveyance (/). the seek.n,^ o. a loan by the vendor from the vende'e. are a urcun,s,ances wh,ch may be looked to in order to ascertain the real nUent.ons o( the parties, and from which a mort^^age may be presimiod. '*>"K^ A suhsecuem writing,, reciting, that it was agreed between part.es at the fme tl,e deed of sale was executed, that if the vendor should repay to the vendee bv a specihed day he anKn..n o, the consideration expressed in the deed, h L e negatue the absolute sale, yet stren^nheninj,. other evidence a doubtful nature in that direction, has bten held t.! ^ an .absolute conveyance the operation of a mortj,af,.e (u) The mlem.on of the parties is to be arrived Tu rem the evdence ent.rely apart from the form of the instrumerand h cuesfon .s one that a jury may decide, whether from he accompanyn^g crcumstances the instrument is in substanc ' -n he b.il ot sale was $,oo, which the vendor a^^reed to ronav ■f he could but. if not. that he would sell to t',e e :,: ^r $ ,000. and subsequently, further sums were paid which made P th.s sum of bi.ooo. it was a question for the jury, from al te c„,,,„,,,„,,,^ ,„ ^^^. ^^.,^^^^,^^^ ^^^^ instrument, ab olut o" >ts face, was a bill of sale or mort^^age (■:,) While the question of intention of the parties, as to whether 1 7 r''' T ''""^'"' ''' °P^^''^^^ - « mortgage or a b. of sale, may be one for a jury, the question of u^ether an ec iTb!' t'l" """ '' ""' '-^ "°^ ^ "''"'■"^^' - °-^ °^ '-v^: aecision by the court. _ A bill of sale of goods to secure a debt, possession remain •ng wuh the vendor, is a mortgage, and. L such, i: Tb^c; m m'^rV' """ ''"-"' ■ ""'■ "^ = """'""'' "■ ''"''--"' ' Gr. 459. (t) IVhitrumb V. Sutherland, 18 III. 578. (u) Locke V. Palmer, 26 Ala. 312. (v) Bank of Toronto v. McDougall, ,5 U. C. C. P. 475. (w) 6-oo^W« V. AV/?,', 42 Barb. (.\. V.) ,94. "m veyance (/), dec, are all ascertain 1 i)iort},'ag-e t'd between ted, that if ed day the tlie latter iiHicient to r e\ idence Id to g'ive e ('0. t from the mem, and r from the ihstance a sideration 1 to repay endee for lich made , from all solute on > whether age or a lether an f law for remain- ! subject I Gr. 459- i SAl.KS AM) MORTCIAIIKS I)IS riMUISIIKl). J to the statutory regulations as to form and registration (a). The mere fact tiiat an instrument does not contain terms of defeasance, cannot be at all decisive in determining the i.|ues- tion whether it shall be considered a mortgage or not. If from the entire instrument, either standing alone, or read in the light of the surrounding circumstances, it appears to have been given as security, it must be considered as a mortgage, and the law will apply thereto the rules applicable to mort- gages ( 1'). A writing in the words following: "Turned out and delivered to A, one white and red cow, which he may dispose of in fourteen days to satisfy an execution," the pos- session of the cow being left with the debtor, was held to be a mortgage (s). A provision, whereby the vendor shall remain in possession of the property transferred by virtue of a bill of sale, until the expiration of a certain time allowed for payment c( a previous debt, gives to the instrument one of the essential elements of a mortgage {(t). A bill of sale, with a condition for redemption, makes the instrument a mortgage (/;), and so does a contract in the bill of sale securing an endorser or surety against liability (r). So also does taking a judgment for the consideration money mentioned in the bill of sale stamp the instrument with the character of a mortgage (i/). And a bill of sale is a mortgage, when the vendee retains the (x) McMartin v. M,Dmiir„U, lo U. C. R. J99 : liissel! v. Hopkins, 3 Cow. IN. V.) 166 : MrFaddvn v. Ttinu-r, 3 Jones (\. C.) L. 481 : Ross v. Ross, 21 Ala. 322 : Moon- v. Pumpvllv, 46 Wis. 660. fy) Bi'ch-tt\. Toiaer {\%<)\) i Q. B. 638: Cooper \. linnk, 41 Mich. 488; 2 .\, W. Ki>p. 660. (/) Ahvalcrw Mo-.ver, 10 Vt. 75. (a) Ford V. Ransom, 39 How. (X. Y.) Pr. 429: Blodi^vtt v. Phdi^elt, 48 Vt. 32. (b) Kent V. Allhritain, 4 How. Miss. 317 : Wilson v. Carver, 4 Hey 90 : Morroivw. Ttirney, ^•y Wa. 131. (c) Webb v. Patterson, 7 Hump. 431 : Marsh v, f.a-ivrenee, 4 Cow. 461 : Jackson v. Green, 4 Johns. 186. W Haniet \. Dtindas, ^Y'cnn. i-jS. 8 nitr.S OK SALE AND MORTGAGI.S. A provision for redemption in a contract nf ..,1 . transaction a mort^^age /) A u r^ 1' '""'''' ''^" ^; uie uctitor, IS a mortPfaire (/A So «lw. • 1 (e^ A'obiuson v. Fatn'Hv, 16 Ala 472 (f) »%.,. V. //'«/,.,, 4 Jones (X. C.) lu,. 3.0. i, 57 Ga. 326. (.n) Pn;,/nr v. Co„so/M„r.f Bank, ,3 A. R. 69 : C- mortgage his interest, such as it is, and upon payment of the pnce of the goods, the mor.gage will attach (/.) An engine builder who agrees to construct an engine may mortgage ,t in Us unfinished state, even though the purchaser (d) Smi/A V. Coalbach, 21 Wis 427 (f) Malcom V. Loveridge, 13 Barb. (N. V.) 372. (g) Everett v. Hall, 67 Me. 497. (h) Crompton v. Pyait, 105 Mass. 255. i6 coons AMI lliATTl'I.S. lias advancetl money on account diirinj,-- the progress of con- struction, and such mortyajje will pass the property (/). All personal property which may he sold may be mort- gfaged. A limited interest also may be mortgaged, as, for instance, the interest of a farmer, who occupies and cultivates land on shares in the crops and products of the soil ; but, if the agreement between him and his landlord be that the crops and products of the soil shall belong to the landlord, and that after payment to the latter of certain advances the tenant shall then have a certain proportion of the crop, the tenant has not m this case such an interest as can be made the subject-matter of a chattel mortgage until he pays the advances (/). The word "goods " is less comprehensive in its operation than the word "chattels" (/c), and is limited to what is movable personal property, to things which are tangible and visible, and have a local situation (/). Whatsoever is capable of delivery, of being handed from one to another, in fact whatever is movable personal property, is within the meaning of the term "goods." A mortgage of future crops is within the Act, and is superior to a mortgage afterwards given of the crop when in existence, and gathered (;,v). If a vendor or mortgagor agrees to sell or mortgage pro- perty, real or personal, of which he is not possessed at the time, and he receives the consideration for the contract, and afterwards becomes possessed of property answering the description in the contract, there is no doubt that a court of equity would compel him to perform the contract, and that (i) Wn^/i/ V. 7>/Anc', 99 Mass, 397. (j) Po>,di'r V. A'/u'„, 32 Ark. 435 : r.,'/a»d v. Sfimffuc, 2S Vt. 746. (k) //„„,6/,, V. J/,yc/u-//, ,, A. & E. 205: //essM>u'v. Si^ffc.s, , Ex. 86. : r^,p,,, V A7/«,... 3 C. B. 249 : B,nM_y v. B.//, 3 C. B. 284 : B.ad- ley V. Holdsr^orth, 3 M. & W. j^22 : Dun croft v. Albrccht, ,2 Sim. ,89: U arson v. Sp^ntley, ,0 Ex. 222 ; 24 L. J. Ex. 53 : Po^vell v. Jessop, ,8 *-• "• 330 : Lau'tcr v. Griffin, 40 Ind. 59,3. i\) Hewi// V. Corbe/t, 15 U. C. R. 39. (m) Kvcrman v. A^obb, ,52 Miss. 653 : Pctrh v. Tutin, 15 M. & W. 110. ■1^ KlriRK AlQllRFI-) PROPERTY igress of con- orty (/). may be mort- aged, as, for ind cultivates i soil ; but. if hat the crops ord, and that e tenant shall ^nant has not Libject-matter its operation at is movable d visible, and ; of delivery, whatever is f of the term Act, and is ; crop when )rtgag-e pro- iessed at the nntract, and iwering the It a court of :t, and that 't. 746. Sifffffrs, I Ex. i. 284 : Jimd- 12 Sim. 189 : V. Jessop, 18 . &W. MO. '7 the contract would, in equity, transfer the beneficial interest to tile mortgagee or purchaser immediately on the property being acquired. This, of course, assumes that the supposed contract is one of that class of which a court of equitv would decree the specific performance. If it be so, then, immedi- ately on the acquisition of the property described, the vendor or mort-agor would hold it in trust for the purchaser or mortgagee, according to the terms of the contract (//). For if a contract be m other respects good and fit to be performed and the consideration has been received, incapacity to perform .t at the tmie ot its execution will be no answer when the means ot domg so are afterwards obtained. This is the rule, even when the assignment is one of a hope dependent on a chance, such as the sale, by a fisherman of a cast of his net for a given price. Thus, an assi-n! ment or mortgage of non-existing property (such as a quantity of square timber subsequently to be had and manufactured [0) or tiiat IS thereafter to be made (/), or such stock as should be purchased thereafter during the currency of the mort-age (y), or crops to be afterwards raised {,■) will be upheld '' On a contract or bill of sale purporting to assign goods to be acquired in the future, if the goods be sufficiently described to be identified on acquisition by the seller the equitable interest in them passes to the buyer as soon as'they are acqun-ed (.v), and if not so described the legal property will not pass until the seller does some act appropriating (n) Lord Westbury in Hohoyds: Marshall, ,0 H. L. C. ,9, : Coyne v 47 "l I ■ ? B Z A^ '■'■/'"'■"'''' ^ ^^- P- «• 3.9 : Leafhan, v. A, J, 47 L J. y. B. 581 : AV Panama, etc., .\[a;i Co., L. R. g ch. ^18. (o) Cummings v. Morgan, 12 U. C. R. 565. (p) Short v. Kuttan, 12 L'. C. R. 79. (q) Joseph V. Webb, i C. & E. 262. (r) Clements v. Mattheivs, 11 Q. B. D. 808. 10 H. I.. L. 191 : McAllister v. Forsyth, 12 S. C. R. i. i8 GOODS AND CHATTrCI.S. them to the co:Uract (/), or the buyer takes possession of them under .in authority to seize (//). If the mortira^'-e covers future acquired stock, and there is, havin.-- regard to the terms of the mortf,'ag-e, an implied license for the morti^a^-or to carry on his business and sell the stock, then bona fide purchasers from the morl<,'-a{,'or will j,-et a ^UHHl title, notwithstandinjr that tlie morts^-af,^" u^is duly re.iristered, and, even when the mortj,^-i-e specially provides that until default the morti,^■lfror shall be entitled to make use of the stock without hindrance or disturbance of the mortfjaK'-ee, then, if the mortgaj,'-or fraudulently sell the j^oods to bona iide purchasers not in the ordin'arv course of business, the mort.t,^•^J,'■ee will be entitled thereto.'bccause the right of the moitga-or to deal with the goods is subject to the implied condition that the dealing shall be in the ordinary course of business («') : but the goods to be afterwards acquired must be in some way specifically described, for goods which are wholly undetermined, as for instance, "all my future personalty," will not pass as future acquired property (a"). The words " in the ordinary course of business " have an important significance, for a mortgagee may often be defeated in his claim to goods, even such as growing crops, by an instrument impliedly licensing the mortgagor to carrv on his ordinary business, and that, notwithstanding the mortgage may be registered. An assignment of a man's stock-in-trade and effects on the farm, together with all the growing crops, and other crops, "which at any time thereafter should be in or about the same," will be a sufficiently specific description of the (t) Langton v. Higgins (1859) 28 L. J. Ex. 252. (u) Hope V. Hayle^y (1856) 25 L. J. Q. B. 155. (w) .Xational Mercantile Bank v. Hampson, 5 Q. B. D. 177 : Walker V. Clajy, 49 L. J. C. L. 560: Dedrick v. Ashcloivn, 15 S. C. R. 227, 242. '^) Jadman v. D'Epineuil, 20 Ch. D. 758 : Lazarus v. Andrade, 5 C. P. D. 318 : Belding v. Read, 3 H. & C. 955. I'KiiTrs i\insTUiALii:s. possession of jck, and there ?c, an implied iness and sell nort<,raj,ror will iriiR*-' \\iis duly :ially provides illed to make hance of the sell the j^cods ry course of >, because the is subject to 1 the ordinary )e afterwards .loscribed, for nstance, " all Lire .icquired ess " have an n be defeated crops, by an ) carry on his he morti^ai^e id effects on s, and other ; in or about ption of the ). 177 : IValier R. 227, 242. s V. Andrade, '9 ■<^ future crops in the farm to make the assignment a valid one in equity ( r). And where the owner of an equity of redemption in land i,'-ave a chattel morti,'-a},'-e of a f,'rowing crop, but before the harvest released his equity to the mort{,'-agee, and the latter rented the place to a tenant, the takinj,' of the convey- ance by the mortf,'agee without providinj,' to the contrary, merf,'-es iiis mort;.raf,ve claim, under which he could have taken the crop as part of his security, and the chattel mortgagee therefore, had the prior right as against the grantee and as against the tenant (;:;). In seeking to ascertain what fruits of the soil are, and what are not, chattels independent of the land, it will be' well to bear in mind the distinction between fructus industriales and fructus naturales. The former, which are within the scope of tlu: Act, are fruits produced by the annual labor of man n sowing and reaping, planting and gathering (./), for at common law a growing crop, produced by the labor and expense of the occupier of lands, was, as the representative of that labor and expense, considered a chattel independent of the land(/;), to which the 17th section of the Statute of Frauds would apply. Fructus naturales, which are beyond the scope of the Act before severance, are the natural growth of the soil, as grass, timber, fruit on trees, etc. The latter are an interest in land, and, as such, embraced within the 4th section of the Statute of Frauds (r), with this exception (y) Cleiiienlsv. Mnt/hcws, 1 1 O. R. D. 808. (z) Cameron v. Cibsoii, 17 O. R. 233 ; 25 C. L. J. 2S0. (a) Jonvs V. Flint, 10 A. & E. 753 : Carrington v. Roots, 2 M. & VV 248 • S,mshurj> V. Matthews, 4 M. & W. 343 : Warunck v. Bruce, 2 M "& s' 205: Forbes ^^. Shattuck, 22 Barh. 568: Mumford y. Whitnejy, 15 Wend' 387 : Oraves v. Wild, 5 B. & A. 105 : Evans v. Roberts, 5 B. & C <;2q '• Westbrooks: Eager, ,6 N. J. L. 8. : Dunn v. Fergusson, i Hayes (Irish),' S^2: Parker \. Stainland, i\ Ea.iit i62. (b) Evans v. Roberts, 5 B. & C. 836 : Kingsle^ v. Holbrook, 45 N. H :in< 3"8. 3'9 : Dunn v. Fergusson, i Haves (Irish), 542 (c)Scovell V. Boxall, , Y. & J. 396 : drosby v. Wadsu^orth, 6 East 602 • C»rr,ngton v. Roots, 2 M. & W. 248 : Teal v. Auty, 4 J. B. Moore 542 i 2 B. & B. 97 : Rodwll V. Phillips, 9 M. & W. 505. 30 tlOOns A\n IMATTI'I.s. that, when fruit or timhor is sold win, a view to its imme- Uiato severance from the froehoid, and will, a view to passinjf to the vendee an interest in the properly when either hecomcs a chattel, the contract, then, is one for the s.de of j,roods and chattels, and not ol' ;in interest in land. Ii is the same .as if the parties had contracted for so much fruit already picked or for so m.any feet of timber alreadv felled U/). And so it is that, thoufjh hay is sometimes fnictus naturales, yet an ajrree- ment between the landlord .and occup.inl th.it the h.ay shili helon.i,^ to the latter en.ables him to make a valid t,^r.nu thereof by way of .a person.il morl^af^e ; but the contention that a morl-ai^e of f,^rass is a mortJ,^■,f,^e oi' personal propertv does not prevail when it is owned by one who owns the l.an'ds (r), and. It allowed to remain in the possession and under the control ot the vendor after severance, then the statutory requisites must be complied with(/'). I'ixiures, too, may .and m.ay not be within the operation of the Act. If a person remains in the possession of fixtures he cannot pledge them, so as to ^ive a title to a mort^aiiee, except by an instrument under the provisions of the statute (4^). ^ In order to ascertain whether or not a particular thing is a hxture, it is necessary to apply certain rules which the courts have ai^reed upon in decided cases, and if the article in ques. tion is covered by these rules it is deci.icd to be a fixture These rules may be reduced to three, which require that the article under consideration shall be : - (i) Actually annexed to the realty, or to something appurtenant thereto. ki) .UaM V. OW.-,,, , C. P. D. 35: 5"'M V. Surma,,. H. & C. 568 : Y^.rU V. /'/uW/,s, 9 M. & W. 505 : ll'asMoun,. v. Burrows, .6 L. J l,x. 26h; , Kx. M.s: U'oodn^/r v. Kohcrfs. 4 I..-.. ,27: Couch S/umn7fau, 13 C.r.iy 49,^ : C,„,i v. S/mn,s, 1 1 iM.iss. 533. (e) SmM v.Jenks, i Denio \. V. 580. (i) Ex parte Xathnal Mercantile Ba„k. ,6 Ch. D. .04 : Stehihoff v. McRae, 3 O. R. 546 : McMillan v. McSlicrrv, 15 Gr , 33 'g) Ex parte Dal^lish, L. R. 8 Ch. ,072: Begbie v.' Eenn.ck, L. R. 8 «-n. 1075 : Hau'try v. Butlin, L. R. S Q. B. 290. V to its iiiimc- iew to passing citiicr becomes } of j^oods and tlic same as if liready picked, And so it is i, yet an ay^rce- the hay shall I grant thereof Mention tiiat a property does tiie lands (f), md under the the statutory e operation of oi' fixtures, he I niortgaj^'ee, lie statute (^). liar thing is a ch the courts •tide in ques- be a fixture, uire that the ) something '«, 9 B. & C. «' V. Burrows, a. 127: Coitr/i 50 : Douir/its V. \ : Sti'inhoff v. (Ti'/V^, L. R. 8 FIXTIKICS, 31 \i\ Appropriate to the use or purpose of that part o^ the realty with \v!iich it is connected. (3) Intended by the party making the annexation to be a permanent accession to the freehold, and wha* that intention was in making the annexation is inferred from the following facts : — (a) The nature of the article annexed. (b) The relation of the party making the annexation. (c) The structure and mode of annexation. (d) The purpose or use for which the annexation has been made (//). The intention of the parties in dealing with the fixtures will decide their character, and it is a fit subject of inquiry how fixtures came to be placed on the realty, and what was intended to be their use. By agreement of all parties in- terested in both the realty- and the fixtures, things considered fixtures to the realty may become personal property (/). Mortgaged chattels afterwards annexed to the realty, may in like manner retain their character as personal property, but it is essential that they be -^ ...cx J that thev can be removed without serious dama.^ o the freehold, and without sub- stantially destroying their own qualities or value (7), Wlien a stranger owns the goods, a wrong-doer can neither rightfully nor wrongfully give a title to such goods to the owner of the soil by affixing them, so as to become part of the soil, and if the owner of the soil seeks to retain that which has been improperly affixed to his land bv one who had not the legal title to the thing so affixed, he must pav for it [k]; and of course a person who has onlv the use of property belonging to another cannot, by annexing it to the soil, make (hi Tilhnun V Delacy, 80 Ala. ,03: Cnpcn v. Reckha,:, , ,, c ,nn. 88: Mchac V. Cent. .\at. BaHi.66 N. Y. 489 : PoUerv. Cro,>n,,//. 40 .\. Y. 287. (i) S>>n-//i V. IKfl^y^.,,./-, 50 Wis. ,55: Godardv. Gould, ,4 Harb (N. V ) 662 : Goudiui^r V. KiUy^ 50 \. H. 40c. \ ^■) (j) Ford,: Cobb. 20 N. Y. 344: Shson v. Uibbard, 75 \. Y. 542. (k) Stevens V. Barfoot, 13 A. R. 366. 22 GOODS AND CHATTELS. it part of the realty (/). But when a person owns chattels, and annexes them to the land of another, which he occupies as a trespasser, he cannot afterwards be heard to claim that the chattels so annexed are not fixtures, and so not to pass with the land to a pu'-rhaser or mortgagee (w). If parties are not dealing with an interest in land, the contract for the sale of fixtures will be a contract for the sale of chattels, and the statute wil! operate upon such a contract (;/). The owner of land upon which there are fixtures, has the right to sever the fixtures from the freehold, and a mortgage by him upon the fixtures will not be prejudiced by a subsequent mort^-ao-e of the land [o). A mortgagee of land will not lose the benefit of his realty mortgage by taking in the same transaction a chattel mortgage on the fixtures (/>). Where a person sells chattels to the owner of the. soil on an agreement that their character as personal property is not to be changed, and takes a chattel mortgage or lien thereon to secure the purchase money, a prior mortgagee of the freehold cannot claim them as subject to his mortgage, although they are subsequently annexed to the freehold ; and upon failure to pay the chattel mortgage the mortgagee or vendor is entitled to their delivery {(/). But if the intention of the parties, as shewn by the terms of the instrument, is that fixtures should pass with, and as part of the freehold, then registration of a mortgage, as a chattel mortgage, is not necessary to pass the interest in fixtures fixed to the soil (;-). (I) D'Ryncoiirt v. Gregory, L. R. 3 Eq. 382 : Central Branch R. W. Co. V. Fritz, 27 Am. Rep. 175. (m) Stevens v. Barfoot, 13 A. R. 366. (n) Hallen v. Runder, i C. M. & R. 266 : Wick v. Hodgson, 12 Moo. 213. (o) Rose V. Hope, 22 U. C. C. P. 482 : In re Eslick, 4Ch. D. 503 : Stevens V. Barfoot, 13 A. K. 366 : Corcoran v. Webster, 50 Wis. 125. (p) Per Hajrarty, C. J. O. ; Stevens v. Barfoot, 13 A. R. at p. 369. (q) Tift V. Horton, 53 N. Y., 377 : Goddard v. Gould, I4 Barb. 662 : Mott V. Palmer, i N. Y. 564. (r) Sheffield v. Harrison, 15 Q. B. D. 358 : Potts v. N.J. Arms Co., 2 Green (N. J.) 395. FIXTURES. 33 A building erected by one person on the land of another, may be mortgaged as personal property, if it was so erected on the understanding or agreement that it might be removed at any time (s), and the character of the building is not changed by the mortgagor removing it on to other land which he has bought, and giving a mortgage on the land to secure part of the purchase money, provided the mortgagee of the land had notice of the mortgage on the house (/). Where machinery is a part of the freehold, leathern driving belts required for working such machinery will also pass with the realty, as the key of a door passes with the sale of a house («). But although the parties to a real estate mortgage may agree that all building material brought upon the mortgaged lands shall be deemed immediately attached to the freehold, still if a power is also given to sell the material separately from the land it will be deemed, as to it, a mortgage of chattels (z'). Even fixtures of a nature that the vendor must have known, in order to be made use of, must necessarily be built into and become part of the building, none the less retain their character of chattel property in favor of a vendor thereof who retained in himself the right of property in the fixtures, and this they will do as against a landlord to whom the vendee of the fixtures has surrendered the lease by reason of forfeiture. The owner of the property would not cease to be the owner, and his right of recaption exists so long as the property retains its legal identity («>). Machinery placed upon land for the purpose of trade and manufacture, being placed there for the better and more profitably enjoying the a 1', ' il A m If*- ■ ^ !{\ 7 3f ''§m fi' (s) Smith V. Benson, i Hill (N.Y.) 176. (t) Simons v. Pierce, 16 Ohio S, 215. (u) Sheffield v. Harrison, 15 Q. B. D. 358. (v) Climpson V. Coles, 23 Q. B. D. 465 ; 25 C. L. J. 591. (w) Hall V. Hazlitt, 1 1 A. R. 749 • see Ho-vell v. Listou^el Rink and Park Co., 13 O. R. 476. 24 GOODS AND CHATTELS. 3and, will pass with the freehold (x), but not so if by so doin^ n would violate the intention of the parties (y). and so tram- ways in a mine have been held to be fixtures, and so not dis- trainable(^). Where in a mortgageof land the mortgagor after grantmg the land, also added, "together with the mills buildings, steam engines, motive power, plant, fixed and movable machinery, apparatus, rails, sleepers, implements ■fittmgs and fixtures of every description, now or at any time hereafter fixed to, or placed upon, or used in or about the «aid hereditaments and premises or any part thereof " it was held that all such passed as fixtures, even to removable portions of the machinery, such as guys; and that, too, though the guys maybe supplied by one person and the crane t)y another and diff'erent person (a). Accessions to property mortgaged by the mortgagor in good faith become subject to the mortgage. And. it makes «io diflFerence, as between the immediate parties to the mort- gage, to what extent the property mortgaged may have been improved in value; the improvements come under the opera- tion of the mortgage as accessions to the property mortga-ed A mortgage of saw logs will bind the lumber into whiJh fhey are sawn, but the mortgagee must prove that such lumber •was made out of the identical logs mortgaged (d). A mort- gage of leather cut and prepared for the manufacture of shoes covers shoes subsequently made from it by the mortgagor (c) A mortgage of cucumbers, at the time in bulk and in salt' covers them after they have been greened and bottled, though the bottles and vinegar were not included in the mort-a-e id). A mortgage of an unfinished locomotive covers the ^(x) A/a//n'. V. Frascr, 2 K. Sc ]. 5,36: Lox^io/^om v. Bo^.j,, L. R. 5 Q. (y) Waterfall \. Pcnistone, 6 E. A B. 876. express terms. And it has been held that a conv._,.it.v.e of such increase by the mortgagor, while in possession thereof, to a purchaser without notice, actual or constructive, will be valid (/('). If a mortgagor so confuses the mortgaged goods with his own that they cannot be distinguished, and refuses to separ- ate them, the mortgagee may take all such goods without becoming a trespasser (/). But where a plaintiff owned a stock of goods and some furniture, and shop fixtures, and sold out to S., taking a chattel mortgage as security, and S, continued the business and brought in other goods, until, becoming involved, he absconded, and the sheriff, upon an (e) E.x parte Ames, i Lowell, 561. (f) Hamlin v. Jerrard, 72 Me. 62. (g) Giinn V. Burgess, 5 O. R. 6S5. (h) Temple \. Nichuhon, Cassels S C. Dig-. 114. (i) Dillaree v. Dnyle, 43 U. C. R. 442: Forman v. Procter, 9 R. Mon. (Ky.) 124: McCarty v. Bleevins, 5 Yerg. (Tenn.) 105 : Hughes v. Graves, I Litt. (Ky.) 317 : Nicholson v. Temple, 4 Pugsley ct Bur. 20 X. B. R. 24S. (j) Winter X. Landphere, 42 Iow;i,47i : KellogM. Lovely, 46 Mich. 131. (k) Winter \. Landphere, 42 Iowa, 471. (I) Fullers'. Paige, 26 111. 358 : Burns v. Campbell, 71 Ala. 271 : Flem- tng V. Graham, 34 Mo. App. 160. 26 GOODS AND CHATTELS. a. -.chment bemg: placed in his hands, seized the property .n .he store, ,t was held that the goods being of such a nature as could easily be distinguished, the sheriff was liable for trespass (>,), but if the mortgage be of a certain number of articles o furniture, not particularly distinguished, in a house wherein there are other articles of the same kind belono-in-^to the mortgagor, the mortgagee may select from the whole be vo-'i (.7 """"'' '"'^'''"""' "''"'°''' '^' '""'■^^^^^^ -"'^'^t To transfer the right of property in . chattel, the chattel must be ascertained and identified at the time of the transfer H. For .nstance, it is said that, if I have two or more books that can be distinguished from the rest, and I ..rant one or more of them, the grant is good for this, that^t is certain what thing is granted (p); and if a man have five hors ,„ ,,s stable, and he gives to me one of his horses in stable, now I shail take which of the horses I will (.y), because the horse given is easily separable from the other /and so a mortgage of two bales of cotto. out of a growing crop, will be good as between the parties (r). ^ If, however, I grant a man twenty books, to be taken out of my ibrary, no right of property in any particular books passes to the grantee, because the subject of the grant was no ascertained and identified. The case of BryaJ.. AV, ' fully Illustrates the law as to the appropriation of a chatte necessary to a valid grant. In that case, Parke, B., said In order to pas^ the property, the specific chattels must be ascertained which are to pass. Now here the oats were stilt .n T. s premises, and he might have performed his contract (m) Boj's V. SmM, 8 U. C. C. P. 248. (n) Ca/i V. Gm_y, 37 N. H. 428. (0) SiieU V. Heightou, \ C. ct E. 95 (p) Z«n« V. Thornton, . C. B. 370 :' Gale v. Burncll, 7 Q. B. 850- ,4 L ; f;.^.'"^''- ^"'t'"--' '^ Met. 3..3 : S,nM v. AfcLean, 24 Iowa ,22 (1) fF;//.a,„jo„v. Ste,/^, 3Lea(Tenn.) «7 4 'o«a, 322. (s) 4 M. & W. 774. ^ '' APPROPRIATION. 27 le property of such a was liable number of n a house, longiniv to lie whole, age mig-ht !ie chattel e transfer or more J 1 grant that it is have five horses in , because and so a crop, will aken out ar books rant was \ A'/x is) 1 chattel i., said : must be vere still contract with the plaintiffs by supplying any other oats of the same quality and amount." So where a transfer was made of 100 tons of coal, as security for an endorsement, and the trans- feror, while he had a certain lot of coal lying on the wharf, supposed to contain that quantity, had in reality only 78 tons, and that was subject to a claim for wharfage ; the jury found that the transfer was not confined to this lot, but was of 100 tons, the transferor having more in his yard ; it was held that the property in the coals in the yard had not passed, for the quantity transferred had not been ascertained or separated (/). But, while a grant of 100 bushels of wheat does not operate as an immedi"te transfer unless the wheat is measured and set apart (because the transfer has nothing to operate upon) {u) ; it becomes an executory contract, and amounts to a covenant to deliver 100 bushels of wheat, on breach of which an action is sustainable. When once the appropriation is made and assented to by the vendee, then the property in the goods passes, and their value may be recovered by the vendor under a count Tor goods bargained and sold, and the action will lie as soon as a selection is made by the vendor, if it is at his option to make the selection. The property passes just as soon as the selection or appropriation is made, although the vendor is not bound to part with the possession until he is paid the price (v). And the sale or mortgage of crops off specific land, is therefore a sale or mortgage of specific crops, although not sown at the time of the sale or execution of the mortgage (w). (t) McDougall V. Elliott, 20 U. C. R. 299. (u) Godts V. R->se, 17 C. B. 229; Logan v. Le Mcsurier, r, Moore P C 116: Campbell \: Mersey Docks, 14 c. B. X. S. 412. (v) Rhodes V. T/nvattes, 6 B. & C. 388: Aldndge v. Johnson, 7 E. & B. 885. 3 Ji" . N. S. 913 : Atkinson v. Bell, 8 B. & C. ,177. (w) Hoii'cll V. Coupland, i Q. B. D. 258. CHAPTER III. THE CONSIDERATION. The system of mortgaging arose from the existence of debts for which security was desired. The very essence of a mortgage is ti.at there shall be a debt, the security for which .s the mortgage. Every mortgage requires a consideration, and without a consideration there cannot be a mortga-e The consideration must be a lawful one, and may be either valuable or good. A valuable consideration is money or any other thing that bears a known value, or marriage (.,) ; or some other benefit to the person making a promise, however slight, or to a third person, by the act of the promisee (^) ; or any loss, trouble, detriment or inconvenience to, or charge or liability upon, the promisee, however slight, for the sake or at the instance of the promisor, though without any benefit to the promisor (.) • or the suspension or forbearance of legal proceedings, the prevention of litigation or the settlement of dispute^ (T/l A good consideration is aff-ection for a child or relation or the payment of debts by the debtor (c) paid by the lender into the hands of the borrower, or whether partot u .s with his privity, or by his direction, emploved '" the payment of a debt due by him, it is equally in a le' nl sense paid by the lender ( /■). ' (Xl)t-Z ^ ''""'^"" ' ^"- ■'• ''-■ "^^'' '■ '^"*--. ^- N. J^! fr'''"':- ^'-f- 4 Taunt. 6u : lV,7Iia,.son v. ae»,en^s, . Taunt (c) S;n>bj.n V. AJba,,^, Co. Eliz. 67 : Afo.c/. v. C.;p,^pe., Cro. Car 7, d JVa^son V. ^„„^„//, ,0 ^Ve.d. .0. : S„jr, ,. »4.v, 6 Conn 84 (e) Aeenan v. //a>,d/rj>, 2 D. J. & S. 2S3. ^' (f) Ex parte Challiiwr, 16 Ch. D. 26,. KINDS OF COXSIDERATION. ■29 cistence of sence of a for which sideration, gage. y be either hing that ler benefit to a third :, trouble, upon, the istance of misor (c) ; ings, the s id). lation, or • actually ■ whether employed 1 a le nl •c, \V. N. I I Taunt. 3. Car. 71. nil. 84. The consideration in a transaction is sometimes such that the statutes rehiting to bills of sale and mortgages of per- sonal property havt no application. Under these statutes it is only so far as the interest of creditors, subsequent pur- chasers and mortgagees in good faith of the bargainor or mortgagor is concerned, that the debt or consideration presents subject-matter for discussion. As between the im- mediate parties to the instrument, the law remains the same as it was without these statutes, and in those cases wherein the statutes have no application in relation to creaitors, sub- sequent purchasers am' mortgagees in good faith of the bargainor or mortgagor, the law respecting the debt or con- sideration is in no way governed by these statutes. A voluntary consideration will not, of itself, make a deed void {^ir). A bill of sale founded on a voluntary consideration may yet be good; but if the bargainor be indebted at the time it was executed, it will be deemed fraudulent. To be other than voluntary, the consideration must be valuable ; hence services rendered, ihough beneficial and deserving reward, if they do not f -m a ground for a legal claim, will not suffice to support a bill of sale (//) ; and natural love and affection, not being a valuable consideration, will not suffice to support a bill of sale against creditors (/). Hence, a bill of sale by a farmer to his sons, of his live and dead stock, in consideration of natural love and affection, will be an invalid transfer as against the creditors of the parent. The courts in construing the Statute of Elizabeth (7), have held it to include deeds made without consideration, as being prima facie fraudulent as against creditors. Marriage is a good consideration, and is the highest consideration recognised by law. A marriage contract differs somewhat from other agreements ; for as soon as the tnarriac^e (g) Holmes V Penny, 3 K. & J. 90 : Thompson v. Webster, 7 Jur. \. S. 531- (h) Peacock v. Monk, i Ves. 131 : Penhallx. Eh.'in, i Sm. & G. 268. (!) Matthews v. Feaver, i Cox, 268. (j) 13 Eliz. c. 5. 30 THE CONSIDERATION. T '^'' ''''''' ^"^ capacities of the persons are altered • and as ch.Idren are usually provided for. they becom put: chasers ecjually, under the settlement, with their parents and are ent.tled to enforce their rights, although alfthe n^^ d contract, ngpart.es to the settlementagree in disregarding tT.) _ A b.Il of sale upon a consideration of marriage is a vaHd ■nstrument u-.thn, the Act (/), when the settlement i ..u ' nupt.al. In (,.„;,,>„ ,. ro^,,, („,^ „„^ ^ -te ante-nupfal settlement, declared that in c^nsiderTt on "f marnage he settled to the sole and separate use o i i^. ended wife, goods, household furniture, jewels etc which .t was recited were possessed by the intended we f d.ed. and a bill w.s filed by creditors against the executt and w,dow a leging that the recitals in the deed of e ment were false and untrue, and prayin- th.t th/ m.ght be declared fraudulent and ^voi^ up^^^thrgr Z that I. L. had no property of his own, and that the pro- perty comprised m the settlement was placed there for the purpose of defeating his creditors. Sir W. Grant MR , to naxe been I. L. s property, he might have settled it unon h.s marnage. According to the cases decided at law. ev the movable effects might be so settled, and neith r h JouUpossess,on which I. L. had of the furniture, nor he win of an .nventory. would invalidate the settlement It s clea also, that the fact of his being indebted at the time, and of h validity. Then, assuming the falsehood of the declaration that wile, will that circumstance prevent her acquiring as ap-ain«^ him and those claiming under him, all th^ W; fs ^ hXhe ettement acknowledged her to have, and profe^ssed to sec to her? I apprehend it to be clear that the husband not (k) Lej>s V. McPhcfson, 17 U C C P =f „ - r, , (1) Leys V. Mc/'wrson, 17 U. C. C. P 266 ^sniey, 3 Atk. 610. (ni) 17 Ves. 264. are altered ; ecome pur- arents, and tlie named irdingit(/i). e is a valid nt is ante- rader in an leration of of his in- tc, wiiicii fe. I. L. 2 executor of settle- tlie same e ground : the pro- re for the M.R., in he whole ■d it upon law, even :ither the the want t is clear ind of his affect its ition that intended > against ■hich the o secure and not TRLE tONSinERATION". 31 only could not controvert her right to any part of the property, but was compellable to do whatever acts might be necessary to invest her with a complete title to it. He has expressly covenanted to do so, and the marriage was a sufficient con- sideration for the covenant. The . how is it fraudulent against the creditors:-' The utmost they can make of the falsehood in the deed is that tiie property was in truth Mr. L. 's, though it was asserted to be hers ; but if he could settle this property, ar.d has done what bound him to give a title to it, supposing it to be his, how .-ire thev advanced bv estab- lishing that fact ? * * I do not think that it 'can be mferred from the evidence that she knew he was in such circumstance as to make his bounty to her a fraud upon any one " (;/). ^ ^ A continued indebtedness or liability is a good considera- tion, " and the ratio of the consideration to the value of the property mortgaged is of no consequence, so far as concerns the validity of the transaction." (,;) Although an erroneous statement of the amount of the consideration does not in- validate the instrument, an indebtedness of some amount must be stated in order to satisfy the Act ; therefore a mortgage, wherein the consideration is "the full sum of the indebtedness now existing or hereafter to be contracted " is void for the reason that the affidavit of bona fides must state that the mortgagor is justly and truly indebted to the mort- gagee in the sum mentioned in the mortgage, which would not be possible if the mortgage does not state any indebted- ness (/>). If the omission to state the true consideration is made with the purpose of deceiving, then of course the element of fraud IS found in the transaction, and the mortgage becomes void on that account, but fraud may exist without being dis- 4UL'w:x'-;;sS;o^r" '■ '''"^'^ ' ''■ °- ^^= ^^^^ - (o) Je-i'ff/ V. IVarrcn, 12 Mass. 300. ^(p) _.?/...» V. Ba>-foo^, :, A. R. 366: Afcln,_y.e v. Cnon Bank, . Man. 32 TiiK co\sini;u.\Tio\. covered, and thus the express purpose of a statute, passed for the protection of creditors, may be destroyed by an incorrect statement of the consideration, purposely made to deceive and mislead. In the absence of fraud the erroneous statement of the consideration does not avoid a mortf>-ajfe, for there is no rule of hiw requiring-- that the exact nature of tiie debt, much less the exact amount, should be set forth in the Morlf,>-aire ; but the untrue statement of the consideration becomes a circumstance for the jury io consider when deciding- the ques- tion of fraud or no fraud {i v. Cranshm, 1 Rosw. 281 : Park,-s v. Sf. Gco>yr,., ,0 A. R. 496: IVooiiv. Sru/f, 55 Iowa, 114. (r) Snii/h V. A/gar, i I? & A. 603. (s) McGillivniy v. Kecfer, 4 L'. C. R. 456. (t) Morton V. Bernard, Vaiix. 7 A. & E. 19. (u) Longridge v. DorviUc, 5 B. & Aki. 117: IJe7vellyn v. Lleivellyn, is I- J. Q. B. 4. ■" ' ^ (w) Sugars v. Brlnhvorfh, 4 Camp. 46 : Road v. Jones, 1 Doue. (Mich ) 188. r< \ / (x) Andiis V. Xelson, 64 Barb. 362. , passed for n incorrect Jcccive and tatement of tliere is no debt, much r.iortgag-e ; becomes a 14' the ques- state the nsideration -son derive etween the •earance is e is not a at a future f>r (/), and respecting sration for gainst the sufficient !nt not to a second . C.R. 127: : Parkcs v. SlIKIflENiV OV COXSIOKKATIOV. 33 A promise of the surrender of a lease at will is not a suPlcient consideration, for the lessor might determine the lease at any moment, unless there was a doubt whether it was a lease at will or for years. Hence, the giving up of a questionable right is a sufficient consideration to support a chattel mortgage. Any act of the mortgagee, however, from which tlie mortgagor derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by "the mort- gagee, is a sufficient consideration to support a mortga<>-e ( i') Though forbearance is generally a good conside'rat?on as between the parties to an instrument, it sometimes tails as between creditors, or an assignee in insolvenc^ . I„ E^ L^^^ Cooper [o], a trader executed a bill of sale of substantially the whole ot h>s property to secure a debt for which the gramme had secured a judgment some eight weeks before ; and also to secure another debt which he owed the grantee. The grantor had, the day after the judgment was entered, written a letter to the grantee, undertaking, in the event of his not ■ssumg execution on the judgment, to execute to him. o. demand, a b.ll ol sale to secure the judgment debt and uch o er .sums as he owed him. It was attempted to sus^n the b. 1 o sale as against the trustee in liquidation, on the cons.derat.on of forbearance in not issuing execution o h! judgment and se..ng. But it was held that no equivalent l.d been g.ven for the bill of sale, and so it. was oid .) And the court, recognising the authority of this case in F. par. Payne ii», held, that under a bill of'sale o tfe w itf the grantor's property, given for value, the forbe.r.nce o t.?. grantee to sei.e the property comprisd inlc;" !f . was not, as against the trustee in bankruptc o t L/anTo ' -ces Without a;;S:^i^--—t:---; (y) Biinn V. Guv. ± V->Kt ir,^ . t U) .0 Ch. D. Z;^ '°= ^-""^'*^ ^- ^'"^^•''-. 5 B. & Aid. ,,7. (a) Ex parte Cooper, 10 Ch. D m- It/ ji (b) . I Ch. D. 539. ^^ ■ '^"'"^^"""■^ V. Murray, 4 Q. B. 27. 34 THK lOXSIDKRATIOX. it of bankriiptev. and void as aj,'ainst the trustee in bankruptcy of the jjranior, It made no dift'erence to the result of this case, that tlie first bill of sale was invalid (r). Hut the consideration for a morti,>-aj,'e will fail if it is the abandonment of a suit where the mort«-af,'ee has no cause of action ; for instance, where the question to be tried is one respeclins;- which the law is certain, and the mort^raj^or could in no event be made liable, (^/). Forbearance to sue is no consideration where clearly there was ori^nnally no cause of action (c). If a party is illej^-ally arrested, his release is no consideration for a mortgajfe ffiven under arrest to secure the debt ( / ). A mortg-ai,^- t,riven to a sherilT or warden of a jail to secure the payment of costs in a criminal proceeding;, by a person committed to jail, until the sum should be paid, is without consideration and void, because the ollicer has no authority to take such a morl^-ag-e, or to release the prisoner ( ^). Where the consideration is iile-al as at,'ainst public policy! the mortg-atie is void, as, for instance, when the real con- sideration is to secure a member of the legislature to vote in a particular way (//). A debt which is barred by the Statute of Limitations is of course a ^^ood consideration for a mortsja/). ' Pt-rson For the purpose of upholding a mortjra-e . mst ,1 .h. bemj,^ a good consideration, mav be re.^Sl d'-. ' rl^u^ . 1- . . - rtgarcled as a nrcsent bt obepatd at a future time, when the mortgage a " he debt m the proviso as becoming due and pav^He I. . uture day, and the consideration for'the transfer oAle p o P;.ty^s stated to be money then acknowledged tot;::; (k) /.a7vn'>,a- v. Turh-t, 23 How. ,4. (I) />! re Ames, i Law 561. (ni) Gooderham v. Hutchinso,,, 5 U. C C P 2jS (n) Evans v. Morlw, 21 U c'r -,-'. ';:- " f' ^ McLaughlin v. Ward, 77 Ind.'jSv ' ""' '' '' ""'' '"■ ^^^ = (o) Cooley V. Hobart, 8 Iowa, 358. (p) Gibbons V. McDonald, 20 S C R rO, ^r , S. C R. 88: Slepnens v. -I/X/!;. '• 's^'j. r;'^^'" '""' ^'^ ""'"^ '' (q) Dickenson v. Clemoiv, U. C. R 42, " (r) Farlinger v. McDonald, 45 U. C. r' 237, ill ft, ' -J CHAPTER IV. FRAUD. An essential requisite to tiie validity of conveyances is that they be clear from fraud or collusion, which are things that the law universally abhors. It is in the consideration of an instrument that the element of fraud, when fraud exists, is generally to be found. Fraud vitiates all things, though it must be remembered that he who perpetrates a fraud cannot claim any benefit through his own act. No limits to relief against fraud can be prescribed, nor can the species of evidence receivable in support of it be strictly defined, but from time to time statutes have been passed to overcome the ingenuity of mankind, which is ever anxious, ever striving, to entangle in its meshes the unv/ary and the inexperienced. The first statute relating to fraud in regard to goods and chattels, is 13 Elizabeth, c. 5, passed in 1570, and made perpetual by 29 Elizabeth, c. 5. The statute enacts that every conveyance of * * goods and chattels by writing or other- wise, made with the intent to defraud creditors or others of their actions, suits, debts, accounts, damages, forfeitures, etc., shall be (as against that person, his heirs, executors, adminis- trators and assigns, whose actions, etc., are, or might be, in anywise disturbed, delayed or defrauded) utterly void ; but it also provided that nothint)' contained in the statute itself should make it extend " to any estate or interest in * * ♦ goods or chattels, had, nvde, conveyed or assured, or there- after to be had, made, conveyed or assured, which estate or interest is, or shall be, upon good consideration and bona fide." Thus it was settled that a good consideration alone would not -.uffice to prevent the application of the statute ; the conveyance was also required to be made in good faith. twvne's case. 37 Hence, in Twyne's case (.,) it was resolved that, althoujrh there was a debt really due from Twyne to Pierce, v t the S;Sr; was not within the proviso of the sia J e ^ LI zahetl, because ,t was not also made bona fide. Under he chattel mort.a,.e Acts conveyances are likewise requ ed to be bona fide, and for j^ood consideration, and the -JZlt must n. h.s affidavit shew these two qualities to xi t' T" h.s reason U may not be out of place to here refer more fully to rwyne's case, the facts of which were • On^ n ^ indebted to Twvne in ^soa .nH '"^"'^-.^"^ ^'^'^^^ was y-oo^ n u , -^"^ ' ^"'' '''''^ '''^o indebted to C in ^2oo. C. brought an action of debt -ur^h.., P- . Pierce continued in possession ocVjl-^ \ Nevereheless, lliem he sold ■ he shnro^tl f *-'°°''''' "'"' "™ °f own mar., and : :: ^s'T'"::"' "T'^l "- -■" "- Pierce, and „ad a «eH I^i di;ectr::''.h^e"r h" X':' force of the said writ cam<^ tr. i -''"enft, who, by .oods; .0. dive. P^io^ Vl'^nr :? te^:^ rt '°"' did, with force, resist the .^hprlff i • Twyne, f,-oodsof,l,esa;dT:^n ,v : fj ;'r"^V'";'" '" "= '"' declared, b, .„e con,,L,„d Je .;,-:"; .T;':"'' ""'"'^ g.ft, and made on good and ,■..2,"''°'"' ""ethe s gi,,, on L who „,a e " .v^riT;'""' ^"^ no effect by the said statute of El'.re h „ '" " "' question aud in this case dive.s p'oi'ts'te' ^lor,""^ "" bee 1 tt, ■ t\':::;,;':^ '".:, ^^^-^ -<■ --.» o,- ,>a..d, or any thin^ of tetei't' Z,"'" ""''""'" °'' '"-PP"->. dolosus vets:,uri„;:::';:,;,.,t." " """'"'•"'>■ -«' "'i-" o.hers, a'nd deftdeTa'nd'rLed '.her ""' '"'"'^"^^ >^"^ (a) Smith's Leading: Cases, „ 3 Coke 80. 38 FRAUD. (3) It was made in secret, " et dona clandestina sunt semper suspiciosa. " (4) It was made pending the writ. (5) Here was a trust between the parties, for the donor possessed all, and used them as his proper goods, and fraud is always apparelled and clad with a trust, and trust is the cover of fraud. (6) The deed contains that the gift was made honestly, t.-uly and bona fide ; ' et clausulae inconsuet semper inducunt suspicionem." Secondly, it was resolved, that notwithstanding here was a true debt due to Twyne, and a good consideration of the gift, yet it was not within the proviso of the said statute of 13 Elizabeth, by which it was provided that the said statute shall not extend to any estate or interest in the land, etc.; goods or chattels, made on a good consideration and bona fide, for although it is on a true and good consideration yet it is not bona fide, for no gift shall be deemed to be bona fide within the said proviso which is accompanied with any trust. It IS not difficult to perceive how very easily the statute could be evaded, were an assignment permitted to stand, when based simply upon a good consideration without the accompanying attribute "good faith." ^ A money consideration might, in any case, be paid, but paid only in order to obtain cliattels of the debtor, and pre- serve them thus from seizure, or the amount might be wholly disproportioned to the value of the goods, which, of itself, is such a suspicious circumstance as to j>!stify a strong convic- tion that the object of the assignment was not for the sake of the creditor intended to be secured, but for the convenience and protectii ,if the debtor (d). Formerly, a creditor might be diligent in securing his debt, by chattel mortgage from his debtor, and the instrument could not be impeached, if other- wise unimpeachable, simply because the parties intended to (b) Flemmingw. McXattghton, 16 U, C. R. 194. STATUTE OF ELIZABETH. 39 defeat thereby the execution of a judgment creditor (c). And this was the law under the Statute of Elizabeth, c. 5 (d) ; but, now, if a man, knowing that a creditor has obtained a judg- ment against his debtor, procures the debtor to give iiim a mortgage upon his goods, to secure a debt due, in order to defeat the creditors' rights, then such mortgage is void. I his was the construction put up -i the statute 13 Elizabeth c. 5, by Lord Mansfield (c). ' Unless the instrument is protected by reason of bona fides and of want of notice or knowledge on the part of the mort- gagee or bargainee, yet the same shall be void under the statute, even though the same may be executed upon a valu- able consideration, and with the intention, as between the parties to the same, of actually transferring to the mortgagee or bargainee the interest expressed to be transferred When this statute fails in application, then, in order to work a fraudulent preference of a creditor, there must be creditor"; n °' 'T' '" '"• '° "" ^'" P^^' °^ ^°^'^ ^'^'^^- and creditor (./). Even suspicion directed against the person preferred is not sufficient from which to conclude a fraudulent design. The court requires affirmative evidence of fraud or some controlling circumstancial e^ idence leading to that conclusion, before it will act on mere suspicion ( ,r) A mortgagee is a purchaser pro tanto, and a purchaser for value in good aith without notice is within the protection of section 6 ot the Statute of Elizabeth, which statute is no repealed but rather interpreted by R. S. O., (1897) c ,47 .,„d given an extended application by R.S.O., (,8971c ,,- The exact quantum of debt which may invalidate a"con- Me. & Rob. 539: Gof,..a/is- v. A/MM,„d, „ U. C. C. P 6 e\ App. R. ,94 : n<,/ffi,s/t V. .UcCarf/n., .9 Gr. 57S. ^ " ' • ^- ' 3 t. & (d; /v. Boyd, C, C/ari v. //«;„///„„ Pn>vn/r,,f g O. R. at p ,-0 (e) U'orseley \'. Demnt/os, i Burr 467 ' 4'-^';:y,.;';t-;;. i^ ■<• ■«'■■'"'' ".-. ^ o. r. „. , (g) Per Boyd, C, Bums v. McKaj^, ,0 O. R. ,67. 40 I'RAUl). veyance or mort-age of goods and chattels may vary accord- ing- to circumstances ; but the insolvent circumstances of a vendor or mortofaj^-or will not, per se, invalidate a bill of sale- or mortsrajre (//). It is only a circumstance raisin- a pre- sumption that tie instrument was executed with the i'inent to defraud, just as is the fact of a mortf,^igee taking a mortga-e on all a debtor's property of the most minute character as security for a debt wholly disproportioned to the value of the property mortgaged ( /). Under the statutes of Elizabeth the circumstance of the mortgaged property covering the whole or part only of a r.ortgagor's goods is immaterial. If the mortgage is bona fide, that IS .f it is not a mere cloak for retaining a benefit to the grantor, it is a good mortg.,^ ,mder the Statute of Elizabeth {J). The presumption of fraud may be rebutted in various wa^s ; for instance, by a thrc^at of a criminal prosecution or other pressure from his creditor, and therefore it was held that a mortgage by an insolvent, or by one on the eve of insolvency, executed by a debtor under pressure by the creditors, as, for instance, a threat of criminal prosecution to secure a pre-existing debt, was not a fraudulent preference, and that the intent with which the instrument is given, bein- a question for the jury, thr -ircumstances of pressure attending Its execution ought not lo • .u'e been withdrawn from them {k). _ The doctrine of pressure, which obtained before the insolvency laws, now occupies the same position since their repeal (/), and the fact that a mortgage is obtained by pressure (h) Henev v. IV/utc. 29 U. C. R. 232 : Snuth v. Pilgrin,, 2 Ch. D. .27. (.) M;>u„^v Mc\an,,r/./„„, .6 U. C. R. ,94 : /„ .. Peanon. E.. pJte Stophe,,., 3 CI, D. 807: Freeman v. Pope, L. R. 5 CI,. 538: Crossley v. Eh^crthy, L. R. ,3 Ec,. ,58: Mackay v. Douglass, L. R. ,4 Eq. , 06 • Ware v. (.an/nci-, L. R. 7 Eq. 317. -t -i ■ S f"", ''■f'.';'-''""' L. R. 4 Ch. 6.3, E.vparfey„„rs. i^Chy. D. 324. ik) Ba,d-o/ Poro.,, V. .Vr/>.,.,//, ,5 U. C. C. P. 47s: S,„M v. J'l^n,,,. 2 Ch. D. .27 ; see also A/o/sons Iim,k v. Halter, 18 S. C. R 88 (\) Bn,yley^. E//is. 9 A. R. 565 ; 18 C. L. J. 96 , GMo„s v. A/cDona/d, PHESSURE. 41 is ev.dence that it is free from fraud ; but pressure vdll not vahdate a security, unless it be a bona fide pressure to secure a debt, and without a v,ew of obtaininj,^ a preference over the other creditors (w). which the debtor .s supposed reluctantly to yield (..) Pres- sure saves a transaction from Leing voluntary when it ongmates ,n the will of the creditor, at whose insiance done, and not m the will of the debtor, who only vields to he sohatat,on of his creditor, and it is not done wi[h e t o prefer, etc. : if the motive is to escape the pressure . 1 c, .s exercsed, or e^-en to comply with a bona fide demand wh,ch Ks made, and not to prefer one creditor to ano her even thou,.,, that may be the necessary and obvious effec tof'what .s done (.), unless a preference is satisfactorily proved to b s re-u i" rrr '•''^ "° ^P^^"'^^^-"' -^^ ^^e mo ,! ; pressure applies or not, is whether or not the debf i« ,1„« ■ poun of time, to the creditor who obtains h set. tyt;.: due then, the power to exercise the pressure ^1::^.:! Z 88. ^ • ■■'^° • ■^^"^■"0"^ iiank v. Halter, ,8 S. C. R. (n) Ex paHv Topham, L. R. 8 Ch fim . riv v V. Converse, ,6 Gr. 547. ^'^^«'^'"'" ^- '^I< Donald, 2. ( .3,9: r/^;,,^,^, 2° C. L. J. ,7„ '^ ' ^ ^- '^- 4'3 : ^S/«/,.^ v. Oliver, 7 ,> r.. .^g^ (P) iS'.V /,„;./f t>«tv«, L. R. ,0 Eg ficc . 7- // (q) ^>A/J««.wv. .]/...r„//, 90 R Vs "■ ' ^ "^^ '^^ ^^- 4^ FRAL'D. SO the doctrine cannot be invoked (^). Another .ircu-v stance which deprives a ci editor of the benefit of this doctrine, is his l^nouinj. ihat the state of the debtor is financiall',- hope- less, when, in such a case, the pressure resolves itself into this, that tile creditor su^r^ests an evasion of the policy of the law which will enai>!e him to , !>!ain priority and prefer- ence over other creditors, and th< Jobtor acquiesce:, i > and adopts the suggestion, then there exists a jnint act of such a character as to be held collusive (,v) ; ,, r, withr.ut a concur- rence of intern nn the part of the debtor a.,d creditor taking- the mortgage, the transaction cannot be a\ oided < r. the gr^^'uui of being a fraudulent preference {/). A v.edilcr holdin- ample security is not a creditor who requirc^ protection trom fraudulent preference, and though another -r -i-.tor may be otherwise secured by the debtor, the latter trtinsaction uill not be deemed a fraudule>u preference as agamst the first-named creditor ; but should ihe latter be msulhc.ently secured then as to the deficiency he may invoke the law as to fraudulent preference {u). The statute positively makes void all instrumesits within the purv.ew of the Act unless there is a full compliance with Its provisions ; the result is, therefore, that creditors are not debarred from attacki.- a mortgage for want of registration because they already have had notice of the existence thereof (v). The utmost good faith must characterize the dealings between mortgagor and mortgagee. If a mortgagor, in violation ot the terms of the mortgage, sells any of the property mortgaged, or in any way parts with it, the mort- gagee may follow and recover it from anyone purchasing It, provided of course that the mortgage under which he claims IS duly recorded so as to effect notice. (r) S/rarliaii v. Barton, n Kx. 647 ^^"Ch-O: ^;,:"""''"" """■'■ ''"■ '■ ^'■'■' ^ O- ^- 45. : see E.-p^.U- (t) Mrh'obrrts v. Steinnff, 1 1 O. R. ^69. (11) ChtrJ; V. Hamilton Provident, 9 O. R. 177. (v) Ed-,iHinls v. Ed^mrds, 2 Ch. D. 291. C CO.\C-EAI,MEN-T OK TlTI.li DEEDS. 43 There is nothing-, however, fraudulent or wron<. in . -r., se„in, „,ort,a,ec. property subject to he^ rt- rem. r'e ^ """ °' '" '"^"^^^'''"^^'^ "-'^^"v are such as to require the consent of a mortgagee to any'such sale If mortgagee attempts to take possession befo're h r t t' to do' ■•'O accrues, he will be restrained nr th . . entitled in an action . '"'''*'"^^' ""^ ^he mortgagor will be -Hie .. ir:?:^:---: -- ^- - or the n^o^gior^ •:::::. :'t::^!;:;: ^^- ^'^ --- done to such interest (,,). " "'' ^''^ Carnages The Revised Statutes of Ontario (iHny\ . provide for redress being had in Km°^r'' "^'^ "9' mortgagee against a .eH^er or ^ .t "^f ' "" T'''''' "^ or personal, for fraudulent crcea mlt of"' """'T' ''^'^ encumbrances, or for falsifying. peJit" ' °^ "^^ '^^^^ ^ ihe Criminal Code of Canadn ^«. .ro provides for the punishment Z^i^r^f'' ^^^? """^ 373), .agor for fraudulent concealmi: ':^lr'::t: " "'"'" brance, or for falsifvin- -mv n^H- ^ mcum- ror'i'f :;;::: :l: :;;;„.:"°^ ^-'-'^ ^-* --- '"= '" any suci, action, mi.rht Jecline ,„ Thedefe„da„e, cnm„,atc himself, and expose himself T ""*''" the provisions of the la.tir " a ^ 1^ T/T""; """" («■) Bnigham v. nvtth,„i, -!o U C r P o .., * X. 388: ^.V./. V. AV.,/„1 ./g.-B- „''-^'; '/';"■"-" ^•- '-'""• ^ H. <-• C. P. 4,7. / V- B. 937. MrAitlay v. W//,.;/, 20 U. (x) 22 Beav. 59. (y) 1 Fos. & Fin. 410, I* |« ft 44 I'RAID. »■ i Elizabeth, which rendered a person convicted of a fraudulent conveyance liable to imprisonment for the space of six months (s). It was held under 13 !< lizabeth. c. 5, that where a bill of sale was executed of chattel property /rom a debtor to his creditor and the cred.tor agreed to leave the property in the possession of the debtor, this alone made the deed fraudulent (./) There must have been a bona fide substantial chanj^e of possession. It is a mere mockery to put in another person to take possession jointly with the former owner of the goods (d) However the rule laid down in £^n>ar^., v. /fari,„ does not seem to have been followed in the subsequent cases, the endency of which was to hold that the simple absence of transmutation of property was not of itself fraudulent, but only presumptive evidence of fraud, which could be rebutted when there were circumstance.s which clearly showed that no fraud was mtended (r). The question of fraud in these cases is one of fact, and for the dec.s.on of a jury. The result of the presumption of fraud from possession remaining in the vendor or mort- pgfor at common law was such that it became necessarv >n order to protect creditors and purchasers as well as the mortgagee, that some method should be adopted bv which this presumption might be overcome, and the mortga-or ner- m.tted to remain in possession of his property and Jir,^' on h.s bus.ness ; and in order that the public might have the means of ascertaining the position of a mortgagor with whom they contemplated doing business, the chattel mort- gage Acts were passed. By the Act a mortgagor or bargainor >s now permuted, without suffering from a presumption of traud, to retam possession of the mortgaged or sold pro- perty ; but this permission is dependent upon a due and (z) See, however, Bun>, v. /iun„, 12 VV. R. 561. (a) Edwards v. Harben, 2 T. R. 587. (b) Wordall V. Smith, i Camp. 334. " (c) Lati„,e.y^Br,fso„, 4 B. l c, (,). Possession is usuallv the test of owner liK tr;:.'' r"" "■"° '°"'™"-^ "■' -' -— ^ °p- ".; tails to take possession or to observe the •ili„r„.,il i compliance ivith the statute, he must sf ,i d t e ' '' " of his „.„ neglect, for he ilonli, be br ^tg aborihr""" niischie, a,, the statutes are designed to .trcnltt X h^t'oli- a man by his possession of propertv fr- „,l„l, . to the world as its owner, when fn^eali" ht i! 't '"'"""' It IS obvious that seciiritv bv w,,, \e upon property perishable or consul 'be i„ T"'''^'' '^'"^ the n.ort.,a,.e becon.es Cue. is r.Z'TjZ:-;^ '''^'^ p.^or is to have the possession of t'he property Ifl'-T?' l<"ouIecl,.e and consent of the mort.^ee t e" / . "■' to continue in possession and co^^Z'^Z^r '! from his so doint v. McDowell (r), Robinson, C. J., in his judgment, says, "the writ could not bind the property bef jre it came into the bailiff's hands, if indeed it could before an actu d seizure was made under it! for It IS not ;,^ be assnmed tha an execution from an inferior court bmds Kmh the time of delivery to the bailiff." When goods are under actual lew a mortgage can still be made, the property passing to the m v-tgagee subject thereto, and ti.e mortgagee w!,! be entitled to anv surplus after the execution creditor is satisfied i,/). tin's "C-rant," g 90. (a) Atherley's Ed., p. 241 : P, (b) 29 Car. II., c. 3, s. 16. (c) 17 U. C. R. 359. (d) Appleton v. Bancroft, 10 .Met. (Mass.; 231. infants' coxvkvancks. 47 or^:ZrZ^\::? '-'-" --^-era„, voidable bv hi.., ne.rs. ether before or on attaining majority (e) ' The pohcy at the law is -ener-illv u. ii , suspend his ultimate decisinn . ^ '" '"" '"'^^'"^ ^" injury until he is o e ' " .Tt " ^T!""' "' '^'"^""' '^'■ 'n J?eneral when^n inf ^ "'' '^■"^^^'"'"'^ an adult. itisnowestabiishe^rtL'rr^:.;;;:^^"'"''"'-^'^- ■n.tio. but ..ulable on his attaining ma^H^^^^ if an uifant has aereed t,, fi,„ ^'^ '^' majority his heirs cannot t .'""'''''''' "" '"^"^'"'"^ ^''^ his min'oritv, they can do ''" ??' "' '"' "'^ '^ "'- ''^'n"R of age, the'infa f " ^i h;ut"t "'""' ^''"^^'- "■'^^ '"^^ ^^ - A/Hrmation is merei;t e t " ^^rTh ''^"'^"^' '^^^ ^""^''^^- age. ^""sentof the person when of hill If an infant purchase goods, and th^ passes to and vests in him and h ^''"P"''-' '^'''''^" for his benefit, he takes 1^'' , ' ^''"''^''''' '' P-sumablv obligation to pay for t^e ^-^ ;,::" "'"^' ''"' '' ^"^ ^l- for the whole or part of thl n V ''"'' " ''"'^"^' '""'•^-•'^^e disavow the mortgage s„t "1 """•'' *'""'""^^h he mav J . "-s^fe*-' stiii the vendor will h-i..<» i- «oods tor his purchase monev in whole o '" '" '^'' I'en M • be preserved to th, ' '" ''"'■'' ^nd such of th. .tgage I So Tl^^Tr '"""^^'^ ''' --i"- anU gives ba.l- a mortal fo.",'.' ^'^ ''"^-^ ^^^s a horse, purchasemoney.hecanLrrep dateth" °' ^'" ''''''''" the horse, or maintain -m h.h 'Mortgage and keep -^-in. ^he horse. In'^re/rd^T:' • If^ ""^"■^^^■'-^ ^- contract and at the same tin. affirm :^"' ?);"';; ^ ''^^ •'/'■//^ V. />..,, , u. C C. P ',0 °t; ;f " " ^^^'■"' ^ D... .V U-or. 338 • P- '6. . JAG.^-, , ,,^J^;, '^^^^l^^-^one v. .A-Z,«,..//, ,5 V. C. C ')5-«-v. "7..A.W. 7 Gr. ,;'.''••''• (1) iVf^/,* V. U'fsf jS M u '''''•"• '°' = ^<'*-^-- ff-^^.^., , X. H. ;3. !.;'£ 48 THE PARTIES. ii: the rule that an infant xvho has bouft-ht personal property mU g.vosback a mortK^i.i,^ to secure the purchase money.' may upon cominir ot age. avoid the mortf,'aj.e ; hut. by so tloini' he annuls the sale to himself, and cannot claim the property by vrtL.o of ,t. I loweyer. an infant can disalllrm a mortifaire xvithout retui.un^r the money borroxved upon it, ihnu-h not so If the mort>,'a},-e is f,riven for purchase money, or",, the purchase ol articles necessary for his use ; or rather it should be stated that in the former of these t\yo cases, while the remedy on the coyenant ai,^,inst the infant is £jone. the subject matter ot the contract furnishes means by which the mort<^•,L'ee may obtam a remedy ; and. in the latter of these two c-ises the law establishes the liability of an infant on his own'con^ tracts for necessaries, for his own use. to all intents and purposes, the same, as if he were an adult An endorser for an infant, who has paid a judj,^ment upon he notes and received in security a mort,.a,^e upon chattels that had been prey.ously mortgaged as security for the notes -s entitled to hold the property as against a subsequent purl chaser from the mfant with notice (/) ; but it will likely be found that one of a hrm. who is an infant, cannot bind his shares by chattel mortgage (k). What acts will be considered a sufficient indication of -ntent.on to affirm or disayow a contract made during mfancy depend greatly upon the surrounding circt.mstances of each case. In cases where an act has been actually per- formed, as where a conyeyance passing an estate has been executed^by an mfant, or in cases of continuing contract or representat.on,:as when he holds himself out as a partner he must do some distinct act in avoidance at or soon afte^ he becomes of age or.'he will be held bound by acquiescence ; but acts of less moment and significance may be sufficient to atftrm than are required to ayoid the conyeyance of a minor (/). (j) A'«fl^jr,9 V. Cmv/r, 48 Wis. 601. (k) Pom-//v. Calder, 8 O. R. 51,. (1) Folej> V. Canada Permanent, 4 O. R. 38. V iM-.wrs. 4«) ''t'-M-ui.sc,lu> lapse or tine ;r\.'' ^''" '"" '''''^^'<^' "- contract nui dur ^^ nf^. ' k'"' ^'^ ^' ■•"'"-"-" of contract must be made uithin ' •"■''' '■'^P"'l''''ti"n of a a^^e, otherwise siienc l ' ''; T'T''^'' "'"'-' '" -"-"^' of VViKtt is a reasonabL :^:: '"''^^r'''^'"'"^^'^^'^'''^ ^.ancesofeachcase.fbrit si •,e:r:'; •"^"' "^ '^'^-'"- to disaffirmance mi^Hu exist in '" T'"'-' '^^ '^••"•^^"tions '" --"H'ther (..;. ,„ AJi,,,,,:,,.^ c- se\'T' L f "■""'^' '^^^ ''^''"' •-id sufficient to cs.aNis,, tl, tp : ,; "^''^ °^ ^ >-- -s cat.on of the contract made during ^^^::""7'';°",^^ ""P"- (/>) fourteen months uas held suit V' " '''''''^"''^ case '" '-''-'-•-ase(,..i,t^ --^-,. same purpose; one year, and in //./„,,, ,. ///,^, ''','" /^'v.;.//./,/ ,, S,,M ir-) J-iicial dica for the correctn;;s o U " "^""''^' ""' "'^^ '''•'- all cases of the four months ,;!'", ^""^-' •''PP''-ca.ion to 'fa Wind or ilhteratepe on ",''''' '""'^■"""' --e (/). -ort,..,.e or hi,, of sale pre nted l" r '^'"^■'"' '''''' -^ ^ -ch is not done, and he is in -1, " """ '''' '''^^^^^'on, and I'on will not be sufficient (,) ''''''''' '"' "'c execu- and\ir:;;;:t::irh;^ - 'r ' -^ ^--^ - -- --^ an insane person is :.b:.:;;n-::^:^^^^^^ (P) L. R. 5 CI,. 302. (q) L. R. 4 ch. 3,. (<■) 2 T. R. 436. (v) Mauser's Case 2 (^ ,1, ■ n ' ■^- R«P- 9 : Shutter's ca;e. .^ ^JlJ^T^^; ^'-ou^,,ood's Case. 2 Cok I'P- 90. es i so THE PARTIES. a bill of sale or chattel mortgage if the Oendee or mortgagee knows of his insanity at the time, but the fact that a mort- gagor, at the time of executing the mortgage, was insane, is no ground for setting it aside if the mortgagee dealt with him and advanced money on the mortgage in good faith, and without knowledge of his insanity (7t>). The unsoundness of mind must be known to the other contracting party (.v) before the court will interfere to undo a transaction, especially when no advantage has been taken of rhe lunatic, and when the parties cannot be restored to their original position ( r). A mutual agency exists between members of a trading co-pa rti,ei-3hin, and therefore one partner has an implied authority to pledge the partnership effects for the purpose of the business, and this, though other partners of the firm be ignorant of what is transpiring. The act of one partner is the act of an agent of them all, and anv one partner can borrow money on the credit of the firm ; but tiie mutual agency existing between partners does not empower one partner to bind his co-partners by deed (a). As a chattel mortgage need not be under seal {a), a mortgage bv one of a firm of partners of all the stock in trade to raise money, or secure endorsements, or other assistance is perfectly valid • his authority to do the act arises from implication, and cannot be questioned for want of express authority (d). And, be- cause a chattel mortgage is valid without a seal, the addition of a seal by a mortgagor (a member of a partnership) does not vitiate the mortgage (r). The act done by a partner, however, must not be such as, (w) Campbell V. /////, 23 U. C. C. P. 473. (xl Bank!, v. Goodfvllon', L. R 5 O. B. S49. (y) Mo,,lion V. Comroux, 4 Ex. i{: Bcavc, v. ^/cDo,n•l/, 10 Ex. 184. I.T.) Camcnm v. Stephenson, 12 U. C. C. P. 389. (a) Reeves v. Cappe., 5 Binj.-. X. C. 136: Fln.v v. Dennv, 7 Ex. s8i (b) Paterson v. Manghan. 39 U. C. R. 37, : HaJpenny v. Penncck, 3-, U. C. K. 229: Cooley v. Hobart, 8 Iowa, 358. (c) Milton V. Moshey, 7 .Mot. 244: I'atenon v. .1/«,/^,//r,;,, 39 U. C R ^7, mortgagee at a mort- i insane, is dealt with ooci faith, the other to undo a 1 taken of d to their a trading n implied lurpose of e firm be partner is rtner can e mutual Jwer one a chattel \v one of e money, tl^- valid ; id cannot And, be- addition hip) does such as, Ix. 184. •■X. 581. "iim.ck, 3-5 C.R.,37,. I'AKT.VEKSHIP. 51 necessarily exist i„ ar^sh pTsZH'^^b' "''"' '""^^ earned on, hence it is that when he a f successfully puts an end to the busines- , hT , "' t^'-n^'nates and other purposes is w^ ? '::^' ^^^-'^y listing ' ''" '"^ i" The rule of preferring partner l^'^ ';;;:'- ^^ '''"'^'•ng,,. partnership debts is for the benefit of h' "^^ P"-^""^^"^ "^ -'^ they may waive it, hence an .' '^'''""'' themselves, mortgage on partnership ;:p:,,P;';';^^^'^'P -->' execute J debt of one of the partners '5 u ^^''^""^ ^'^^ '""dividual upheld in a contest entered upon hv . "'^'"^'-'ction will be -t it aside (/) ; and a n.,r !^:e of ^ ?""l'!'P '^''""■'or to one of a firm, to secure his ow " n^ T'^'^'P P'""P^'-^>- "^^ ratification of his co-partner h. "^'^'"'"•'^' debt, mav, by of the partnership (..rTlLeJlfH' "' ^''^'^^"'-^' "-^^'^age ofthetransactio'tdisp:^^'; 17-^^ and does not disclose his ch m "'°'''^'^' '' ^'^'^'^ ,;r """" ^"'"^"^ ^--"" -"-= .0 .„. ,, (g) A««»*.- »as made and A parol authority to an -icrpnf t^ sufficient at common 1.UV - nd th " < ? '" ' '""'"'^^^^ '^ tion of chattel mort,.^" ; Xes 't^'r'^"'^""^''"^' '■'^^^'^^- it does in the case oF ^ent takin . f ' '^""""" '^"■' ^ a vvrittenauthoritv to b'e fi :d t t ' u7'''f ''^^' '^ '■^'^"''''"^ to the maKin. of the mortgage. I her "a V"' ''^ '''"^^■■'°'' ratification thereof which „mu ^' "^ '"' subsequent authority. Either the . ^^ ''^"^" '" '^^^^ to prior "•shed bv pro of t^o "tr' '^ • '■'•''"•''''■"" "^'•'>- ^^ -^^l^" authority to -rt,a,e;'nor l":X:;,,^t ""' ^""^^ -:^-r:;r;:-;:ii;:i.----"o---^^^ --'--^entwiirb:rid:::i-;;::ro;;;;^^""r-^^^ a mere security for so much of the purchase "" "' app .ed to the use of the principal (!)'" '"°"^^' ^^ ^-- to tt'!:;.:;:::: t^:;;-rt:;- r ^-:--- -^^.a,^ -V" name, for and on Cl o ' t " "•' •'" """"''"^''^^ ''" "- obvious and proper cout'l^.^^Hr;^;" ^ .^^ ^'^ "^°^^ cJ'rect to the principal (.). If ,he L,'en •. 7;/'"^ ""'''^^'''^^^ "i"^^"^" ^-^ '''■"'-'"■''. .34 Miss. 6^,' ■ 44^ ■• /.'wr//V V. Riitlan, i6 L'. c_ R. 307. 54 THK PAKTIKS. his o^v,^ name, then l,e may m.-untain an action against a wron-doer m Ins own name for taking,- the ^oods, although he may have no beneficial interest in them (/,), and though the agent have no authority in the first instance to take a mortgage, yet, as between the parties, ratification may be sulhcent for that purpose, and it will be sufficient ratification by the pru,cipal if he bring a suit to recover the value of the goods mortgaged (,,e„, 8 A. K. 602 ; irDohcrty v. Out. H„„k, ,2 U. C. C J". 285: .S,f«f/,7-.v V. Malsbnrg, i O. R. j^S. '44- CHAPTER \T. THK RIGHT TO POSSESSION. 'no4^;:;:Ti::.:;'^";r" '"'- '-' '-- -.e cause his ot los.n.o- the benefit of his security. '" "^'"' When such hannens if fi, > ' . ven. .„c „,„„,,„,, ,:,zr. :^;r;■;7""■•^'">p- is rcc|„ircd to d„ before M.. " '"' "^ ™'"-™. per»o„,, who become credito for I'Th '°"*-'°'-''= """*■''''"" bolore »„ch ,a.i„,. of po^e^L^fr'""""" °' '"-^'Sees Saso is ,o have cffec'X ,„ ' l'"" '°"^'' "'^ ""' '"""■ -«.«.e be,„, decai;:: z -^r.'i'ir.orKr '" "'" T dough the mort-atre mav h« y"'cl ('O- .-»»io„ ,„,e„ h, the u:;,^ /Tv „";;r t'- '" defects such as have been m^nf , °"^'' ^° ^ure sent of the mort^^'a d 'T'.' '"'' '' ^'^^'^'"'^^ ^^ -"" ^'oes possession ^o Ik'e a v^ ^ ^l'"'^"'""" ''^" •■'^'^- «^ainst the mort^a-or the m ''"""^^ ^'^^^*^^ " A- "•!-'' He is unauthoC t c^ :^' ^trr" ^° '" ^^^^ stitutes himself as wrongdoer ' '^"'"^^ "^ '^' ^'^"- ('884), 3.1. ' ^- ^- ^8.S : ^.i- /,a>-/r Allan, \\ . N., 56 THE KIGHT TO POSSESSION. There yet appears to be some doubt as to the legal effect of a mortgagee taking possession when his act is not acquiesced in by the mortgagor. If, as against the mortgagor, the right exists, or if the mortgagor becomes privy to the act, then unquestionably all defects m the mortgage are cured, and the mortgagee's title becomes paramount ; but if what the mortgagee does is absolutely Illegal. ,t then becomes necessary to consider the degree or kind of possession taken by the mortgagee If the n,ortgagee does not get the actual po^^session of any thmg, then h>s legal act can give him no new rights, and his position remains unaltered under the defective mortgage • but •factual phvsical possession be obtained, even though wmng! fully, the operation and effect of the Act may be excluded (e) Thus ,t wall be seen that possession, when taken rightfullv wjil be extended by construction of law bevond the actual physical possession, but this will not be done in the case of a wrongdoer. Advertising may be an important circumstance in decidin- the sufficiency of the change of possession (/). A mere demand will not constitute a change of possession, even though default has been made in the mortgage, entitling the mortgagee to take possession (.^) ; nor will diligence in attempting to get possession help the mortgagee, against his effective security, unless he gets possession (//). If the mortgage does not contain a cl.iuse giving the mortgagor the right to possession until default, tl^en posses- sion taken under sucii a mortgage is a possession which the mortgagee had a right to acquire wuhout reference to the mortgagor, and would effect the same result as if the posses- (e) Ex pnrlc F,'rtr/irr, 5 Cli. D. 809. if) Ennnunucl v. Hndger, L. R. 9 Ch. 697. (g) Ancona v. Rofrc-s, i Ex. D. 285. JH'l'^'''*"^-'''/"''' ^- "• '^ ^''- '''^ = -- ^v^-^'' /-«•--, L. R. 6 Ch. 626 • ///.&.. V. F^>,laj.so., ,^ \y R. 3,^. ^.,„,^/, V. Evrrani, 2 H. & C. 8. *i X' MORTGA(;rE BEING INSECL-RE. sion had resulted from the act of the mort^a^ror (/) If h. important then fmm fi,;. • '"'igagor (/). It becomes inLortga" ;• Id V"m ^° ""'' ^'^ -^lemise clause • Lgage ^7 ;, and advisab e. a kn th^f .u„ should always insert a covenant hn' '^^"veyancer mortir,u.ee mav .f . '^°\^"''i"t by the mortgragor that the for hfs LetTto do so '''' '^"""^"" ''"''' '^ ^-- it best n^a'^tre'reTdlVrtheV"^'^"'-^"^ ''' --^^•-- -v be Which he n.ayi;;S;:^r^:;-^°|^^^e contingency upon his fears of loss arelell or il'/'fo:;!'; Ilf '^^^--' -'^-her secure:idU.:::::^;:Lf :r " ''- ^°^^^^^- ^-^<- '- a..ee to the right h^ingir'tir m:;:;:;r'orf:'^'^^ ''''-' s.on upon the latter contingency thef ^"^ ^°''"-^- taken and the takin- beincT ^'. "^" "P°" Possession being be confined to whr^'e i^'Tf /" ''^^^'' ^"^^ '^""^-t wiM really feel himself in e"r IT i ["'' ''^ '""^^^^^^ ^^^ ground for so believing nor wheH^ '" '^' ''^^'•"^"-'''^ insecure (/). ^' °' ''^^'^'''^ '" fact, he really was A mortgagee having the ri-hf tn f.i mortgage containing slach a com - ^ ♦ PO-^«ession under a against any person for w on^^f^ d m"'^"""^''^''" ^" ^^i- ful conversion (;/). " detention {>n), or for wrong- tbe!'or:^;mS::;°: '::z:iJz:'!f ^"^^^^-^ ^>' possession of the property, then (') Osier, ].A., Smith v. Fair ,, A P . ^ ■/■//<■ Queen, t Can. Ex. R. 3, *- ^- ^+° ^ ^'/'■'-r//«/,/.v n„„i (}) Porter V. /7/«/o/f, 6 U C C P K-'77. -^ ^■^■^- f-438: /W« V. /.<•,, 4 Man. 58 THK RR-.HT TO POSSESSION. tl f > any act clone by or against the mortgagor which impairs tiie security, unquestionably entitles the mortgagee to possession. And the right of the mortgagee to possession is such, that he may take the property from a pledgee with whom it has been left by tiic mortgagor, and thus destroy the lien of such pledgee {o), unless the creation of the lien is one which may be implied from the necessities of the property, e.g., the case of a mortgagor procuring repairs to be done upon his hacks previously mortgaged, then the repairer could hold the cabs as against the mortgagee until his lien was paid and dis- charged (/>), or the case of a boat builder's lien regarding which it has been said that the mortgagee having allowed the mortgagor to continue in the apparent ownership of the vessel, making it a source of profit and a means of earning wherewithal to pay off the mortgage debt, the relation so created by implication, entitles the mortgagor to do all that may be necessary to keep her in an efficient state for that purpose (, >: hi (('i. The mv'ri-iure of damages will be the extent of his interest in the goods, that is, the value thereof less the amount owing upon them, and the value of the right of possession until for- feiture of the condition in the mortgage (./); and in favor of a creditor who lawfully attaches the goods, the measure of dam- ages agauist a mortgagee who unlawfullv takes possession under his mortgage will be the value of the property over and (X) Ha/lv. Sampson, 35 X. V. .74: C/mihi.uk v. Ln>„h, 2g X. V. r,s (y) Ferffuson v. T/iomas, 26 Me. 499. (z) Sii,//// V. Fair, 11 A. R. 76.-!. (a) Alhertv. Gnisviiior Iiivvsfiiiciil Co., L. R. ^O B 123 (b) Bin^rha,,, V. JiH/iso„, 30 L'. C. C. I'. 438 : Spauhiing "v. yy„,.,,,,, 4 Gray (Mass.) 330 : //„///,/„,. v. /AV-,,/,., L. R. 3 K^. 30.,. (c) /V^ Osier, J. A., Sini/k v. /•;,//-, ,, A. R. 76^ (d) nn,..ly V. Kenciall, ,7 Q. R. 937 ; jin,..,, v.' PluUif,.., 3 Bush, (K^•.) 656 : Bn,,/: v. Fn-off, 44 .Mich. 69. If « 31 8. I OWKKSION in MOIMH.ACOK. f aKne the- mo^t,^-,,o debt (,■). And it .encrallv is ti,o c.i that a mort-ajree, uho sells under a nou-.r \f ^ , " tlie mortj,Mjre contains a redemise c ,r .,rh ■ vision allowing,. ti,e morto-aj,^or to reinun '""" ciefault. and the m„r,.-." ^ ,/" '^'"'"» " ,'Ossess,on until becomes a co„:.;:'l:r;::^ "" ""-"^ ''^'"^^ "^'"^"^- '^ favor of the mort.J'eTh '" "'"''" "' ""ce arises in bein..i.enupu^:r:^tau!;^::::,::s;:e:::::';;^;'i^-:?^ ately reverts to the niortL-airee The ^ ^ '"'""'''■ roinainin,. in the mort^^a-.o ' , ^nlv '' '" Possession the mort^a,or to do ^o^::: t:z:T " "'"^"^''^- ^° g-ive the use to third persons L , '''''"'^^'■^' ""' to period that his own terr?;; ' '^"'""'^ "°^ ^"^ '* '-^.^- If the inortifasror be l-niri,ii,. • ri.--o retai,r ^.sesii^it v^i;^:;:::: ""less he has forfeited that ri.Wu b br h r' ' '^' '"'''>■' the mortc^a^ee enjoined from .^- '"^'^"^'^ "^ '^''"^i^ion. have . ti.-eiin.ited (/, ; but i^o ^reJ .'^^heTotr" ''''''' ''' one havin.. his title, can nn.ke anyobje io" w,''"'' " ^""^ asserting, his ri^ht to the possession ot 1 ' "''"''^'^^^^- them before the contin.^enci ^°"'''' ^"^ taking,. •^i-othemasa^::;:;;::^;;;:::;:;;;'^:^-'^^"^^ ^^a,^or IS in possession and cont;;i of the n. " "^°'''- prima facie evidence as ao-.inst h?' h • ^'^^''^y' this is possession (/). "'""'' "'"'^ P'-^-f^s of his r.Vht ot TlK^ ordinary provision that a mort,a,ee may take (h) /■«>■«' V e . ^ ' '59. i6o. •7 j:""^ ^' ^««-raw, 8 Abb. Pr. fN Y 1 V c ^ (j) ^V'-^ V. A-,V, 66 Barb. \. V. 495 '' ^^ I"- 274- m IMAGE EVALUATSON TEST TARGET (MT-3) k // / 1.0 I.I ^1^ IM ^ tiS, III 2.0 11:25 i 1.4 1.8 1.6 ^'c* ^^^ .: Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 \ •17 >^ U. S 62 THE RIGHT TO POSSESSION-. [i f ' possession in case tiie mortgagor siiall attempt to sell or dispose of, or in any way part with the possession of the goods, or remove the same beyond a certain limit, entities the mortgagee to exercise this right when the mortgagor disposes of the goods to satisfy an existing debt, even thouc-h the mortgagor may have the right to make sale of the pr^o- perty in the ordinary course of business (k), and a clause of this nature entitles the mortgagee to take possession or bring suit for the chattels at once upon the mortgagor removing or attempting to remove the property (/) ; or upon a seizure of the mortgaged property on a distress warrant for rent due from the mortgagor (m) ; or upon a levy by way of execution upon the property and removal from the mortgagor's posses- sion («). And the mortgagee's right in this particular is none the less because the time for payment of the mortgac^e has not arrived {o). This right, however, is an optional oife, and cannot be exercised against a person into whose posses^ sion the goods have come innocently, without a demand therefor first having been made, and refusal given, the refusal amounting to conversion {/,). But, if a purchaser have due notice of the restriction against disposition or removal by the mortgagor, then, without demand, the pur- chaser becomes liable to the mortgagee ((/). The restriction upon removal must, however, be construed with relation to a reasonable and proper use of the goods mortgaged. A legitimate use of the property, such as a temporary removal from the designated limits with the' animus revertendi honestly entertained, will not authorize (k) Laingx. Perroff, 48 Mich. 298 : 12 iN'.W. Rep. 192. (1) WhimseU\. Giffard, 3 O. R. i. (.n) Conkey v. Hart, ,4 \. V. 22 : Russell v. Dntterfidd, 2, Wend (N. \.)3oo. (n) Ashley v. Wright, 19 Ohio, 291. (o) Russell V. Butferfield, 21 Wend. (N. Y.) 300. (p) Cutter X. Copeland, 18 Me. .27 : Cald-vvll y. Tray, 4, Mich 307 (q) Ftsherx. Friedman, 47 Iowa, 443 : Bailey v. Godfrey, C4 111 so7 • Ferguson v. Tail, 26 Minn. 327. / -- 3t 507 • COWERSIO.V BY MORTGAGOR. 63 the Will ve« ,„e ,i„e i„ „„ purCas: III; ,;:„r.t "" grao-e encumbrance ^^ ■ n„d m„ J , ^"' "^°"' ^^e mort- ^een .Vno.ant of ^t ^0^^!? : ^^^^^^^^ set up the mortgagee's consenT to s'a, ^h h", AT" ""' to the mortgagor (.) ; and, hkevvise, af r a .- le bv " ^""" gagor, with or without verbal assem nr r ^ '' "'°'"'- g-agee may affirm the sale Td t ^ , u'""""' "^^ •"°'-^- confirm the transfer (.) "''' °' '^' ='"'' ^° Sometimes the mortgage provider th.f • gagor should attempt to ser or otle '" '"" '''" "'"■^- Roods without the n'ortgag 's writt " '''"' "'^'^ '''^ .-gee may enter and tak! t1,e go ?" J^f"' '" ""^^■ consent is given authorizing the mortV^^ .' '" ^"'■'"^" the goods mortgaged « ," ' "''^.^^°'" ^° P^°"^d to sell until further notice in writinl 17" ^'"''"^ '""^ — proviso of the said bi , T^ „ iT' "^^"^^^'-'-«' ^^ the instrument provides that'i:ts:orrfa:rr-^-'"^ ''' ' mortgagor should attempt to sell or d '" '"'" '^' -^tho.,t the mortgagee's' cons first Id 7^ ^'^ ^°°'^ should be lawful for the mortga^^ee to e.u 7"""^'''' ''^ goods, then it will be a violatif^of tl^ '""^ '""" *''^ the mortgagor and the mor;;:gee "/rr'""' ''^"^^" executeamortgage to another parfy which '""''^^^^''>^°'- ^o to the first mortgage, and the nLrl ^ ^ o w>:"'' ""^^"^^^ wntten consent, is entitled to enttrCd t^f ""^ ''^ " taKe p jssession of (r) ;r«/^,.;. V. /i-a .ortgage ((/), or, (v) .}////„>■ V. A//r>,, 10 R. I. 49: C/osh'r v. HauUey, 12 U. C. R. 364 : Whitiuy V. Lowell, ^^ Me. 318. (w) Stafford \. »7//to>w6, 8 Allen (Mass.) 518. (x) Loucks V. McSloy, 29 U. C. C. P. 54 : Shearer v. Babson, i Allen 486. (y) Per Hagarty, C. J., Bunker v. Eiiimany, 28 U. C. C. P. 442. (z) Riiler V. Powell, 4 Abb. (N. Y. ) App. Decisions 63. (a) Lourks v. McSloy, 29 l'. C. C. P. 54 : Waller v. Tate, 4 B. Monroe 529- (b) Abbott V. Goodwill, 20 Me. 408. (c) Pratt \.\Maynard, 1 16 Mass. 388: Thompson v. Blanchard, 4 N. Y. 303. (d) Brooks V. Reeord, 47 III. 30. 303- MORTGAGEE'S CONSENT TO SALE. g -ecution. when, bein/ interested , ^"^ ""''■" '^'"^ creditor, the sale by the sheriff , u ^' ^" ^'^^^ution an absolute sale thL /' t^^e o^; h^ '^T '''"'' ""^ ^^ -ortg^age (/;. if ,he mo^t^a'e b' sT^h .".'^'"^ '"^ ''^ ^"ch a sale), then he occuniesX ^ ^ ''' ''" '"^>' ''^ ^^ P-chaser at the sheriffl^'JIL^ ^aT/.;--" ^ -^>' ^-^ notice of a sale to be had by the sheriff , ,' "''"'"'^^^^^ has the mortgag-ee has consented therJ t"" "'''-''^"''°". and •"'"I' < >■)■ But whe„ ,L 1! , """' '° » »'« previously sen,, .Men, .hou^jhTv. bal assf f' """J"' " ""'- »■- Of equity, y., „'„, ,:,"Xu :„:i'^'r' °" "'""■■"" wntten stipulation wlien on« „T, '''^Pense with the denies a ve.ha, assent, "i„X X^, --"» "■■^, >He other done on the faith of a clearlv „„ , somethms- beini, statement to the effect thaihe "''"" '■'■'■ '^"'' » ">"! a saie already made, '"d ^ „ tlfT" T" ■'""■"■""" •" ^:s^e-i-:^h;r^:L:?ri;V- {gl £.ison V. JK'/r// ,, Ai ;; ; ^'"t " ^''^^^'"-^' ^^ ^'- c- c p. 54 ^l-t: 66 THE RIGHT TO POSSESSION'. in by the mortgagor will not prejudice the mortgagee in his right to possession (/). Should a trader give a mortgage upon his stock in trade, he is not estopped from selling in the ordinary course of busi- ness by reason of a covenant on his part not to dispose of any of the goods, etc., without the consent of the mortgagee, and a mortgagee cannot therefore insist upon such act of selling as a forfeiture entitling him to take possession. The conclusion to arrive at from the entire transaction is, that that there is an implied license to the grantor to continue to carry on his business in the ordinary course of trade, but he is not to dispose of anything in any other sense (m), as, for example, to secure a pre-existing debt («), or fraudulently, and not in the ordinary course of trade ; or by way of putting the goods into a partnership. In any such case the purchaser would acquire no title (o). There may be a qualified consent, of a nature which would :iot disentitle the mortgagee to take possession, either when the goods are in possession of the purchaser or in the possession of a vendee of the purchaser ; thus, if a mortgagee consent to a sale upon an agreement by the purchaser to apply the purchase money on account of the mortgage, and that until such be done the mortgage lien should continue, and the purchaser dispose of the goods to a third party, the sale to the latter would be subject to the right of the mort- gagee to take possession, even though he bought without knowledge of the mortgage (/> ). While the rights of the mortgagee to take possession arise, as has been stated, when the mortgagor attempts to dispose of the property as owner, if he seeks to dispose simply (1) Patterson v. Taylor, 15 Fla. 336. (m) Dedrtck v. Ashdown, ,5 S. C. R. 227 : Xational Mercantile Bankv Hampson, 5 Q. B. D. 177. (n) Lang\. Perott, ^?i Mich. 298. (o) Taylor v. McK'eand, 4 C. P. D. 358: Payne v. Fern, 6 O. B. D 620 : Barnard v. Easton, 2 Ciish (Mass.) 294. (p) Oswalds. Hayes, 42 Iowa, 104. ^: gee in his k in trade, 'se of busi- clispose of lortgag-ee, Lich act of iion. The on is, that ontinue to tie, but he '«)' as, for uduiently, of putting purchaser ire which ion, either or in the nortgagee chaser to gage, and continue, party, the the mort- t without ossession empts to 'se simply 'He Bank v. i Q. B. D. SALE BV MORTGAGOR. afterdefault, the" L'r " 'f ''''" "^ the mortgagee ^hechatte,s.;ndrS:LTa^t''^ ''' his interfsfL^ but the sale must not be n ' e th. " f^""' ^"'^ ^^° ^-'^ ; interest. 0( course th. '""P'>' °'" *'^^ "Mortgagor's ■^hould the goods bVremrcTr ""T' '''' ^"^-'- 'in^its stipulated by the mortga.4b.M, '" '''''' ''^>'°"d the would be by reason of the b';!' h ' '! P°^^^^^'°" ^o tai- P^-'^s to sale under execution (/-). '^'^ "^ '"^'*" subject to the pjrcw;:^: irrhe'ZeT'of 'th^^ '° ' ^°"^'^^-^'- •• '- Pos.tion, and obtaining his rights (^ -"^tgagor taking The consent of a mortgagee to ■, « I c Perty has the effect only of feleal. \ '"^^S^^^ed pro- mortgage lien, but does not destrov ^ ^'°^"''^' ^'^"^ ^^e ^agee has by .ay of redres "L 1""^''^^ ''^ --^- mortgagor to pay the dtbts (A covenants of the It generally is imnli^rl ;„ that the mortgagor £iL\r:;;"r °'-^ "°^^ °^^-^^. especially when sales of the s^cic ^T'""'''" "•"''' ^^^^ult, business are to afford the means uhl" '''" °'''''"^'->' course of to be liquidated. To gua^d a ' h 'r ' ^'' "°''^-"^^^^ ^^^^ - f-m the implication, if is advifab L tdT""'-^" ''^ ""^^^-^-'^ p^ee may take possession upon deprecr; ' J'"' ^'^ •"-'" (q) Cadivell v. Prav -,, \f,. ^ to. V. yPo4„„,„, ,„ jyj^_ ^pp ^gg^ 68 THE RIGHT TO POSSESSION. mortg-agor is to retain possession {v). Nor does an express provision of tiiis kind interfere with the mortgagee's right to possession upon the property being taio acquire ,he prope; v , / , LT, necessary when the mortiraeee tak,/„„ ■'',_" "* act of a public character IZl be "o'e bv'Tr '" """" before he can vest in himself the ti.tdish h""/*"''" equit, of teden^ption on the par. o t'h toTaJrV'' Change must be bona fide and no^ u ^°"^''S°''- The n^islead the pnbiic. An^a ::o..^j'r;::Z '"Z '" w..ho,„ fraud, redeliver possession „f the proper v \ tY' pTr:rrri''t:-;r?,7'^ -:'-~-^« aiis't'thi?: [.^). But where, on default, a Thomas, 26 Me. 499 : P^ard v. Lo,v, ,5 Me 48 ^^'S"''™;. v. (c) Otv/-/o« V. Bigelow, ,0 Yerg. 48. (d) Covellx. Dalloff, ii Me im • ia e .J/«./.,^„/, V. Booth, 3 B. & A. 498. ' (J) London Co. v. Z);.^^^, 6 C. R. N S 768 (g) Cotton V. ,^««A, 3 Wis. 221. " S ,8. 70 THE RIGHT TO POSSESSION. mortgagee went through the form of taking possession without, however, any change in the possession actually taking place, and executed a lease of the goods to the mortgagor, an execution placed in the sheriffs hands after default and before this taking possession by the mortgagee, but not acted on until after the expiration of the mortgage, was held to bind the goods, and the transaction between mortgagor and mortgagee was held void {/,). The case is different, however, when the mortgagee makes a bona fide sale of the property to a third person, who then honestly sells or leases to the ori-inal mortgagor. In that case the mortgage is satisfied quoad the goods, by sale, and the possession of the original mortgagor is not his possession, but that of the purchaser {t). Where, also, a party who obtained a bill of sale took possession under it, but suffered the late owner of the goods to interfere and exercise acts of ownership, it was held to avoid the bill of sale as against a subsequent bona fide execution (j). It is not enough that a person is put in to keep possession jointly with the assignor (k). A chattel mortgage usually contains a covenant on the part of the mortgagor, that, upon default in payment of the money secured, or in case the mortgagor shall sell, or attempt to sell, or dispose of, or in any way part with the possession of the property mortgaged or any part thereof, or shall remove the same beyond a certain limit the mortgagee is to be at liberty to enter and take possession of the property. Such conditions are perfectly legal : and covenants might be added to insure (with the same con- sequences upon default), or to permit the mortgagee to take immediate possession in the event of the mortgagor becoming embarrassed in his affairs, or upon the mortgagor attempting to defraud, or when the mortgagee may deem himself unsafe, or upon suspension of operations by the mortgagor, or in the (h) Chamberlain v. Green, 20 U. C. C. P. 304. (i) Carlisle v. Tate, 7 A. R. 10. (j) Paget \. Perchard, i Esp. 205. (k) Wordellv. Smith, i Camp. 333, ;Jfr Lord Ellenborough. possession 5n actiLilly ads to the lands after ■nortjjagee, tga^'e, was mortgagor different, sale of the s or leases Drtgage is sion of the lat of the i a bill of ! owner of lip, it was t bona fide Jossession e usually hat, upon case the , or in any fed or any :ain limit, ossession gal : and ime con- e to take becoming tempting If unsafe, or in the POSSESSION l.NUER INVALID MORTGAGE. -, the insf ""'■ 1 "" '"''''''y •'^'"^' '^^'" i" legal process It he .„,,,„,, „f ^^„^ ^^^^.^^^^ ^^^ ^^^.^ ^^^^^^ covenant how possession -.s ...r \ ,' "mortgagee .s entitled to Tk„ I- •• ^,'J*-'u^> tovereu by such a morte.iL'-e (r>A Ihelimis usually insprf«ri ;., „ ""^''fe,«- ('«;. mortgagor attempt to removeTbeyrd the -f"'"-'. '' ''^ This he may also do if the motgaTo tdl T ''''"''^"^' any way-part with it, or commit a brelcoo ^Jn't"''' 7 '" any of the covenants contained in Th. ''"■^°'''" mortgage so stipulates (.) '''' -"ortgage, if the should likewise co^;:!:: X;;;:,^ "tT ''^"^°^^^-^^^ ^^-achofany.thecLnant^ofL^^^-rS :nvl^r;:S-,-l-;-;;P;;-ion under an .n any better relation than he himself bo., f . ''"'''" of the mortgagor who have p^. ri'r- "'r'' "''''°" ecutions? It is true th.f u ^ ""'^^'' ^'^e''' ex- mortgagor the mo ra^e /:a,.^^':"" ''"''''' ^"' ^^^ rightfully taken as., Jst The m ^g^t T^f " ^f"^ estopped from setting up any title af a^:;.?: 'prhlser ir (m) Porter v. /7»W/o/; 6 U C C P o C. P. 9o : AfcAu/aj, y. A//eni 20 U ' C cV '^ "^ ^""''"'^' '° U. C. C. C. P. 240 : Merchants Bank v Th'. O, ''''^ I '"'^ "• ^°'^^^ 28 U. (n) JW. V. Bunerj.,,, .. We:i?;r' ' '^"- ^^ ^^ '" (o) AaWroM V. /"a/r, 37 U. C. R. ,58. n '1 'J 12 TlfE RIC.MT OF POSSESSION. the sale .s warranted and properly conducted ; but the mort- S.U'e be.nj,' invalid as against creditors, and their rifrhts havmj, accrued prior to possession beinj. taken by the mort- Ka^'or, the latter cannot perfect his title by such possession, nor can he put the property beyond the reach of creditors b; a sale thereof to th.rd parties, for. when the authority for se .M,g ,s a mortKage. then it behooves intending' purchasJrs to take advantafire of the facilities offered by the statute for searchui,. the Clerk's oflke ; and if they do not, and buy the.r t,tle may be defeated as a^^ainst such creditors of 'a mortK-ajror whose r.^^hts have accrued when the sale was had under a mortgage, either not registered at all, or, if registered vo.d on some other ground fatal to its validity as againsi creditors If the mortgagee sells, the sale will pass a good tjtle to the purchaser, unless the attacking creditors could show that the whole transaction was a device to defraud creditors (;.). and even then, if the purchaser has again sold to bona fide purchasers, the rights of the creditors tvould be effectually extinguished as to the goods [q) Because the mortgagee, under such an instrument, has the right of possession as against the mortgagor, so also he has against everybody else, provided, of course, that the mortgage be bona fide ; and. therefore, he may maintain trespass against a sheriff seizing the mortgaged goods under a h. fa. issued at the suit of a creditor (r). The presumption often arises by implication in a mortgage transaction that the intention of the parties is that the mort- gagor shall remain in possession of the property until default: and where the mortgaged property consists of the stock-in- trade of a going concern, there is an implied right that the (P) Allen V. Co.van, 23 N. Y. 502 : Maughan v. Sharpe, ,7 C. B. N. S. (q) Per HoyA, C. Davis v. Wickson, i O. R. 373. (r) Sfeu../,, v. Fllnfoff, 6 U. C C P. 335 : PjM V. Lo., ,5 Me. 48 : Co^j, v. Barnes, 20 vf 78 :Bra'Ju V. Bullard. , 2 Met. 308 .• Dean v. Davis, , 2 Mo. 1.2. ^'■"cieft t the mort- heir rights y the mort- possession, reditors by ithority for rchasers to statute for 1 and buy, litors of a le was had rcfjistered, is against ss a good tors could o defraud igain sold would be SAI.K tV ORniNAHV COIKSE. and there is tht efo e ' , ""'"•"'^ ^"'^""^ °' ^"•'"""«. M.ch in^pMcation be vervlv 7"'*"^""" ""^i' '^'^'ault. unless I be very expressly excluded by the contract (,v). (M l^edrickv. Ashdotvn, leS C R i- J'Jl ment, has io also he that the maintain 3ds under mortgage the mort- I default; stock-in- : that the ;. B. N. S. U. C. C. : Bracken CHAPTER VII. THE PLACE OF CONTRACT. Un].'. : .1 contract is contra bonos mores, or is one for the doing ot son. ll.iMir wiiich is strictly forbidden by the country wherein thai .o.,u>!hing- is to be done, it is valid everywhere. If valid in tho >-nu„try wherein it is made (a). So much of the law of the c antry where the contract is made as affects the rights and ...erils of the contract, all that relates ad litis decisionen. is adopted from the foreign country (b). The law in the pro^ uce wherein the mortgage is executed governs as to the nature, i;,.- .lUlity, the construction, and effect of the mortgage (c), and .l,o mortgage will be enforced in another province, though, had it been originally executed in the latter province it would have been declared illegal by reason of some defect under the laws therein. At present no provincial statute has any application to a mortgage made out of the province upon property not situated within it at the time of the execution of the instrument, and the statute is not given an application by reason of the goods afterwards being brought within the limits of the province (d), nor is it neces- sary, after the goods are removed, to execute a new instru- ment in compliance with the law of the province to wh'ich the goods are taken (e). If the mortgage is executed and recorded (a) Hofi. V, ffope, 8 D. M. & G. 73.. 26 L. J. Ch. 4.7 = Gre^ v. Levj,, ,6 C. B. N. S. 79 : Braniey v.S. E. Rail Co., 12 C. B. N. S. 72 ; 31 L J C. P. 280. (b) Z..«„.r v^ Brown, 12 C. B. 803 ; 22 L. J. C. P. , : Macfarlane v. Norru, 2 B. & S. 783 ; 31 L. J. Q. B. 245 : Williams v. Wheeler, 8 C. B N S. 299. (c) Peninsular & Oriental v. Shand, 3 Moo. P C N S 272 (d) River Stave Co. v. Sill, ,2 O. R. 570: Bonin v. Robertson, , N. VV. »7 /!:, "" X' ^^ ■ '^""""'•^^ ^'- •^■"'•''^A 5 H. & N. 728 : Fairbanks v. Blomfield, 5 Duer. (N. Y.) 434. (e) Beall v. Williamson, 14 Ala. 55. LEX LOCI. /> one for the the country Jverywhere, much of the i affects the tes ad litis . The law governs as ffect of the in another n the latter reason of ' provincial out of the :he time of > not given irds being is it neces- lew instru- wWch the d recorded f V. Levy, i6 t L J C. P. 'acfarlane v. •, 8 C. B. N. on, I N. W. Fairbanks v. which i, i, removed (/) "" '"°'"">' '" '"= P""'"" 'o vi..ce i,u' which rre°lH.'"""""">"'°'=« i"»P™- -«.a.ed w-rhlri::; 2°t r :""""^ ^Lr^™'^'^ be limited within which . ^ """' ^'^^^ ^ reasonable time of sale, or a ^oj^ the7eo7't"s 'X"" "°- ^^^^^ °^ ^'" -ch registration. That a.; ^ a it ''T"'' ^^'""^ ^agee from the apparent ^ler shall bV:": °'' "°'■^- a conveyance of the .e .' if • '"'"''''''^ '" '^'^'""^ unreasonable to virtuallv r.n '\S"bmitted that it is or mortgagee to in es L e'r r " '"^^"^'"^ P"-*^-- ^oods prior to their entry |nto the ' "' °"'""'''P ^^ present cause of delav and n'ffi , P-'ovmce. This is a on intending vendors and mor?'' "' '"^""^ ^ ^^^^ship The plafe wher th" ba^T^^ °""*"^ '^'^"^' ^^^^^'^ 3.>ns the bill of sale or mor^ga" ."s t.'""?*''^"'' "^'^"^^^ - tract is made, the locus omr^ctus tL r "'^ ^'^ ^°"- grovern {g), unless the propertv m I . °^ ^'^''^'^ ^'" other than that in which theTn^. "mortgaged is in a province the lex loci rei sit. g^lverns ' " ''^'^"'^'^' -'^ then that?h?reln:hrm^::2.^orr ^"-^ ^-^^"« ''^^--t to ever regular the instr^ume t ^v br^T'':^' ''^-' '^— province of domicil, yet it w 11 h/- r."^"" *'^' '"^^ ^^ the With the laws of th; ^llirlt:;;';'^:^ ' '^"■' ^° ^""^-"^ f- o the execution of the document" /^ ''^"^^^^^ *^ ^' ^^« ^he lex domicilii, in the ca«:p «f '34: Hall., puio,,^^ 3, ^^,''^^ ' "• '^ " ^"-^^ v. r^^/,,, ^ ohio St. («) Smith v.Mingay,,u.&S.^^, II 4- I 76 THE PLACE OF CONTRACT. TZ7 ;'^7:'''P^'-'>' "- P'-^^'^-bes a different rule of transfer trom that of the province where the mortgagor lives (/). hvery state has entire jurisdiction over all property, personal as well as real, within its own territorial limits and the laws of the state regulate and control its sale and transfer, and all rights which may be affected thereby If a fore.gner, or citizen of another state, send his property within a J;;nsd,ct,on different from that where he resides, he •mphediy submits it to the rules and regulations in force in the country where he places it. What the law protects, it has a r.ght to regulate. And if two persons in another state choose to barga.n concerning property, which one of them has „, a chattel, not within the jurisdiction of the place, they cannot expect that the rights of persons in the country where the chattel .s, will be permitted to be affected by their contract (j). ^ In a New York case, a span of horses, at the time being n the State of New York, were mortgaged by a resident of that state to another. The mortgagor brought the horses to Canada and sold them to one who bought them in good faith without notice. Another resident in New York bought the horses, but never took them from Canada. After demand made upon the latter purchaser the mortgagee brought an acfon of trover, and was held entitled to recover (k). When It IS des.red to enforce a mortgage, then the remedies must be pursued according to the law of the province in which the act.on .s brought. The lex fori determines, "so much of the law as affects the remedy only; all that relates ' ad litis ordmat.onem ' is taken from the law of that country where the action is brought " (/). (i) Green v. Vanbu.skiri, 7 Wall. 139, ,50. (j) C/ari V. Tarbell, 58 N. H. 88. (k) Edgerly v. Bush, 81 N. V. 199. (1) Ferguson v. Clifford, 37 N. H. 86. jle of transfer ives (i). all property, torial limits, its sale and lereby. If a operty within resides, he s in force in protects, it mother state one of them e place, they untry where 2d by their time being I resident of he horses to 1 good faith bought the ter demand brought an {k). When ledies must n which the nuch of the 5s 'ad litis ntrv where CHAPTER VUI. SALE BY THE MORTGAGEE. One of the remedies nf o of foreclosure, but the rem el '"'"''^■'^''' "P°" ''^^^"'^' '" ^hat sale. "'"'^^y "^°^t usually exercised is that of the mortgagee' to Te^Lf pu^l'a'ctT ' '"'"'""'°" ^"^P"--'"? order to acquire posses'siin o ,hror " 'T'' ''''' ''"'' '" to make entry upon the land o the '"'' '"'' ''"* P"^P°-. ever the goods may be, and if „ 1 , T^ '"^'°''' °^ ^^•'^— open doors, locks, etc ■ bTttlo r • '' '" '"''''^ ^"^ ^orce ^ageedonot embrace'th ;! r'" ''''"''' '° ^ "^^n. peace, or even to threaten such in T"""" '' ^'"'^'^ °f the The moment resistanc i^^^^t " °h T ^'^^^''^ ^'^^^^^^°'- replevin or trover accrues to h' " ''^'^' ^^'"'^^^- of remedies he must resort '""'"tg-agee, and to these In taking possession after def;,„I^ v • essential that he should make H. J " ""' absolutely 'ong as, in point of fact, iT'clf^Zr^ I ''' "°^^^^^«' ^ not make use of the ser.'ces of an Jffi r " ' '"^ '^^ ''^ould the mortgagor into believ n! h acU^" °' '" '^^^^ ^° '^--- ^e 'ty. when such is only a pre'lenc^ m' ' ^' ""'^^ '^^^'^"' -^hor- Havmg obtained Dosse^;^^ exercise proper care a'nd ^s re i'o^. Tnd'^T' '"" ^^'""^ ^^^ « ould be adopted by a prudent " ''''"P' '"'^'^ "^eans as can be obtained. 'u/ZTZZZr ''''''' '"'^ ^^- P'-operty at the best price (i) n ^ ''''"°" '° ^^" the exchange the property He m . . """"' ""^ ^'arter or l^^^-rd "sare-.'i4.e,"%ts Jo °"'^ '°^ "'-^>'' - 'e^al .mport in law and in equ ^ f " °"' " °' P^"'- («)^/-«^v^..,„ „ " — at all times a JWs 78 SALE BY THE MORTGAGEE. contract between parties to pass rights of property for money which the buyer pays or promises to pay to the seller for the thing- bought and sold " (c). It is well settled that though a mortgagee's power of sale confers a clear right, it must be exercised with a due regard to the purpose for which it is given. A mortgagee with such a power stands in a fiduciary character, and, unlike an ordinary vendor selling what is his own, he must take all reasonable means to prevent any sacrifice of the property, inasmuch as he is a trustee for the mortgagor of any surplus that may remain {d) ; his duty is " to bring the estate to the hammer under every possible advantage to his cestui que trust" {e). It doubtless is the fact that though a mortgagee or his assignee selling under a power of sale, is a trustee for the mortgagor, yet he does not stand alone in the position of a dry trustee. He has a beneficial interest, which is the realiz- ing of his security, in other words, getting paid his mortgage money, interest and costs ; that is his right, but he will not be allowed to exercise that right without a due consideration of the interest of the mortgagor; and the interest of the mortgagor requires that the sale shall take place as benefi- cially to the mortgagor as if the mortgagor himself were selling the property (/). If a mortgagee seizes and sells a portion of the mortgaged property, whereby his debt, interest and costs are satisfied, he must not sell the remainder of the property, his title to which is extinguished by his mortgage being already satisfied, and, if he does, the mortgagor will be entitled to an action of trover, and can recover the full value of the goods so wrong- fully converted {g). And a mortgagee must refund to the mortgagor any balance from the sale, after paying the (c) Williamson v. Bcrrjy, 8 How. 495 : Ed^vanls v. Cottrell, 43 Iowa 194. (d) Jenkins v. Jones, 2 GiflF. 99, 108 : Renniev. Block, 26 S. C. R. 356. (e) Per Lord Eldon, Downes v. Grazebrook, 3 Mer. 20s. (f) Falkner v. Equitable, 4 Jur. N. S. 1214 : Prentice v. Consolidated Bank, 13 A. R. 69. (g) Charter v. Stephens, 3 Denio 23- y for money eller for the s power of I due regard with such a an ordinary reasonable lasmuch as s that may he hammer trust" {e). igee or his tee for the sition of a the realiz- > mortgage he will not deration of ;st of the i as benefi- nself were Tiortgaged atisfied, he J to which ified, and, action of so wrong- nd to the lying the J3lowa 194. :. R. 356. 'Consolidated PROPER CONDLCT OF SALF 79 mortgage debt, interest and costs (h\ for ae * .u- u . he stands towards the mortgrgor fn the .tir r^'^""' and all the remedies at law of in eouitv en """''"• a relationship are open to the IT •"^"'"' "P°" ""'^^^ balance from'the mort^agel^ '^ — any such posstsC^aVain'lt^r^sh^T/: "• ^'^ ^"^^ °^ mortgagor in gaiusi a sneritt seizmg under a fi f r. » • goods of a mortP-ap-nr tu ^^- ^gamst possession of rroft.agor w^n Tn^^'^ "^^^^^ ^° ^'^^ assent and by the will'of'the m t;:geTr;'h: "'' ^'^ does not bind the goods • th^n V , ^^^ution sheriff is a wrongdoer and t'hl T'"^ '^''' ^"°''^' ^^e to an action (j) '^' mortgagor would be entitled A mortgagee, who has advertised .,nH<. u- has the right, in the interest o a par" '/ to T"" "'"''' from time to time (i). Part.es, to adjourn the sale Indeed, if a mortgagee does not do so and th. by reason thereof, is wilfullv sacrificed or ^ P'-^Perty, the mortgagee, the sale failL to eX.' T '"'^'^Sence in -mortgage debt, it will be a Ind T/"°"'' " '''^' ^''^ *^^ recover the balance of such dfbT .. f -T '" "" '''''"" ^° bona fide the Property :;';:;;rate^b:n'VoM T'' ''' ''^ enough to pay the debt (/). ^°'' '"°''« ^han In general -t mav be said fhnf a mortgagor liable 'for a defici n v^grea^T T"°' "^"^^ be m the instance of an ordinary sl'f'v v. T ''"' """'" -t will also be a good defence to ! ^ '"'''^ ^"^^' ^"^^ baianceofamortgagedeK at heplaTntiffh^d ^"°^^^ ''' at the sale under the power in the m "^ repurchased at an increased price fir T \'"°'''^'^«'^' ^n^ sold again balance sued for.' And eveTwhe ". ^"'^'^'^"^ ^° P^>^ ^^e '" ^'^^" ^f^^ ^°ods repurchased h) /'r^/. V. 5/,/,,, ,7 How. (X. Y.) P, ,„ k) /r«.^^^ V. 5-«.^^„/, 8 Allen 97. ^^* U //«W V. A.,es, 3 Me,. (Mass.) 308 (m) Stoddan v. Deni^m, .a u A ^'™"' 38 How. (N. Y.) Pr. 296. ill 8o SAI.K MY TIIIC MOKTllAr.KK. were subsequently exchaiij^-ed for land, the necessary enquires wou'd be directed and steps taken to ascertain the true value of the land, in order that the defendant mij^-ht derive the benefit of any profit from the exchanj,.^e after satisfaction of the inortj,'-a},''e debt (;/). In all cases the mortf^-aj^ee must strictly follow the terms and stipulations of the mortj,>-af,'-e, and if the sale be not conducted rej^ularly the mort!4-aj,'-ee will be responsible for any dama^-es the mortj,^aK-or sulfers by a departure from the terms of the instrument («). A suit will lie to set aside a sale had under a power of sale in the mort},'-ai,'-e, but redress is less easy in such a proceeding- than in one wherein it is souj^ht to charj^e the mortj^-'ag-ee with damagfe resultiuf,^ from neg-lig-ence and want of care in selling- the property. In the former case the court will not interfere if the power of sale has been exercised bona fide, and for the purpose of realizing^ the debt, and without collusion with the purchaser, even though the sale be very disadvantag-eous, unless the price be so low as in itself to be evidence of fraud {p). When there exists fraudulent undervalue, which simply means such gross undervalue as shews either actual and intentional fraud, or gn'oss negfligence, constituting in equity a fraud on the mortgagor (r/), the sale will be set aside, even though there does not exist the least intention of wrong. The error may be one of judgment, yet the rule is imperative that a mortgagee must act in these matters as a provident owner would. Fraud vitiates all things, and when there is collusion between the mortgagee and mortgagor to so con- duct the sale as to lessen the chances of creditors, then it is probable that they would be permitted to contest the sale, if (n) Amies \. Dornan, lo U. C. C. P. 299. (o) Freeman v. Freeman, 17 N. J. Eq. 44. (p) Davey v. Boivman, 1 DeG. & J. 535, 577 : Warner v. /acob, 20 Ch. D. 220. (q) Latch V. Furhms, 12 Gr. 306: Cra-ivford v. Meldrum, 3 E. & App. R. 113. \ ^1' ry enquires true value derive the sfaction of ' the terms le be not ble for any 1 the terms iver of sale proceeding- ,'^a};ee with ; in selling it interfere ind for the n with the intageous, ■ fraud (/>). ch simply ctual and in equity side, even jf wrong^. mperative provident •n there is 3 so con- then it is he sale, if I cob, 20 Ch, E. & App. ADVlCIMIsi.Nc; TMIC SALK. 81 f- tlie fraud could be brought home to the purchasers (.) T. mortgagor must act with reasonable pronmtitud h knowing of the wrong, he by and do Zu ^ '," ■'"'7' lie mav lose his ri-hts if ., ..,1. u ,' "'^ ''""^■''' the risilus of,, morlirai-or to l,-,v.. , . """'= "re 'ha. it is „„ answer ,r,v,k' 1 ! '"■"'"'■'>' ""J-cted, ".a. He disentitled Mn, el ' ^.J," r" eV'"' ^^ "^"'-- PulTers,, the sale (,)• h,„ |.„ ' """^^ ''e employed wi.ici, i,a, .i,e e.ec'. if p;:i:;jirrti:'e;;:s'":> :^-""""« courage Biddin,, thetrried. ■; ■:;:;:»-;; '" "' '° '"- ai'.'a),'Or, The fact that the n,„r,^.„,^ ™ ,„" '"^^ """ ""''■•■>■ no. compel the ^»''.^.^'.^ ,.:::Z;' ::zirZ:;::: (X) .1/,,///,/,. V. AV„.,,;-.A- ,6 1 I rV ' '^'^■ yirn '.. I <'2 SALE nV TIIK MORI (,.\(,|; K. upon his security. Ft is a cumulative remedy. The mort- ifaj,'-ee's title hecomes absolute, subject to the morti,'-ai,'-or's right to redeem ; and even thou},-h the inort^^-ij,'-e stipulate that upon a sale the mortf,'-a>,'-or shall be paid over all the proceeds after payment of the mort!,ra!4-e debt, still the mort- gn^cc is not compelled to resort to sale {a). A provision for sale after forfeiture does not extend the time for payment in favor of the mort},^'lJ,'•or, nor does it in any way add to, or give to, the interest of the mort},'-a},'-or greater strength (ti). The mortgagee is not liable because he retains the property, declining to make sale of it, the simple result of his so doing being that the mortgagor's right to redeem is prolonged {d). It is quite possible for the mortgagor to set up a verbal contract for the extension of time for payment, based upon a new consideration, and if such verbal contract be shown to exist, then a mortgagee cannot, when there is a redemise clause in the mortgage, or where by implication the mortgagor is to retain possession, take possession before the expiry of such extension without constituting himself a wrong-doer. Generally speaking, the mortgage provides that the mort- gagee may sell at private sale. This he may do, notwith- standing provision is also made for a sale by public auction. In neither case is notice necessary to the mortgagor, unless the instrument demands it (c) ; but the circumstances sur- rounding a private sale will be scanned very jealously, to see if fraud or negligence has taken place in the conduct of the sale (wll, 69 111. 371 : A/rConui'll v. Scoff, 67 III. 274. (a) Diirfic V. Grinnell, 69 III. 371. (b) Brndhy v. Rcdmoud, 42 Iowa 452. (c) Ballon V. Cunningham, 60 Barb. (X. Y.) 425 : Chamberlin v. Martin, 43 Barb. (N. Y.) 607. fd) Dane v. Mallory, 16 Barb. (\. Y.) 46, The mort- inort<,'-ni,''or's \^c stipulate over all the till the mort- t extend the uir does it in ^ niortj,''a},'-or e because he t, the simple ir's right to up a verbal )ased upon a be shown to ' a redemise e mortj^ajTor the expiry of wronj^-doer. it the mort- do, notwith- 5lic auction. Igor, unless stances sur- ausly, to see nduct of the s a party, a even where . Grinnell, 69 •//" V. Martin, N'OTHIC 0\- SALE. «.? no notice has been p-iven t,^ tu^ course is to give o .a no " "r-^'"'''"' '""^''' "^^ P^P- the sale be private orTy ,1 f •""^"^"" '" ''''' ^'h^ther notice is opLa,.;;;^,:::;;;--,^-^^;^^ K-K- stipulate for notice to be gi4n before ' '^' "'"■"'■ generally the mode and time -din '' '^''"^ '"^ "'■^'^''' "-" the circumstances of ei^ ^r :;:;!"r ""''- -i^-cl. proceedings regarding notice T, . *-'"'"''" '^'^ fixed for sale, and the conduci of rt " '" ^'''^"' ''^' ^'"'"^ one case, be reasonable and "oner \''"'""*"'" "'■^"^^' '" a variety of causes, migh be "s, ^'^ '" '"""'''' '^''' ''^'^ -i^ht result in much in ury but t^"' "" "'""'■^^'"'^' -'^ attacks the proceedings L sh^vv wherlT.r 1 °" ''" ^^'^^ harm (/;. wiierem they have produced If the mortgage provides for notice b." form of notice and the mode „"d " ^^^ ""'''"' '^'" '^e prescribed by the mortgage l/tT";'"'' °' ^''^'"^^ ''t, as '"formalities and omistio': wl^en^rf "'"'>•' "^^^'^ sale, or prejudicially effect the in '"■^'^^ ^'""^ the ;;enho,ders will not^nvI^L e hTrat- 1'^ 7"^'^^°^ ^ the om.ssion of the year, when th . I ' '^°'' ^''^'"Ple, thereby to denote the'yea;. ^Z^^^^JT "^^ ^"^'' ^^ Perty was to be sold, are not such „ ^ '''''' ''^""'^ P'o- sale as would render 'the nZ^^Z^l "J ''' '^""'"^^ °^ ^ n^ent of the amount due on the morf u^^ ' ""'' '^ ^'^^ «'^te- slightly in excess of the true al '^^m '' '"'^""^i^erably or Not infrequently is the^pop^t:" f" J^ '^ '^'^^ ^')- at the auction held by a m'ortgagee IT T- ""' '"' '"^'^ ^ ^uernam, 6 Minn. 168. 1^ 1| J, W Ml r 84 SAI.K HV TIIK Mt1RT(,.\C.EE. that joininj,'- in this custom, when the sale is by a mortj^'aKee of iiioiti;af,'-ecl property, will avoiti a sale : if no injury is worked to the morl},'-:iKi)r then he cannot complain, and it has been held that in a sale of books the sale cannot be invali- dated because other books belon},nnj,Mo other persons are put upon the catalof^nie and sold with the books named in the mort,i,'-aj,'-e ( / ). When it is self-evident that a sale of the property separ- ately and in parcels would brinjr more than disposinjf of the whole in hulk, then the mort^^a^ree will be liable in dama>,'es for wron-fully conducting' the sale by sellinj,' j,, hulk ; and the quantum of damaj^-es ajjainst the mortj,'-aj,'-ee will be the difl'erence between the amount broui^ht at th.e sale and the amount that would probably have been realized had the sale been in detail ( /). It is a rule that a trustee must not buy at his own sale, and this applies to a mortj^-aj^-ee sellini,' under a power o( sale ; and where a clerk of the mortf,^-lf,'■ee's solicitor purchased, but paid nothino-, and immediately reconveyed to the mortj^afree, the sale was held invalid ( A- ). Such a purchase is none the less ille},'al because made by a third party for and on behalf of the mortf,raf4ee (/), and if the mortf^aj^ee resell at a profit, the mort},a»tfor mav claim such profit (»i). Of course a consent by the mort^raf,ror to a purchase by the mortpi«-ee overcomes any objection, and the sale will not be set aside when such consent has been ^^-iven (//). If the sale is properly conducted, then the niortj,'-af,'ee may recover any deficiency after applying,- the proceeds of the sale pro tanto towards payment of the mortgag-e debt (o). (i) U'aitcw Dfiiison, 51 111. 319. (j) I/it)iur„/f V. h',y)ii}liis, 72 III. 425. (k) K/lis V. IMldboiiir/!, 1:5 Gr. 583. (I) Pvltilnmcx. Perkins, 6 Wis. 616: Pharcs v. Barbour, 49 HI. ya- Alj;vr\. Farley, 19 Iowa 518. ' (in) Ciiiuiingham v. Rogers, 14 Ala. 147. (n) GoiMl V. A'Tcri', 100 111. 308 : Emmons v. Haivn, 75 Ind. 356. (o) C/iamberlin \. Martin, 43 Barb. (N. V.) 607. a mort^'ajcee no injury is ■in, and it has lot be invali- rsons are put lamed in the jperty separ- losinj,' oi' the in daniaj^es n bulk ; and } will bo the sale and the had the sale lis own sale, )wer of sale ; rchased, but ' mortf^ajree, Lse made by e (/), and if may claim purchase by sale will not ). tgaf^ee may i of the sale (o). KIOUT 0|. ICMKV. "ot tZf^';,;;^;:^;;^ ;;-';-;>• -ui- his mor.^a^e. docs advertised as bein.„c ,''"•' "" ''' '^'^'^haser a, a sale Propertv has been taken ^ \ ""^""'^^''.wve. because the ;n-e is ,ene;a;;;'::::;.;;;^>-'-'-''>rui owner (,). entith-n^ahe mortj...:ee to en.tr f^^"""^ to.'otpossession'oran,; ';;r:r^ ■•'P.-Tt from such an express ^^''''^'"^' «""^^''^ '^ b"t. '-plication; that is. of couTs .'"l'"' "'" '"-''' --- h' -'titled to possession hI .::,;;"" Z'""/" -'"" - •- is — -ns to entitle him to p^ ts T' "^f^-P-^v, all that ^vhen he can combine botr 1, t " "''''' "'^'''^'^^- -''"d '° Ko upon the n,ort,..Jor' ', , l' '"""^'^ '^ ^ P-'vileK^ed -rt,.,,ed chattels, as ht vl u d" e trl, '''""■^'■"" "^ ^'^ hnn property situated upon his „' '""•'t^^-'K^or sold f,'a,^ee, in exercising- such rlh/T"'^ ^''^' '^"' ^he mort- than in a Peaceable'a nd r asj^^^^^^^^^^ ""' I" "o so otherwise hat he cannot justify an Z^^^^T^ ^"^l '''"'' '' '^^^^^^ ''e purpose of taking, his oun nron . '"'' "^ ''"'''^^'^ ^^r ■' -as upon the land by th vv' om f f' ""'"'^ '" ^"^^'^ ''-t possession of the land.^and w Vh'u ' .^r/ ",[ ''' P^^" ■" h's own part (,9). "°"' ''">' fault or ne^Wect on (P) Shi-pheni V. F.aHc, ,, u \^) .t/tOrrirur v. Mc\\<,t , rr - . 49 III. y,o\ id. 356. CIIAPTf-R IX. I-.WDI.ORDS RIGHTS. A "distress" is defined as tlic takiny, witlunn legal prcxess, of c.'ittle, or ^'oods, as a pledfje to compel the satis, faction of a demand, the performance of a dutv, or the redress of an injury („). Uy the common la.v, fixtures, animals fers natura3, thini,^s in actual use, thing's in the custody of the law, jjoods delivered to the tenant in the way of h'is trade money and strayin- cattle are exempt from distress for rent (/;). In Ontario it has been enacted tl.at "a landlord shall not distrain for rent on the {,'oods and chattels the pro- perty of any person except the tenant or person who is liable for the rent, althou{,'h the same are found on the premises • but this restriction shall not apply in favor of a person claim- ing title under or by virtue of an execution against the tenant, or in favor of any person whose title is derived bv pur- chase, gift, transfer, or assignment from the tenant, whether absolute or in trust, or by way of mortgage or otherwise, nor to the interest of the tenant in any goods on the premises in the possession of the tenant under a contract for purchase or by which he may or is to become the owner thereof upon performance of any condition, nor where goods have been exchanged between two tenants or persons, by the one bor- rowing or hiring from the other for the purpose of defeating the claim of, or the right of distress by, tl,- landic; J, nor shaM the restrjction apply where property is .'aimed hv the wif , husband, daughter, son, daughter-in-h ■ o< > on ..-law of the tenant, or by any other relative of his, in case such other relative lives on the premises as a member of the tenant's (a) Woodfall on Landlord and Tenant, 14th ed., p. 672. (b) Foa on Landlord and Tenant, and ed., 38^. itiioiit legal •I tlio satis- the rodress nimals ferae ;utly of the f his trade, .listre.-.s for ' a landlord sis the pro- ho is liable ; premises ; rsoii claim- the tenant, ;d by pur- It, whether 2r\vise, nor iremises in .irchase or ereof upon have been e one bor- ' defeating 1, nor sha'I the wif.\ law of the uch other e tenant's S, schedule t.AlllKs or LANDLORD. ^ -tri.tio„ does no;';; ".'7 ^f/f 'ive to whon, such «:aK^ee n,av have the ri.ht to n .^''^•'■'^''''■'-" ll"n.Kh a mort- p-'>-.^'.atri,h. ;::;^tzt7uil'''^r^''^^''p^ '"••'^'^- -'t the instance of . hn I , ^'"'^ ''^^"'^"■'>- -'-h the .oodsare t e' in"';':;' " "" '^''^""-^ "P- '^ "-a. .he landlord has • ie n ' "''■"" '^"'^'^ ^^•"-" "- place in which th^ ,. ' ^ ^^ ^^^^'^ '" -^P-t of person to whom thev'belo„r y>' n "^^"" ''^^P^vt of the a^er distress, may loie;!;''^;';,^ tress is not SL.cceeded by the l^.i "^^^^^'^'^'-^ ^v'^en M,e dis- °f the law ; as. ,br instanc^ ^S^' tr"'"""^ '" ""^ ^'^^^'^^ in the possession of the ta ru V ■• ^ •■'"''^^■"' '" '' -'" -stitutedthelandlorr:: rrul;:'''^^ case, a num^r,,^^.^ u„o succeeds In '"■''^''" = '" '^"^ '^ « hi^ mor.,..,. will be preferred V) ""'"'"*-' ""^ ^^^^"''•^ ""^<='- Po^.^s:;;;;:,!;X;^----i-ei.ed under the large -^ therefore when, after di;":'"T",' "'" ^^"^'"'^'"'' ' proceedings for some days -nv l . °''^' ''"^'' "« farther '"'-^"t, gives no notice'of s; 7' r ""■'"'"'-'•"'' '-'PP'-''''"*'-- n;ortgagee'srighttothepropertv~ n.T-?''' "''" ''^'•'''^^ ''' HRht to waive all statutorrf; ^al es /''^ ''^' ^^"'''"' ''^-^ re^^ycis the property of another Z^' ''" '^"""°' ^^' ^ -^ A mortgatror is nr.f u -HK ,,oe.' ^,„„; r'pXrx"' "" "■'"""""'■■p •<- "- !>»".« Jistrained for r.,„ a ,! , J„ ""'"t."'S:ed Roods fr„,„ •<• ' C. P. 529. 88 landlord's rights. ^agor's premises without any request from the mortgagor, and while they so remain (the mortgagor's family residing on the premises) rent falls due, for which the landlord distrains, the mortgagee cannot recover such rent from the mortgagor unless the latter has, in the mortgage or otherwise, agreed with him to pay it. The reason is that the mortgagee having the rightof property and also the possession, he is so far like unto an owner of the goods distrained, that his position is that of one who, choosing to place his own goods upon the premises of another, cannot set up as a compulsory payment, a payment he has been obliged to make in or.:.r to release his goods. When a mortgagee takes possession the goods become his absolute property, and he not only has a right to take them away, but it is his duty to do so, and, if he leaves them upon the land, his doing so is precisely the same as if he places his own goods upon the demised premises without the mortgagor's consent, and the landlord coraes and distrains them (//). But the case is very different when, after seizure by the mortgagee, the goods are left upon the demised premises at the request or direct instigation of the mortgagor, then, if distrained upon for rent, the mortgagee, having paid the amount, can recover the same from the mortgagor (/) ; and likewise can recover the rent from a third person, if 'such third person is liable therefor, and the goods are left or placed upon the demised premises at the request of such third person, or so far for his benefit that a request will be implied ; but if such third person is under no duty or obliga- tion to pay the rent, then no privity arises between the ' parties, and a payment by the mortgagor to release his goods would so far be, in law, a voluntary payment that no action wiU lie against such third person for its recovery (/). By 2 Geo. II. (Imp.) c. 19, s. i, it is enacted that : " In case any tenant or tenants, lessee or lessees for life or lives, (h) Engiand \. J/andr/i, L. R. i C. P., 531. (i) Exai/ V. Partridge, 8 T. R. 308. (j) Herring v. Wilson, 4 O. R. 607. • mortgfagor, y residing- on )rd distrains, e mortgagor , agreed with e having the rlike unto an s that of one : premises of , a payment ; his goods, become his take them 3 them upon le places his Tiortgagor's m (/>): zure by the premises at or, then, if g paid the :or (/) ; and an, if such are left or ?st of such Liest will be y or obliga- Jtween the release his ent that no very (/). that: "In ife or lives, l-KAlini.ENT REMOVAL. 8,j -::u:gert;dr ^'' ^"'^^^^"^^- - -•---• -^ anv distraining " m\ T.T"' '''' '"""'"■'' '' ''''^"^' '^^"^ person b 'hi . f^ "^^^ '--ch landlord or lessor or any the space' olvtdl; '"'"'' '"^■'""^' ^^P^-^'-ed. within carryi;,g :^'s:2 Z:Tz:z:t ^on^yh,, ....,„. -seize such jroods ^nd .i .. , aforesaid, to take and found, as aTsts" for hT •;"""" ''^ '''"'' ■'^'-" ^^ statute only rel^ ttt e^rds^:^;?/ ^^"f '" ''' goods of a stranger (i) th.rtf . "*''"^' "°' ^° the which a mortgagi'h fs the H^r T''' ^° ^'" '^""^^■^^-" ^' the demised prem se Le f ' " °"" •''"°^-"' ^'^"^ -^ however, cieLT':::' iviT^:: f i'rtr''"^"^- ^'"^- the mortgage contains a redemieclaue h' T"'"' ^"'^ mortgaged, if fraudulentlv or clandet -' " ^'°^'''y followed and seized within the ttrtt d " ' m""°"'' ""^ '^ if removed to elude a distress T , °""^ '^' ^^''»'"^^' been in arrear at the time of Th j • ' '"f, '''' ''''' --"^^ have view of the fact that thTl . ''^"^"'-"t removal („.). !„ and the n^pngl^rbfpVrersl^- :,:-^ --' a:'tn:r::::;nrtr''----- redemise clause is ^^n^ite^t n^T;.^?'. ^^^" ^'^^ ^ for a right to possession h thr J^^icious to provide are removed from off the nrem s^sT •'■''''^" "'"" ''' '^'^'^ that on the instant of remTva the '^"' "'' '"'''"' ■'^'' ---^-^.htr-rr;h^;^---ena.^ i) />^.n' V. /;„„,„„ Bi M 90 I-AXDI-ORO's KUIHTS. The statute enHblin},^ a landlord to sell {>?), implies that there shall be a vendor and a purchaser, and the landlord cannot himself he both vendor and purchaser. The sale must be to a third person {,>). Therefore, if a landlord distrains upon mort^'-a^-ed ^oods, and becomes himself the purchaser, the mortg-aj,--ee may maintain trover for the g-oods; and because the property by the sale never vests in the landlord, he cannot successfully set up a lien for his rent (/>). The mortf,'-agor's consent to the landlord becoming,'- purchaser would not over- ride the i,^eneral rule of law, because his consent is not the consent of the owner of the property ; but if the tenant, being- the owner of the property, consent to the landlord taking the property at an appraised price it will pass to the landlord, and he can hold it as against a creditor whose execution has subsequently issued, provided, of course, there is an immediate delivery followed by an actual and continued change of possession (q); and the law is not diflferent if a bailiff is interposed, and he, after an unsuccessful attempt to sell the property, sell to the landlord with the tenant's consent ; then if the tenant remains in possession as before, though a stranger be put in charg-e, the sale will be of no avail as against creditors, subsecjuent purchasers and mortgagees, unless a bill of sale be registered, or there be an immediate delivery and an actual and continued change of possession (f). The relation of landlord and tenant may be created bv proper words between the land mortgagee and his mortg-agor for the bona fide purpose of further securing" the debt without being either a fraud upon creditors or an evasion of the chattel mortg-ag-e Acts (.v). If a landlord obtain the surrender of a lease from his tenant, then the whole of the property becomes legally vested (n) 2 \V. & M. ses5:. i, c. 5. (o) A'lNff v. Eiiglnnci, 4 B. & S. 782. (p) Williams v. Gr,y, 23 L'. C. C. P. 561. (q) lloDils V. Riiiikin, 18 U. C. C. P. 44. (r; Buniluxm v. W'addell, 28 U. C. C. P. 263 j 3 A. R. 288. (s) Tnisi & Loan v. La-.vrasott , 10 S. C. R. 679. ^Ji nplies that le landlord e sale must d distrains purchaser, nd because , he cannot iort<,'-ai,'-or's i not over- is not the lant, being- taking- the idlord, and cution has immediate change of I bailiff is to sell the ient ; then thoug-h a o avail as 3rtgagees, immediate iession (;'). ;reated bv nortgagor )t without he chattel from his .liv vested I..\\ni.OKD AXD MORTGAGEE. in 11,0 landlord -vithout the existence or any tenancy and if pnor to .,,cl, .„„ender. ti.e tenant „a, ,.Inted a L t^a^e »-. the BrovinB crops, ,vhict the landlord is nut to exoente m clt.vat.ns- and j;a.l,erin,., ti.en the .nongagee can ol a.n, as a,.a,„„ the landlord a greater su,n tha?, he . rp l" penses of the distress lf\ wu ,. , ^"^ ^^' his distress is i ;, L^ ''y^ '""^ ''^"^'-^ ''-trains, but iiit^rti, ana a morttraL'-oe hr mi-c r.^ ^- r trover, the landlord cannot set upthe nvJZ tf H " gage under the chattel mortga.^e Acts h. ^ , '""'''■ a creditor, subsequent purchtre'r ': '^mo IC 7.)'^ 't/'^^ .s nothmg to prevent a landlord taking a mo tgl "o s ' his rent. Should he do «n i,» i , mortgage to secure I. ».ree, waive his r V, t's" L nLTor ""'"1 "f. '° "''^^=- distress; therefore his failure o el 7h' '" *■' """ "' invalidit. Of the instrument 'Z"::! d ferSC " T the statute, may be found to be immaterial „h, '^ , landlord can be enforced (,.) '""""""•' "1"^" '"^ ffc'hts as i-^p^ir/ed ;';,: 'zz'J '": t'*"--' *'-^-^ -" «ith the sale IrZ^ZlZt'"' '"T' °' ""^"'"'"^ in actual p6ssc,si„„ le V ,h. f ^ ' """""S; "" '"'"» •fe Koods, the mortfragor having, renu sted delav '7 f Proceedn,gs, it was held that after T expirv o n .' wn^ ."etr^s^lioT ':7* ■- -"-.":^oX conside^red as .^:^::i^;X ^^^^^^ '""" "" '"'"" '' (t) ^^'-""'"^-^ y- M'>M,nvs, n Q. B. D. 8o8 (u) Gn:/f!„ V. ^/cA',;,sie. 46 U. C. R 93 (V) PM'/„ V. F/cMu'., 47 Iowa 5,3. (-) /-«^/0' V. aar,, (,S,6), .7 O. R. .80 : 3. C. L. J. „,. 92 landlord's rights. In Ontario, legislation has been enacted by which the ririfht of a n,ortK-aL-ee of real est-,t<> m .r , • r f, h ui itai estate to distrain for interest in arrear , ^^^^^^^^^^ .^ ,. ^^.^^^ ^^ ^^^^ ^^^ ^ - o he ,nort,.a,.or, and, as to such .^oods and chattels, to such onh as are not exempt from seizure under execut on (v) That statute, however, has reference only to a license «; power granted by the mortga.^or to sei. or distr d fo .nterest qua interest, and does no apply to a distre" b/l mort<,a,.ee under a validly constituted tenancy, created bv the t rms o the mort^^a,., between himself and'the mort.'^r althoug-h the rent reserved is equivalent to and to be applied in satisfaction of the interest (j-). '^^ !v! ?;^- °; ^"''*' '■ '°^' '^^ ''■' ''■ S- O- (-S^?). c. 131. (y) £d»w»ds V. /A,m,Vfo>, Prov. (.89,), .8 A. R. 347. by which the for interest in s ana cliattels attels, to such Jxecution (a). ' a license or ■ distrain for distress by a :reated by the e mortfjag-or, to be applied CHAPTER X. '^'C.HTS AND R.MHOIES OP CREDITORS ancr:.h::h::^;;:;r:-;:t f -" -r "■'''" '-- --^y- The former statutes i!, "'"'"' ^"'' ''' ^y '^^"tute (.,) in the interest::;:;e:;ito:!:::r;i;^:: -'-/-■ -^-i--- ^^hserved and performed in ordet. 'T"'"''''"''' "''''' ^^ their purview. ^'' '" ^'P''^^''' t^nsactions within '"he Statute of Fh"y.l-.,.^t, i actions, etc., * * * .^^ k* . ■i^'^'^-'is, whose ^'isturbed. hindered, delayed. Jrtn-;:i:'^'V" /" ''"' ''''' '-'"^e, as ajj-ainst the party m-il-i,n / • '^""''^ ''' '"■"'"^v- ^-''' (^^). and a sub!e l>:t ,'1 ' ' "^'"'^'"-^ -^'''^ ^nd etfe'c be preferred to it (.) But vh ^ ^^' ^"""^'^^vance will „ot from the settlor bv fraud htL -^"veyance is obtained subsequent volunt^arv con^-eyancl (.r'"''' "" ^^'^'^ ""''- - of tho conveyance (<•) Bu, , , ""' ™''' »' *= lime »».(,'nmc„t L, void „„„■„„ hoH, u " '"""lulent "=^i-. ,„, ,,. , c.::,i,or,:° ,;t:^-' anU c.i.i„, f, to attack an nistrunient (a) See ,j Eliz., c. 5 ; R s O ,8 , (b) ^..,v,„. V. .urn.n,n,;, 3 b" & T ?;" '■ ''• '• ^- '^^r. c. ,47. «— .^v. 67„...,,^, 3 vern. 47' " ■'"'"' "■ '^^'"^- ' Ver„. 36,. !;; ;!":''^ " ^''--''^-. - ves. ;36. (t) Gn,ham v. /-„M,.r, ,. c R ,, ^ou.^as, L. P. ,, Eq. .06. ' • ^- '*'° •• -^^ L- J- C. P. 5. : AfaCaj. v. 4d hi 94 KU;MTS and KICMKO.KS Ol' CRKDITORS. as bein^. void must put himself in a situation to complain bv Rettm- inclement and execution (^r). ^ ■ And it has been questioned whether the liquidator of -i company under the U'indin.,- I'p Act of Canada. R S C ' can o,ect to the want of registration or other tormal'd^teS Should the ,non^r,,^r,, sue upon the mort^atror's co^■en■mt and obtau, judgment, issue execution ancf sti.e' u" m" ' fe^aj^ed ^Ws. then his mort^a.a^ security is waived pro" 1 . e mort,a,e and seizure be upon the same propert y b" ^ he two hens are essentially ditTerent, and different v affect the mterests of third parties (/). • Whatej^^r interest the mortf,^a«-or has in j,.oods can be sold and R.S.O .887, o 64. s. ,6. authorizes its sale/) but the property, ,t sold, must be so disposed of that the mort-' g:a,.ee may hnd the property, should he find it neces^arv o take possess.on (^). Under a similar statute the inteTst of one who has .^ranted property by bill of sale absolute on its face, as the secunty for the payment of a debt, may be o d under execution (/). ^ "'" The purchaser will be placed in the position of the mort- gragor, and the sheriff has the ri^^ht to sei.e ,^oods irthj possession ot the mort^a^ee, so that he may expose hi to v.ew „i order to sell the equity of redemption (..). If a sale ,s made of the interest of a judgment debtor sub- ject to a mortgage, then the purchaser acquires the debtoX interest u. the goods as well as that o'the creditor a:d (g) McGiv,-n„ V. McCaushuHl, iq U C C P ,fi« /- 7 . Ve. J„„. ,6, : /.„...,,, pa,„fr%\}c C P tV- ^ 7" "■ aZ'^'' 5 Burr. .63. : ir/u^r v. .Uo.ns. u C B. ,0,5. ^^^ ' '"' "^ '^"'^"'' (h) Re Rainy River Lumber Co., 15 A. R. 749. (i) Evans-v. Warren, 122 Mass ^^,T It'/,;/. ' r- Libby V. Cusiunan, 29 Me. 429. ' '' "• '^"'''"''' '^' ^^' 4'« = ( j) Ross V. Simpson, 23 Gr. 552 : R. S. O. (,897), c. 77. (k) Manning v. Monagluin, , Bosw. (N Y ) .cq (1) McConegny v. .VrGa,,, 3, Ala. 442. " (in) S?nii/i V. Cobnurg, 3 P. R. ,,^_ ■&■ o complain hy quiclator oi' a ^■S.C, c. 129, 'ormal defects lit mol•t.^,^'l,i,■•ce ir's covenant, zo the mort- vecl, provided crty, because !rently affect oods can be ts sale (j) ; fiat the inort- iiecessary to le interest of solute on its nay be sold of the mort- oods in the 3se them to debtor, sub- he debtor's editor, and «'» V. Croker, vn V. Padger, 5' Me. 418 : Mort(;a(;ick's intkrkst. '■" consequence ,he morti,M,.e nnv b- , •, ^'^ P-vhaser. when it uoukl V,,, . ' ^.'"' ''^ ••'^^"■■-' the '"'-■ -'-vs, of , ,,,,,^,, , ,^ , ;^ ■ ; ■■'^-'^' 'He debtor (.). ■''• '7. x'hereby j, is provided th-.f •, 1 a- ' '" *^^' ^"^ ^'4. ---i out of the HiU C- ur, ; ■ '"■"'• ^"""^ "'^^^ '' -nt --■'^^...- or other sea ,;"'"^ '^'^"■^- ^'^='" -- anv I-— against uhose Cc^s " '""'" '"'"'^'"^ '^^ ^'^^ Issued (;/,,). '"'''^ t'^^' ^^'-'t of execution has revers:;;:;;:'^:;:::;- :-;-;".- -,ion t.r damage to his P'-operty, when the rip-ht of n , ''•''"'''" ^""^^'"^^ "^ort^^aj-ed ''-;; H-eversionary^^Ll nn;V-lie mort^.^, -" "e against an execution credit /" ' '""' '''" -■^i- '" a"y ^vay ratified and adopted Z authorised or other officer i„ sei.in,. the nu tt ' " "^ ^'""^ ■'^'^-'«" ^r -ort,.,.ee is not entitlJd t ^ •^';' ^^^^^^^^^^ «^'^ i^ the "^ade. then, until such ri.Wn of ''""^"""^^" ^'^-^ 'he levv is 'e^'ally prejudiced, fbrthe t .n '""""""^ ''''''^^^' ''^ is 'not ^y ;'- tern, of the ..ortg^^'jl^^ll'^'^; "'-" -' -strained ^^.^ h.s pleasure, and so niav he 7 "" P'^'^"'-' ^" P'^''^- ;-"• Hut when the n J^^ :e^:^;;r--'- the execu- '^^^•ould claim his, .oods in fhe 1 , r . ''"'"^' "'''^"'"^^ maintain an action if thev shoul ^ ''''^ Purchaser, and --' it is ..enerallv recogn.Ved 'h 'f "."""^'^ ''"^'^ '^- (^). ''"-^ ^e liable in ;n action, t' J';; j^^ ''^''' -"'c, then Protect.on afforded him bv intern e, "''"'''" '" '^' "■'^"^' A chattel mortga,. ^■alid beT,;':^, ^r"""'''"^''^- b-nd.n,. upon purchasers at an executfo "^7^"^'- ^^i" also be yokl by the officer subjecTtoh rT"''"''^P''°P^^^^- of the sale are that the sale is sub ecTt ?'"'"• '' ''' ^-"'^ purchaser buys upon these terms he ' '"°'"'^^"^'' '-*"" ^^e J")^^-/.. V. ^„.,,,_,, .^ ,,, ^. ™-'" f^*^ ^-""ot afterwards deny '"") R.S.O. ,,897), c. 7, '^•^•'«5- ^ (o).J/r/.Wv. J/,,^,,//l. c c p X? ^:r -ht. i/in^'- g-oods, asser when the sherifT's d, when he he has any mcd to be his seizure o be done, nks proper, opt the act 't ratify ing- le ordinary J to make itor, which hts of the ^IKI'I.rs .Al-TKU SALE. ffag-es, the creditor mav recover the h^ I • "^ ^f^c mort,..,.ee ^v ,^.rnlshee ..o !.'''' '" '^^ ^ands ., -edin,s by way of e^uitab e l^^^ L:^:!"^^ ,^- ^ ^>- P-- --'..-J,^ed property sell for mo '' ''"^ "'^^"^"^ ^^e -or'.-.'e debt, interest and c. s i ' i "e "^"'^'' ''' ''^y ^l- f--^"" soi.t.re under execution ^Z) , ' '■^^^"'■'>- '^ ^^^"^Pt (V) J/ir/ne v. ^.^„„/,/,^ ,^ l'. C. R. 30.3. ' " is still a debt ; and ayment or le essence e security iar subject represent- ssion of a f them in the mort- in mort- X. V. 556. -f •*i CIIAPTI-k XI. RKDKMI'TIOX AND FORKCI.OSl'Rn:. I\ o\cry niort},'-;if4e there is a dcfciisaiice or proviso for redemption. The tlcfeasance is the eonJitioii h\ uliieh, when the condition is performed, the mort),Mj4V is rendered void. The stipniation in the mortj,Mj,rc that the same sliail he void upon p.iynient of the morti.ia.^-e-money witli inlerest, is what is l., ,:!;, '' '" "^^'•'f ^'- '- of redeeming. '' "'^' — ' of the mori .''";; '^'•^''^-•^^- P"-- out f.-'-anted on pavmen. of the dX ""> " '■'^''" "•'" ^^"'^- ^e "'"^■''■■""-••'K'''^^or,oro,he i"' ^'^'"'^'■""^^ Process by -•' P-Vvrty subiect ,:^^^ ;;:::'''--•-' i" l-sonaU^ '--o^.r the absolute ou ners i ' 'i ' 7 -'-""-ance, n,av "■"-'; '- -'.ally the pa^^ ' "^^' !"-" -^'ain term^ "•■' V'!'^'^-^' "-— . and-.he CO. ^ ';'-'"-P"' '-Hnnn due, " llic mortt.a..,,e soil. . i ^ "''' '"ort^^.«-ee. ■!7'-^'''^'M^;:;:'m;r ;:::'■'-- '^^'^^■'^''-'--"- '■'^' ^^' "'^- nVJn to redeem tU '"'" ^'^''"""- "'^"". 'o .^et ;;-"odeofse,,in, :^::; .---^--.sthavetoHo.:;:^ '^'■'■'^ to be ,.iven before sale an , • "'!"-'-'^''''^'^'- 'f notice - "- 'ai.- and bona tide, thj^, .""^ " ^'^■^"- ^^ ^'- -'le -^^ '^-^l- extinguished. n^I ^j^^ ^ ^^'-'>- '^^ -leen, is -•y -^uy in the properts. at a hd ffV' 7^'-'^'f- ^'uH.es. he ••■'-^jn.stasanystran,.ermi.h Vf'" "" '"^" """' - as purchaser: but if he chooses to'; ^''''"' "'^'^" '^^ '•'•^>"^t ^o protect his own interest, or t , •, t '"^^'''■'^'■'^^^'^^ merelv -'•;-Min,Mu>maydoso,thee,rct ;: ^ ""■^^^"^^^' ^^ ■^"•'' n^^lU to redeem still continues ■ "'' ''" "'^^ '"^"'^'^'^'' to pe e.-lonned at the outs'of .;;:::;«;:^^^' ^— r torntd ^- a nu,rt,.a,.or from this riH "'"'' "'" '^ •'"'owed to ;;-^"'--- Hut the n,ort,.a,.or m ;. " "■"" ^'•■■'"■^'-rin,, it to ^'''^ on,n-naI transaction releae hi ^ '"' '''^''^^^-^>n to -en then, the courts watc, eh e dh'' u'" "'^""""-^- -^. and mort^^a«■ee with the mo t i '''' ^''''''" "^"--t^-a^^o "^-o»t ^ood taith and s k! .r'"'^ ^^'-- --' -oui^ 'Z "t"^ost ^.ood faith and lust d • I"-" '"' "'"''' ^^"'' --^N absolute ut3on h f ^ deahn.i,-- to exist. A„ u2 "<■<- upon Its facf» .^ -. , -^n instrument "'"'^^^ shew M hat loo HIMM-MITIO;,; AM) KOREII.OSIKE. was the intention of the parties ; and all the circumstances, in connectiiMi with the instrument will ho looked at in determin- ing,' this. I'arol evidence will he received, not that the instru- ment may (hereby be contradicted, but for the purpose of raisinj,-- an ec|uily paramount to its terms { (/ ). The courts will generally treat a doubtful instrument as a mortf,'aj;e (,■). " Once a mort^a^c, always a mort^-age " is a well recof,niized rnaxim (/"). The rij,'ht must be exercised within a reasonable time, because, from the perishable nature of personal propertv. it is impossible that chattels can lon^-- remain in the same c'ondi- tion. and to preserve them expenditure must be incurred in their repair. Then, too, they are consumed in use. or in some way destroyed, hence it is that the character of the property the use they are put to, their condition, and a variety of cir- cumstances all combine, and ditler almost in every case, to settle what may be a reasonable time within which the rii,'ht of redemption may be properly exercised. If the property is sold, the rij,du, of course, is extiniruished. It matters 'not whether the sale was had before or after default bv a mortfcajree in possession. In either case the possession, coupled with the nsfht ot property, both of which the mort^^a^ree possessed, er.ables him to f,rive a ^rood title to the purchaser, and the mortfraKair has lost his rijrht to redeem (j^). If, however, he has taken possession before default, then because the mortga- gor is entitled to restitution of his property upon performance by hmi of the condition upon which he granted it, he has an action aj^ainst the mortgaK^ee, if the latter cannot then return (d) Le Tar^r, y. /,,, r,n'//. 3 Gr. .369: //„/„„•., v. A/.,///u'n's, , Gr ^70- Dab,uy V. 6>.-..^..ce uZ J'^:; r .;:; ^7'^ '7P"-i-. and the ''■•- •- restore them ,7 A "' "^^' "'"^' ■'"■'■' ^''■•'^ for "- --'Ka^e. he fails in th "h ;":^::"^'"' "'^"' ''">--^t of as the n,or„.a,,,r-s ri.hi ,e "'^^ r"' ''^^'"' ''"■'"""'-•'^ latter becomes entiliei, '^^\',^'^'"' '"'"^ ^^en destroved. ,he -•^'^"- ^-oo;i;.::;:,'''7--ft'-mo;t,a,ee. -orl,a,or from ever reie:;:,;'.'''';;/'^ V"^'^"'^ ^"^^ morij^a^-or would be entitled tor , ' ' " ^"'' ^^e -t in the ^oods over ab r^'' " """ '''" '^'^ '"'- value bein,. fixed as of ihe ^ .^ "'''T''" '^"' ^>>' '^e P--sion(X-).or.atthe pi \,\:;' ^"^" '"-'.^-^- took -ay be based upon the pric > re ,i T^'"^^'"^'^^'-' "^^' ^•alue -Should ,he .nort^aXj h, ■ 7 '•^' "^' "^^^•"'^aj.ee. -'--by he has receiteS uffid „ t ' " "7'"' ^^' ^''^ ^-"'«. ''-" "- mor„.a,.or hec ^^.^^ , J .^ ;''^'--^^-,. debt. P^nv (/); but for the sale th . ' "'" ""'^^''^ Pro- ^^^ ---'eem the enfire p I'e ^ ".r't?''"^ ''''''' ^^ -^'''led -'^^^'^. and exis.s as n'i' t '''^ -W - an entire part (;.,). '''' P'^^P^-'-O- 'f possessed as to It has been said tint tl P«nlmh,r c„,. m„,t decide wh'!;'"''""" '"'''■"""■"»"«» in each i')^>".,L.tl •4'^'v■""''■■''■ 102 Ri-nr:MPTio\- axd foreckosi-re. mortgagee's possession becomes adverse to that of the mort gagor. a.ul it is not adverse until forfeiture arises from some default m mortgagor. After forfeiture, the time mav be mterrupted, and a new period to compute from fixed and ascertained ; this will be the result of the mortgagee accepting a payment on account of the mortgage indebtedness, the time for redemption will begin anew from the time of such pay- ment (//). ' ^ Redemption may be enjoyed, not alone bv the morto-agor but by his executors, or administrators, or bv anv one who has a valuable interest in the property, as for 'example a creditor who has placed himself in a position to enforce his claim, and of course a purchaser from the mortgagor and a second mortgagee, possess the same equities {o). But, though the courts fax or redemption, a mortgagee has his reciprocal remedy. It seldom happens in practice\hat a mortgagee of personal chattels seeks the assistance of the court by foreclosure, yet such a course is open to him Foreclosure is the converse of redemption, and by it a mort- gagee may acquire an absolute title in the property mortga-ed in default of payment of the amount of the mortgage money' mterest and costs(/). Foreclosure is in default of redemption • where the right to foreclose exists, the right to redeem exists also {q). The mortgagee and mortgagor occupy the relative position of creditor and debtor; the creditor being secured by the debtor through means of a lien. Any holder of a sub- sequent hen may, therefore, pay oflT a prior lien to prevent his own hen from being cut off. As a mortgagee of chattels. (n) BartMt v. TUy.u., 2 Hill (S. C.) Eq. .7, : Winchester v. Ba,,. 54 Me. 558. ' ^^ (o) Chamberlh, v. Sovah. 28 Gr. 404: fie Davis. 27 Gr. .99: JfWers I, " ' "-^'"- '^•'' '■ '■"">-' ^'- '-'"'S' >7 Gr. 2,s., .6 Gr. 239 = Chisholm v. .SlieMon, 3 Gr. 655 : Cmu;, v. Clmmherlain. 27 Gr. 551 (p) Cook V. Flood. 5 Gr. 40;, : Slade y. Rigg. 3 Ha.-e 35 = Wayne v. Han- ham, 9 Hare 62 : Loiiquet v. Sca-m'ii, i Ves. 4:53, (q) Parker \. ]'iiie C'ro-u'ers, 23 Gv. 179. t of the fnort- es from some time may be )m fixed and g-ee accepting less, tlie time of such pay- ; mortgagor, my one who r example, a 3 enforce his s?agor, and a Jrtgagee has ictice that a ance of the 'en to him. Jy it a mort- morlgaged, rage money, -edemption ; !deem exists ;ive position red by the of a sub- to prevent of chattels, 'er V. Ba//, 54 I go : Wafers Chisholm v. 'ayne v. Han- KK.HT OK FORKCLOSIRE. 10 '.> /£ like a mortgagee of real estate, is entitled to a foreclo.n,-. a mortgatror o^ ch-.tt^Iv i;i. , roreclosuie, so K '{,'■1 ui cn.ittel.s, like a mortgat'-or o*" land i« ..^fifi a transfernng it to another. The nVht is n- instrument itself and m-.vh. /'^'^ '■' paramount to the its terms, as, for in t.ne in , r "''/""" '" ^"P'^'^'^'^- ^° mortgagor in the Z::^:,:^'^z : t -tt^" '^- ^^^ upon his failure to pav the deb s . "" "'' P'''^P^''^>' i" the case of land so n the . T u"' """^''"^ ^'')- '^« closure bars all ^r:^ZZ ^^ ^l::"^^^^^-^ ^ ^- mortgage under uhich the proceeZ ' '^"'T''"^"^ '^ ^^e that the proceedings are reri' ' T '■'''"^' P'""^'''-'' and sufficient notic^ive^trt^ oL;^:^7:r^' ^^^ .P^P^ foreclosure affords a striking distinct Ih. '''^''^''' °^ a mortgage. .'The principfeupo .",""" ' '"''" '"'^ latter case is, that in -, rpj,.i x '^ '"""''^ ''^^^^ i" the an actual co e oflh"; '^f' ""^'^^''^^^^ ^"^^^ ^as been courthasinterfee t pe e:t:Sf°""?''-'^' ''''' ^'^^" ^^^^ and when the ground' ^^ J iri'''^^""^' '" ^ payment of the debt th.. ,-. ''^['^"^"^^ 's gone by the non- its'eif put on. Tle\t,:r ;■"'''>• '^"^^^'^^ ^he stop it has court treats that as "r4^^::;t::::;;'^rr^ gage, and therefore as carrying with ,t "l t' '" "°''*- 'nadent to such a mortgage. None ' f ./• '"'"'"^'"^ to a pledge of chattels^ th" pled" e L ' TT'''^ ""'^''^^ ownership at law, and his ^^ ^H^' '''' ^'^ '"^''-'"te legal title (/). Wuitanie rights cannot exceed his (•) ^- Jesse.. M. R., c„.../v. ^l.;;' C.'-'a ^6. ^"'^''' '" ^"^ «°' CHAPTER XII. THK OPERATIVE PARTS. " The operative words of a conveyance should be such as are apt and proper accordinf,^ to the mode in which the instrument is mtended to operate " (tt). In law chattels are indivisible; therefore, there is no such th.n^ m the strict sense of the term, as an estate in them The mtent.on of the parties in ref,^ard to them a couri of cqu, y w.ll, however, carry out ; and in a settlement of chattels upon one person for life, with remainder to others he cestu.s c^.e trustent have equitable ri^WUs. which they can enforce as effectually as can cestuis que trustent of land.s and tenements (d). The operative words in a bill of sale usually are "bar- gram, sell ass,;,n. transfer and set over," and in a mortga.^e 'grant, bargam, sell and assij,rn." ^ There is no necessity to use other than the present tense n the operatue part of the bill of sale or mort^.^ge any more than m a conveyance of land. If a chattel is sold at one ^^"d "o dehvery made, and at a later period a bill of sa-e s executed by the vendor to the vendee in pursuance of th. former sale, then the past and present tense mav both b properly used u. analogy to the old system of feoffment and r^. r ""'""T-. " ''"' """"">■ -^-^-Panied the transaction, which stated as the fact was, that the feoffor had ::r:i;->' '"'" '''''''-' '- ''- ^--^ ^-- - . If it he the intention to assign all the goods of a bargainor or mor gagor. care should be used to avoid both general and particular words in the assignment, ior the latte^ ma^have (a) Leith's Blackstone, 258. ,,y/i V. Butcher, 10 Ch. D. 113. (c) Leiths Blackstone, 259. 51 I'AHTICILAK DESCRIPTION. lo; 1 He such as which the e is no such ill them. 1 a court of ttiement of ■ to others, ch they can f lands and are ' ' bar- L mortf^agfe isent tense e any more old at one bill of sale mce of thtj y both be fment and )anied the "eoffor had tense to bargainor Jneral and mav have '•"^trument, a d h Jl' ''''''' ''' '" ^''''''^^ '" ^I^^' ^^^.-o,d,ood::r[;:i;i;:: ';----- ''-the hereuiU. ancf^ l' ^'^rr^--^- ^ -'-^"'e of even L. deed U-..S executed o I '"" '^"''''^■" ^'^^" ^he -'-"ame;;';;:x:'':;:,;-'^!7-dto that the inventorv did sn -Y n". ^^""^" '^ '^^'PP^"-^ furniture of ev^;. kind 'u ' " '"'■"''^^'^ ^^^^^^'^ «"'^ CourtofExchecii. po" I? T'' '"' '' "'" '^^^''^ ''V the - an assi,.nment :r^^^:^^J^' "' ^^ '^^^ ^"^y operJel the inventorv." In A7>, .,-/.„",/■/ '"'•"■t"'-e specified in Riven. ...anting "alU ^n "l T""^^ '' '"' "'" -''^ -- t-eand household tff .^^^^^^V ^°"'-^' ^■'^^"'^'•^' f-'- Particularly nK^ntione IT ''; 'T"^ "^^^^^'' ''^-o"to, or '^a'-ked 'A/ hereunder v'tei7 '" ' '"'''''" ■'^^"'^^''"'^ thi-s case it uas held Lb 1 o ''' ''[^r^^ -— d." and in any title in ..oods ' •" ' '''^ "^^' ^^'^''^ ^^^ R-'antee •schedule (/.). " ""' '""^^'""^^^ -'Hi described In the conveyance as thev are o 2 - , d'th'" '" "'"'^ '" ''' out the intention of the n.rt " ' '""''' ^'■''"""^ '••''^'-•■v words used do not Zj^^^r^"'' ?'• ' '"■'^"■"'"'^"^' '^ ^l- f°-. if it be the intrtio. of T ""-'^ '"^^^^i- W- There- acquired propertv. tha 2, ''' '^''''''"-^■^ ^" '^^^^^^ future face of the deedj.)) ^'"" "^"^'^^ '-'''^-'.v •"'PPear upon the W) 6 Ex. 407,. oL. J. Ex. .8s. ^0 '9 L.J. Ex.273. (f 9 V. C. C. P. ,30. (ii) 6'«//« V. iP«//„„, 7 I' c r P ^ f *tt io6 THE OPERATUK I'Airrs. unless the intLMition clearlv anne-.r h, M • •'"^'^- "^"o »f.r.„c,„ired p™p„,-, ™d'" .'h^c Ti ^rr"™,'' '" ^'"' a pot::';! ^™ ts,':,:* "' ^^--^uired p.„p„,,, ,„d in the said store for „k ,. , ""•"Sairor a„cl kept after to He pn:::; d i: e^ :,"ir" ' ■;- "°"i 7, ^"=- against oxe^io ^ d ,„ '^-^ e'lrf ^■'°"" "^°"^'»^'= "' (k) .SW/,„, V. A,//;, , Fos. & Fin. ,,2. N. R. 967 : 6 Man. & Gr II ,, l ' r P "^^ '' ^'''''"'""' ^ S^°" (n.) AV./,/,V V. /^er,>/. 3 H.& C o-'- ' , ," r l^'r """•^. 33 L. J. Ch. 63. ' • •^+ ^- J- 1--X. 2,2 : fieeve v. fr/aV- (n) /,(■/.«/-,/ V. Vernon, 2 Vos & R -, . t. (") .S>.«<.. V. San,Wan,s. , V /c .ao -" '^ """"'"' ^ ''"• ^«- (P) Cnynr V. Z,r, ,4 A. R. 50,3. ' " md chattels in Oils and chat- was made (/(•), only intended the particular vance." And inent, to pass - rig-hts ^riven ^f seizing- all goods not on 'ill of sale (/). fter-acquired of the deed, isig-nment of iroperty, and even by the assig-ned be effect to the •rtg-ag-e con- " all gfoods or and kept 3ck or here- s held that lie ordinary ortgage as ithstanding at tile time itable right J-s reaching^ >'frn, 6 Scott 've V. U7ii/. h 7 Ves. 28. CHApfER XIII. TBI-: DATH. ■nstrumct. "'"" ■" Hh- end „r ,|,e f?ood, though it mentions no d-ito I '''"'^""^ ^ ^^^'^ i^ date, this presumption can be reltt ?' ^ f"^ ">■ '"'"Pcssible by parol evidence, show the true ^ ; ''"'^ '^^ ^""^'^^^ '"ay. The expression '• del^^ "^ T °' ''"'"'"-^' ^^'^• popular sense, as meaning, a manual'dll-'" '''/"'''" '"" '^^^ ment may be completelv executed ^ '^ ^'"' '^' '""'^f™- -O'-t^ag.ee; but there must b" '' ' "' ""^ "^"^^^^ ^^^ ^'-^ parties to the instrument, "which 71^"'-"" ''' '''''' '^'" "^^^^^ he equ.valent to manual delivers n - ^' "^"tomplation uiH point of delivery between a mo;V "''"''-'■'^ '""-V arise on the -'-^her or not' there C ' d ^f " ^^ '"^"^^^^'•''^^^^' ^^ ^^^ there must be an affidavit of bon- des h'V^-''" '''' '^'''''"^^ "^ortg-age, and of a sale, and this b ^^ *" '''' ''''' ^'^ ^ less a question whether there w . s . h r^' ''' " ^'""'''^ ^^en be a-s to when it took place, as se nlhu. n ■"•• ''"^ '"^ ''"^t-" -h.ch the instrument came i o foS, '! '"°".^"^ ^^^ ^'-e from ■"tended to be protected bv the statutL '^""'^^ ^'" '^^^^^-'^ t--^c;;^e:^;;:;i-^:::;:;:^;,^- the mortgagre (,). ^here is I ! ' '''" "^^'"^■■-' "^ Act which requires the date l', Cu^l T- '^""'-^'"^ ^ ^he execution of an absolute bi o , "T "• '" ^''''"■•^-' ^^' ^ '*• "'"■ '" t'^e case of an (b) A«^./.^/ V. >/„„/ ,; \, ^- "■ ■^^^ • the increase his insurable inTerest in Z T'"''"'''' ""^ '^ ^° of his mortgage (.) ; but f "be inT '^ "''•""^■^'-•^ '"^"- much as he may be responsible to t. P°"'^^"*^'°"' then, inas- the goods, he has an in'su^b e ^te ttTrtf^^^ '"' '^''^ °^ full value thereof; he must, howe er i/ h "■°'"'^' ^° *'^« account to the mortgajror for .,• !■' ^''^"t o*" 'oss, o- mortgage ciain^ ^::r::::::^^::;;:^ °-^ -^ ^^ove hi; While a mortgagee has in himself an insur.h, • •so may nisure for his own benefit simnK I '"''''''' ^"'^ to msure for the joint benefit of hireff^;^^^^ '' ^' ""''-^y The contract of insurance usuallv ^ . '"°'''^''^^°'-- e-tand nature of the interest r^S^ScSyi:: Con.or,, V. /„.. Co., .3 Pi,k. ,.3 , ZJ^^' ^'^ '''■""-'' 4 Cush. ^03 : 593: C>„./„.^, ,, 3 ^; f ;J"J27;'- """"'"'""' '4 East 5.9. d) 0^*n V. .)/«„,.,„//,„. ^; 3 U C C P (e) 0^*« V. Afo,Urea/ Ins. Co, 3 U C C P '*^^' I lO IVSlRANCi;. out. but in the absence of conditions to this effect it is unne- cessary that the mortf,^•,<,a.o should state either the nature of h.s niterest, or for whose benefit the insurance is made The rule IS that the subject matter of insurance must iie particu- arly described, hut the interest of the insured mav be left at larjre (J ). The usual practice is for the mort.^^a^^or to covenant that he w.ll msure and keep insured the property j,nven in security and when he msures in pursuance of such a covenant the insurance is effected in his own name, and the loss (if a.iv) .s made payable to the mort^aRee. accordinf,^ to his inte'r- est ; or the policy issued is assif,rned to the mortgagee, not absolutely, but as collateral security to the extent of the mort- gagee s interest. ThouK^i a limited interest will be implied from an assignment by a mortgagor to a mortgagee of a policv of insurance, it yet is advisable always to expressly defin'e the nature and extent of the assignment, so as to guard against the mortgagor being deprived of anv interest in the surplus he might have, after satisfaction ^f the mortgage debt. \\ hen the policy is assigned by the mortgagor to the mortgagee, and the assignment assented to by the insurers then an equitable contract of insurance is creat'ed between the mortgagee and insurers to the extent that the mort-ajree's interest will not be prejudiced or defeated by a subsequent act of forfeiture on the part of the mortgagor (^)., but when the loss (If any) is merely made payable to the mortgagee such may not be the case (/.). In either case it is alwaj s Sdvisable to haye a mortgage clause attached making the policy valid as to the mortgagee's interest, independent of any act of the mortgag-or. •• ' The policies of many companies are so framed that a mort- gagee is quite unsafe in taking their policies unless a mortgage clause is attached. An assignment by way of c!?sV^c!t^l';J^""'' " ""• ""■ "^^ ''■ ^9' = ^^^ - ^"'-"^ /- (g) Burton v. Gon- District Ins. Co., 12 Gr. 156. (h) See Livingston v. Western Ins. Co., 16 Gr. 9. feet it is iinne- ' the nature of is made. The St be particii- iiay be left at covenant that sn in security, covenant the ; loss (if any) to his inter- Jrtgaf,>-ee, not t of the mort- 11 be implied fee of a policj- )ressly define as to guard terest in the le mortgajje iaj,'-or to the the insurers, between the mortgagee's bsequent act >ut when the gagee, such ys advisable ' policy valid ly act of the that a mort- s unless a by waj' of Montreal Ins. MORIi-.Al.KK's I.VTKKKST. ^^ --'''i- i-M^oii^";;;::: r :;;:^^r'"'r^''^^•''■^• a^^urcd in .his policv or anv ,v.rt h r ""''^ ''^ '^' 'K.rehy insured or an'v par , I on f " '" "^^' '^'"'^^■'•'^• tneconsentofthecomlC mi: ::r;..;!-'^-'Mc without assignment, and does not prohibit -. T^ . '"'" ■'''''^^'^'^^' ^-^^^ U). In all cases, hou^ er h 7 , '? ''■"' ''' '"°'-^- Pany's assent to such a, .si '"'"'''"'■''' '''^' ^-^^'"- T'- policies of m^'jl; :;:"::'' ^'-'^'- procured recfuire notice. A covenant t ■ '^'"^'^•^^""' ^^ as to - an equitable assignmJnt of a!!^""' il- '""7^^''^-- operates might be effected by the mort-^a.^;,- //■>'■' '"'''''^''^^ that When there is such -i .-o,- "" "" ^^'- ^e....t in insurance:';;;;::-;:-^:;:;-^^^''-^"^^^- the premiums to the mortgac^or f ' T" """ '^''''^'' -should be panided bv the morr<. ul ,, '''T'"'^^' ^'^ ' ''"^ ** -shall stand charged with the r^^^'n r/ !>T''''^ '""''^^^''^^-'J Pa.d in the same manner as Td ""^ P'-^''"i"ms so •"oney, or the mortgagee mav fi\t"', •'""'' '"^' "^"^ P'-i"cipaI -security therefor than the nu"; -..; ''""''" "'^'^ "« other In all such cases the Z^"'"''' '''^'■■^^^"^' ^'"^-"ant. n-rtgagee. who must a^;^ T^: T"*?' ^ "^'^^^'^ ^" the and return any balance to the mor '^''"''^' "'" '^'^ ^^^^ - "- bound so to apply^he mreTrn th!" ''' "^^''^^^^^ n'ortgage (;«), ,vhen in the abs! . I "''''''"'y ""^ the otherwise the mortgagee hsu'e , '"^'' *'' ^^^^"'''^'°" "r "ature of his insurlb^ , ; ■^,.;^^'- '^'"^ °"" benefit. The terest ,s a question of considerable (i) Burton V. Gon- District f„. r - -. ^7 c. .., .. so..::^:i^--_ $,1- • -- v. ...,^^ (J) ^nyr,ar,.. .,,,,,„„,^^ ^, ^^, ^ ^^ ^ ''''' '^ ^^ ^ R. ,,. (ni) Austin v. .SVorc)/ lo r ^W-../Z„„. Co. c A.„.;^?- .^'^/p;^-. - U. C. C. P. ,3, , I 12 INSlRANin. difficulty, and the decisions are not reconcilable. The better opinion seems to be that the insurers are in the same position as a surety who has paid the principal debt, and th^vefore that they are entitled lo subrofration of the security, so as to stand, with reference to it, in the same position as did the insured. There can be no doubt that the mortf,.-a{,>-ee's insur- able interest depends upon his debt, so that where a mort- gajree, without any agreement with the mortf,'-af,ror, insures he insures his debt, and, when the debt is paid, his insurable interest ceases («). In case of loss the insurer is entitled to be subrogated to the mortgagee's claim (o). The principle of subrogation is applied to cases where the owner of the goods has a remedy in tort against a third per- son for the destruction of the goods. In any such case the fact of the owner, being indemnified by the insurers is no defence to an action against the wrongdoer, but the insurers to the extent of the amount they haye paid, are entitled to be subrogated to the right:, of the owner against the wron-. doer(/)). -^ The question betwee.. the mortgagee and the insurers is not whether the mortgagee has lost his debt, but whether he has lost his security, so that it is no answer to an action on a policy that the mortgagor is still solyent and able to pay the mortgage debt in full. The relying upon and waiting for another party from whom the msurance has been taken, to effect and keep in force an insurance upon the property mortgaged, is neyer satisfactory Hence, it is suggested that insurance should in all mortgages be a condition, on the non-performance of which the right to (n) Carpenfe. v. Ins. Co., ,6 Pet. 405 : /ns. Co. v. U'oo.fmff, 2 Dutch 541 : .Smifh V. Ins. Co., 17 Penn. St. 253. (o) Susse.r v. Woodruff. 26 N. J. Eq. 54,: Hono.e v. /^mar Ins. Co S. III. 409: ^'or7vich V. noomer, 52 III. 442 : S/aaupot v. Da Costa, i Eden IZO: Randal v. Cockran, , Ves. Sen. 98: Mason v. Sainsbury, 3 Doue 61 : Vafes v. White, 4 Binjf. N. C. 272. (p) Mason v. Sainsbury, 3 Doug. 6. : Yates v. White, 4 Bing. N. C. 272. « e. The better same position and til ere fore urity, so as to ion as did the f^aj^ee's insur- vhere a mort- af,'-or, insures, his insurable is entitled to uses where the St a third per- •_> (55-6 Vkt.) Chai'TEk 29. (Criminal Codk). 3. (v.) The expression "property" includes: (i) every kind of real and |)ersonal property, and all deeds and instruments relatinjj;- to or evidencinj'- the title or riuht to any property, or giving a riglu to recover or receive any money or goods ; (ii) not only such property as was originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange, whether immediately or otherwise. 368. Everyone is guilty of an indictable offence and liable to a fine of eight hundred dollars and to one year's imprisonment who — (a) with intent to defraud his creditors, or any of them, (i) makes, or causes to be made, any gift, con- veyance, assignment, salt;, transfer or delivery of his property ; (ii) removes, conceals or disposes of any of his property ; or (b) with the intent that anyone shall so defraud his creditors, or any one of them, receives any such property. t-KTMiXAI. tone. lie Vict.) )K). I eludes : iroptTty, and ■ evidencing iving a right Is; ;:inally in the person, but me has been acquired by immediately :ahle offence )llars and to 's, or any of ny gift, con- livery of his of any of his ! so defraud es any such -iil'^ :;^^^':^-\-^i-abieoffc^^^^ '- l^"th. who. hJ;J\Su /'"'"" ""I"-'«^^nment. or -•f'-y chattel. :e^,orT;e^,;;V;^^^^^^^ or the solicitor or a-enf ' f ' , '''''"'' '" '^^t'"". f^'- (and havh,^"ef:"tJ;r'^*'-'"-t: clemand of an abstract of M-rlii "^'^^ '' ^''"'■"^^" P^Tch.se, or Miort^^gie b rt^e >h" "" ^''^'^'^ '><" the purchase or niortg.tS c n r, l' ""'"I^'^^"^" ^f the deed, will or other ^rumf' ''">' '^^'"lement. .or any ges on real (2) If a real estate mortg-aire al«n .^ plant not affixed to the realtrfo,' " f.'" '^"'■"^^-^' ""'^ •nciudes chattels or stock in '/r^ , ? T ^ P'"^" '^'''^f> or applv to such part of tt l:: ^ ^l^^r^' ^'^^^^ ^ - ^ '-^ tnattel property. il m m m m I t tj early rate of istalments, it he interest is duration, but ss periods, a the following (fi M iterest afore- 2 of per jnthly instal- ls more than nt were con- im total only ly interest ier the last ,imA Od „, /. , . r> /< w' C ^^^ ^" - /-f-'^^^ British Columbia. CONSOLIDATElTiTATUTES, isss. Chapter 8. An Act to amend the law relating to Bills of Sale. rovince of Bills of Sale Her Majesty, by and with the advice and consent R •. f nH""h^"^^ Assembly of the Prnv.-n.!"; iJntish Columbia, enacts as follows : Short Title. l._ This Act may be cited as the -^ct. K. L. No. 142, s. 16. Interpretation. exL^sionTst.Il'"h^ '^'"^'' the following, words and expressions shall have the meaning hereby assigned to them, unless there be something in the sub m or c^text repugnant to such construction ; that'" 'o bilis^7v^le''^'"'°" "^'" ^^ ¥^" ^h^" '"^'"de DUis ot sale, assignments, transfers, declarations of trust without transfers, and other as urances o? per sonal chattels (,) and also powers of ' ttorney ch ttds'T-' " '"'"7 ^° ''"^^ P'^---" «^P- onai c lu i h. ll"'"""^' I''' ''''y ^^^^^' b^'^ ^hall not in- clude the following documents, that is to sav ■ Assignments for the benefit of the creditors of the person making or giving the same, marrilge "et fe ments. transfers or assignments of any ship Sr vTsld, '•»" ^.I. [A. S, isss. g to Bills Jind consent "*rovince of lis of Sale words and y assigned subject or that is to all include mirations of :es of per- attorney, f personal ill not in- ly : ors of the ge settle- or vessel, to.\. AfTs J 888, c. 8 CTtifiotes. warrants or'orxler, 7o t""? ^^"'''^''i goods, „r any other docun^ent, utl n ,h r>' °' of such docutnent to transferor !^' ° P^sessor by represented. [As amSfSd^j'Tg": f ?': '^^ »"R of ■■■ -'I estate, or sha^t ^:t"^JZ:^ (c) As„ou/v. Gu.ney, 4 R r r ^ '^ Q. B. ,8 : A-orf, Central .. .v:,„,,„;,;^^ ' ^""^"^ - ^/-.-"/Z (.894) . Re nahon, 25 g. B. D. 33. ' ^-^ '^''- ^- ^°5: 13 App. Cas. 554 . I20 BRITISH COM-MBIA. m funds, or securities of ■^n^r r capital or property of mvn.'''""'"f"'' "' '" '^^ companv, or iny stocJ or Z '^'''■^''^'^ or joint stock lands which, by virtue 1 '" "P°" ''^">' ^^^-""^ ^' ment, ought not^o be ranrled^r''''"''"^^ ""' '^ree- the same shall he n Z f ? '^"^ ^'"'"' ^here giving of such bill of .ale shannrr/h'^l "^^'""l"^ "'' or to have been include 1 vvfW. T "" '''''""^'' ^^ ^^ fern. ; but this an^f!:^rt;i';:or£;T "'r' an anywise affect ;in,. o^.- "^ deemed to Courts of th IW^^^^^ '-'^any of the s. 2.] ^^- I ^'"^"dment of 1894, c 2, (^) Personal chattels shall u^ j apparent possession of he nersonTt'^ '° *"= '" "^<= the IJill of Sale, so long'^' h' . % "^ °' ^'''"S '•1 or upon any house mill ,'^ . """'""" °' t'^ works, yard, laL, ZoZ'JZtT''' ''""'I''"?' him (.), or as they shall be Sfnd"'™^"^ ^^ iiim in anv nhr^ i„k . '^"" enjoyed bv formal pZ£,: r.'ZrZTZT'T'^^ '''' by or given to any other person '^ ' ''"'=" '^'^<=" (0 Occupation may be of varvmo- ^ rent and taxes for a bui dinV he I ^^'":" ' ' '' '""^ ^^^'^ occupy it, although he inetr ^' °'''''""''''^ ^' ''^''^ ^o absconded (d). '"' ^''''"' ' b"t not if he has The meaning- to be attributed to the t^rm Act, ,s limited to that occupation which s a Le" "", '" ^'^ s.on either by the debtor or his a Jn W. ^ ""^ P"''"" has had free access to nnH / r J" ^'^^"^ver the debtor they have been he d^^ t i 7h: ^^ '^'^^"^'^ ''''^"^'' ''^" assignor (r). " """ •''PP''^''^"^ possession of the :nal ^pl^IZ^i^lX T"' ""''"^ "^^^ ^^^ "-■- (/ J- As where the grantor went in and out of S^n:;:i:;rf:^-(--)3H.c.H...,. >(f) ^.«.i.... V. JA-Z..^M//„ (.85,) 3 a c. R. ,,^. lit, or in the or joint stock any farm or nt or agree- V ' to, or a true copy thereof nnd of ^'"''^'" '^^^''^'^ the execution thereof shdtol'.?'"-'^ attestation of d^vR of the time of such 1 )] "fff^ ^-'^h an affi- g^'ven, and a description of e,.w' ''"'"S: made or Pation of the person makt^md •"'""'", ^^"^' «c^"- '" case the same shairbe nSde n ^''-'"^^ ^^^ •^^^'»^. or son under or in the eiecudon of -^ ^' '"" ^^^ "">' P^^ description of the residence -./l^^' "''°"^^^' ^^en a Ci.. App. 626. '^- Ch. App. 6j : ^, ^„,,,. ^^^_., .^_ ^ ^_ ^ 7 If' fl -*■ I ^ 122 BRITISH COLL-.MBIA. and of every attesting witness to such Bill of Sale be registered as follows :-If affecting property on Vancouver Island, by filing the same in the office of the Registrar-General of Titles at Victoria- if affecting property on the Mainland of British Columbia, within the limits of any Land Registry District for the time being established, by filing the same in the office of the Registrar of the Distrk:t in whicn the property affected is situate ; if affect n^r property elsewhere on the Mainland of British Columbia by filmg the same in the office of the stipendiary magistrate of the District in which the property intended to be affected is situate, or in the office of some other person appointed in that behalf- and the said Bill of Sale, or co^^y thereof wil^h affida v t as aforesaid, shall in all cases hereinbefore men- tioned be so filed within twenty-one days after the sTch"lll°of ?V"^. ^[ '"'^ -^"^ "^ ^''^^' ^^herwise such Bill of Sale shall as against all assignees of the estate and effects of the person whose goods, or any ot them, are comprised in such Bill of Sale, under the fews relating to bankruptcy or insolvency (2) or under any assignment for the benefit of ihe creditors of such person, and as against all sheriff's officers and other persons seizing any property or effects co.nprised ,n such Bill of Sale in the execution of any process of any court of law or equity author- ising the seizure of the goods of the person ' y whom or of whose goods such Bill of Sale shall have been made, and as against every person on whose behalf such process shall have been issued and as agains subsequent purchasers or mortgagees in good^fai^h for valuable consideration be null and void to all intents and purposes whatsoever, so far as regards the property in or right to the possession of any personal chattels comprised in such Bill of Sale Bill of Sale, property on the office of /ictoria ; if of British id Registry )y filing the ' District in if affecting of British fice of the 1 which the -. or in the that behalf; ith affidavit efore men- 's after the , otherwise nees of the )ds, or any 5ale, under ncy (2), or e creditors f's officers or effects iecution of y author- ' ' y whom have been ose behalf as against g"ooci faith oid to all 5 regards 'n of any of Sale, fO\. ACTS 1888, C. 8. which at or after the time nf ^„nU u 1 o^xt--b^^KS^^ for the benefit of his tdl^t o^rVf^eSrh period oLwintyle rys shanT"'". °^ '^' '^"'^ or appare.n possession^ ',fn M. '^' Possession such Bill of Sale or T P^'""" "'^'''"^ process sl^^ha i ^u'e^ un^^er^^^"'"" ^^^"^ ''^ cution of which such BHI of sill u u\'^^ ^""^- made or given is the 1 ^^''^' ^^^^ ^een affidavit aforesaid'^a/beTn 17 f" ^f\ ■ ^^' Schedule hereto anneLd .ar^/r /V" M^^ M2.S. 2. [As amended by 1892 c, ^°i 1893. c. 3, s. 2. J ^ ^^' ''■ 3. s. 2 ; and (i). The expression "Bill of Snl«" ;^ , ■ sectic. 2 of the Act. P'"'*^^' '"t^rpreted by chas?:nd1;,e°(o^^^;' moftfTr'' ^°"^--^ °^ p- property. .ade withou a .a ^^L ^'"m ""'■''' ^"^'°^'^ before the settlor engag-es in a tr.H r 'T''^''^''''"' '^""''^y -ay be set aside on Ua f ^ :redtr: whoT^'^"'^ '^'^^^"^^• the settlement, although at the Zl 7 u '^'"' '"'^'^ ^^'^^ was no certainty thaf th nronn / " ^^'^"'^"^^"^ ^^ere future business would tat e^f^ecTandT'"^'"'""^ '''' ''^ «hew that the settlor contemplated h. " "°' "^""'^^•■>' ^° time he made the settlement(y) '^"'"^ '""'"''' "^ ^'^^ The question of the validity of a bill of . „ constitute a fraudulent preference as ""'^'^'^ *° governed by the Fraudulent P e TreLe ZT'. T"'^^"' ''^ I ; 'I ■ 1 124 BRITISH COMMBIA. by a creditor upon his insolvent debtor for payment or security IS pressure sufficient to rebut any inference of "intent to prefer" ,n the execution of a bill of sale by wav of morttratre g:iven m response to the demand, and that the bill of sale was valid (A). It is settled law that a mortj^af^e ^iven bv a debtor who is unable to pay his debts in full is not void as a preference if given as the result of pressure and for a bona fide debt, if the mortgagee is not aware of the debtor being- in insolvent circumstances {/). (2). See Consolidate ; Acts 1888, c. 51, s. 2, and R. S. O 1897, c. 147 ; R. S. O. 1887, ss. 2 and 3. (3). Where the grantee under a bill of sale took possession ot the goods, consisting of the contents and fittings of a bakery carried on by the grantor in a building distinct from his residence, and engaged a former employee of the grantor to work for him, this employee holding the key of the premises, it was held that the premises were not "occupied by the grantor, who had absconded from the province, and were not in his "apparent possession," although his name had not been removed from the door (;«). The fact of the debtor being tenant of the premises in which the goods were, is insufficient if he had ceased to be the actual occupier (;/). See also definition of "apparent possession," subsection {c) of section 2, and notes thereto. The question is. if anyone went there would he conclude that the debtor was in sole possession ((;). (4). This section and that following are taken from sec- ^ir;s.^r:4r^^* ' "• ' "• ^^= -^ - ^^^^-^ - 446 6,66o,,s V. JA.Z)«.„/rf. .0 S. C. R. 577 ; BoN v. Har^, a B C. R. 3.. (m) Bmcknmn v. McLaughlin (1894) 3 B. C. R 26- (n) lb. ■ ^' (o) Per Drake, J., in Brackman v. McLaughlin, 3 B. C. R. at p. 268. '^ f nt or security f " intent to of mortf^age II of sale was lebtor who is preference if ! debt, if the in insolvent nd R. S. O. k possession ittin^'-s of a istinct from the grantor key of the : " occupied ovince, and 1 his name premises in 2d to be the subsection i, if anyone /as in sole from sec- S/cphens V. J.: Molsoits 19 S. C. R. B. C. R. 32. at p. 268. lO.V. ACTS 1888, C. 8. ^ uons , and . of the Imperial Act of ,854 (.7-8 Vict.. of bill T ■ '''"'" ^ '' ''' '"'""^'^ '^'^ rc.nstration of b.lls of sale M, cases uhere the property remains i„ the possession of the j^rantor. for the better protection of creditors and^property ot which possession is delivered is not affe^t^^ (5). The form is as follows : "Subscribed to and sworn before me this dav of .\ ^ ^^ _ u suorn Althou^d, it is preferable that the place'where the affidavit , . . ^ ^'^^ '' t-ommissioner for t-.Lrin.r .,«? davts in British Columbia- that he -icted wlH T, ■ 1;^;. r ,. , . '"-'^^" \\'thm the terr tor a1 I'mits of his authority, and not elsewhere (r/). ^'"''''^'^^ 4. If such Bill of Sale sh-ill K^. r«^j subjm .„ any Cefe.sanc:, t'co'di .rfo^dS.:' eion of trust not contained in Hk body thereof such deleasance. condition ( , ), or deciaratiotLnrust sh .1 BiV,^f^s?rdlal^':^t:ef:nt1y;-'°^'-^ or parchment on which such B|i°of Sale sh-S'^b; written, before the time when the Jnm. thereof respectivelv, sha^ be filed 7h' " ""^l Bill of Sale'^.hall be null and void ioA^^./^J^d urposes as aga:nst the same persons a, d a~dt the same property and effects as if such BiM of 1 I "r a copy thereof, had not been filed .,. , '''''■ the provisions of this Act. k'l No ,4, s ^^^ '° ■■. -a. .i,.e„ ,.f,„. .. r.rr;;;;;rT::;^e,'',;t: (p) Matlicson v. Pollock (1893) 1 B C R -. i.- u 1st ed. 20. yj/ J o. «.. K. ^4 ; i.,sher on Mortg-ages, (q) i5w£r« v./oTJ/f//' (189s) 4fi C R ,,. ,«■ 3- ; Meek v. Ward, ,0 Hare 709 / ^e^na Tt'' ''"'"' ' ^'^ ^ ^• ^95 : E.V parte Johnson, 50 L. tA^S^T^ -''^'"^on, .7 U. C. C. P. 1 9, '1 resaid, is filed elesewhere^han in a iTHd Registry Office a .luphcate thereof (dt.iv certified as m lorm 3 in the Schedule to thii Act) shall be forwarded by the first opportunity, free of charge bv the person in whose office it is filed, to the Registrar'- General or in case the office of such pefson is within the limits of any Land Registry I) strict for he time being established, such duplicate shall be forwarded to the District Registrar of such District to be deposited in his office. R.L. No 14. s ^' [As amended by 1895, c. 2, s. ->]. " '^' 6. Where a duplicate of a Bill «f Sale, or copy thereof is required to be forwarded by the officer fihng the same to the Registrar-General, or a District- Keg.strar, the person requiring registration shall furnish such dup _cate at the time of his application for registration. [Amendment of 1895, c. 2 s. 4] 7. Notwithstandinganything in this Act contained. , u-,, /!.?^^'^"t compliance with this Act if such Bil of Sale of personal chattels, when executed on the Mainland of Bntish Columbia, and east of tlie Cascade Range of mountains, be registered (r) Matheson v. Pollock (1893) 3 B. C. R. 74. (s) Doll V. Hart, 2 B. C. R. 32. i .:i .. i condition of !s void under a promissory t was admit- 1 that it was ga(,>-e should itten in the ereof, with in a Land :ertified as ) shall be charjre, by Registrar- person is 'istrict for t shall be 1 District, 142, s. 3. , or copy- he officer District- ion shall ^plication J, s. 4]. ontained, s Act, if executed 1 east of ^gistered cox. ACTS 188S, (■. 8. I J7 j(J, S. ^, / vji i ' W. District Registries. 8. ^t -^hall be lawful for the LieiitPn-.Mf r ni-Council. from tinie to '-/^^^^^"^^"'^"tGovernor- justices of the peaie XV rtt''^'7"'' ''" "^^'">' •"ag.strates in this Act- u !n.h i '''-*"'''^^''>' Governor-in-Council may prj be^ I--Utenant- Districts of the Province vli.^; u l ''""''' ^^ ^^e 30, S. 7. "JWC.-5. lc>/3, i\o_ 9. Notwithstandincr anvthin-.- 1,.,.. • 1 r tained. the I ieuten .nt r '^ "erem before con- rron. time to ti^e r ", o ^l''''^^''^--^'^^'^^'^ "^^^X Columbia Ga.et;iefinJn 7:'^"" '" ^'"^ ^^"'^'^h districts, and an, o u rn- '"' ""^^^ ^° time ^-ary tricts, bv whom i, ;f ■■ '^"2""'^ ? ''^"^^^ ^J'^" may be filed and eii tere ""'pf ^^^ ^!''"^- "^ ^ale proclamation, all Hmsof S.I ^S"" Z^"^' ^^'^^^^r such any such districts vhchL;d^hf^:'^■^^ K'^'"'''^- ■" elsewhere filed shall be fie ^' ^"'"^tofore have been district office. [Amendm^ 0?'^!' ^^V- T' reist'er'^sI.Hr ^Tf S^;''^'^'',";-"^' ^^^'' ^^^' -^ thereof to the Reg^trnr Gen" ^'^^^^^^^^ Land Registrar ofTeois^^;;^^ "M'^'^'^' ""^ ^^^ is situate^-n like n.anner a i' '-^/'^ •""^'^ ^^^^^ 5 and 6 hereof CAmendnren: /.f Ts^t c '^ ^1"^ or^^is^ct ^e^'^il-^^'r^!^'" ^^^ --"^? executed uuhm the New Westminster t 12H HKITISIl lllMMIlfA. I Land k(.tr,stry District, and affecting property therein, it shall not he necessary to file th.- same or a copy thereof, with any other officer than th.- Deputy- Re-istrar of that District; hut such liill of Sale, nr true copy thereof, with tlu" affuiavit, shall be filed in his office, and it shall not he necessary to hie in his office more than the original I'.ill of Sale or a true copy thereof with affidavit, hut otherwise the conditions o this Act shall h(= complied with and govern such Bills of Sale. 18.S5, c. 17, s. 3. mi ^'cT ^^'9 "^ ^''^'' ''^ •'^-•''•'^^'"•'' chattels, "being a Hill o Sale of personal chattels within the meaif ino of this Act, which hereafter shall be re-ristered in accordance with the provisions hereof >hall sub- ject to th(^ provisions hereof, have and take' pre- cedence and priority over any unregistered Hill of iJale of the same chattels. 1873, No. 30, s. i. 13. Where two or more such Bills of Sale of the same personal chattels shall be registered in accord- ance with the provisions of this Act. the said Bills of Sa e shall, as between themselves, have priority according to the times when such Bills of Sale respectively were made. 1873, No. 30, s. 2. 14. The registration, in accordance with the nro- visions of this Act. of any such Bill of Sale of ner- sonal chattels shall, from the time of such reeistra- t.on have the same effect as if the goods "and chatte-^s assigned by such Bill of Sale had been bona fide delivered to and retained by the grantee or assignee under such Bill of Sale. 1873, No. 30, 15. Nothing in the three last i)recedincr sections contained shall afTect or apply to' any BiiT c^f S" transfer, or sale of personal chattels, when the property <^' siiiiu;, or than the ich Hill of it, shall be •cessary to 11 of Sale, otherwise )h'ecl with 7. s. 3. els, being he inean- renistered 'hall, sub- take pre- :d Bill of s. 1. ale of the n accord- :aid Hills i l^riority of Sale 2. the pro- e of per- registra- ods and ad been grantee No. 30, sections of Sale, len the CON. ACTS 1S8S, c. H lag gr.intee. assignee, transferee, or vendee sh-.II Iv such chattels bona fide deliverocl to h]n^u . L • '"' ;;j;makn^ such Hill of Sale, trans^r.t^s:ie'",;;;V; Quiuqiiennial Renewal 16. The registration of •• n;n r - , ^l"ri„. the suliistenc ™f uch sec riev h"'''' ■'''^'"■ of five years, co„,„Jn™;^ ^^ "^ ,'" "f V \":"od cease to be of m-.' M-' t,^ "'^"":'""" »h„ll period of five y,,-,r; durin r wi I "^1"™'"" "f :my been ,„ade as here'.- r e " ,;«! "r TT.'*'^'' ''•- ""' renewed '^yZ:7^™;f" B''" "f Sale shall ,„. magistrate, or other person as ■ fr. -j '^''P^'^^l'^iry •stating the date of sucTliill of S- r"^' T" ^^'^^^-'^^' resKlences, and occupatfo of the r'r' '^''' ''''"'''' thereto, as stated therein m ! '''TT'' P^""^'^^ registration of such h'i of S I ''^ ^'^^^^ «^ ^'^^ of^aleisstillasuli^X^e^rhv '^^^^^ strar-General of Titles of sr'n'' '^"'' ^'^^ ^^^^'■- or other person as aforesJd sffi'"h "^' "-.^istrate. such affidavit, r-;nd re m mlu ^'^^-'reupon number ■Sale or copy 'file in the saM '^ ^''•?'"^^' ^^''' -^ number. R L. No! ,42!s 7 "" '"^'^ '' '''^'^^^' RiH^'^f^cT^ affidavit renewino- the reo-fc,,- ,,• ^'1 of Sale may be In the form T " ''^ '^ Schedule to this Act and u- . T"'''" '" ^'^e filed in the office of the ti en'l' '"'^ ^'^'^'^^^''^ '^ • ^roresaid.sha,,\eerr-S^;t\r:;;o- 1. 11 Iv 130 BRITISH COLOMBIA. ^f ' tunity by the said magistrate or otiier person as aforesaid to the offke of the Registrar-General to be there deposited. R. L. No. 142, s. 8. Satisfaction. 19. The Registrar-General, and every stipendiary magistrate and other person so appoin'ted as afore- said is hereby empowered to enter satisfaction upon any Hill of Sale, or copy thereof, upon being satis- fied that the debt (if any) for which such Bill of Sale is given as security has been discharged, upon nav- ment of one dollar ; but in all cafes where ^ the consent of the grantee, assignee, or mortgagee has not been obtained. satisfViction shall not be entered without an order from a judge of the Supreme or t-ounty Court obtained for that purpose R I Nn 142, s. 12; 1879, c„ 1, s. 3. ' ■ °- 20. Whene^'er any stipendiary magistrate or other person thereto duly authorized, shall enter satisfaction upon any Bill of Sale, or copy thereof registered in his office, he shall forward a notice of such satisfaction, by the first opportunity, free of charge, to the Registrar-General ; and such notice shall be m the form E in the Schedule hereto, and the Registrar-General is hereby authorized on receiving such notice, to write the word " satisfied " on the duplicate (of such satisfied Bill of Sale) deposited in his office. 1873. No. 30, s. 6, part. Affidavits. 21. All affidavits required by this Act to be taken . and made may be taken by and made before the Registrar-Ge.eral. or stipendiary magistrate, or other person as aforesaid, or by and before any judge, reg.st.ar. deputy-registrar, cr clerk of a court having a seal, or by and before any notary r person as -General, to stipendiary ed as a fore- action upon 3eing satis- Bill of Sale upon pay- where the tgajree, has be entered 'upreme or R. L. No. istrate, or ;hall enter )y thereof, notice of y, free of Jch notice ereto, and )rized, on satisfied " of Sale) , part. ' be taken 'efore the trate, or :fore any rk of a y notary COV. ACTS 1888, c. 8. public practising within the Province and if ''/ 'lftda^•Its are made without the Pro?/ u ^""^'^ affidavits may be tik^n K 7°^'"^^. then such ■ -\->^P^blic^.ractisi\r;s'udrnX'%'^^'^"J^">' •such affidavits are take^n or made R f M "'^^'"^ -'^- II ; 1888, c. I, s. 2. • ^- ^o- 142, Office Regtihitmts. 22. The Registrar-Genpril j mao-istrate, and other person -,. f. , •'^VP'^"^'''^'T every Bi,l of Sale, l^l;^f^t^f, --^ inventory as aforesaid nnH 7 ^chedule and every affidavit of renewlT filS'P w'^ ^^^P^' ^"^ numbered ; and shall keS , 1^,1'" ^/' ?'^^^' ^^ be he shall cause to be entered a nun " •^Tr^' '" ^'^''^h ■such Hill of Sale, and copy Cl ^ 7'^ •' ''^^ ^^^^^''^ containing therein the nam^ I ''^'''' °^ '"^"ewa], tion of the person n 'iking "o^' ^t^ ^^"-^-'P- •n case the same shall be made ? ^^ '^^"^^ '^ "'"' person under or in the exec„K. r 8^'^'^"" '^y any •said, then the nan.e addittn " f^ P'""^^'^'^ ''^^ afore^ person against wh om t 'rroc^:^ S[r''^".«^ ^^e arid also of the person to vihom or n Y"" T''^^^ the same shall have been i; "^^""'^ ^^^^ur the number affixed to the sd Hi "V c^.^'^^^^'' ^'^h or affidavit of renewal as afn. } ""^ ^^^""^ «>- ^opy, the said Bill of iZ, o t^'tk l\ '" ^'^^^^ '^ t. on thereof, and the date of [he fir ^ '^ '''Si'''^- affidavit of renewal and all Zrh !"^, °^ ^'^^ ^aid entered according to the form D^''''"'^^'"-^ ''^'^^'^ be dule to this Actfand the sak ^^r"^ !" ^^e Sche- o^ Sale, or copy and aff^daWtfi^cN''"/^ """''y ^^'" be searched and viewed by . 1 n^ ' ''^^^'"^■'^aid, may able times, upon payniem Z^ '''' ''' "'' '^'''oZ feeoftwenty-fivecen^s R I T'^' '^^^^^^h of the c- I, s. I. • -^' ^- No. 142, s. 9; 188S, M III '^1 f 4 132 BRITISH COLUMBIA. 23. The Registrar-General, and Stipendiary 'mae- istrate, and other person appointed as aforesaid, shall keep an index book showing in alphabetical n-t' Ic i"''"""? ""• f P^''^""^ """"^''^S or giving Bills of Sale, and ot all persons against whom procesl shall have issued as aforesaid, together with a cross reference to the volume and folio of the book directed to be kept as in the last preceding section of this Act provided ; and the Registrar-General shall also keep an index book, in manner aforesaid, of all duplicates of Bills of Sale, or copies thereof, and ahidavits as aforesaid, transmitted to him as herein- before provided. R.L. No. 142, s. 14. 24. The said Registrar-General, and every sti- pendiary magistrate, and other person as aforesaid shall be entided to receive for filing every Bill of Sale, or a copy thereof, or affidavit of renewal as aforesaid (inc uding the taking of any affidavit) the sum of two dollars and no more; and any person shall be entitled to have an office copy or an extract of every Bill of Sale, or of the copy thereof, or of an affidavit of renewal as aforesaid, upon paying for the same at the rate of twenty-five cents per folfo of one hundred words. R.L. No. 142, s. 10. 25. All moneys, other than charges made for taking and urnishing copies of Bills of Sale, affidavits and other documents (which shall be retained by the person taking and furnishing the same for his own use) received by the Registrar-General and stipen- diary magistrate, and odier person appointed as aforesaid, under this Act shall be paid into the Treasury for the use of Her Majesty, her heirs and successors. R.L. No. 142. s. 13. idiary'mag- > aforesaid, alphabetical or giving lom process vith a cross 'ok directed ion of this il shall also 5aid, of all lereof, and as herein- every sti- aforesaid, -ry Bill of •enewal as idavit) the ny person an extract f, or of an ng for the )lio of one made for affidavits, ed by the r his own . d stipen- iinted as into the heirs and CON. ACTS 1888. C. 8 THE SCHEDULE. Form A. follows:— ' °^ '""^^ oa^h, and say as every (or, where the orilrl) I ^\ ''^^^'^' ^^"^ o^ Sale, and every ''rschfdl Z^^' '^ ^^e Bill of annexed, or therein referred to TT'""'^ ^'^^'''^^° tion of the execution threof'aTlaH'''''^/"-^^^ and executed by ' ^^ "'''^^'' '^"^ given, the ;,Xf " "'^ f*'" °f Sale was „,ade and given by year of Our Lord One ,h„, ''7 °!' , • '" "le and "'"= thousand eight hundred in the^^afd ^m^J^T '''"^.'^"^ -^<^ 'he said ■•s signed the'rl-'si-^f ,„"^rerc:fe Th'e "'°^^ "^'^ said day of in tlf ^^e same on the 4. Thatthe'said ^ ^T ^^T^' and giving the said Bill J o, ^'""^ ^^^he making resided at '^ and t en w '' T''^""'^ ^^"^ ^^iH c Tl. . u ' ^" ^^^ ^^"d Still is , 5- 1 hat the name . .. , the witness attesting the due evprn? ''^'^-^^'''bed as jHe,™,.Hand.rit^,gor:nS™try;^°f day o^"''^"'^^''rb^",i,-°-^berore„,e this • K.L. \o. 142, Sch. # 134 BRITISH COLUMBIA. Form B. I hereby certify that the document hereunto .n A. B. To the Regis.rar-Gene'T"*'"'"''' *''^''""'' R.L. x.o. 142, I Sch. Form C. bearing da.: Ae ka^ oT"^ "",1 ''"' 1 '^!f' ■ r/r r .• '^^ "^''l^ said'B lloflaleT'; and a copy of which said Bill of Sale " ^c- /I. 3 magistrate. .. ), ,,„ ^^^ day of ^ f8 -and IS still a subsisting security. day o^f"^^^'''^;^^g^o> ^^"J ^worn before me. this R-L. No. 142, Sch. CON. ACTS 1888, C. 8. 'J3 Form D. ereunto an- [or, "of the '■y be) and of day ate iill of Sale, , and made f Sale ipr, as the case Registrar- stipendiary of ns B. 1888 c. I, s. Form E. To the Registrar-General • T.ke_„odc= tha. a Bill of Sale beanng date .he of ' , ' "^^'^'^^ between • 1 . and r>f m consideration of the sum of $ hn= 1 ' satisfied, and satisfaction thereof was dni, ^^"^ by me. on the day of A D.^is''^' A. B„ ' Stipendiary iMagistrate, etc., at ^^li^ No. 30,' i n. fl '^^ BRITISH COLUMBIA. STATUTES OF 1K»2. Chapter 3. An Act to amend tlie " Bills of Sale Act." i^Srd April, iSgi."] affectino- pr , ertv nn fK« ^"-'^-wt Victoria ; if Colun.b\La:i;L-nTny'Distr rK ""l^ established under this Act hv fi^ ^ "'"^ ""^'"g^ office of the Reo'strir of .h^ n "^- '^^ '^"'^ '" ^he nron^rf,. A" ^^^8'^'^/'^'^ ^^ ^he District in which the the word " nrocess i^f ? ' ■ • ^>^ '"^erting after the words "or of t h f°'^' ''"^ °^ ^^^'^ ''^^^tion. amended by tSp'^c^'^s'Tf"' °^ ""^^^^^S-^'" ^^^ Jf e Act." and co?''- Province is hereby "lading" the said be taken s hereby follows," lusive of inserting perty on le office oria ; if British le being e in the lich the )roperty umbia;" in the against 5d faith g after section, " [As -^ 1893. c. 3 ; 1894. c. 2. STATUTES OF lyya Chapter 3. An Act to amend the " Bills of Sale Act." AaAmtdtnt'Z'rs^r " "' " "'"s of Sale 2. Section 2 of cc Virtr^,-;^ i ■• An Act to iimend the • Bills of q^'l''*' . ^..intituled amended by striking out tie S'".nH "^^^''^ district for the tfm^ K • "^"™-^ -ma within anv Act," in linl 5 ad 7 oTlldTf'^'^^ ""''- A's in lieu thereof the wo°ds with "i'' 1"'' '"''="'"'? ,^^,.Ke.ist, Di. ■f./;^'r;i*-s:ts.i' STATUTES OF 1894. Chapter 2. An Act to amend the ■■ Bills of Sale Act." H ,, . ^'^'^' ^P"'. tS94.-\ sent :f ST'igisttiTeM"' '^f ^'"^'^ »<^ -"" of British c„iuSa";;:cfs^::7d'iL°/. *■= '-'•-- Ac't-A™ndt'„t1?t,'rS9t"' " *' '■ ""'^ "' Sa'e 2. The " Bills of Sale Art " i. u , by striking out subsect oiW^ f "''^^' ^'"'ended -d insert'htg i„ heu tCo/l^Ur"- -""-f 138 BRITISH COLUMBIA. Ii funds, or secur ties of inv Tnv, .^°'-'^' capit-'il or property of .nv;L"T"'' «•" '" ^^e ought not to be ren,o>ed from a v f ,rm wl "'u'' same shall be at the unu- J,Z T • ^^"^ ^^<^ such Ml of sale shir ot be rme? Z f'"« °' STATUTES OF 1895. ClIAI'TKR 2. An Act to amend the law relating to Bills of Sale. [2/s^ February, iSgj.l 1. This Act may be cited as the "Bills of c;.!^ Amendment Act, 1895." ^^'^ 2. The expression "Bill of Snl^ " k • ,• Ac. t^he^ meaning assigned ^1 ^t .h^. Bills'^^f 3. Section 5 of the •• Bills of Sale Act " is hereby tures, or any icles capable >e deenied to 2 meanins^r of Utel interest :i the stock, It. or in the r joint stock any farm or ' agreement, 1 where the or giving of to be or to i^" of such deemed to any of the ing to and con- Province s of Sale 5, in this "Bills of is hereby 1895. c... ,,_^ ^hT;:^''.™' "'^ f"""-"*^ -"i- is substituted -shall be forwarded hv h fi ^^chedule to this Act) person is witliii, tile linii , of ,n i ''^,'"'°' s"<:h District for the time bei n ' e fn'h7,,^"'' ^"^^''''y ctte .shall be forwarded to'^tl'^t'ricf'ir''' ''"''"; such District, to be deposited in h'isoffii'^«'^'™^ "' 4. Section 6 of the " Billc; r^f q. 1 ^ .... repealed, and the following sec^H" '.'''"'I')' therefor: ^ section is substituted "6 Where a duplicate of a Rill r.f c i thereo is required ^o be forwan^led bf th "' S,""^^ filing the same to the Recristr.r r. ^, ^^^ °'^^^'* trict Registrar the Zr. ■^'''^' ""^ ^ Dis- tion shall fu nisi such d^n/'^"""'"^ .'""'^ ''^§''^^'-- application for registr'uion ^''""' '' '''' ^'"'^' ^ his 5. Section 9 of the " BilJs of SiIp A.t " • 1 , S^S^'; -'^^^ snowing sSlfsJL?--^ tai^s, "^hf LS:t'::^,^;;>-^'-^^ h-- from time to dmrrnroH ''''"°''"'".^^""^'' "^^^v Columbia Gazette define T^r'"'" '" '^^ ^''^'^^^ vary districts, .u d apoo m n ^'^^^ ^'"^^ ^° ^'"^e districts, by whom nn^r uP °^''^'' P^''-'^^"^ in such -ay be file'd 1^:^ 4^,^^^ "«^ces Bills of Sale proclamation all Bilfs of S.1 i"""'- ^""^ ^^^^'" -"^"^^h any such district which l^ul!? t^tXTa^^^^^^^^^^ m w .1 jl Mi SI i 140 BRITISH COLIMHIA. ds^wherc fi'ed shall be rtlf-rl r,^A Distrfci Office." ^ ^""^ registered in such 6 Section TO of said Act is hereby repealed and the following section is substituted therS ' re;ist?r^r^.^"^T;2c^rr ^^'^^-^ thereof to the Regi;;r:;^'Gen:r;/TT' lettX^ i/il^lT nr "' ^'^ ''■^^^•■^^ '■" which sucS'Uce and 6 hereof ''^^ '"'^""" ^^ '^ P^^^^^^ - actions 5 shJl];;;!r;t^'resi"?vTn^h'^" ^° the contrary, it "V ^' iiecessarv, in the case of R Ic ^f c i gate wnich have a reostered h^^cri ^cc ^?. ^ place „f business i„ BriiirColtbia^t'^c ch/BM pla?;;?b°tssTs I'a e:r.hett:f,he" t'^' or g vincr of such n;il r c i ^ , * ^"^ making duplicate .her.'f, du^ tnified a „'"for" B ^ th^ in h^ a, e. "' " " '='""'"=• '° '''^^ *P°-'ed tfrl'i I'"' ■'"'''''"''' ''^''"''■<='' 'O be made and r.-eis- nZ clsrZV °' '" "™^ °f Sal-^ Act" slS , whohasorhav. .. STh Bi.rof llfo^Sf # red in such 3ealed, and )r : til file and duplicates le.s,;;or the such office sections 5 ontrary, it lis of Sal? )ns aggre- e or chief It the Bill the Land - or chief le making tiding the 11 <'f Sale limits of :h case a B in the \' the first in whose ie district lentioned :leposited id n-gis- :t" shall, s aggre- persons )n behalf 1895, r. 2. •stances of the case shall ,>ermiL _ ^' '"''"'^- " Bills -OF Salk Act." f'or a Company or Corporation. I r or Director, or as Ihc case ;Jif 2?'t"i' ^^''^'^'y company or corporatiZ) Se '/ 1u '^\^"^'''^<^ 0/ follows:— ^' '"'' "''^h and say as (or ,v/n„ an orMnaTsTj J" }^''^ °, »"!'-■. ^"d of of .S.Ie to«e,hc? ^Uh ' Wvl'ct'^ f"' ■ '' =' ^'" .1>Y«" -.-.xeci or theii" Serre Ho ;':;T""°^y and executed bv the s liH ,,, ' ' ™'*. Rnen as 5//.!;:: irA-f Tf'drr;.id7"""" °''^«'- <- <",'"). being duly a'utl.o , '^fiX'd'T £' '?^''"- 'I the sa d (comnanv nr rnJ^ • \ "' •^'''•'' '^"^ seal Sale, clid'sign^e^l^rBTirof's" e'°,fAp-^-''^', '^■•" ^' rct.iry or Director -);- ./c // (President, said (co.npany .r como tt on TrT"^ ''^'^ "'' ^^e the said Bill of Saigas the "r; '"1 f '^.^^"^>' ^^^'ver (J-Pany .- corpot:tS.^r ?^r' '^1;^;^-- or'thJtid'(c^:;:;i°f:;^^-^ place of business Columbia is i'tua^ a Ue^X^T^) '" ^^^'^-h Province. ' ^-/ ^">'] 'n the said 4^ i4a BRITISH lOM MliiA. STATUTES OF Is{m}. Chapter 3. An Act to further amend the " Bills of Sale Act." 117th April, iSg6.^ Her Majesty, by and with the advice and consent ^'- I.ej^rislative Assembly of the Province of of the i^cj^isiaiive r" „. British Columbia, enacts as follows:— 1. This Act may be cited as the Amendment Act, 1896." Bills of Sale 2. Bills of Sale affecting property situate in the e ectoral district of Cassiar. may. in lieu of beint- filed in the hrst instance with the proper officer in the District, be filed in the office of the Recnstrar- Genera at Victoria, and a duplicate shall be fur- nished by the party applyi„o- for registration, which shall be forwarded to the proper officer in the District. 3. Any Bill of Sale affecting property in Cassiar electoral district which has heretofore been exe cuted. but the registration of which within the time and in the manner provided by law has been pre- vented by distance, may be registered as herein provided, and, upon such registration, shall have priority as from the date of such registration Is of Sale (. i8g6.'] nd consent rovince of lis of Sale Jate in the of being ■ officer in Registrar- 11 be fur- on, which ir in the n Cassiar een exe- the time >een pre- s herein lall have 1. Mamtora. 1>^JM, KRVISI'I) STATUTHS. ClfAI'TKK lo. Vn Act rcspcctin<. m\, .f Salc and Alort- y-ig-es of Chattels. \fn force 2ot/i Apnl^ ,S,^2.\ S. I . S. 2. Ill SIIOKT TITI.K SALES _ " " " In certain cases to be writiii},' and filed, s. .^ MOkTdAGKS Mortj4;ij,re of chattels to 'be filed with certain affida- vits, s. 3. Growinjr and future crops m;n be niort«-aj,rod, s. . Mort^^-,^res to secure future ad\ ances, endorsements &c. , s. 5. Assi^nimentof chattel mort- K'iitrc nia\ be filed, s. 6 '>rs«HAKGE OF MORT(;A(;f Jischarfre, Fomi of. s o i'-xccution of dischar^re to he proven bv affidavit s. 10. KESCKin-ION OF (JOODS ' Tlie instrument to contain V " ' tull description of ^roods &c., s. 12. ■ ' OFFICEKS TO TAKE AFFIDAVITS MLING VVheretobefi'ledVs'."i4"" Duties of Clerk, s. i. EVIDEN-CE Certified copies ' with' "ei," dorsements to be received as evidence of filinq-,s , FEES OF CLERK Mort^ra^^e filed to cease to he valid unless renewed withm , todays before ex- P"-at,on of two years, Nextofkin or certain others can make affidavit, s. 8. ' Discharge to have no force iMitil hied, s. I,. 12. S. 13. Clerk to certify discharje- formofcertificate, s ,6 S. 17. •s. 18. rf* 144 MANITOBA. SHORT TITLE. Act"7if '^''^ "'''^ ^"^ '''^'''^''' "'^^'^ Bills of Sale On/ario""' ''"'"'' " apparently framed after that of In many particulars there is not a verbatim similarity between the statutes, yet the legishaion so tar agrees tha' we :.: o:t:H;tt"^ ^^"'^"- --^^^'-- - ----S-: 1 Sn/cs. m5 ^''fy^^^'^^e of goods and chattels hereafter made in the Province of Manitoba, not accompanied actual and continued change of possession (i) of the goods and chattels sold, shall be in writing and such writing shall be a conveyance unde he'l^ro v^.ons of this Act, and shall be accompanied by an amdayit of a subscribing witness thereto of he due execution thereof, and an affidavit (2) of the bar gamee or h.s agent that the sale is boni hde nd fo; valuable consideration as set forth in the sad con enSlirf/t^ l"' '"^ '"^ tie purpose of'hoJdmg^o; dK^^n^ic hi^7""'' V ^^"^^'/'^^ ^"°^^ mentioned tn(.,cinaoainst the creditors of the bartrainor • and such conveyance and affidavits shall be fi ed ^s hereinafter provided, otherwise the sale shall he absolutely void as against the creditor of he bar ga.nor, and as against subsecjuent purchasers and mortgagees m good faith tor valuable con kkration hlironlv^aff'?' 'T' \'^- ^"^ -^^ -"--- sliaJl only affect such creditors and subsequent pur- e and con- Manitoba, ills of Sale er that of n similarity rees that we nnotation of hereafter ompanied ed by an (i). of the ting; and the pro- ed by an f the due the bar- 2 and for said con- )lding or entioned lor ; and filed as shall be the bar- 'Crs and deration veyance ent pur- R- S. M. 189,, f. 10. chasers and morto-a(>-ees frnn^ -.nri . '''''" ^^^ h'^d -oulcl operate i^ lau as a ' ' '" ""' '"^ '^^''■^■'^'■>- "'^''^h passing by delivery. :«;:;:,;; :r-:5-';capab^^ ance or a prior defective parol contract . '"''"''''- iHe case o( Jacksoti v. h\,„t nf \' \' ■ f- 75. is distinguishable fr^ tt m::;"!''"-^''^;^' ^ '^^^"■ former the connection of the vo 1 ''^"'^'^'-"'■'^'°". ^or m the sale ceased entirelv ^^^U, e " ^^ "' '" ^'■^'"^-^-" "^ sale, and the subsequent ctf /.''. "'" agreement for sion u-as not such ^^ u , v T"''"'"' '" ^"^'"^ P— " mi.ht be re^rred to a ^e:"' .:::;:^"r^ ''''' ''' '^^'-^--" -ado between him and t ^ve^o H^'^ ^^^ ""-■ ^^ ''"P"'^^'>' ^""./W, 8 A. K. 5„s. ^•'' •^'•"■•' '- 378; and see Da„/o>-^ y, "M-.R.3,,. ^' ^^-t-'-.S...: T-.,.-/..^/,,,,,. ,r.V,,(,8,5> 146 MANITOHA. ^7-;; 7 ^--' (1897). II Man. R. 409, is authority for the rule that notu.thstandin.^^ an ante-nuptial settlement made by he husband, mcludinj,^ the household furniture in question ;n tavorof the mtended wife, and the furniture having, been .n use Ml the house occupied by the husband and wife since he marnaj^e. the possession must be presumed to have been h.s and not hers, and that there was no change of possession .it the marnaoe. It n,ay be doubted if Bnn.u v. Peace correctly deades the law. In that case the husband, j before marnage, executed an agreement to convev a! his property to the mtended wife forthwith after marriage, to pav he expenses of the household, and to make certai other transfers w.thu, five years of future acquired property of a fixed amount, wh.ch the ' court seemed to conskler as' prac tically a settlement of all his after-acquired property Tw" .ears later a bill of sale was made to the wife, ."hen ^ husband was adm.ttedly insolvent, to protect her as a creditor the furmture conveyed having been from the time of the' marnage m the house occupied by them. The court (Tavlor C. J Dubuc and Hain ]].) attempted to distinguish he'cas^ as to sufficency of possession from R,nnsay ^^ Jfanr^.t) where .t was held that the wife, who had purch/^ed ht furmture from her husband and paid the mone ■ therefor lad e lyal ftle and possession sufficient to take ihe ca!^ u :^ the .Act. The ratio decidendi of /Ramsay v. Vanrn-// .v. that the situation of the goods being consist^^T^ur t^^: being m the possession of either the husband or the wife the aw wo. d attribute the possession to the wife, who had 1 egal title. That may now be considered as settled hw -,nH ^ IS submitted, was fully applicable to the fact Z'Jv' Peace. Marriage being a valuable consideration in' law h; settlement should have been supported, in the e c'e of evidence of fraud on the part of the intended wife u .- found not to have been a r .ty " to the intention to om"! a fraud on the creditors," and her le-al ric^hts .h , . have been a«.cted by a finding of f;aud t^.g; d^ h^ authority for tlement made ■e in question, liavinj,'- been nd wife since to have been ot possession 7f'w \. Peace lusband, just 'iney all his riag-e, to pay :ertain other roperty of a Jer as prac- perty. Two e, when the IS a creditor, time of the 'urt (Taylor, ish the case Mar^i^n'tt (e), ■chased the lerefor, had case out of irffreft was with their ^e wife, the ho had the d. law, and, 1 Bfo'ivii \\ ill law, the absence of e who was to commit should not gainst her husband and wife considered that st " ""' ^'^^ ^^'^^'^ thereof in possession of th:!^^ . ;Ti '^^^^ l'^ '^^^ where estoppel arises if tl^ . Val • '"'' ^" '^^ evidences not onlv a nresenr . , " "•'^'^'^' "-^-'^'h ha.-,.ainor " hath -bar.C S" 'i '"' '"^'^^ ''''' ''' "by these presents doth b r^m ;," "■'^'^"'^'•" "'^•' ^"^ i^) '^hesi^natureofapersonha .'; r*^'" the oath is an essential part „r^r;'^°^'^>- ^« -^minister inadvertence, the Commissione had omtri' ""' "'"'■^' ^>' copy which was sent for fili„./;j't7Tu '" "^" "" ^^e instrument was held invalid a: ^^'''^ '^' '""^ ^^'^-^ the ^3) Mr. Justice Bain, in ^S^^rr^r^^^'^"- ^Z^- Court m na,;,,a,, ,. ,^,,,/,,^^^^ ^...u.;':,;-^"'^?;"' °f 'he to no other conclusion than that this se v ' • ''" "'''"" and true consideration for wh Jh bi K, '::, "^""•.^■'^ '^^ f"" set out in it with substanti-d a,--, ^ '" ^''■^" to be out. the bill of sale is vdd ' '' '"'' ''' '^ ''^ ^^^ - -t ..^:,^:''"" " ^"^-^^ -^^ approved in ^.^., ., (4) While under the Ontir,-^ \ ^ he sufficient to sustain I ^ of Talelt m'^'f --ideration will be a :vr/,v.M> one. The cons dlt' • '"'l' ""'^'^'- ^'^''^ ■^-'^tion, affectionwhichaparent h::to r'^ild ;"""' '"^ ^^ of .s relatives, is a^.^ considerluc:;!: '' ^^ "" '^^'^ ^^ ->■ (3) Without actual notice." h will h. u these words do not appear in the corr. . '"""'^ '^^' . ••elating to mortgages ^^rrespondmg section three, (e) (1894) 2 O R .« . Man. K.!. ^^ ^^ '^ ' ^^^ ""^^ ^-'^ ./ B. .V. ,. .. ,,,,„^^^^_ ^^ f'') ('897) uMa„. R. ,--, ,, ,. , , I 1 48 AiAMTOHA. Mortgagee 3. Every niortgaoc (i) or conveyance intended to operate as a nK>rt,;aoe of goods anci chattels ( "Ih -re after nuKle ni the iVovince of Manitoba, which is not acconipan.ed by an immediate deh•ver)^ and o followed by an actual and continued chameo possession (3). of the things mortgaged or t tri^e copy thereof, n.ay be f^led as hereh.lfter pn.vid^f tnereto ot the due execution of such mortoafre or conveyance, or of the due execution of the m^ZZ or conveyance of which the copy filed purp rts t^ L' a copy, and also with the afi^davit of the mo tgtee or one of several mortgagees, or his or their a^en^ that the mortgagor therein named is justly .u d tm"v .ndebted to the n.ortgagee in the sum mem oned n he mortgage, thai it was executed in good Sh and for the express purpose of securing the pa • en? o money justly due or accruing due,\n- mortgaged," differ sli^.htlv '^ /-^— " of the thing-s the Ontario Act, the 1 ^ . T"''""^'"^' ^^^^'"^^•'^ '" omitted from the I'attt St tte l^ '""°"r ''" ^^'"^^ does not alter the le^al mea;:i:;,. Xr:f";h ^'1^ '"''''''''' that g-iven to the corre..n,.n.r "'^ ^"^'^^ °f ^^e sentence from The "immediate X r;,T.r;7 '" ?' "■"»"" ■^-• possession is Ihe conseoULT,,-,. „f „ " ""• "^'^ olwnKe of bo,h are one and .he sZe n:,;!;'!.;™"""-^- ''"'"'' '"' (4) It has been lielil i„ .\la„i,„|,., ,,,,„ „ , .. , ■sgood ,l,„UKh the „-„rd " hi , • h i'"""*"'''!-'' »ion of the affidavit of b„,,a ,« , ,, ''! ""'""-"' "' ""-■ '«"''»- ties are the other „,„■ (rf, "■' """™ """'""■ to.^ei::r.h?::^s:„T'""" -- •"•" "- hee„ med The former pr^i i ' , :™'"'':'r' "."T' """• -«"..".-»» ,.otX^:Z-l---;-^™.e /w. ,„,,„. ,, „„, ,,„;„*:;■ -X:-^^." ./'»'v..r ... .„„,.„,„„„. (c) Vntario Bank v )//i,,.^ \ . , (d) A'.^„,/..,, ;:,:'{;;";;^'-'"""- •^'■">- k.. Temp, u-ood. p. ,6.. i.^o MANITOBA. Still shews the intention that the affidi the ivits are to be filed ivifh iortgaf,-e ni manner similar to what is required in the case of a bill ot sale under section 2 [c). (6) Chattel mortj,^af,'es take effect onlv from filin- as ag^amst executions, creditors and subsequent purchasers'" and if the mortfrage or affidavits filed be defective, the mort'i,rafre does not operate to pass an interest in the goods ( /). (7) The notice of the prior unfiled mortgajre does'not pre- vent the second mort-af,-ce from beinj,- a mortj,^afree "in i-ood faith " within the meanini,^ of the statute, if the mortga-e is taken ior a fair consideration and not for a collusive "pur- pose {g). (8) A second chattel mortgage made in good faith and for valuable consideration now takes priority over a prior unfiled mortgage even though the second mortgagee had actual notice of the prior mortgage (//). But an assignee under R.S.M., c. 7, is given powers analegous to those of a trustee in bankruptcv and is there- tore m^ barred from setting up the want of registration (/) The mortgagor cannot resist a claim under the mortgage because of the want of filing, nor can his assignee in 'trust for creditors, in the -absence of a statutorv title to sue as representing creditors [j]. (2) In caseao-ranteeor morto-aoec; under section 2 or 3 ot this Act be a corporation, then the affidavit ot tjona holes, required under such section. nia\- be made by the- jjresident or other head officer o'r bv the vice-president, manaoer. treasurer or secre- tary ot the corporation, whether the same be a (e) InmuH v. Rao (1.S95) 'o Man. K. 411. (f) Massey v. Clement (1893) 9 Man. K. 359. (g) Roffs. Kn-cker (,89., 8 Man. R. ^jo.'overrulins AV«,. v. Knhn, 4 Man. K. 4,3; see also Moffatt v. Couhon, .9 U. C. K. ,4, • Tidey v Crmb. 4 O. R. 096 : MuHliinsm v. Patlcsou. 20 O. R. 720. (h) Koffv. Kn-rker (X892) 8 Man. R. 230. (i) Bertrandw Parkes (1892), 8 Man. R. 175. (j) Burlandv. Moffatt, ri S. C. R. 76. M. i8gi, c. lo. i^i oreiyn or domestic corporation, ;i,ik1 vvhetiier such president or other officer be. or I th s pro\inct; ; and in case of a fore )e not, resident in such affidavit ni 11 corporation ly be made by any jreneral or local mana^irer, secretary or accent of the airporation m the provmce (9). [Amendment of 1894,0. i,s. i.l (0) Where an affidavit of bona fid ribed as accountant of the mort OS is made by a person pel i^MjCoes," it must be ■■■-. ',s"K>-'-^> 'L must DC shewn th.it such person is in fact an a-ent or other representa- tive of the company mentioned in the section, as it will not be presumed that the accountant of a company is its a^^ent (^). 4. Hvery mortoaoe. bill of sale, lien, chanre encumbrance, conveyance, transfer or assionment' hereafter made, executed or created, and which is intended to operate and have effect as a security shall, m so far as the same assumes to bind, com- prise, apply to or affect any .trrovvin- crop or crop to be .srrown m the future, in whole or in nart be absolutely void, except the same be made, executed or created as a security for the purchase price, and interest thereon, of seed j^rain (i); or be made executed or created as a further or substituted secijnty f;,r a debt, which, on the first dav of March tiK-- crap ot the niortoa^or to be -rown durlno- the )ear i S94 and mterest on such debt. Provided howeyer, that no such further or substituted securit; shM be vahd alter the th.rty-first day of December A.U, ICS97. [1894, c. r, s. 2, as added to by i8qo c. I, s. I.] ' '"• on uhose order the seed j^rain is supplied to the n.ortUor. and by whom the f,^rain dealer was paid (/). (k) Afassejy v. Clement, q Man. R. jjg. (I) Kirchhofferv. Clement {y^^-j), „ M.in. R. 460. Hi: I ! I IJ'i! ill '' I I: 'I' i^; MANITOBA. ^^m. (/), and the l,„erpro,„„-„„ Ac. R. s. M -8 J. S. ^-s. („,,,, docs not euro the dofert (/) A rf " ' ' Irom a statutory form is not ...... -^ ■' '' ^^ <''>'-''-!.'encc it does not alter ,I,e ellee "f 'Tf':'''"'y '""""'"""' "'.cause »eetion is partlv due to thV '"'"'"""^ ('«)• This sub- fiiiiv uuc to the decision in (V/ffhn/ ,■ r , ^ •" .«94. in >vl,ieh i, „,„ held ,h„t under t^e' .^T./"' delivery followed ya^ "e.: ":!" '■"" "' ^'" ' «'«•■"' and by this suh-section i.ust ^p^.^Z:^''''""^'-']' Other personalty not capable of cl^ tin er ^T remains unafrected by the Act (;,). ' """'"■"•■>■ The repeal and substitution effected bv this . . -r , affect an instrum.MU ...■: ,■ • " ■'^^'^■tion do not ,, q Man R ,„. «• •,. U. C. K. ,2;. ^ • '^- -^^S- Hamilton v. Harrhon, 46 K. S. M. 189I, c. 10. """ - ' -' r,. ,;;:^, x^TTv;:::^"'' as .0 >varra„, ,Ih- c„„r, in rc»n-.i„i„,/ , ' ° ""■•'r.-.i.'ea 7'" ■' '» "- "•]-.-. s «,,,i,t' „:;;'','""'"'"« chattels ca„ be asserted in inlernleider , 1""'"' creditor („). ""crpiiader afanisl a„ execution (,)) I'.vcry County CiHjrt cIcrL- ih ,11 1. or created to securf> fl.,. '^ ^^"' "^'^^'^' executed hands of Le Sff".' '■'" "^'i, "'""«»«"r. in ,he .y>i.C^e ; but such seerl ur-,;„ V •^'^'^'" """^^''t- ^-^i P-fcrential : ,S;'^^;;^^;^f^^^hall '- a rtrst tioned. [Added 1895 c 3. J '"'" '''""" '""'"" 5. In case of an a.^reement for future ad^•at.ces (o| Bank of British \'^^ii i '54 MAMTOHA. for the purpose of (.'nablfn^^'cuted m wise, the terms na ur 1/^^' P r^'T'^ ''' ^^^^er- Hnd d.e amount^ ll^bi;^ u^K^d t^"^^"^T and m case such morf,r-„i • "'^'^-^' to be created. '-•xecution thereof, and L th tffi I r" , *' ''"'^ ■.«5 forth the i'^rre, m m , mortfraKc trulv i«rtie. therl anc r\"v i^ I: t^"'" '"■'"■^■^" "'^■ liability intended ,, be ere "e I U ' T"' "' '^' and covered by st.ch ,n' r .^ tnd t^r "«r<-"'™' Sa-e is executed in l'..ocI teh ™,l f ,1;""" "'""■ Koocis and h il"„ io',;«rr "' "•"•""« "^^ creditors of the .no ^a " or io"" """""'' '\^ s^::2l;::jtdi::^:-">^^'Hr the third seedon "f thk tclbuf" ""'^ "''"'T'^ ''" .He parties thereto, o'!d;.fr:;;;:;d^;S'tlVtirof m •vs ^'^ K. S. M. i8()i, c. to. rii inj,^ tht-rcof. C. S. M '55 c- 'I. s. 63: 48 V. ;C. 49. s. 4; 44 \-. ^rclscss. 6. A 35' ^. 4 : 54 \ ., c S ■s. 2. ny a.s.si,!^rnm(-nt of a chattel mortt^rajre ( , ) may he fik-d in the ofncc in which the mortoao.. ;, f,i, , i'f»>n an affidavit of the d-u " ■-''■^^ '^ ^''^-'^1. assignment and payment of ' ^ ^ -;" • ""'^ .u,^d_ ..n t^Hn, a chattel n^o.^a^! 'l;^.:; ^;::: Mort^ra,-,re Act," shall cease to e ,Iid ^^•"'' the creditors of the persons n,!.ki ^ uie sa2 'ST"^ ai^ramst subseouenr .mrr^l-,.. ^ same, and as ^auh .,r vai^;^^^::;^!] --;;-;-^^^^^^ of two years from the Mlin- the' * i ^-^'P""'^t'<>n thirty davs next precedin rhe ••'"''''■'^' ^''^h'" term of 'two vearsn f '^' ^'•^P"-ati- ,894, c ', V ^ f ''' ^' '"' ■*"' P"' f-^' 1 iv.>_>.ut.u a statemi^nt at^ << • < -U« ■,% «>. IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 1^128 ■ 50 ■■■ IL25 i 1.4 2.5 2.2 2.0 1.8 1.6 V V] ^'^v^' ^^A"" Phot)graphic Sciences Corporation m a>^ ^>^ \\ - >^ O^ 23 WEST MAIN STREET WEBSTER, N.Y. MS30 (716)872-4503 ^t '^ ■^ i/.. '56 MANITOBA. (2) Another statement in accordance with the prov.s.ons of sub-section r of this section duv ver,hed as required by said sub-section shal be filed he t^rm ;?tv:?" next preceding the expiration of ne term of two years from the day of the filino- of the statement required by the said sub- sect on^ or such mort.^aoe or copy thereof shall cease to be I^iu^eTT '^' '■''^'''''' ^^ ^he persons making in, Tf ]'^ f ^^^^V"'^' purchasers and mortcraceef >n .^ood faith for valuable consideration, and so on every two years, that is to say. another statement as aoresaid. duly verified, shall be filed withfn t r'y section may be made by any next of kin, executor or administrator of any deceased mort^^agee or b, any ..signee claiming by or through ai^ !^::tgag;l or any next of km, executor or administiator of anv e" uu:?'^l"'-'-^ ''^' ^'^^ ^^^^'"^ «^ -^h next of k.n' Qcivit IS made by any assignee, next of kin executor or administrator of any such assignee, or by the assionee. the assignment or the several assicmments hrough which such assignee claims shall be"f led n he office in which the mortgage is filed, at or befo e the time of such re-filing, by such assignee nex of km. executor or administrator of su^ch ;ssignee i3 \ .. c. 2. s. 47, part [As amended by 1894, c i. s. 4 I Discharoe of Mortgaoe. 9. Any mortgage of goods and chattels reo-istered or filed under the provisions of this Act. or of ''The Chattel Mortgage Act "or its amendments may be K. S. M. i8gi lO. (lischarcred or partially dischartred by fil '.1/ ice '"n which tht; said '"J4' in the m()rt,i4a,L,re is reiristered cxt l«l. a certificate .si.<;ned by the said mor't ■■-cutor or administrator, or bv his or t[ or .i?cia-ee, his un I r an assignment or assignments file Ll^S^^ a ter provided, or by the executor or administruor of a..y such assignee, which certificate may be' X form following- or to the h'ke effect ( i ). "^ "- '" ^"^ fi) If the discharge be g-iven withnnf n^f i g^ge debt, ,t is fraudulent and void- nnH v • . whether in a bona f^de transact on il'o.TH '' f""'^'"' the debt as well as of the security";,;! '' '''''"''' °^' Form of Disckarae. To the clerk of the County Court'of of ^' '^' ^^"'l."^ • n , • ^'" certify that C. 1) - rece-ve the „K,ney ; and Lrruc™ ™ ^^ ^^ (P) Mauiloba ,. BMo^ (,8,^ , 4 w. L. T. 1,4. I' ]fl n\ If a ^58 MANITOBA. therefore discharged (or and that c/escnS/r;P- the chattel or chattels to be released of the Roods and chattels mentioned in such mortoa^e is (.rare) hereby released). 46-47 V^. c. 34. s. i. 10. The due execution of said discharge or partial d.scharge shall be proved by the affidavit of a sub- scribing witness thereto, endorsed upon or attached to such certificate, and the date on which the same w-as actually executed shall be stated in such affidavit 40-47 v., C. 34. S. 2. 11. Any such certificate of discharge or partial discharge shall have no force or effect, excem as betw^een the parties to such mortgage, until the same has been filed. 46-47 V., c. 34. s. 3. Description of Goods. 12. All instruments mentioned in this Act, whether tor the sale or mortgage of goods and chattels exceptmg discharges and partial discharges of mort- bv this Act shall contain such sufficient and full des- cription (i)of such goods and chattels that the same may be thereby readily and easily known and dis- tinguished. C. S. M.. c. 49. s. 5. (1) A description of goods by reference to a schedule annexed, made up in the following- form: 5 yds. ^ com. panting 2V-> yds. 'A i-.^o 3-75 2.88 ••''"'^ ^"- - - LIS 2.O8 etc., etc. was held a sufficient description, it being shown by parol evidence of the mortgagor's clerk, who had made out the l.st, that he was accustomed to making stock lists, and that the goods were so described in the schedule that business men accustomed to making up their annual sheets would have no difficulty in understanding what was meant by such description {q). ^ (q, Fisher V Brock (,89a). 3 W. L. T. 74. Per Taylor, C. J., and Dubuc, J. ; and see Hovey v. Whiting, ,4 S. C. R. 5,5. «■ S. M. 1891 Offi. '59 tak 13. Al] affid iccrs to take Affidavits. in M ^n and administered I layit:, recjuired bv this A ■initoba or bv n- an\- ct nia\- L; )e an\- of th(,' per justice of the peace Ts. .•■ ■*'■ " " ■ ■*"-■•■ \- ■ -^^ 34. s. 8 ; t(jba. C 49 V,.c. 23, s. 2 Filino^. 14. The instruments ^ r ^ inJ the clerk of the Colmu^- Court , h' "i "'-■;' V"^ s.c.n (2) where the siid """d " „d •'"^''^' '''"" situated ; and such clerk ofh ^ ^^"'"-''^ "''e file (3) all such instruuK.,,, ./r^. e^;:7;>, ^ '"r" '^t'" purpose, and shall encl.irs, ^h " u'" ^■'" '"'■« ^ece,•vin^r the same in h s ,?ffi. "'j'"-' ""X-- °f be teptlhereforLpectt t':,!?"'' ""^ '■^'"'^ ^^all therein, -or inte„din^"r"l'i;l ,''?"'" '"'^"'-*^'<-'^ ■nterest in all or anv 'portion of h" ""''""■'^ ^">- thereby, C. S M' T °\ Ptopert)- covered (0 "instruments." Tlii« ,„„ ^ • . affidavits, where it is required b Th '! '"''"'^''^ '° ''"'^'"'^^ be filed (^). ^ """^ ^-^ '"^^ •'Statute that they are to (2) The Province of Atanit^k • ,• . Judicial Districts, vi. the^W " '""'' '""^^ ^^ree Winnipeg.; the CentraUt Pon^lTpr '■ '"^^'^"-^-^ at at Brandon. ^^ ''' ^'^^"■'^'- and the Western (3) The section indicates that by " filino- -• • such instruments are to be k^n^ u ;> ^ ^ ^ "'^'"'^ ^'^at inspection by all persolttereLd. ^■'^^' '" ''' ""^'^ '^ 15. The said clerL- of ^u r- n-^'-e.er,such^ttr[,ntt'"-^,^i:;r,rt' i6o offi MAMTOHA. ce. and shall enter in alphabetical ord to be provided by him, th. to such instruments, with th er, in books c names of all the parties th ere on e numbers endorsed opposite to each name, and such entrv shall be repeated alphabetically under the name of' every party thereto. C. S. M., c. 49. s. 7. ^ Certificate of Discharge of Mortgaoe. 16. Any person filino- a discharire of mortcraoe or a partial dischar^re of mortoao;e, as aforesaid, shall be entitled to ask for and receive from such clerk a certihcate (other than the certificate which micrht be endorsed on a copy or duplicate of the morto^xoe as aforesaid) of such discharoe or partial discharge, in the form following or to the like effect : Province of Manitoba,! This is to certify that an ^°""'y °* instrument purporting to be . , ,. , , Ja discharge in fulf (or, a partial discharge) of a certain chattel mortcrajxe bearing date the day of ^ ^ and filed the ^ay of following, made between A. 13., of as mortgagor, and C. D., of as mortgagee has been filed in the office of the County Court of said County of on day of Unci, in case of a partial discharge, that the goods or property mentioned in such partial discharge consist °* (i<^scribing the chattel or property.) Given under my hand and the seal of said Court, Seal. E. M., Clerk. 46-47 v., c. 34, s. 5. K. S. M. 1891, c. 10. Ji videiice. ir,i 17. Any ontrinal instrument or a conv of ->« oncrjnal Histrument. or a copy thereof MuP^nr u^ provisions of this Act. c)r\ f 'n ^ ^h^^^^ ^a.^re Act " or amendments the eof ^/ i l ^"'*'- statement made in pursuance of sunh A "-^ ;'">^ the clerk of the CoLnty Co. r^ u er^ h ^'T' ^^ Court, shall be received in vMAnr 11 ' "^ ^^^ only of the fact that l^\^^::f^ ^"^"■^''^- ^^^'^ statement were received and Id'"' '\ ^^^J^>' ^^"^ endorsement of the clerk he C ^ n ^ r '"^^ \ ^^e on. and of no other fact • and in \\^ T^ '■^''-'''- endorsement bv the said c ler ' V^' ^^^'^^'•^ ^'^^' ori-inal this Act upon any suc^in tr tn.^r ' '" "^""'^^^-^ -^ received i.l evidence onlH hl'actT ':''^'V^-^^^'^ '^^^ endorsement. C S M r ,1 ""'■' ''}'^^'''^^ '" '^^'ch by 1S94. c. I. s. '-^l ■ ' ■ '^^' "" ' '• '^^^ amended ^ces of Clerk. en.enn^ the same in a book a "Xtsi^,f™ ' ^^ for ("J.) I'or searchin.' cirh „.,„ ""'^'^5'">:'' n'ty cents ; (^.) For copies o> w T'^'^''' '*™'y-five cents ; thereof filed tmder hi V t fi^™'' "'"^ «"''"«'« hundred words ' '^"■■''•" ^«"t» for every tiai''l/isfhTr "e 'InTtffid™-t"'? "' ''''^^•''-•K^ ^ P^r- -"erin, .he\a,„c1„ tf^e" ^.r^c^rrfift""' '"' and for any certificate of the fil , ^f'^-^^^y cents ; or partial discharcre endorl, I *- "^ "'""'^ discharge clui'licate thereof: furthetm'of", '"'' "''^ ™P>' °-- and "urintr sum of twenty-hve cents ; (e.) For giving a certificate under the sixteenth It \ .'ili Ir % ! ft. 'p. 1 62 M.WITOHA. section of this Act, tucnty-fivc cents. C.S M c 40 s. 12: 46-47 \.. c. 34. ss. 4, 6. '^^' 19. The clerk of the Count)- Court shall, upon a> nien o . fee o. hfty cc.Us. ^ive a certihcate e^- .nnorth the chattel mortoa^c-s or I)ill.s of sale re person or corponui; , ancls^jch clerk shall be responsible for th J co;rea: REVISED STATLJTE,S OF 1S<)1. ClIAi'TKk 46. An Act respcctin^r Distress and Extra- judicial Sei;^ure. \In force 20th April, i8g2.'\ 11. No person whosoever makinir any seizure under the authonty of any chattel '^nortoaoe 11 of sale, or any other extra-judicial proces.J whatso- ever, nor any person whosoever, employed in any manner ,n maknig- such seizure or doing any act whatsoever in the course of such seizure o fo cdrrymg the same mto effect, shall have take or seized and sold, or from the person against whom the seizure ma>- be directed or from any othe person whomsoever, any other or more costs and charges for and m respect of such seizure or matter or thing done therein or thereunder than s ch as are hxed m Schedule A to this Act, and appl c^e to each act wh.ch shall have been done in courst of such seizure, and no person or persons whc^'yer shall make any charge whatsoever for any act, ma t^T M. c. 49. if^oi, C. 46, 'ill, ujion icjite set- file reo-js- poration, correct- I Added 1. xtra- or tl 16- iiii.l;- mentioned in i\ act, matter or th 47 \' nip- s or (lone hall h !<■ said sch(xlule, unl i\e ess SI ich F/ ,.. c. ,s. s. -^ '^^'^''^ '"^•'I'ly performed Act, shall takJt^-vrLf^ tha.i are set down in th ■ J ''"^T V -'"'-"^^^^''" ^•"■^ts charge uhatso:^^ " fo^ ^v ^e " ''^ '"" ""'^ ^->- "Hnuioned in the said .rh 1 ' J"'"'"^*'" *"" ^hin- party makin. the said ciist^;;;;;^ o ^i,^^' ^^^^ ^'^- moned before the judoe of th, r ^'' ^"^ ■'^'"- thc judicial division in which rh. T^^ ^'''''' "^ distrained upon or sW.e or ^'""''' '^"^^ ^^^^"^J'^ h'e. and the said itd ^ n i. ^'"'^u''"'"^'"" thereof, the distress or si n;;e ^ 'r':, ^^^ P^^--^^ '"^^'<'n. treble the amount of d. „ " ^ ^f !b"^' ^^^^^"^^^ the provisions of this \rr "n V u '^" contrary to •summons ; and in c ctult of 2 ' r' '^■''•'^ °^ ^^^'^I -Kl n.oneys, to^ettr v ,h ^ll^t^'r^^^^'"?^^ ^^^ judo-e may order execution mT aforesaid, the ^^oods and chattels c.f the partv'o'T''i ''-''''''' '^^ said moneys. 47 \'., c! ^8 s -> ^^ ^" P'''>' ^^^ ^(-•"KDL-LK A. Tanj^' of Fees. (r) Levyin.cr distress, one dollar ($1 00) ^'^i^.^'-^^^ P- clay!lri„,, ,^, (3) Appraisement, whether by one appraiser or f :» i I i'l u3 ' !.i| i I m 164 MAMTOHA. more, two cents on the doll, ^ajocls up to one thousand d, the dollar for each ailtlitional or portion th(;reof ir on the value of the lollars, and one cent o nv th on ousand dollars (4) All reasonable and necessary disi for advertisi nv. i>ursenients (5) Catalogue, sale, com (r, live ood.' ^oods up to one ih half mission and deliverv of per cent, on the- nc.-t proceeds of ' the per cent, thereafter ousantl dollars, and two and one- (6) Mi ea_oe m .t^oin^- to seize, fift een cents per mile one way (7) All necessary and reasonable disbursements or removm^. and storin.t.^ ooods and removin" and tvT'^^ V" '•"•''^' ^^"^' ^^" ''^her disbursemcM ts vvh.ch HI the o,),n,on of the judoe before whon anv question as to the amount of th^ fees to be owed under this Act n.ay come for decision, are et on able and necessary. 47 V c 28 <..; i . u a 52 v.. c. 35. s. 24 ^' '■''-'^'^^- I. 2. sch. A; ue of the e cent on 1(1 dollars irscments -'livery of Is of the and one- :ents per rsements >'in<4- and rsements loni any- allowed reason- sch. A : '^-^'i'e4' '^'iW BRlNswrCK. An Act relating to the K.,,st,.y ,f j,,-,,, „, Sale. Sec. ' How and when morto-airoc ,,^ ^ : ,\\J'" affidavit shall state. 5 Sales of ..oods e I T P^"-chasers, etc. Ponied by affidu'irs \''l '7'"^'"- ''^^c^>'"- ^'-ys. otL.v^.i"' ;,.,^"^ «'«' -'^hin thirty purchaser, etc. '-"^'""'^ subsequent 6 Ao-reenients in writ in..- fr^^ f . ^•al.-cl .uul bi K /^"'^ '^^'^^"".'•'^ •■"l<''-'nce.s. when - Affidavit r«|ui " l^-'s^S"" "'', maile by one of twn ^ ' ^","' *"' '^••»- be mort.ra.rees ' """''^ bar^rainees or ' '""xr:: brfije^;;'""' ■■- "-«"%- sec-ons, - is::; SuufficL'"™; ■■- ■^■='>«'* «■ and file L'Sred h?"'"' ""'-■ '"■•^■™'"'="' required by section 8 ; fees. I()() m:\v mn nswuk. IT, Wlicii another statciiiciu in ti"ii in <»t this An shall l)c lijctl. cease to he valid. accordance with s(;c- or niort;4a^e r4 |{y whom alfidav it lo, assiv^iinients to he lilcd. may Ik- made under sect ion In case of mort!ja''{' of personal property of nicorponitcd companies, what afrula\it suftl- 'enowai of mort;;a.<^e. Statement cient. R and affidavit when comij.inv f li Vila o mort,<^^■loe to mco ffi () i6 C residence of company rporated «' to !)(.• dec-med place opies certihed m )y registrar to he rt.-ceivec evidence in all courts of what fact. 1/ Discharn'e of mort,tra,ne of goods. i8 Duties of registrar when discharged I,y certifi- cate or by mort.<4a(r('c' in pi;rson. 19 Renewal of mortgage; endorsements, how to be made. 20 Assignn ent of chattt;! mortoane mortgagee and his assigns are entitled to the chattels although the mortgage was not filed in New Brunswick, this Act not applyn^g to a bill of sale made in a foreign countrv of chattels then there (r). ' The intention of the parties and not alone the description ■of the goods themselves must be considered ; and where Lre IS an express agreement to assign after-acquired property, a present agreement that the plaintiff' should have the right and an .nerest attaching immediately upon all the property which .m,ght be brought upon the premises, and that he ihould have the power of entering on the premises for the purpose of se^^mg and taking possession of that future propertv, for more eff-ectually securing payment " of his debt, then such an agreement operates as a security on the propertv, both present and future, accompanied with a power to en't^r and se.ze the property (./), and is something more than a mere ■naked power to seize after-acquired property as was the construcuon put upon a power to seize in Co.,.n-vc v. ^V./A- (c), and //ope v. //.,ylcy (/). Though after-acquired property can be conveyed by an instrument under this Act-at least equ.ty will act upon such an instrument so as to transfer to the vendee the beneficial ownership in the propertv as soon as It .s acquired by the grantor U^)-yet such a description as the followmg: "And all property owned or to be owned by me and .ncludrng all renewed stock or stocks to be purchased by me, will not pass to the grantee in a bill of sale the property m a horse purchased by the grantor some three years after the execution of the instrument, and a symbolical de- (c) Gosline V. Dunbar (iSqa) ■?2 N R R ->,r . c- ^^ , ■ MrLcod, 20 N. S R. 34,. ^ ^'^ ' '^"'^*'' '^'"^"'' C"' ''■ (d) Vassiev. lassie, 22 N. B. R. 76. J). Manure lymg m heaps in the barn vard is a chattel and ,t ,s none the less a chattel because it 'is not nm h upon the land (/), but if it be scattered upon th g o nd o^thl It cannot be gathered without gathering part of H with it, then the manure is parttf the f:;;^. ndt.::" quentlynot a personal chattel(..). So with timber Xn such ,s sold w.th the right to cut. it becomes, so soon a" severed, a personal chattel (;/). "^^ A sale of 50.000 bricks out of a kiln containing :oo.ooo. to .(h) As to symbolical delivery, see Afr.Va, v. Sa^j,.., 9 x s S ,8 (1) .\ir/wison V. Te,>,p/e, 20 \. B. R. 248. ^ (j) A/e.vandcr v. Cowu; ,y N. B. R. 599. (k) Do fan v. Willard, 14 N. B. R. 3-8. (1) Foshay v. Barnes, i Han. (N. B ) ac, ■ 369. ■> ■ib''- im) Ycarn'orth v. Pierce, Aieyn, 32 S. C. 31. (n) Murray V. Gilbert, 1 Han. (N. B.)545. Thomson v. IVa/s/i, 3 All. 170 NEW BRLXSWICK. one who pays the price and hauls awav a portion, is an executed contract, and therefore the property in the bricks fn^XlVh rr'"';'; '•" ^'"^ ^^ ^"^^^ ^-''^^ notwithstand. .HK'- that the balance oi the bricks remain in the kiln in the resl of the". ; '" """' '" """' "^''^ ■^^•^^'-^"' f^- ^he rest of the k.ln or appropriated to the purchaser (.). And there may also here be added in support of the principle " omne pnncpal. trah.t ad se accessorium," that repeated repairs upon a boat one year after another, so that really none of the on,nnal materials to the boat, except the machinery, at last remamed, does not take the title to the boat out of the ong.nal party entitled thereto, who if he hold title under a bill of sale duly registered under this Act, would still be pre- ferred, as aj,.a.nst a third party registering his title thereto subsequently under the Merchant Shipping Act. The reason tte^A T' 1 ?'"" '"'^ ''""^■' ^° '•^^'•^^- -'J- this at er Act, and at the tm,e of registering the ownership was ui the vendee under the bill of sale (p). It must, hovLer, be remembered that the title to ferry boats running in the ' harbour of St. John must be transferred according to the ■which has been wrecked may be transferred without a bill of sale, as there is a distinction founded on the law merchant bet^^een a transference of a registered vessel bv the owner wh.ch must be in writing, and the conveyance of a wreckeci vessel by the master (.). The mere continuance in posses- s.on by a grantor of a bill of sale, absolute in form, though it be evKlence of fraud, does not necessarily make the transfer L ? Tu" ° ""''''""'''' '■ '''"''"' (■^■)' ^''^^ "°t seem to be supported by the current of later authorities (/) A conditional sale agreement when the property in the (o) Close V. Temph-, 20 \. H. R. 234. (p) Gibson V. Gill, 19 X. B. R. 56_:;. (q) Lloyd V. European, etc., Ry. Co., ,8 N. B R .q. (r) Oranfrr v. MrA\v, , OidriKlit, 5 \. S. R. 44.. (s) 2 T. R. .,87. ^^^ (t) Sheriff V. McA'een, 23 N. B. R. 184. i8c)3, f. 5. i/i goods sold is to rem made, is not within the prov ain in the vendor until full payment isions of the Act (k). IS Where a b,ll of sale by way of chattel mortgage on a mill engine contamed no provision for the substitution of a new engine by the mortgagor, and the mortgagor purchased a new engine g.vng the old one in exchange as part payment, and a b.il of sale on the new one as security for the balance, the first mortgagee, by remaining silent respecting the change when he arned o the same shortly afterwards, is not estopped from aiming the old engine, it appearing that he did not know of the second bill of sale (7'). If the mortgagee supposed that a new engine, without anv l.en or claim upon it, was being substituted, he might wel'l ratify the change ; while if he was aware that the new engine was subject to a prior charge he might decline. He must know the facts i„ order to be estopped, and if ignorant of the cation ;;r ""'" ""'""^ "^"'^ '^^ "- P-ve a ratifi- 2. Such last mentioned affidavit, whether of the mort,-a.,.ee or h,s a,ent. shall state that the mort lor there,, named ,s justly and truly indebted to The mo tpee m the sum mentioned in the n.ort.ra.'e that ,t u-as executed m .cr«od faith and for the ex„ress purpose of secunn. the payment of mone> j' st ; due.or accrumo- due. and not for the purpose of pro- tectm.,. the o„ods and chattels mentioned 1 ere n a^anist the creditors of the mortoaoor (.) r ore iHK payment ol any clanns a^^ainst him (I) Whether the ullcKed i„doi,ieih,e»s for'which a ch-tttel mort,a,e .s give,, e.is,,, or „„,, ;, i, ,;„ , ,„e,s,io„ ft '.'ht ol'i:';r;. ;;;t ':*;."'"■ " '■■ "■ "■ '■"■■ "■'""" '■- »'*»- «. (v) Steivart v. Muirhead (1800), 20 N R R „, ^ ,.r and Tuck, J r f.\|ien r T ^ d ? ^^' ^''^ ^^<'t'"o>-e, King (w) fh ; l'^"'^"- C. J., and Palmer, J., dissenting.) ^ («) lb., at pajfe 28.. See also Pol„k v. Everett [ O R D ^ Freeman v. Cooke. 2 Ex. (.:, ^^ererr, 1 y. B. D. 669 : ii ;i!i t. '»ri-H '54- 172 M-:W MKIXSWUK. jury whether or not tl transfer was to hind also have been t le substantial md real object of the er and delay creditors, althouefan, per Palmer, J. (,892), 3, N. B. R. 607 y McLean .Bell, 5 Rus. & Geld. .7 N. S. R. ,.8 : see an7,. 5,. ^^)Dav^es.. Jones, 7 L. T. N. S. ,30: Graka,,. v. Wilcockson\ll. J. ject of the ij,""!! it may 11 liis busi- ihall only r the day isiimmated n, as, for sizing-, the il property :t of some not defeat nee and ided, the null and r mort- Jeration, iw relat- r absent It of the 2 execu- sheriff, . r seizini^ der pro- another, >f sale as a person :laim the ioy. ^ P- 55- n, 46 L. J. property as against the grantee of the bill of sale at le-.st 'esulied ,n a judgment to the elTect thnf ^"^^^"^ «n -ithout execution were of a cl.s ! .i h u'"'' ' "''^'''''' protected ,/,, but such judgmen ..'tr '' ^'"^ ''''' ''' "^ tain by authority (r). ""' subsequently sus- (3) The legal meaning of the word "lew" ;c • , , act of raising money (./, hence it diffe; som wh i:""' ■' " from the word .'seizing." There mav beT e - r'T'"^ seizure, and if upon seizure the mon\ ' ^'""^ "" though there has Ln a seirurtheTruL'r "'",'' ^'^" (4) The levy or seizure must be " ' le " "° '"■' ^'^' Strictly speaking by process of Hu " ^''""''^ "* '^^^^•" first proceeding or stennH ' """''"' '^' '^""""""'^ ^^ taken^or all pr^oc d I's ! T"^ '''' '' ^ "°- '-^-ly personal, civil or crim"nll f ^ TT "^ P''°=^^^^"tion, real or But is a^andlordW; ;, TvUhin\'hf""''"^ '' ''' '"' ^^>' "process of law?" ' meanmg of the term with an executi': fV m a Par Tsh c:"?-"-^"'? '''"' ' ^^^^'^^ a ransh Court is mckided (,jr), (a) Car A- v. Carey, i V S S r r- -^' '> '^' *•" ^- *-• Cases 70. (b) Barker X. F^eson, , O. R. ,,4. (c) /^ar^^^ V. St. George, ,0 A. R.^gg. (dt Whart. Law Lex. (e) Bissfrk, V. 5aM Co/7,>rv q, ,,1 r v c ^««* V. Birkfor,/, 7 P. R ,,, . i)- ,. '^^ '^- ^°° = Consolidated ^fcRoberts .. Harr^Ln, 7 P R .- ^ '" T " '^^'"^^- ^ ^^ ''• T^- -6 : Co., V. Gore Bank, 10 C. L F jr"! ' o /" '°7 = "'"'"Iton, etc., A\. Central Canada Ry. Co y p R „ "^ fS"'^''''^^'' ^- O^^a-u^a Ry. Co. \: 605: Thon^as.. Cotton, \l u" C R /.S f ?' ''^'"^''■''^'''' ^ ^'^ C R. C. P. ,97. ""• ^- '^- '48: Buchanan v. /-^^n^., ,, f. C. (0 VVliart. Law Lex. (g) i. fW„ ,. B.auli,u (.8,6), 33 N. B. R. 569. i '74 M;W HKINSUKK. 5. :vr.vy sale of uo„cIs a.ul chattels not accom- panied by an niimecl.ate delivery and followed bv an actual and continued change of' [Possession of the ^roods and chattels sold, shall he in uritinu-. and such thjs .\c (.). and shall he accompanied In an affidavit of a witness thereto „f the due execution thereof and an affidavit of the haroainee or his a-ent'dulv authorized ,n wntin,.- to take the convevance. a cop • of which authority shall be attached tc') the convev^ ance. that the sale is bona fide and for ^ood con- sideration as set forth in the said conveyance and not for the purpose of holding- or enablin,- Jhe ba " i.^'e to hold the ooods mentioned therein a^^ain^t the creditors of the baroainor. and the conx-eyance and affidavits shall be f^led as hereinafter provi^:^d with n sale shall be absolutely void as a.crainst subseciuent purchasers or morjoaoees in oood faith, the assiUiee of the .grantor under any law relatinu- to insolvency or insolvent, abscondino- or absent debtors, or an assio-ncc. for the oeneral benefit of the creditors of the maker or as a.^.amst the execution creditors of the maker, or any sheriff, constable or other person levx- inK on or seizing the property comprised in such bill' of sale under process of law (2);. (i) See notes to preceding sections. (2) Where A being indebted to B, "an account was made out by B showing the indebtedness and crediting a wa^on upon same, which account was signed by A, who retained possession of the wagon to complete the manufacture of same m consideration of the bahmce of the account, it was held that as there was no sale independent of the written document, ,t amounted to a bill of sale, and not being re (,885), 24 N. B. R. 572. I,S( K)t accom- uccl l)y an on of the ". and such Jvisions of m affi(Ia\-it 1 thereof, i.Ljent duly ce. a copy e conx'e)-- ^ood con- -eand not barjrainee l^ainst the ance and ed within rwise the bse(]uent assiu-nee isolvency 's, or an ditors of )rs of the 5on levy- such bill' vas made a wagon retained icture of t, it was 3 written ng regis- ixecution 17; n case of an a"i ;ie of such ad\- <• mortuai^ec; aj^ainst th .^■'XKls and chattels f or securinL^- inces. or in orsecurin K ••^ -^ '-^ " -^"^ ^-iidorseinent of -,.... 1 -n promissory notes or ■.,.-• .1 .- , '^"> ^ills fV>rthemon:.";'i;;'^^^'- incurred fV>r ^.Zn.Z^Z^^' f^'^y '^>- '-" period than one yearVom trd-u " r'"C '^^'^ ^' '""•^^^'' and in case the morto-a< e is ,' t, / I •^" "^''"^^^^.^^". and sets forth by recU^) or ?I ''' '" ^'''''^ '"^^''^h. nature and efTect of the t" .. ""'"'V '^"^ '''-'^'^^' <"• liability intended to bfc^" " l' "" ^^"^ ^'''"'^"^ '"'>•-t^a<.eisaccom,,aniedb^•tl^ f^;/!"; "^ ''''^ '^^ thereto of the due executiV.n . '^^^'^^'V'^^^ ^^'^ness davit of the n.ort..a;^e />"''^--'(- ""^' '^^^ ^^e affi- '-en entered into^.^^:!;; ::-;;::! ^,:::^7'-nt has d^'v authorised in writino- to m-ri-,K -''''" ^'-^'"^ '■^'?d,t<> take such mort.ra.re nd i' rl. '''^ ^^^^''^'^''^^nt -' the circunistances'^conne^l ^'"^^^^^ accompanied by the affid of '^''^'^^''^h. then if ^|-''t. .whether of the ,tr t^L e'lr hr'"'"' ""'^ ^^^^- that the mort.rao-e truK- smTrTh u'^^^'"^' '^^^"'"^^ entered into bN- the n irrir^. h ^? aoreement ;;- extent of the lutlXv^^.t^Jr't-^ '''''' "f^^ the au-reement and covered bv. I "" '''''^'^^^'' ^Y that the mort<.ac.-e is evern '• '^ "^^'-t.c.a.cre. and tHe express purpose c^f^^^r ,'" ^^ '''"^ --' ^- payment of his achanc(.s or c ^ ^ '"ort.^.a^ree re- the amount of his liabili ^ fo; ^h '''" P^^>^"^^"^ "^ case mav be. and not for fh '""'"t.^^agor. as the goods and chattels me tonJcTTi?"" "' ""^'''"^^ ^^^ creditors of the mort^a'or .^'^r '^^"'"-^^ ^^^ t, ^or, nor to prevent such m A !i' 176 m:u' hiunsuuk. creditors from recovering any claims which they may haye against the mortgagor; and in case the mort- gage IS filed, as hereinafter provided, the same shall beasvahdand hmdmg as mortgages mentioned in the preceding sections of this Act (i). (I) If a mort-age which in fact is i-iven for securinc- the mortfratrcc aj-ainst the endorsement of promissory notes is made .n form for a debt, not reciting the terms, nature Jnd eflect of the as,^reement and the amount of the liability in- tended to be created, such mort^^age will be invalid (/) Not only would this be so because the mortj^aj,re does not correctly or truthfully set out the transaction, but because the aHidavit ol bona f.des in the form for debt is in no sense a compliance with the provisions of this section, and is therefore defective. 7. The affidavit of bona fides reqtiired by the preceding tvvo sections, may be made by one of two or more bargainees or mortgagees. 8. The instruments mentioned in the preceding- sections shall be filed with the registrar of deeds and wills of the county (i) where the maker resides If resident within the province, and. if not so resi- dent, then with the registrar or registrars of the county or several counties in which the goods may be. and such registrar shall file all such instruments presented to him for that purpose, and shall endorse thereon the day and hour of receiving the same in his office, and the same shall be kept there for the inspec- tion of all persons interested therein, or intending or desiring to acquire any interest in or of any portion of the property covered thereby. (i) Though he may neglect to mark it filed, or to file it as a bill of sale, or number, or to enter or index it in the book (i) Le Vasseur v. Beaulicu (1896), ^t, X. B. R. 569. the}- may ■he mort- ime shall tinned in curing' the V notes, is ature and ability in- does not cause the o sense a therefore by the one of ecedingr f deeds resides, so resi- of the ds may 'uments endorse e in his inspec- ting or portion Rle it as le book '«03. i-. 5. '77 ins.rumcu he delivered ,„ .1, ;ri^,, ^ ' , " "'" " "" dence. .„d even ,l,ouKh ,.,e r .iSrL J , " ''"™'° ""■ «-.;.ne.,d.e„...„:,^,r;^:if::rrr^[ ^'I'h^.lHticI -order in a bo* .;,".' ";.,:'^;" 'j"''-''-/" fi'^'t purpose .he „a,nes of : I e o i .? ^'" '^^'Z "istruments, „i,h the n,Mnl>ers ™. o " f 1 '"'^'' opposite to each na„,e, and s.,c| ' ' j!"nT repeated alphabetically under tl e n.n c n ^^ party thereto ( I ). '""^ "' «very Ac! 'L™: ^rwMch's^r """" •"" "■•'"'^'■^' -^ -^^ °"-io ycar fron, the i^h ,m W he' ' "'P "l""" "^ ""<■• the office of th<- re-, strfr in I ''I"'"' '"> '^"'"" '" «asorioinallvfied ^«l; '" "'I'f', «icli instrument assiijns, in the^nrooerr, tl ^ /"''"""^''''''ors or and'showinr he amount tliTT 'v """'' '^«^'^"''. interest thereon, an ^ h„ v^, .'"n 'Zr""'"" '",'' on accotmt thereof, together ^ithn'fe'T"" T'^t' nmrtKaoee, or one of several mor,'^ "' ""^ ''"^ "ssio-nee, or one of sever I -^^ .'"""ffa^ees, or of the of The niorttja^ee or a i:^'"''''™"' °'- «»" 'h«= a,srent -ssi,,nees, as the ase „uw fee tharth'""""""^"^ "^ true, and that the mort^A^^e h s It h'"'",""™' '■' oot for any fraudulent" purpo e nd '" ^"^^ "I ' "" '" '''= -^' ---.-^nt .Cuffid'"4':,=hnrth"/ ill (j) FMer v. B/s/io/,, c R„s & r .n /'■ 5 J^us. & Oeld., 17 \. s. R. 45,. Ill ^/f' 178 .\i;\V HKlN>U!iK. tunc alorc'saKl, am- crcdiior of th (' ni()rt''a<'()r. ma\- n- a wniicii notui- served upon such inorii^aoce or 1 mort^^ainccs, or upon such assij;iicc or assi'^ncc rc(|uirc him or thcin to tile such staicnu-ii't and attidaxit, and if th h\ this section, within thirty da\ s aft e sanic! are not hied such notice, then such as re(|un"ec er service o niort_L;a_L;c' s hall f cease to l)e valid as aj^^amst any execution aj^ainst the (roods and chattels ot the niortj^aj^or issued at th(; suit of such creditor. 11. The statement and affidavit mentioned in the next precialino- section may be in the form ^/wt-n in Schedule B to this Act, or'to the like effect."^ 12. The statement and affidavit shall be deemed one instrument, and be filetl and entered in like manner as the instruments in this Act mentioned are by section 8 reciuired to be filed and entered, and the like fees shall be i)ayable for filing;- and enterin..'Z"".""-'^--'i'<-«.>".is,„ui ch.i'icis (» crcch'tor. th< inort^Ljagor issuc( ' -It the suit of such ot km, executor or ;uliiiinKfr-7,.r V ' V assignee ; but if the affi ' "T. , f '"^' '''-'^ nieius throuo-h u-hu-1-. fk • ^"* ^^-^^r.iJ assicrn- . ^'""u n unicli the assip-nee calms ^h-.u i hied m the (office in whirl-. tJ. t.icums. shall be k r I /'"^"- "1 unicn the niorf'-a^'-e s f}\,',\ .f before the t me of ^nrh ^.,f,\- 1 '^, '^^ ''^ '"^^'' -it <>r any Act or charter <,( ,hV n .^^ "'' ""''>"■ b^ or iifKlcr m \ ' i """""">» "f Canada, or ^. "-?;: ii ■ 3?:?==' Of securinu- the bonds or dd^Jnt' Ls of .? l'''^'''^ pany. nstead of fh.. .,ffi 1 .'^'-'^"'^'^^'^^8 ot such com- be stifficieiit or th," '"' "^ '^'^ '^"' '<■ »ball affi,lavk be fi « as thl^rT'"' "■' \^'" ^" '^ »" mortjiapce or one of ,h ^*' '■"'""■^''' ""^^ by the that thS said n,o^,4 „; tlonv^r" '" '""^ ^*" ^a^e or conveyance was executed if 11 i^i. « 1. M;\V HWINSWIIK. lib m gooci faith, and U Uk- j>aynK-iit o( tliu hf)iul to th( h'iti, rincl (lot for iIk j^^kkIs aiul ihattcls creditors of tlu' r 11/- express purpose of securin;,^ s or ('Hl)entures referred purpose >f protecting the mentioned therein ajj^ainst the morti^aoor. or of preventing- the animu- payment creilitors of such niortj.Mi,n)r from oht of any claim against him (2) Any such mortn^a.i^e may be renewed in the manner and with the effect provided hy the tenth and lollowin-- sections of this Act. upon the fih"ng of a statement hy the mort,L;a,L;-ee or one of the- mort- .Haoecs exhibiting- the interest of the mori'^agee or mortgagees in the property claimed bv virtue of the said mortgage, and showing the amou'nt of the bond or debenture debt that the same was made to s(!cure. and showing all payments on account thereof which to the best of the information and be-lief of the person making such statement have been made, or of which he is aware or has been informed,' together with an affidavit of the person making such statement that the statc;ment is true to the best of his knowledge, information and belief, and that the mortgage has not been kept on foot for any fraudu- lent juirpose. and such statement shall be filed in- stead of the statement required bv the said sections of this Act ; (3) 5f any mortgage as aforesaid be made to an mcorporated company, the several affidavits and statements herein mentioned may be made by the president, vice-president, manager or assistant manager of such mortgagee company, or any other ofTficer of the company aforesaid for such purpose ; (4) For the purpose of the filing or registering of any con vtv nee under this Act, the head ofifice within the . o-mce of any incorporated company iS( M. ^m liall l)c (Ic-mcci ch,. (loniicil i.Si oi ti •-■onipaii)- <' or j)lac<' of resici cncc 16. A f'M'V of such original iiist ttnrc.tso (ilcl as af ruinciu or a co ort-saiil, incluilitiir ;,ny stat ;;;;;t/", -•-'-'■ this'Ac;:;^.,:;;;;,.^'! i^n,i„rs,.,„™i of ,|„. riser 1, "'-,'''.''''-■ "^•••to-a.^re may be clischan-vd l,v h< ir' ^ '"r'^ tors or acl..?S tJ r^hrV^^^^^^'. '^'^ ^^^-- Schedule A hereto. olAo'lhe l^JXtf^'^'^" '" ^•- •-^-^' '' is ^.r nn""'" ^^■'^^ -'^-"^ the chattel dulvprovelb the ST'/ ''''T'"- ^"^^'^ certificate, shall \a each pi ce 'where 'th ' -^^'^r^-'f^-^^ -''tness ga;^>-- has been^e e.H "itl 'Ihe ;r^^^'" f ^'^^' '^-t- Parties thereto in tl e b<7ok 1 - '"^^ ''^^' ''^" ^^"^ this Act. or whenner ht ' 'T^''' •'"""''"" 9 of said mort the registrar with whom 'the mort- gage IS hied, and sign a memorandum of discharge in his presence, either on the mortgage or the copy hied, and such registrar shall subscribe the same as a witness ; and the registrar shall thereupon enter the discharge of such mortgage as provided in the preceding sub-section. 19. Where a mortgage has been renewed under section 10 of this Act, the endorsement or entries required by the preceding section to be made need only be made upon the statement and affidavit filed on the last renewal, and at the entries of the statemen. and affidavit in the said book. 20. In case a registered chattel mortgage has been assigned, the assignment may, upon proof bv the afhdavit of a subscribing witness, be numbered and entered in the alphabetical chattel mortgage book m the same manner as a chattel ihortgage and the; proceedings authorized bv next i)receding three sections of this Act may and shall be had upon a certihcate of the assignee proved in manner atoresaid. 21. In case any bill of sale is subject to any deleascHice, the same shall be considered as part thereof, and such defeasance ( i). or a copy thereof, shall be filed with the bill of sale or copy other- wise such bill of sale shall be null and void as against the same persons (2), and as regards the same property and effects as if such bill of sale or copy thereof, had not been filed according to the provisions of this Act. (1) It is absolutely necessary that the statute should be obeyed in the filing of the defeasance. Should a bill of sale, '893. f. 5- ahsolvite on its face, be made subject to a defe iS: of redemption, but the defe [isance or ec]uity asance be not filed under the Act rcspectu,^- b.lls of sale, then the bill of sale will be inoperative and not vest any title in the ^^rantee thereof as aj,^ainst the ass.-^nee ot the j^rantor under the Insolvent Act (/). Ti,e Kn,h.sh Act says that the defeasance shall be in writin-^ This Act merely states that the defeasance shall be filed ; but, as cannot be filed unless it is in .ritin^. there is practical y no difference between the two Acts in this respect (/) _ (2) rhe persons meant are those stated in sections 4 and J _ It ,s only as aj^anrst such persons that the instrument is \oid and for no other purpose (fi). Fees for Serv/ces nnder this Act. 22. The registrar aforesaid shall be entitled to receive the followino- fees : ^nuiieci to (i) For filino-ea?h instrument and affidavit and for^entenng the same in a book, as af;.resaid. i:^;,^;' (2) For filing assignment of each instrtnnent and or makmg all proper endorsements in c mnect on therewith, twenty-five cents. ^'^'iiicction (3) For allowing inspection of any instrument filed under the provisions of this Act. Uventv ce t ' twenty cents """'"'"^^ ^^'^">^ "^''^ ""^'- ^■-'^ Act! . (5) For filing certificate of discharge of each 23. Where under any of the provisions of this (i) Re Dc Veber, 21 \. n, r, ^g, fj) '"<'/- Allen, C. \., Shcrafn,, V wi. ,jj.! », „ (Iv) See pp. 1-J2, 174, „„/,,. ^- P- n- i s 1 : ■ <: » iij' "*i 1 84 NEW HIUNSWUK. Act the time for register!* bill of sale, instrii ng or filinor any niortgag oth ment, document, affid e. ivit or ing IS to be done is closed, and by fil the fij so f; rar in which the reason thereof .'"£ '':T°^^^ ?°"^.«" t'^^^t ^^^^y. the "filing shall, ime of doing the same, be ir as regards the t regarded to be dul\' d which the office 24. An auth one if done on th shall be op en. le next day on renewing a mortgage or con ority for the purpose of tak me or veyancc under th( V , . o &"- "■ >-"" V >^) fuice unc er the m-n renew ail or any mortgages or conveyances to the mortgagee or bargainee. ^ ^^ 25. All the instruments mentioned in this Act chattels, shall contam such sufficient description th reo that the same may be thereby readily an easily known and distmguished(i). (I) The Ontario Act (section 32) is in the same words except that ,n the latter the words "and full- follow the of the qualification m the latter part of the section it can hardly be contended that it has any different construction or When a bill of sale professes to convey all the goods and merchandise of the grantors contained in their store, situate etc consisting- of dry goods and groceries mentioned in the schedu e annexed, and there is no schedule at all, then it is probable that the bill of sale would be incomplete and inoperative, because the schedule is virtually part of the instrument Itself, and is intended to designate the property to be transferred (/). ^ ' ^ (U A\' Dc J\b,'r, 21 N. B. R. 392 lortgage, iavit or holiday, hich the thereof ng shall, 'cime, be '. clay on kiiiu or he pro- take or ; to the lis Act, els and :ri[)tion ily and words, low the in view 1 it can ction or 5ds and situate, i in the in it is te and of the ■operty '893. 18 '^.S thi^^A.^" /^ffi^lHvits and affirmations required bv uiW nu ' ^v'''^''' ^"^^ administered by any judge, notary public, commissioner or other n^r^on "f twenty contQ d-,-.n i • i' K^'^^^' 'i""^' ^ne sum "dniMHs^ered ' ''""' '""^ ■'">' ™"h thus 27. I his Act does not annK- fr^ i.;n r i mortgages of vessels regi t;S\, ,d '" f "' '■''': °' of any Act in that beh.fif. nor to t .a ,sfc 'nr™"';' ■n th,. ordinary course of businesr f §""''" calling, sales of goods in fo 'i^ ' „ ;'^„' ">, ^f ^,7 of lad.ng, warehouse keepers' r.^lfi.,, ' rants or orders for fh„ ^ i «rtrhcates, war- ther docun, . us . sed in the"'' "r «""''-^' "^ '^"^ i>usiness, as proof of the '"•.'''".•'ry course of ffoods. ,r authonVint. or ^'"'"'"f" "' control of either by end„"f orbrcS^r^ L ''"'^""^'^- of such documents fn t. ^'^"^cry, the possessor thereby repre^n'S, "r '':::^Zr::.^T I ^""'^ o?rr;t^Sr r-rr^^"^ ^ ^'^^^^^^^^ or contract m de or en.. '">'. ^'"^"^^^^^tion, agreement the ;4th sealof^^^^ r ^^7^; :^">: '^k under ment of Canidi T ! ''^ ''^ ^^^ ^ '^f-ha- chattels" in rAct h^^^ i' ^""^''^ ^'^■^^l pictures and o I ertnVI ""m" ^'°^^^'^' furniture, fer bv delhtv andS' T^'^ ' f ^""P'^'^^ trans- in real estate ;o 1 "' '""'^'^^^^ ^'^^^ttel interest funds or secun-de of'anv T '''''''''' '" ^'^ '^^-l corporation, or -rth ca it^r^cr^S'T '""^'■^''^^' any incorporated or lohu tori °'" ^'^^^"^"''^■'^ "^ in action (i). "^ '^'''''^ company, or choses . (I) %58 Vict. (iSqr) M R ^ ^ 's made of assignments for ti,'o ' '" '.^'.''^ ^"'"ther exception made under the ^rovfsioni of th!.t'Acr '""'^ "^^ -editors 4 ifiii !• I i^hi iH6 M:\V HKINSUUK. 28. (l) Every chattel m„rt-aRe and everv con- veyance .nten.hxl to operate as a niortcracre <,r.ons ; (2) Every mortcrair(; or convevance intended to operate as a mortgage of goods'and chattels, and eyeiy bill ot sale ot goods and chattels made before the passuig of this Act. and which has not been accompanied by dehvery and an actual and continued change of {possession of the things mortga-ed or under' if ^r^ "^"'^r'^ ?' " ^■'''^>^ ^'^^''^"^ ^^ ^^ ^^^ undei chapter 75 of the Consolidated Statutes, and P^s required by that chapter before the passing of this Act), or a true copy thereof, shall be filed with t^^e n^gistrar of deeds of the county where the maker resided at the time of the execution thereof It resident within the province, or if not so resident' then with the registrar or registrars of the several mo!T%'" ''V''' '^''''. ^''^''^' "^^^y l^e. within three r ffirl v\^ ? ^'T'''^ ''^ '^''' ^''' ^"Sether with an af^davit of the due execution of such mortc^acre or conveyance, or of the due execution of the n'^o'^t- gage or conveyance of which the copy filed purports to be a copy, and also with the affidavit of bona hdts required by sections 2 and 6 respectively; pro- vided. however, that if the mortgagee or mortgagees bargainee or bargainees respectively, make "an affi- '•'•'A^ ; ;;;^;t a.ul nie th. sam. with the registrar at the- tl>ereof, a,ul of bo„a fid," „ v fi '''i '^.:^-"""."' (3.) ii such morti>a<>e or r<^,^,',>,r "P<---.e .-,,, such, o ".such Wl r v^"";: '"f'f '" requ red by the n^^vf ' '^ "''^ ^'^'^ as sa^l.eshal]^^h;^bJ::^eX;:l'S;.,::^^7""^ against the persons mentione in T • ^"'^ '^'^^ ^^"'^ of this Act. "^^"t'ontcl m sections 4 and 5 of this section, Tl tf J^^^ r>^^',^'^^-' i^--'-"""^ vicied by sections o m u P ? "h '^" '^'"r" I^"^- may cease to be v^di 1 f I ^' '''^''''''^'^ t'^^' •'^ame -sections 10 and Vre tc v ? T"'- '''''''^'''' '" of the mortq-acror servW ■ ' ''^'^'"'' ^^ ^'"^'^"f^*'' the said secn-o1,T ^ ' ""'''"''^ J^'"^^^''^'^"^' '"-• in ''i^^s^yTnii^of^-llr-^^r^'^^^^^^^ ^— amendment the eof -^e trT '"' 1'^. "'" ^^^^^'^ '" repeal shall not'l-^ "he rilt''^}''^"^' ^^'^ '^"^^ respect to bills of sale or ch n^ ^'"'' P"','^'^^'^ '" f^^^re filed, except as Lw/J i "^"''^8:ages hereto- section. ^ provided ,n the next precedin,^r 30. This Act shall be cited as " Th. R-ii r ^ale Act, 1S93." ^ ri*^ '^■"s of iM 1 88 NEW BRLXSWICK. 31. This Act shall go into effect on the first day of July next ( I), and not sooner. ^ (0 July ist, 1894. V.i ■ Schedule A. (section 17). /^orm of Discharge of MoH, To the Registrar of Deeds of the C ..}■ i^A \' "^ '''' ^^''"^''y that satisfied all money due on. or to grow d 'S»ge. ou nty of las Lie on to tain chattel mortgage made by which mortgage bears date the day of ^- D. and was filed {or in case the ^nortgage has been nv^v^, was renewed) the office of the Registrar of Deeds of the County of A n """ M "^ '^^y o^ ^■y. as J\o. {here mention the dav and date of registration of eaeh assignment the^Z aud the names of the partus, or me^U^on that snchmrt. m^c has not been assigned as the fact may he\ and that I am the person entitled bv law to receive the Sg^d.'"' ^'^" -^"^'^ "°^^g^S-^ '^ therefore cIls- VVitness my hand this day of A.D. One witness \ A. B. stating occupation and residence. \ I '^^^■^•^•5- ,89 SCHEDULK B. (section ii). Staicijuii/. Statement exhibitino- interest of C n • .. the amount clue for nrinrlml -.!, i ^"^' "* andoranp^me,nsmL,:re^uln^ j|c/D.toTi^,i;;ti;f"^^"^^^^^^^^ No payments have been n^'.A.. said mortcrao-e [or the f> low '^''°""^ °^ ^^e otherhav?lix.n made on "^ ^'r^'T""^^ ^^"^ no gage). '"- °" ^^^^"U"t of the said mort- /S93. January ,. Cash received $,^000 fh« o • I ^"^ '"i^ princii as follows (hcrcghc I he co,„/„,lation) computed CD. County of ) to wit, I I r mortgagee named in the clvutel ^^^''V "'' "'^ ;n =He ^..^ ^.".^eti;1taZS(.^™;™:^ the nwrtgagee „an,ed in the cl^tuel if I' IK I- H 1-. IfJO \i;w Hur.vsuicK. mortoaae nuMitioiu'd in the foregoing (<;r annexed) staKMiient (as (he case may be) make oath and say ;— true I. That the foregoing (^v annexed) stat(;ment is 2. I hat th(; chattel mortgage mentioned in the said statement has not been kept on foot for any fraudulent purpose. irp Sworn before me at the of in the County of this tlay of A. D. 1 8 STATUTES OF 1H<».-,. Ciiai'ti:r 6. An Act respecting- Assig-nnients and I^refer- ences by Insolvent Persons. 12. (i)~No assignment for the general benefit of the creditors under this Act shall be within the operation of "The Bills of Sale Act, 1893." but a notice of the assignment shall, as soon as conveni- ently may be. be published at least once in the Koya/ (lazcttc, and in one newspaper at least havino- a general circulation in the county in which the pro"^ perty assigned is situate, (if any newspaper is pub- lished in the county) not less than twice (i). (i) This section sets at rest the doubt raised in Douglas V. Sanson [a) as to whether an assig:„,nent of goods for*the benefit of creditors is within "The Bills of Sale Act." (2) A counterpart or copy of every such assign- ment shall also within 5 days from the execution (a) I X. B. Eq. 122. I iSc 17 '»7. '■'• II. cecution thereof; Ik; r ''.Uistered. (toireth a witness thereto, of the J *-'■ ^^''I'l an affid. 191 i\it of "I'^'U. or of the due ^•^•*-^;"t.on of the assfan- ;f-o,•.he!.,istrar';;;r^l^::^':,^^••'''^^^^ ^'i^- a^-^'-"'"-- i^'a resident in V-u ,' •'"/>' ''^^^''"^" •''^ '^'''- ^'■•■"'' "<■ the exc-cuti, n the, '"'^'"^^'^-f^-. resides r-yi'-nt then in the oh! ;X^^^ hcis not a in the county where the neVs n- ' '''^''''''' "'" ^'^-'^ds '^. or uhere the princijid ^ ^^'Cr^^'-^" ^"^'^^^^ samen)clucles,,ropertv nnior - "-'.''"'•('" ^-'se the 7^K'.strars shalJ file all such i„. ',' '""'"^'"^-^"^i •'^Lich them respectively for tl t n '"'"^^ Presented to thereon [he time o^i'a v ^H ""' ^'"^'' --'-- n^spectiveoffice.s.a.idthesani< sh in 'T"" '" ^'^^^''- the inspection of all partie i u, '' ' ^^ ^''^^ '^'^'-'^ ^or -'cl registrars respectiJ^ T d" r^' f'^^"^'"- '^'J^^ ^^ch ass,^.n,nents and be e uiu'd t /l '"'' '"^' ^-'"^^^'' ;;^^rv,cesm the .ame manne 7^ f ' ^ '^r^"" '^^^ ^^'- had been reoistered under die \^ ^^■'^•sionments ^ages and Sales of Personal IVoperty'^^'"^'"^ ^^°'"^- STATUTKS OF isf,;. ^ I^e ,t enacted by the T ,V . ^^' ' Legislative Assembly ll^f^JC^^^^^-Governor and .1:1 if PI i, u'siaa ig: MiW HKINSWIIK. Hills of Sale Act. 1893," he mav produce in evidence a copy thereof and of the affidavits filed therewith, certihed by the reoistrar in whose office the same are hied as beino- true copies, compared by him with the orio-inals, which copies shall, in the; absence of the onuinal instrument and affidavits, be received and allowed as prima facie evidence of the execution of the originals, and of all matters of which the original instrument and affidavits would be proof, but before any such copies shall be allowed in evidence under the aforegoing provisions, it shall appear to the court by affidavit that such originals, or a duplicate thereof, are not under the contml of the party, and that at least six days' notice in writing shall have been given to the adverse party, his attorney or agent, of the intention to offer the 'same, such notice to be accompanied by a copy of such certified copies, and of the said last-mentioned affidavit, the due service thereof being also proved to the satisfaction of the court. NokTII-WiiST ThRRITORIKs. ORIMNANCHS OF isor, No. 8. An (),-di„ancc to amend a,ul consolklate as anicnded the hu- relating' t„ .\'.,rto,L'es and Sales of personal property. ^^ *' r/« Mu- nl Diccmbey, ,Sg^. ) The Lieuteiiant-Govcriifir In- -.„ I ■ i ■ Terri.„rie,s, exacts as f^lTows 1' '^'■''-•'"'''>- °' '!i« and -och":: t''::i,ife?r?:r;t:«r'-"°" "^. -^^'^ A^:^:^8lSs;::^:./::?^£;-''^t^^ ships west of 1^ ' ic n r '"'' """"S;^' "'' ■""'>■ h.nds s'vstenf'"'^ 'sun-"™ L'.';: ''^ .l;e Do„,i„ion boundary of the Prnvln^ I™ "*^ vvestern (■i ii' ■ i. "Pi ■■/ »94 NOKTic.\vi:sr TiiKwrroKiiis. twenty aiul tvv(!Mty-..ii(! t., its int ' -> (/') The ret^istration district of "Vorkton" (i) cotnprising that part of the provisional district .)f Assniiboia as is defined by the order of the Privv Council of Canada passed on the Sth dav of May A. U 1882, eastward of the eleventh ' ran'! ( I ). istrict of e Pri\'y Jf May. mgc of d north district com- itrict of .rict oi' tvvL'iity- sccond ■ Jaw," trict of rict of '^'>r,, so. H. If): ^<*;-'^UMi and cast o| thr west hn,. r »i mcrichan. "^ "' ^"^^"'^'^'1- west of the third (<■) yiv- rcvristration (h'strict of " \i, v ■ . , ,. ^onprisin;.- all that portion f U ^^'/^'"-'"'^ "-'t/' ^"'^"•ictofAssinihoia'ur , ' ''"'^' I'rov sional "' " Moose Jaw." '-^'.^istration district .'./) I"'h-' registration ,|isti-irt,,f .. M , ,„ /.f) I he registration district of -r' i Pns.ng all that part of th( s 'i I ^'^'-^^'''T. coni- -f Alherta lying be c ; ' T^'''^'^^."^^' ''''strict forty-three. " " t<^wnsh,ps sixt^.-en and -■ts;!;^ r;^;r;;:,i,::r;7;He'^ • ,'^""-"■■•■■■ Saskatchewan a's Ze h. '."■'"■"^.","»' '''■^"•icl .,f l;-y Cuncii lying w«'„^,,^":/"'' ""l'^'' <>f .he ■•^h.p,s west „f .hi. ,Ld mcTidlt "'"«'= "^ '""'- foril registration tlistrict. ''''' '*''"'e- .rafi;,n'''!lrstriSr"''I.;ebv':'T- "'^<=•^'■''<" -^'- ^hall severallv hoM offic, . ,, "'"i""' '" "^^<^<=' ^">J Li«Uenant-G„v^„o * r •?•' I*"'"'''' "^ 'he ^:" h= kept , X::^,"„"''<=''. /'"d their offices Lietttenant-Govern'oMn Council ''"''S"^"«' by the lill ^ll 196 NORTH-WEST TERRITORIKS. (i) In the event of any vacancy occurring in the office of registration clerk, bv 'reason of death resignation or otherwise, the vacancy shall be filled by the Lieutenant-Governor-in-Council. 4. Every mortgage or conveyance intended to operate as a mortgage of goods and chattels (i), which IS not accompanied by an immediate delivery and an actual and continued change of possession of the things mortgaged, shall, within thirty davs from the execution thereof, be registered as hereinafter provided, together with the affidavit of a witness thereto, of the due execution of such mortgage or conveyance and also with the affidavit of the mort- gagee (2), or one of several mortgagees, or the agent of the mortgagee or mortgagees, if such agent is aware of all the circumstances connected therewith, and is properly authorized by power in writing to take such mortgage, in which case a copy of such authority shall be attached thereto, save as is here- mafter provided under section 26 ; such last-men- tioned affidavit stating that the mortgagor therein named is jusdy and truly indebted to the mortgagee in the sum mentioned in the mortgage, that it was executed in good faith and for the express purpose of securing the payment of monev justly due or accruing due, and not for the purpose of protecting the goods and chattels mentioned therein against the creditors of the mortgagor, or of preventing the creditors of such mortgagor from obtaining payment of any claim against him; and every such mortgage or conveyance shall operate or take effect upon, fn^i and after the day and time of the filing thereof (-) [As amended by 1896. No. 24, s. i ]. ' ^ " (i) The former section, No. 3 of tlie 1889 Ordinance, had the words "made in the Territories" following the words Ji : !■ lit 1^95, NO. 8. ;"ood> and chattels" in tli '97 ' clavs ],m.t for fihn^r ,vas extended to 30 davs estopped fro.n asserting, that te , ""'u"' T ^'""'^' estate (,/). " ' '''" "°' '^'^'^"els but real L'luler the former section i ^L•^;,^l, to mort^a^es '< made in th:'f^.H : ts'^h '""''T;, ""'^' did not apply to a foreic.n nior 1 1 , u"" '^"^ ''^^^ '^ n.ort,a,ed while situat: in ^nn^:::;:,;:-^^ '"'1 "^" the conditions required by the 1- vs of , ^% " ""' ""'^'■ subsequently removed to the Xo th W t "''' '""" ""''' there to a bona fide purclrLr 1 ? ^''"'°'''" '''^^ ^rei,„ mort,a,ee wr::!;;:; ^ ^ j!^::^-^ "-^"' ^^e there bein.1,- no evidence tl,«f tl,„ "'*•'»•»""' "i= purchaser, -..;.., an. „„ c„n.e„.e„. pr:.;^';LTj'TSer a.t where property i» situ.te ..n.r.H V " ''"" '" ''■"=<' reside, must ^4en,u ',;"■'■■ "" "'""•»•'■•!"« Parties "•hen the ,:,;,, .T"""^' "' "'" P^P^'^ f'')- countrv ,.,ve™s, ad te pLs TtoH™;"'^: "" '"'• "^ """ -ctedi„.hecn^-s:r:::„:j;;r::-;r^' (a) Stimson v. ^w,V/,, , ,\. W T R .,. ► (b) B.nin V. ^.*....;m.893T'.^ W T P '^ '°'' (c) c...„,// V. .sv.,w/. 5 H & N : J: ^" ■ ^ .'' ''• ''^■ R- part 4. p. 8, : A"/... of which authonty shall be attached to the con- veyance), that the sale is bona fide and for Vood cons.derat.on as set forth in the said conv^ya^ice and not for the purpose of holding or enabli' e the bargainee to hold the goods mentioned hiein agauist any creditors (2) of the bargainor ; and suh conveyance and affidavits shall be registered (i) See ante, s. 4, note (2). (2) "Tlie creditors" is the phrase used in s. 4. An affidavit ot bor.a fides ,n which the word '• the " was in'serted-wtVe a stnct following: of this section would have inserted tl word any," ,s not thereby invalidated, the two expressions being substantially the same (.,). pressions Th. fact that in one section the expression "any credi- and ) we hnd the expression "the creditors," is evidence furnished by the statute itself that the legislature regarded the two forms of expression as practically synonymous^). 7. Stich registration shall only have effect in the ^.tratK.. d.str.ct, wherein such registration hi (a) Provided however that the division of the registration d.str.ct of Moosomin, as it existed prior to the com.ng ,nto force of this Ordinance, shall not effect mortgages or other instruments filed before such d.v.s.on but such mortgages and other instru! 18 S. C. R. 116, dislmguished. "oiejy, (b) £»n'>-son V. Bn,u,en„„n, ,9 S. C. R. ,, ^e, Patterson, J. ) the con- fer good A'eyance, jling the therein and such tered as rom the 3e abso- argainor rlgagees n affidavit d — where erted tlie pressions my credi- now ss. 4 evidence regarded us (b). t in the ion has of the -d prior lal] not before instru- '. Huhley, 1895. ^■o. 8. 201 nients and any renewal or renewals thereof sh-.ll "lade .s not duly expressed there! h "'"^ '" conveyance shall L ' ^^^^^^ "Z^T^ "'" against creditors of the mort.Acmr 1 • "'' ''''' sequent purchasers or n" "S^' ^^0^?'^^^^^- valuabie consideration. '^ ^°"'' ^'^'^'^ ^^r 9. All the instruments mentioned in thf^ O. r ance. whether for the mortgage or sa e ^ " "" or transfer of floods and r\^l.\ i ' '^-^-^'K'^ment sufficient and1°h de^ip rm^H;'' '"^rT ^^ same maybe reidilv m -i '''''■''''^' ^^^'^'^ ^^^ A-ished. elxcep '' L ase'o ' "•""" ""' ^''■'^^'■"- ^•eneral benefit of cred ors "^'^^ ^^r the description shall be suScier^^ 'T '^^ words : "All mv .JriT^ ' ^ ''^ '" ^'^^' following seized and sdd ^u, lerel^U^r"^' "'"'/ "^^^>' ^^ effect. execution, or words to that (^J A description in a chattel n.ortgage as follows : fixtur^o;;;; rf^::r:'^:. ^""^^'^' ^^-^ '- --^e and ness as genera TercMn ' ,' " "^ '-""""'"^ '^ ^^eir busi- full stock of genTr" t" ch . ''"'' '" '''''' ^°"'^'^^''"^^ "^ - the said morfglgo, "^Z ^ T" '"'"^ '" ^'^ «^'- ^^ a sufficient defcHpToi t^""'"^^ "'^ '°^^''^-^- ^^^ ^'^ -«-) ^ is The original of this section was also incorporated with (a) no,„so„ V. g,aH- (,889). .8 S C R fi now^o„, , N. ^V_ T. R., part , n «« .:, ^^''' ^"""'»'"»- :C>«'>>^ v. 5'5 followed : McCaH v. jLyf ', s f = ^'''^^-'' T" "'^'''•'V. .4 S. C. R. M, '3 3. t.. K. 130 distinguished. ;i '« 202 I ■ XORTH-WKST TiCKKITOKIIiS. section 2 of Ordinance Xo. 8 of ,889, and conditional sal. contracts under the latter section had accordance therewith and altlioiip-h th to be descriliod in 'one team of oxen" would he insuilicient i e mere descriptioi gag-e, yet if such de a chattel mort- sc conditional sale contract sh ownership were to ■' remain catin'-- whence the anima' ription appears in a document such ewing on its face that the titk as a and wi th th e vendor, thereby indi- continjyencies the vender miijht tak inferred that they are in th mia's were procured, and that on cert ain e possession, it will be e actual possession of the condi- tional purchaser, and the description will be sufficient. Thus .t w.ll be seen that words of description which would not be sufficient in a bill of sale or chattel mortgage may be sufficient in a hen note or contract of conditional sale, because in the former class of transactions the chattels ordinarilv remai in the possession of the person who had them and i'n the same place where they were before the instrument was executed whereas in the latter class there has been a " chan-e of possession from the vendor to the vendee and usually a corre- spondmg change of locality, both of which circumstances fur- n.sh ready means of identifying and distinguishing them from all others ot the same kind " (d). A description need not be such that with the deed in hand without other enquirv, the property could be identified, and it is sufficient it the subject matter is pointed out by the instru- ment "sothat a third person by its aid, together with the aid of such enquiries as the instrument itself suggests, may identify the property covered " (r). 10. The properreglstration officer for instruments benicv mortgages and transfers of personal property', shall be the clerk of the registration district in which the^property described in the mortgage or transfer is at tne tune of the execution of the instrument • such registration clerks shall file all such instruments pre- (b) m'sh-nt Milling Co. v. Darke (1894), 2 X. \V. T. R part i n ii (c) Per Strong, J., in McCall v. Wolff, ,3 S. C. R. ,30.' '^05. NO. S. kq)t there for ,1 „ ' '"'■'' ■''"= *''""'^ •■^''■'H !«■ '^' l-a,n;c.,;:':.,';i,J';r,™'-;.;' ■- .'"'-"c-. subject .o tlie ,u,n,be,- endor «l' • ,'^ '' ■ "«"■"""■"'. with ■1« na,„c. of - ""''" Ordinance shall ceasC to ! " ,:C"''-^"^"^^ «'" ^'^'S creditors of the Derson^ n, i • t^ •^^'"^^'"•'^t the against subsequent'puXert'"'^ ''^' "'^"^^' ''^"^^ faith for valuable consk e .^ "J^^'-^gagees in oood of two years (1)7."°^'''' u^' ^"'^'-^'«" within thirty days nex ,.rt ,^''"- /hereof, unless the said tern/oft ^o vi' •"" '" ^'M^'Vation of ^he interest of th^^ i^^^J^ ^^f ^"^ -^-biting administrators or assicrns hifh,*'^' pecutors. virtue thereof, and "/ull '"''^''^''-'>' '^^^'"'"^^d by stilldueforprnc al,nclin ""';' ^'^ ^'^^' ^'"«^'"^ payments mLle o c "1 ^^;^;;:''^ ^^:'-^«"• ^nd of all the office of the re'Sr rf T\' '' ^^-^^'" ^''«I '" where the property if the"'! '^"''^ ° ^^^^^ ^'''^^'-'^t of the mort^^a^?ee ^/of one J "''■' ^^'^ '-^'^ ^^^^^'^^^'t of the assignee or one o sev r7'"^ -ortga,ees, or agent of the mortg-aoee as(Vh 1 ''''''^''^^'' o'" of the o'- assio-nees, duly "Author ^d'^rf/ "'* -^''tgagees the case may be, stati, ° th 1 ^'' ^'^''P"^^- ''^ true, and that the s hV ^ "';^' statements are on foot for anvfraud .r.^uf '" ^"^l"?^ ^^^ ^<-Pt and affidavit shall be deemed ''°''' ^'^'"'^ '^^^'^^^"^^"t ue cieemed one instrument. ^'ii fj' li I 204 NOKIIl-\\i;sT TICKKITOKIKS. (i) III compiitiiifT the time mentioned in this section, thi lay of theorif,rinaI filing should be excluded («) (2) See ante, s. 4, note (2). (3) " As " is evidently a clerical error for the word " or " /h.ch appears in Ordinance No. 18 of 1889. s. i,, from which this section is tak en. Toll 13. Such state meiit and affidavit shall b owin^tr form or to the liiiay be), on the day of . . , , ^'^ < 'I'ltl of the amount due for prmcipal and mterest thereon, and of all payments made on account thereof. The said C. D. is still the mortgagee of the said property and has not assigned the said mortgage (or the said E. F. is the assignee of the said ntortgage by virtue of an assignment thereof from the said <-. U to him, dated the day of 18 ) or as the case may be. No payments have been made on account of the said mortgage {or the following payments, and no other, have been made on account of the said mortgage : „, ^^ .—Jan. I.— Cash received $ ) 1 he amount still due for principal and interest on the said mortgage is the sum of dollars computed as follows : {Here give the computation) C. D. . fxv7T "' ^"''^' " ^- ^- ^- '95 > •-affirming Quirk v. Tho,nson, I IS. W. T. R., part i, p. 88. iection, the '«05. NO. 8. ^05 ord or,' Vom which be in the D. in the ?e dated , made 3art, and I filed in day of due for ayments the said 2:age (or lortgage the said 18 ), t of the and no he said ..$ ) Test on dollars, Thomson, Noktm-VVkst Tkkkitokiks \ I ToWiT. ■ ,.r • mortgagee named in the rh-.fr.l ^^^ ^'^^"«^' 'n the foregoing (^.t "v. ir'^^^'^^" '^^^■"- assignee of ^^ ^ ' ., '^""'■•^^-^1) statement \or the chattel mortgage me.ubn'r ilf 'fj;: r""' ''' ^or annexed) statement, as //,,• ' ^, |'>regomg oath and say : ^'^'' '"''}' ^>^'\ niake «aten,.,„ has not I ^In [""f ^'V"';'}''''""' ■" '!'« said purpose. ' "" '"'" '^'"■anylrauduiont ^worii before ine at in the North-West Territories ( this day of jj^'J 14. Another statemfn^ ;„ 1 i provisions of -ctio,^ . ,| ve'rifi::?'"""-' "'"^ "^'•• I Ihat section, shall be filed,'; h, « '■" T^'"""^ ^y Y""°"- ^''-•^^ °f "- ii» ri whif tire"' "^ "«'■ ' ■l.en s,tL,ate. within thirty da^, , ,^vt ^"T"^' '» evpiral.on of the tern, of o ,t , c '""""'"'S tlie "-. filing of the sta e e" \. " -.S'"; "'? "^'>' "^ section 12, and in default ,N^r \^' ''"= ^aid shall cease to be v, IM i '' ?"<^'' mortgaije 'he person nK.ki,;-h' ' .n^f ""', "■'■ "«'""- °f chasers and n,orl«a£jees h, "^ "'f ^Sainst pur- consideration, and'-so ™ frinf "l^r'' ^°' "''""'''<= to say, another staten,e,n?. r' '; >''^'"' • 'hat is shall be filed wit , hi 'v d "''"'""'• ''"'y '"'fi"!. expiration of one^^aV fr L th' d"'" P''':"'''"^ ">« 'he forn,er state„,ent , i .""iii'^"' ,"^'^ «''"« °f n.or'ga.esha„ cease U:^'^li.f:l-te'rjf-^^ of 'his 0:^if„tlrbf:ld'e-\'''^ 'welfth^ctlon ay De made by any next of kin, 20() NOHTII-WICST I |;KNI I OH\l:S. executor or adniinistrator of an\ deceaseil inorti^aoee. or by an assi^n<;e claimiiinr hy or throutrli anyliiort- -a-ee, or any next of kin. executor or adniin'istrator of any such assignee ; hul if the affidavit is made by any assi-ne(;. next of idn. executor or achiiinistra- tor ol any such assignee the assign nient, or the sever.il assiu^nments throu^di which' such assio-nec claims, shall be filed in the office in which the mort- • ;4'iKf' '•'^ ori.L;inally filed, at or before the time of such re-filing by such assignee, next of kin, executor or administrator of such assi^niee. 16. A coj)y of such original instrument, or of a copy thereof, so filed as aforesaid, including any statement made in pursuance of this Ordinance, certified by the registration clerk in whose office the same has be(.'n filed, shall be received in evidence in all courts, but only of the fact that such instrument or co[)y and statement were received and ^led accord- mg to the endorsement of the clerk thereon, and of no other fact; and in all cases the original endorse- ment by the saitl clerk, made in pursuance of this Ordinance upon any such instrument or opv, shall be received in evidence only of the fact stated in such endorsement. 17. Where any mortgage of goods and chattels IS registered under the provisions of this Ordinance such mortgage may be discharged by the filing in the office, in which the same is registered, of a cer- tificate signed by the mortgagee,' his executors or administrators, in the form given in the schedule hereto, or to the like effect. 18. The officer with whom the chattel mortgage is filed, upon receiving such certificate, duly proved by the affidavit of a subscribing witness, shall, at i-i 1( '^M5, NO. S. -- '^"^--^u tl ' " ^ ^ ^^^^-'-->-^a^e has ;h'-''-^-to. in th. book k . ,t u "•' "' ^'^'•' f'"-^'^'-^ V^'"''^"--^*. or whoev -ot '■'"'''"". '° ^'^ ">'" ''"'"s tn«-- s;u-d nK.rt.,a..H as ,. '''^ ^^^^ ••^^»'"^1 'x'ok ;• ^^-^'^arjr.cii.;cmncu, ',;;;; 7^'^'- ^^'^'t^^ the words. ^ ^^ ^-t of such ch^sct,;^^;/ ;, ^;.f ^^^'' ^^'- -nlorse c'^ar^r,d, a,Kl shall afllx his ' 1 I "^^^'•^"^'"t dis- nient. ^ "'""^- to such endorse- (') Section II is evitlenflv the Ordinance of :88g. ' '"''"'' '''^'''^' ''^' 'section ,o of (2) The Ordinance of i88n conf^;,, ^ , to the said entry such officer's """'' f '"' ''' --'^■S "and -ord '-certificate." AithouH h' '"• "''*'^^'" ^^ter this '"'"alin^. the entry will no doub h/""'""" "^ ''^'"''"^ "r endorsed on a rcnv or rh,^f '? '''''"^'i ""Sht be ;.fore.s.-,Ki) of suc^dr/chtC T,l!■^^ y^^A^ aj 'he fora, following or to eh-e Ife'eS /''■'^''^'^*="=' '" North-Wesc Territories;! Registration District of' Tl,i, i, . . i be ••■ 'dischargri,l''f;l'r/::" ''""'•"'"ent purporting to certain chattel mortgagl ;eari,'i7d1 "7''=''^'=) °f ^ fl^f andW^dthe ^''"Vr f"ll"w,ng, made between A H /'''>' "'^ mortgagor, and C. D T ' "'^ ''een bled in the offic; of the cUrSf- t^ I JoH NOK rH-Ui:s T TKUKITllKIKS. tioii District of clay of on th IS (aud, in case of a partial disc/ia >xt\ ihixi the ^oods or property mentioned M\ sue 1 partial discharge consist of {dcscrib chattel or property) iiii^ tin F. M.. Clerk. 20. In case any registered chattel inortg.ij^re h; been assijrned. such assionment \w;\\ IS the affidavit of and ent(!re( ook ill the same manne upon proof by I subscribinj^- witness, be numbered 1 in th(; alphabetical chattel mortj^aj^e r as a c hatte mort}^aj4e, and the proceedinjTs authorized by the- two next f)i-eced- ing sections of this ordinance may and shall be had upon a certificate of the assignee, proved in manner aforesaid. 21, In the event of the permanent removal (i) of goods and chattels mortgaged as aforesaid, from the registration district in which they were at the time of the execution of the mortgage to aiunher regis- tration district, before the payment and discharge of the mortgage, a certified copy of such mortgage, under the hand of the registration clerk in whose office it was first registered and of the affidavit and documents and instruments relatinj^ thereto filed in s>uch oftice, shall be filed with the registration clerk of the district to which such goods and chattels are removed within three weeks from such re- iioval, otherwise the said goods and chattels shall be liable to seizure and .sale; under execution, and in such ca.se the mortgage; shall be null and void as against sub- sequent purchasers and mortgagees in good faith for valuable consideration, as if never executed. (i) Section 7 of Ordinance No. 24, of 1896, provides that "No goods or chattels under mortgage shall be removed into another registration district without a notice of the intention ■»■-■> day, pri,„ ,„ ,„,, J^'.l ' ""' '"' '"'" K^«« or conveynnc. int..„«- «-i>:c^cl<.rukn,nnst's; ",''''' '''^''^''''« '" he orihUL:!':; -ro;!:;:i -t;^^"" '" T^-- - -;..-.^..e .K, nee. -C-l"!,;;-!;-- Konds, or anvof h"„ ^hr"'°~''='"-,«'ff«'-the reg'stration diitnct with 1, "1, ir""""^ '"'"^ 'he any of ,|„..m t„ be distrai„,.d flf "' R'"""''* '"• or shall suffer .he sai^go" ,3 o/!";; ™-' - '•''xes, liable to seizure for re n, I „■•?= ^r{ '}""" '" ^e grantor in ,.,-;„« .„<• :::„l;\.^Cd:;' "^''"" "' "'<-■ I4i " execution shall hnv.. K« i '• , 23. ^'^ubject to therfo-htsofthfrrl r, by reason of such omissions .'/,"''""''' '''''^^<^ fined, any judfre nf th.> c "^^ hereniafter de- I • im 2IO NORTH-WEST TERRITORIES. a mortgage, or any authority to take or renew the same, or other transfer of personal property, or any statement and affidavit of renewal thereof within the time prescribed by this Ordinance, or the omission or mis-statement of the name, residence or occupation of any person, was accidental or due to inadvertence, may, in his discretion, order such omission or mis- statement to be rectified by the insertion in the register of the true name, residence or occupation, or by extending the time for such registration on such terms and conditions (if any) as to security, notice by advertisement or otherwise, or as to any other matter, as he thinks fit to direct. 24. Except as to cases provided in section 5 of this Ordinance, a mortgage or conveyance intended to operate as a mortgage of goods and chattels may be made in accordance with the forrn in the schedule of this Ordinance. 25. Where, under any of the provisions of this Ordinance, the time for registering or filing any mort- gage, bill of sale, instrument, document, affidavit or other paper expires on a Sunday or other day, on which the office in which the registering or filing is to be made or done, is closed, and by reason thereof the filing or registering cannot be made or done on that day, the registering or filing shall, so far as regards the time of doing or making the same, be held to be duly done or made if done or made on the day on which the office shall next be open. 26. An authority for the purpose of taking or renewing a mortgage or conveyance intended to operate as a mortgage, or sale, assignment or trans- fer of goods and chattels, under the provisions of this Ordinance, may be a general one to take and mUl U M 1895. -N-o. 8. 211 m"g^^^^^ or conveyances to the authcfnt^;rduly filed with "th ""Tl^i '""'^ ^^^^^ not be neces^rv to ^r\ U '^^'^ aforesaid it shall mort^rage filed Tas al^^ 2 u''^^ '^""'^^^ ^^ ^^^^ ^ g^ niea. [As amended by 1896 No 24 s 2 j entering the same in a book a, I'fot /"Z' *"'' '°'' (2) For filing assignment of ,1 f ''' '^'^'>' """^ ■ for making all propter endn- '"^"•"ment, and therewith, fifty cen™ ^"''°'^^'="'<="'^ '" connection strl'irt°;n]f?rri!fng':,r' discharge of each in- dorsements connpXr:':ifhX-r . '"' <=- ^^(4) For searchmg for each pa^.r:"rw'e„,y.fi,. Ordinance, fifty cents ' ''^"'™ '9 <>( this commissioner or , Sin" ^"i'/''.'"'"'.^'ered b/ any peace or notary pubfe'"nVo„fo7'LT"" °' "^' registration clerk and th^ .? V Terntor.es, or shall be paid for ev^r^ 'a'tl Zs^/dStr^^ ^™'' enfu'r^bll-nce^rf^an^^' tlst ' o "="' ■ '^-^- hereafter made, executed or creatd ZnTTT'^' ntended to operate and have effect as 1 "'^"''- " shall m so far as "he same assum:st'b"d^rm™;2: ll ■% ■h 'I ill {lit [B»i- ■I- A •^ ll 212 NOKTi 1- WK s r ri: K u 1 1 or i i:s. apply to or affect any irrovviiiL;- crop or crop to be ^rrown in future in whole or in i)art, shall be valid except the same be made, ex(.'cuted or created as a security for the purchase pric(> and interest thereon of seed jj^rovvn. (i) Provided that the provisions of this section shall not apply to any such security already made, executed or created t)r which may he made, executed or created as a further or substituted security for a debt which on the passino herc^of is already secured by a mort^a^e upon the crop of the mortj^aoor thrown durino- the year 1895 and interest on such debt, such further or substituted security to become ai)soluteiy null and void on antl after the 31st day of l)ec(;mber, 1897 (')• I As amended by 1896. No. 24, s. 5.) (i) The only ciianji^e from the orig-inal section of 1895 is that of 'MnQfi" to " i«97," so as to extend the term for another year. (2) Every mortj^a^e or encumbrance upon orow- in^- crops or crops to be ^rown, made or created, to secure the purchase price of seed ^rain, shall be held to be within the provisions of this Ordinance ; and the affidavit of bona fides, anions- the other neces- sary allegations, shall contain a statement that the same is taken to secure the purchase of seed j^rain. (3) No mort^a^e or encumbrance to secure the price of seed ^rain shall be oiven upon any crop which is not sown within one year of the date of the execution of said mortoa<;e or encumbrance. (4) Every repristration clerk shall keep a separate reo-ister of such seed orain mortuajres, and shall be entitled to receive the same fees for his services as provided for under section 27 of the said Ordinance (i). [Substituted by 1896, No. 24, s. 3.] mi I'S(K, NO. H. (i) This f, vided for und ';;^'"'''i''l''l^'>s. ^'"'1 the hf-cccnh clav ,f ''.'', ;i'«,:,'^'--i;-''''''-> 5>e|)t™il„:r. inciusiv o I '/h . ''ftccnth ,iay „f -^i-ii be ci„sc.';^"- '"^k^ up amount of fce v h c^h•^ h ""'"*-' "^""'^ ""^ "*'l clerk .lun„,. the p^Lt^ve";" "^'-"'«' ''> ^-^ ■•\ I ;i!i ^ I 1^1^ l!'^ 'Ml J, 214 N(iRrii-\vi:.sr ti;kkitokii:.s. 33. Odinancr No. iS, of 1SS9, cntitlc'd' " An Ordinance' to amend and consolidaK! as amended chapter 47 of the Revised Onh'nances of" the Xorth- VVest Territori. .."intituled "An ( )r(linance respect- ing Mortgages and Sales of Personal Property," Ordinance No. 13 of 1S9;,. entitled "An Ordinance to amend the Ordinance respecting Mortgages and Sales of Personal IVoperty," and Ordinance No. 36 of I S94. entitled "An Ordiiuuux; to further amend Ordinance No. 18 of 1889. relating to Mortgages and Sales of Personal -^-oinTty " are hereby r(,'p(;?iled. S(iii:i)ri,i;. ( / 'ide Section 2^. ) Form of M()kt(;a(;k. This Indenture made the day of of the of the other part, A.I). 18 between A. B., of one part, and C. I)., of Witnesseth That in consideration of the sum of $ now paid to A. H. by C. I)., the receipt of which the said A. B. hereb\- acknowledges {or ivhatcvcr else t/ic coti- sideraiiou maybe] he, the said A. B.. doth hereby assign to the said C. I)., his executors, administra- tors and assigns, all and singular the several chattels and things specifically described as follows [in the schedule hereto annexed\ by way of security for the payment of the sum of $ and interest thereon at the rate of per cent, per annum \or whatever else may be the rate\ and the said A. B. doth further agree and declare that he will duly pay to the said C. I), the principal sum aforesaid, together with the interest then due on the day of A. D. [ (;;- whatever else may be the stipulated time or times for payment^ And the said A. B. doth set his hand and seal. ^^' '^- ^''''' hereunto Siirncdand scaled by the siirl A n • l of me. I-:. V. ^ '"' *^- '^- '" the presence S(lli;i)i;i,K. ( ^Vrt'r Section ry ) "^Va ^Tr'"'''^'^'"' District, has satisfied all monev due on ''"''"^^' ''"'"^ Clerk of chrnllnct ,r' '' "' "^'^ '<'-«-'-'tio„ that such mortga-'e is therernrt u "':'"^>' '" ^"^^' \a;,\^ ?•■''. fncrefore dischanred Witness my hand this day of An .> present consolidated Act. '^''°'""' ""'"'"si-'i in the •fii i "» . ;<-! « "I 2l6 NORTH-WEST Tli KRITORIICS. ORDINANCKS OF 1896. ' No. 24. An Ordinance to amend Ordinance No. 8. of 1895, intituled "The Hills of Sale Ordinance.'" \^lsscii/cd to October jot/i, iS(^6. \ 1. Section 4 of Ordinance No. cS of 1895 is hereby amended by in.sertin.L,^ after the word "thereto" where it appears in the fourteenth line thereof, the " -"^'i^'^ 'i'^ hereinafter provided under sec- words tion 26." 2. Section 26 of the said Ordinance is hereby amended by addino" thereto the followinjr : "And provided such .creneral authority is duly hl(>d with the clerk aforesaid it shall not be necessary to attach a copy thereof to each mort_ir;ige filed." ^ 3. Sub-section 4 of section 29 of the said Ordinance IS hereby repealed and the folhnvino- substituted "herefor : (4) Every rejristration clerk shall keep a separate re.irister of such seed jrrain mortcraoes. and shall be entitled to receive the same fees for his services as provided for under section 27 of the said Ordinance. 4. Section 29 of the said Ordinance is hereby amended by adding thereto the followino- sub-sec- tion : (5) Every such seed ^rain mort^acre so taken and hied shall not be affected by or subject to any chattel mortgage or bill of sale previously given by the mortgagor, or by any writ of execution against the mortgagor in the hands of the sheriff at the time of the registration of such seed grain mortgage, but such seed grain mortgage shall be a first and prefer- iSqf), NO. 24. bushels aul'Xec "o: r'^^^^ ^\^ number of ^'^" mort.^tJTvu bushel must be stated in bona fuleC ' '" ''^^ ''^'^^'^^^■t "^ the ana: ^t;^:t"mc::'M f " ^^ '■'' ''''' -''' ^^-1-" fi^-ures 189; ''^^-'"'^^^^"^' -b-stitutino- therefcn- the ^' '^^'ction ;,0()f said ()rriin>n.-,. : u 1 '') inscrcin. after the w,, y^: s. .Sf^V A ''''""^''r' words "and durfiKr th,. . . ,\'^"^^'a)s therein, the ;i.'y "f July a'::,'",], ' f :;;;; '^r^r '^ '■^■".-^ inclusive of both tlays." ' September, rem;vS' irtotlv';'"''^ "■"'.'•■• '""".^•■'.^<-' ^ha" be notice „f the te tL to"'"''"'' \"^'"« "'"""" ^ paid and re^isere 't, h ■"""'' ''" '"'"'''-•''• l'>«'- known piace^,f . i,,^ ^ ™"".';''^.'^« ='t his'last- Pnor to st,ch removal """" '"'^"'y ''-'Js Ordinattee (,)Td the ffl",""- * ^ ^'"'' « of this t'on 12 of thirn 1 ■'ff''''-'yit retjuired by sec- addition ;, thei^ n; m'^,. '"^ ;'^»'«nee " shall in elude the aoent or m n • """"^"^ '"''"" «'«' '"- bargainee, or ass;,:r bl:"! <^.* ™> '""«ff^««. pan)'. -^ ^ '^^'".^^ '^n mcorporated com- (0 "This Ordinance " If :e i ■ , 1895 is referred to Tho , V ' "'^' ^''" Ordinance of in the preceding sectltt 'u"" ^"' Ordinance " used here. ^ '''''°"' '"'g-ht better have been repeated (2) The word here printed " nr " • for the word "of." '« evidently a misprint i*« 'im :4a II ;! (. -t l-r 218 NOKTIl-WliST TKKKHOKIHS. 9. From and after the first clay of lanuary, A.D. 1S97, any renewal of any instrumen't filed' in the office of the clerk of the registration district of Moosomin, in which the i)roi')erty described is, at the tune of such renewal, within' the re^^n'stration district of Yorkton, shall be filed in the office of the clerk of th(! reoistration district of Yorkton. and such renewal shall have the same force and effect as if the orio-inal tlocument had been filed in the said office. ORDINANCES OF 1893. No. 6. An Ordinance to amend and consolidate as amended the Judicature Ordinance and amendments thereto. [Assciih'd to 1 6th September, /Sgj.] The Lieutenant-Governor, by and with the advice and consent of the LcLrislative Assembly of the Territories, enacts as follows : 339. On any writ of execution against floods and chattels, the sheriff charged with the execution of the same may seize and sell the interest or equity of redemption, in any ooods or chattels, including lease- hold interests in any lands of the party a,[rainst whom the writ has been issued and such sale shall convey whatever interest the mortiraoor had in such goods and chattels at the time of the seizure. 340. In cases where registered mortgages upon lands or chattels are seized by the sheriff, such seizure shall have no effect until' a notice thereof in writing, signed by the officer charged with the execution of such writ, has been deposited in the # i8c) 5. NO. 7. flq y same is reoistered. and an cntrv of office where th t) cents .shall be paid t<. tli<. rciristeringofficcr. ''u,*^-('y;;ri;^:„^: f"«he;'an,e„d the Judica- executed, bM 11 'l "T '"/^e sheriff to be interest in n I h "T'" ^'"'' '^''""^''^ "r "ny jud^'ment deU,r t^-th'r^' and chattels, of th^ said sheriff an sha I Tden'' ■"'"'"' '"'"■'" "^ '^•^ morttraoe bill „f .?u ''''' .'"■'"'■">' '" any chattel of alforany of the rel """'fT"' '"' '^'^ '^"^(•^ <=xect,ted by hi r.^; Lr'" "'<=J"%ment debtor such writ of ev,;,,,^r„ 'T^'!" ''>■ '•'^ sheriff of provision o m .Js^l " o ''f^ "'""'^ "f '^^^ taken effect nrinr ,„ 1, • ' "■'clniance, has not ■or or credho'^s'Tnteres, T'"'u' "'"«"'"« '^e credi- not take p orTtv to Tl 7,'^'' e.Necution, but shall debtor fohowe,?bv a'n t " 1''" f" ^y '^e judoment posse.ssio„ of a y^of his "oodr' continual change of actual notice to the nMr^h" u''"'' "^"""'"^ "'''hout hands of the sherFff'^o H 'r" T'^ '"'" '" '" 'he the said jud^menlbL, ^"f'"''^ '''"""'" "herein ness, ^ " ' ''"'"'"^ '■*='*"'«s or carries on busi- .i ,«i' It N()\'A Scotia. REVISED STATUTES (Fifth Series) 18^4. ClI.M'TKK 92. Of the prevention of I'rautls on Creditors by Secret Hills of Sale. 1. Every hill of sale of personal chattels (i) made either absolutely or coiulitionally, or subject or not subject to any trust, and whereby the assignee shall have power either with or without notice on the execution thereof, or at any subsecjuent time, to take possession of any property and effects comprised in or made subject to such bill of sale, and every schedule anne.xed thereto or therein referred to, or a true copy of such bill of sale and schedule, shall be filed \vith the registrar of deeds of the county or district where the maker resides ; and in case a copy be filed the same shall be accompanied by an affi- davit of the execution of the origi al bill of sale ; otherwise such bill of sale, as against the assignee of the_ grantor under the j)rovisions of chapter 1 18 '(2) or for the general benefit of his creditors or against bona fide purchasers, or as against the execution creditors, or sheriffs and constables, and other per- sons levying on or seizing the jjroperty comprised therein, under process of law, shall only take effect and have priority from the time of the filing thereof (3). [As amended by 1886, c. 32, s. 2.] (i) A bill of sale purporting to convey "one red cow four years old, valued at $21.00," was held void for uncertainty. ibiki lll'H l8S^, ^\ (j; Ji "ow i„ my n„„,,.i„„ . ,^ ,'' ""■ <"■ ""'= red cow .^■ows. ,uo heifers, sheep, car, -.11 m- "■- '""■■'' ""''■'^^ is insmllcient («). ' 'arming implements," U'lierc a creditor obtained IVom, ti,^ i u -^ic>^ he accepted in sati:;:!c r o , f l^^/^^^V"^'^' 'lel.very of the cattle and put hi- mn ' ''"'^ ^""^ •same time arran^^ed to le.r h m Z ,"" ""'^' ''"^ ^' ^^e foHowinc. fall, i,";,, held tlm the ''''"" """'' ^'^^ or the sale and deliver; Id tul'"';"'- ^''"^"' ^>' ---" a bill of sale, which I' ^pe red ''l h"""^"^ ^'^ '^^"^^^ -same ,ime(d). '^'^ ''''^' ^'^^'^ executed at the After default there is an imnlinM r •he property covered b, .1";,°:;'':,';'"''"-/^ ■•="'-■.■"? Brantor occupies under a le-ise rl,„ ' " "'"'"' "" ■he purposes „f cu.rv ,„ ", ' ••""""•"- ■■'™ »"""<"l. for enjoyed; bu, ,„e eu.r^. lu„ ', '" T '"" "" ^'-"" proper „„„„„ „,„, „,,„„, ^^^^.^ ™ =^;.. ;■ r«.,o„ab,e and »-"t: in", rj;-:;:;^,:-' "r ";"' -''-- «» - ™ade, but which bound i"p o "r" ""T" 7 '"'' '»" "«" "•e bill of sale, unless e clain,, and l,e is no, ^SJZ '^^^ :: '^'"' "' ^-"'«.s ''''"-«-o„for,i.:r'r,-f-:;i2^,^ (a) Hugliau v. McCoUum 20 V Q u 33 C. L. J. 57,. "• •^- S- R. ^02 : McAskiU v. /V.v.. ( ,897,. (h) Kennedy v. /(7„V//,. 27 N S R ^ „ 2 Q- B. ,8. Collowed. ■ ' '^^° •■ ^«"««V V. Margrett (,894), (c) 5o.j/o„ J/am^^ V. Lon^„rd -6 V S p o L- R- . C. P. 5.9 : ,^,.v<.„/ V. ^.tt,'- ^p^'^^ •• f ^^-'^ - ^/-.^-.n. fci) C««,»V/,a.. V. Morse ^oTll^""^^^^- LR. 2 Q. B. 642, distinguished "° = ""'''"'' "' ^helusson. I'P n >l ii 222 NOVA SIOIIA. insolvency," in the original Revised Statute the wortls "the provisions of chapter ii8" now appear. This amendment was made by 40 Vict. (1886), c. 32, s. 2. (3) ■ 'iilii- v. Forsyth, 5 Rus. & Geld., 17 N. S. R. 151 : Creighton V. Jenkins, ib, 353. I iii«4. 1-. i)i. --'.^ n -nti„ue.ich.,;;:^fX.;';;,:i^ ,-■-'-<; lliat the DroDcrfv In tU. "•""'-rein it is .iLrrccd -• of L ^.z:!'rj:::^: 7'i:!:T' '\"^ th<^ pnce or value tluTcof or .n ■ ''"i"" '^^^'' •shall n-main in (2) the h'r ' t' '""''"'." '''"'''^'^^• until the payment in 'ill ^T^u^^'^l^'' '''Tr' n.aure payments or otherwise T)*srbel'' '^>' s'RnecI by the parties tl. t elo Z , /i? -""'''.T authori/ed atrents in wrif r '^^"" ^'^ly -thorityshaflbeataci:.r^:::.":''^ "^ ^^ic^ shall set forth fully by Lp r-.i '^^^''^-'^''"^'"t. and terms, nature and Vxt of , "'u-"^'^"'''^-''^'- ^he har^rain for sale nd the m ' '".'■'"- ^^'^'^^•- "«- -Kler. whether x ' sstd ' ;":/ ^" '"' I'^^'^' ^^ere- wise : and sh-,li ll V"^' Payment, or other- eithe; of th^; .,t :r ?^'"""' \ '^^ ^^'^^'-'^ "'- been signed by n •Ic.en V ' '"'^ ''^J.^'-^'^'-^ent has ;Myaun.ori.ec^raSi^,;;2:;'-;;;^^h^ parties the a<.-ent of either of the mrties'i '^^^lavit of that thewritino. truly so sf.Xth. "'"''''• '"'^^'"^ tween the parties therern , aoreement be- claims. lien or b:itrd:;et\l^ baro-ainor therein, and thit ^,>.-h '• ^'-"■'•''""' «'' !" ^-ocKl faith, and for the eM rcss'"'""'' '' ''^'"'^^*^' '"«■ to the hirer lessor or h^ ^'"7^"'^" "^ ■'^^-'^-=''-- the claim, lien, or chTn e u '"^^'^'"^'■' ^^e payment of under the terms set oS in T"' ■'■ ^^^' ^'"^^'^ ^^"^^ other purpose; and such > '""'""^' ""^^ ^'"" "" shall be ie^is^ereS a he^^ ::"""^ T' ''""'r' every respect accordin^fo l^ Z'''^'^''' ^^"^' '^ chapter ; othervv se X? d "in I" ^''"T'^^"'^ "^ ^^^'^ Perty intended to be secured ' u' t'''^''' «'" P'^^' bargainor. shall be nu^ inc/^ !:;::^- )' Z u \m 224 NOVA SCOTIA. i-'i'i acfainst the creditors (5) and subsequent purchasers and niorto^ajvees of the person to whom such goods and chattels are hired, leased, or agreed to be sold. [As amended by 1886, c. 32, s. i ; 1893, c. 40. s. i.] (i) This section does not apply to a contract made outside of the province, relating to chattels then also outside of the province but which are afterwards brought into it (/). (2) In the Act the word " or" appears by a clerical error for " in ", which we here insert. (3) An agreement by which the owner of cattle allows another tiie use of them for a specified time for their keep, is not within this section (_^). This section has been held not to apply in the case of an agreement for hiring which, instead of providing that on the completion of the payments agreed the hired piano should become the property of the party paying, stipulated for no option on that particular instrument, but that he should receive "one piano equal in value to the above-mentioned piano, with a receipted bill of sale thereof" {/i). (4) It has been said that the expression used in this section, that the property shall be null and void, is too vague and meaningless to affect vested rights, and that the section does not touch the remedy, but only the validity of contract, and therefore does not invalidate a contract made out of the jurisdiction concerning chattels also out of the jurisdiction at the time of the contract (/). (5) Where a tenant purchased a piano under an agree- ment by which the vendors retained the title until full pay- ment of the purchase price, but did r tt file it under the Act, and the piano was distrained upon by the landlord, but the distress was void because of the hreaking open of an outer (f) MrGn-ffor v. AWr (1896), 29 N. S. R. 45 j 32 C. L. J. 593. (g) Le7vis V. Denton, 19 N. S. R. 235. (h) Guest V. Dtack (181^;), 33 C. L, J. 497. (i) Singer v. McLeod, 20 N. S. R. 341. I ; i I i f I i«,S4, 1-. 1)2. ^''H)r ill orJor to oO Pmcliased it at th were held ontitieci ^'ft an t' landlord's sal •-"'itry, and tli iinde to th r ex Ih '^'-■Lilion af,rainst th ^ piano as mr, e and took p t^ oripnal vend ors ossession, thev <-^ slionff could not e tenant, it b airamst the sheriff I evxino- eni- considered that ""t have seized ( /,. '^ ^ ' " '''" ^^"''^ P^''-^ ''^ could 4. ''^\-ei-\ i>ill of sal( Pn).-ss.,n notes or othe .1 '""' '^' ^"'>' '^''"^ '»• "-nga<,or. shall he .^ ' ;'''^>- — n-,-tl h'i-r^l'^ t.on thereof is it.stiv m h ''\'^'''"^^^ ^'^^' co.isulera- the grantor to-'tl^%™i;7:f'>- - ^'^- <>•- chattel mo^l;^^- ;^i; "^^' ^'^^^ the bHI of ^^^'tlM4) and tiot rortlK'nnrn '''f''^' '"" .^o-^i P'-'>Pt''-}- mentioned there i, '• " * P'*'»tectino- the ^he grantor or n.l^"I^' .'^^''^'''[.'^ creditors of -'^Xrantor or mortfraoor / - \ '. "^ ^ieuit( creditors or st.ch .n^? 1?L '•■: "' P'-^ventin, ^ <^r sitch gnmtor'o,^;; "". '" '''"^r^^"tmg the -bi.iiofsa,eori;^;::;^,;^^^^^^ .','i>,'- snail, as against pter. the persons inentfo^tiivT'-' """"^-'^^"^ ■'^hall, as a-n hJmg thereof. acc()nin- n i , ^'^'^ ^"^^'' "'" ^he ^^"^CMKled by r.SS6c ::,,>■ ^'"'^ ''^'^''^^^•'■t- I As opel:liI!'t^^Z-t^;;er:j:''«f '^^ ^^^^'^^'-^ '-- - companies to secure thefr ou ^h""'' '^' '"-HHM-ated '"g- -Act. 50 \-ict. (,8qM r ''^^'^"tures. The amend- is as follows : ^''' '^9' P^'^'^^^ February .st. iSc,^. (j) .Vi//rt V. O./v, -.S X. S. K. . 53". M I t 22(3 \0\A SCO'IIA. iilil: "Sections 4 and 5 of cliaptcr 92, of tlio Revised Statutes, (fifth series), shall not apply to morlf^aijfes or deeds of trust made to secure the bonds or debentures of any incorporated conipan)-." The wordins.-- of the latter Act is not in as definite a form as could be wished, for it might be contended tiiat it applied to the morti,'-af,'-e or deed of trust i^iven by a private individual to secure debent ires of a company, and to a mortfj;a£i^e by one company to secure the bonds of another company, a not unusual occurrence where t vo companies are under practically t!ie same nianai^en-'ent. It is, however, probable that what the le.i^islature intended was to except from the Act such instruments as are executed by an incorporated company to secure their own bonds or debentures only. (2) By this section it is required that the person , ■ • ' ' '" ""^ [o a court that it is intended -.s -,.1', ^'"■'^-'■' ''^ '"' i"ciication ''^'- t'lc^ .i,'rantor's benefit (yj. ' ' '"■'' ^'' ^"'''^^^^ ^'^e M^oods '.S) K" a fraudulent purpose on .1, ^^-' ^--f^-e to det^at'tnd del tr'!"''"^^^'"^'-- appears, the transaction will „ '^ st ', T'''' ''''^'"^^^^ consKleration or indebtedness i J ;^l:;:';;!; ^"'''-^" ^ ,ood chattels for secttrin. h^ -'^^■^' '' -^'"-i-^ and c-ntlorscnu-in (.fanv hill. ,. ''*"^>^'^^"^-^- aoainst the -h- liabnity In-lJ '' ,,^ J:::;;7-0- notes. <>. anv ancl ,n case it Is execi.tr./l , "^ ^^'"- '"ortoaoo,: ^Jy- '- recital orXr;;:.f;i:' '^^'^'^^ ^ effect of the a,ree,ne, f^sucl M '""'"■'^- '"^^^'^^^ ^^n^' "^^^nts or other liahi lit ^K^'y^^'^^^- '- -Klorse- amotttn of the liabihu- i,u :,,,', '''T'''''^' '^"^' ^f^^" '".case such tnotioacv L . .''^' ^''^^^^tecl, and 0/ the "-.-t.a^ot-n^ , H^^^STl '^>-^'^-^ffi^'av-k • "'' '" case the ni,,rto-ao.e has t ' '""'" ^^""^'■'^^'^'• " " '1'^'^ '^een o-,ve,i or entered ill iic 'I,. I 4^ 228 .\0\A SfOIIA. Ui r: 1 )• ■ n int() In an aocMit or attornc)- duly authorised in writinj^- to ^ivc or enter into such niort;^a,^e. anti it" the a^-ent or attorney is aware of the circumstances connected therewith, then, if accoini)anie(l l)v the artidavit of such ai^ent or attorney such affidavit, whether of th(; mortoaoo,- or his a^ent or attornc.'y. statin^- that the mor-^M-a^ne trul\- sets forth the a,L;re(-- ment entered into between the parties theretorand truly states the extent of the liabilit) intended to he created and covered b\- said mortgage, and that such mortgaoe was executed in '^o:)d faith and for the express purpose of securing- the mortj^anee repav- nient of his advances, or against the p;i -'- • of the amount ot his liability for the mortgagor, :\s the case ma)- be, and not for the |)uriiose of securing the goods and ch.iitteis mentionc-d therein against the creditors of the mortgagor, nor to prex'ent such creditors from recovering any claims which they mav have against such mortgagor, and in case such 'mort- gage, with such affidavit, is filed with the registrar of deeds of the count) wherein the maker resides, the same shall be valiil and binding to the same extent and as against the same ') -sons as the bills of sale or chattel mortgages mentionec in this chapter; otherwise such mortgage shall, as against the per- sons mentioned in section i of this chapter, (;.nly take effect from the time of filing thereof acoMiipanied by such affida\-it. \ As amended by iSS6, c. 32, s. 4.] (i) This section does not, however, apply to mort'>-ao-es and deeds of trust made by an incorporated company to secure their bonds or debentures, they having been excepted from tlie operation of this and the preceding section (which see) by Nova Scotia Act of 1893, 56 Vict., c. 39. 6. The affidavits mentioned in the first section and (i) the three next preceding sections shall b- Iliad f '-•.'''ore a judo-,, of ■my court, anv com :J() niissioiuT '"" takii)'"- affifl-i.Mf ' . ' .' ^^^-'^! - atto,-n.v nlak":: ^1^'^"'^ ^!^'^^ ^'^<^ -id co.Lrn,.am of the facts them-n ^ "'"^ ," P^''--'^""aIlv l^v r,S.S6. c. ,^,, s. 5.J " '*■' '^^'^- ('-^-^ aniended ■|-i>e uords ..the first section and" u- ' - -- '"'" "<-'re added hy 49 \-|ct. ^'' •>-'. >^- .V 7. The registrar of de-^.^i^ „l, ,, sale .„■ copies th-reof d^n •. . -"^^f" ^ ^'^^' '^''Jis of 7-'-:ed'a,Kl infced'uT'r^'^'r^'^-^^''- \'^'^'-'-'< ^- J^- -nade i„ a bo , ' ^/ alphabetical list t^at pun.ose, containing' :'V^^^'^^P^'^y 0^ the o-,-antors and grantees t,''/'^ ^ ^ascriptions ;'"^' ^J'"o-. and the sum ror\ ' ,'^"\^-' ^'^ ''-^^^^^'tion '^^'^-■" .M'V^-^n ; and every bi 'f I '''" '^""^^ '^^^^•<' "ispected bv anv person , . '-"^ "^ '"P>- "^ay be therefor. ' ' ' ''°" P'^^'".^- a .iiH:ss „(a„v tnuk- o 'n" '7V,"'''"'^"->- course „f I" f-c-i«" i«rt; „ , . r ';' '^ ;." -'<-■ "fs-nis l<«l>cr-s c-,.,-,i,icMt<,s, - ir r '"''"'r- "■^"•'^l'""-.-' tiK. ..r.llnMH n„„-,sc„n;,J,? '''"--'"""us useci i„ --sionorcnntn,!.,',:,,,' "' ■ ,;l^ I'.-"' "f Hie l-os- '"K u, au.hori.c. wd" V ,''■'''"■'^'''^'"'^>''"- .i^^oods. furniture, rtxtu c's ' "^'''"& •^''^^" '"^'an :iW^- of complete transfer U- 'l"r "'''"■'' ^"•^'"^''^-'^ cap- !"clude chatlel interest L t;^ ?'■'■ '"^' ^'^^^'' "^ '"^--ts in the stock nk r'"' ""■ ^'""^'^ •"• Kovernment, or in the ci ir.i ''^'^^"•'f'^'-'^ "f auN" '"corp„ratecI or Joint storf '"' I^'""P^"'"^v of anv action. •' •"^'^^'^ company, n,),- choses in _ 'Personal chattels shall he deemed ^ i ■ . 'Warent possession •' of rh,. . "-'' ^" ''^- '" ^^-^^ '"^thehilll^fsalesolonil'hlT:;,'"^''^^^ ;>'-^;P<'n any ln,ildin< , land or od\ '■''•"^^'" '^'' ^''' '" ^v him, or as then" S I e 'e '"'^i''''"''"-' ''^^^^'P'^'^' •" -^)- place vvha^oe :^ u, w^:"^' l^'^J^^^]:^' '^>- ^''^ possession thereof n.ax- hav^be n "l 'V'^"^ ^"'■'"''^' to an> other perso.i (^) f \ 'V'" ''>' '"" .^'^'^n 32. s. ;. I ' ^^)- l^^-^ amended by ,.S86, c. ' (') An iissiViiment of personal ... -me and app,, the procee " o 1"' ^ '" '"'^' ^" •^^^" ^'-^ certa,„ named creditors of the ' ''''"'"" ^^' ''''''^ ^'"^^ e.-al benefit of creditors " ^^.ZT^""''"' ■'''' ''' " ^- (u .in/.y.,,, ,. ,^,,,, ,^ ^ ,^P^"' bv th.s section (/). ^-"^. '9 \. S. R. ,.S7. o;-enuled. " ' "'' -'" '• '" •'• '«« •• ^'-^.v v. (I :r! AiKl where an assi^mment of real and personal property in trust to pay first, certain preCerrec! creditors ; second, cla'inis upon which certain persons named mi^^ht respectively become l.ab e as endorsors ; third, debts due creditors vyho Consented to the assio-nment, and h.stly for all creditors pro rata, the document was held to be a bill of sale within the Act (//). {2} The xvord " fixtures " has been held to mean in this connection only such articles as are not made a permanent portion of the land, and may be passed from h.-uul to hand \v.thout reference to and without alVectino- the land ; and the word "delivery" refers only to such delivery as can be made without a trespass or ;i tortious act (;•). (3) VVhere there is no fraud, and a valid consideration is shewn, the question of apparent possession or t(M-mal possession does not arise (ti'). merely 11. I he affidavits mentioned in sections foin- and tiveot this chapter shall he as nearK as niaN he in the form m schedtiles A and B, respectively ('i ). (I) An aiFidavit to a bill of sale containin^^ the words " I am the ri-htful owner and possessor of said personal property as mentioned in the accompanyin^i,^ bill of sale." instead of the words "I am the s^rantor mentioned in the accompanying bill ot sale," is bad. as it does not identify the deponent as the t,Tantor (.v). A bill of sale will not be void because the occupation of the grantor is omitted in the accompanviuir affidavit, if the latter refers in terms to the instrument itself, when his occu- pation is stated ( r). But where a mortgage is given to secure both a present (ii) Kirk v. Cliislwlni, 28 \. S. R. m. (V) Warner v. Do,,, 26 S. C. R. 388. (w) Eastern Canada v. Curry, 28 N. S. R. 32 ^ (x) Kilaip V. Belcher, 23 \. S. R. 462. (y) Smith v. McLean, 21 S. C. R ic: • -.s C r 1 f.^r. n , ,, ^. ^ „ -^5^' ^- '- y °-°- (-I'nninuhani v. Morse, 20 \. S. R. no. % ..S.S4, <): aiui 'n'lir.' iiulohtcj "ess and is laif loat -'"idavii axuainin- '^'! •• - "early as\„a, „, .; ■ , -"7;^ ^ ^^^^^ 'or.ns, sucl, is •^^■'".^ 'U. diOieulu i„ complvi 1 ,"' ^"'''"'^'^'^^' ••"Hi - ''or the "/•"-fRa.^-^' sliall hold and b .1 ''' '''''' ^'^'^'^ f (7C^'^/^^.).nutkeoath.u;;i';;^^^""^>''f ' 'im thf' niorti>:a'>or i,)/- .,.• ' 'I P-rsc.nal knowlcl.c. ,/ / '^^'h^^'^- «"hI have ^'^■Po-sed loMnentioned i the -u-r'"'"'' 'hereinafter tnorto-aoe. ^'^'- ''('-ompaiiyni..- chattel a.^2:nr eS.f:;:s^r'^^"'.^^^''>- -^^ ^-^^ ^he «^-t.s the extent Tthe ' ll T^ ^''"^" ' ^'"^^ ^''"'v ^^ea. ,!anci covered L'. I '■ '"'"^"^'^^^' ^- l^^ such mon^a^.^l*;,';^^^;^^ "^-'-t^-M^T (i).and rhat ^.U „, his a/.ancU r. r ;^' m-toa.,, Purpo.s< ofs.rurin..theooorr: ^ ^ ''"'', ""' '"'• ^^^ therein against th^ ^^^ ^"^ chattels .nentir.ned to prevent st.ch creditor fr'/'^ '^" "^ort^^a.^^or. nor t'^ey nmy have aoain 4 ', u " ""^r '^'^'■'"•^- ^'^Y claims >Svvorntoat "'"^ ""^\"iorto-a.c.or. Countv of ,. • ' '" ;^^^' j uefore me, 'or '• morr^a^e." ' ' '"---to-ayor " is a clerical error. I ; J OXTARIO. R[:\i.si-:i) sT.\T( I f.:s, is{»7. ClIAI'TI k 14S. An Act rcspectino .M„rloao-cs and Sales of Personal Projjeity. MIOkT TITLF, s. I. "'^'7vrr,'!v'''"'"^'' '"'"^"^ H-s.ssu.x .>,• ,;„o.>s I NcnAN(;En : Affidavits as to indebtedness, ss. ^ . To on^fl'T'"' ''' '^'^' "^ ''«-^^''"'' ^^^'Jitors. ss. .. ,. io operate from execution, s. 4. - • -. .t SALKS OF .lOOI.S WI.ERK POSSESSION UNCIIANCiFD • lo be rec.,stered or void as aj^ainst creditors, s. 6 " >-oktga(;es of cncms to se.ukk ai.vantfs or sUKET[i:s. ss. 7, 8. AlTHoklTV TO HF FILED. S. 9. AFFIDAMT OF MONA FILES MAV „F MADE UY ONE OF TWO OR MORE MOKT(;At;EES. FTC S IQ CONTRACTS TO oivE mort(;a.;fs or 'make SAIES SS. I I- 14. ^''^^' IT.ACE OF registration, ss. 1 5 l6' WHEN MORTGAGED GOODS REMOVED TO ANOTHER COUNTV OR DISTRICT. S. I 7. RENEWAL OF MORTGAGES, SS. I 8-2^ •KRTIFICATE OF CLERK TO BE EVhTeNCE < .F RFGISTR A TION, S. 24. niSCHARGE OF MORTGAGES, SS. '>S--^8 FEES. S. 29. ^ " ' t|f:i!ii »'. iN(,7, I iN. I. J. -'.?; .■>/ ' 3'-'-'"i^ '"'" -'- ...*., iKTe neu- county ,orn,od s C^ '"spcct.on of books, s M, ■ •'•'■ '•Cr!^Ihor"""^"'^'^-^'--'v Takin;^^ possession „nt ,., . ,■ , "wxKKsnir, s 4, '■^•^^'•■■^ \viTii.,ui •^TATJSTI, At. NKTURNX S 4. ^'Hano. enacts as follows ' ''^^^ '''"'^^•'■"'-^- "f |- I liis Act mav be citcrl ( , \ '^^^ ^^ct had no short t t e f ' " ^'""'''"'> '^'^ '^OS) ^'-"^h co..on„ knol t t^ ,r:^"'^"- "^ ---"• ai: '-') By the use of H,;: '"'*^'"^' "'^"' g-'ven to it '^'Ik; JiiUs of 5; v., c. o/. appears to have disre^^arded t T "1 "^'^ ^''^ '^^-'ature a- b.Iis of sale by wat of sec t^ •'' '''''''''' "'''^'-'^^'^^ ^^ a distinct chiss of ie.^-d co • '"''"^''^ '^' ^''^-'at them ^f 'or the purpose Of ;:;- ^ ^;;!^-. ^'-is .nay perhap: ;^'«erent requirements to be Z l.S i '' '""^''°" '^^ "- by -y Of n.ort,a,e. and absoi:;::;,;::?:^- °^ ^'"^ ''^^'^ ^- ^very mortgatre or rnnv • operate as a mort|ie ; rTof^ T""'' '"'^"^«' to -^^M') o^?oods and chattels (2) II' -'.!» I ! ONTARIO. i i !r? {" Oman. (3), which is not accompanied by an ■mmed.ate delivery and an actual and continue c ange of possession of the things mortgaged 4 L;; thT ^"'^^^'^--^ (5i shallN-ithin'^h^ diy mherw^-!;"'' 1 ", '^'''r^(')' --«n^t as hereinafter otherwise p' >y.ded (7). be registered (8) as herein- aer provided, together with the affidavit on attesting witness (9) thereto, of the due execution such mortgage o. conveyance, or of the due exc^udo of the mortgage or conveyance of which the cony h ed purports to be a copy ( , o), which affida^■k sha 1 a M con tarn the date of the execution of the mortgage (I). and also with the affidavit of the mortgagee or f one of several n.ortgagees (,3), or of the ag^ent f de mortgagee or mortgagees, if such agent i^.wa e ot all he circumstances connected therewith and i^ properly authorized in writing to take such mor sage, in v.hich case the affidavit of the a..-ent shal n^'n f'f '^' ",:^r^"^ °^ -''^ ^'- circun,st.mcel tn nee ed therewith (13). and a copy of such authori y ;: he uithomv^itself, r4) shall be registered then^ witn (I-,). 57 v/., c. ;^y, s. 2. (I) The words " Every mortgas-e or convevance intended it: ''^^' "''''''?' " '-"'-' ''^" ''^' ^^ '-^'"^^^ -si':' m.nts, transfers, and assurances of goods and chattels ■ leases w.th cond.t.ons giving the lessor a lien on the tenant's property- as security for the rent (.) ; and all powers of at oV ney author.t,es o, licenses to take possession of goods Id chattels as secunty for the payment of a debt in monev o ome other con.nodity (.). A mortgagor, after default. Is, Z ^' crops grou.ng upon the .nortgaged land, a tenant at ./"fisoy.Gn;:.^ Johns. ,86: /V,v„,.vv. />„,•„.. ^o iLid Tj ''^ ' lb) /Ar(7/,vv. Ansfi,,, 21 U. C C I> ,^, . /.■,. * / /) O. I.S<,7. i-i.S, sum tht *? ranee, and <-'''ops, conf i-'a/inot, bv mort-ag-ees, | '-''■ " title to tl «"'^'"s'- a chattel le inortu-a power of at torn Pejudice of the land n- proceed.'- a (nortp- t'.v to a I 1 a .i;t' upon mort- "atiire ofeitl ■'''atiite (^/j. _\ pay thi ler a 'iffor, to sell th niorty-ai^e debt.- morti,'-ai,re or .sal anc a docii or .s a pledf,-e of o-ood • 's not a tr e within tl Ppointee of several «"ul Uitl, ,|,g t^ i,^oods. miction, and ment si.o^ned by the pi s a.s sec 'insaction in the 'c meanin^r of 1^^ re of the void yiilat rood.v "liT (ht pledi Linty tor a I or recordino- tl onn ^~'r want of '"Hi (lied, will .■••.^^''ts of the pleds-, statute (,'). CO mpl lanc "ot m; e with tl ^e It such, « tne trans- '-'e as to the sale 10 re ■'^o as to be A ^l"irenients of mort■ -^ct in that . nor IS a behalf rc-ist mortg-ao-e of ercd I section und er Iht IS not pro- ill ■ - -iiwi u>a""p rif ., . -'t" '■-> not Within rn ture etc -. " '^ ^'-'■'^^'-^ with -ill i '^'tnin -P-.V i„ , „„„,i,,„; '^< ; 1"... i.,.-,s„„,,„ ,.„ t '::%"' '"«"■""-" evide,-;;,, '?;' •-'" -^'i«e,-cU. "■" "• S"l'.le'--t to the A,,, ,, ^. ■' "'i"li'i"rK,l sjile . u,,, P-™.."! p-opertv „, :„■',„""'""■""« --Hli,i„„„ ,,,/.," '-■'''.'■' --«r^o,,,e„, ,.,;::--, ™<*et, „..,,„■ - 'o^^"/^-v.^„„,,[;;'.e.i D.6c;o. rhi 1/ / • T^ii'ies L. K (,«c-i ^ I j I ■ ! ! Mi -40 OMAKIO. j^-ag-e is, by section 11, broujjht under the Aet, and must be in writinf,^ and re<,'-!stered in manner similar to bills of sale and ciiattel mortj^-as^^es, unless accompanied by an immediate delivery and followed by an actual and continued cbang-e oi' possession, and in like manner every covenant, promise or aS'reement to make a sale of chattels i< deemed a sale under the Act (s. i^). A mort^^aj^e oi' i^rowinj^- timber (/(■), or the ordinary rent receipt of a piano or furniture, with rii,'-ht of purchase (/), is not within the Act ; because, at no time does the property ever pass to, or vest in the lessees, or pass from the lessors (/;/). Before the amendment of 1894 it was held that a sale of stock in trade by one trader to another, the ag-reement being that the property therein should remain the property of the vendor until the stock in trade was paid for, was not within the Act (;/), but now such agree- ments in respect of goods intended for re-sale are governed by section 41. But a general assignment of property, by deed, will pass timber in the possession of a poundkeeper, so as to entitle the assignee to bring trover for the timber after demand therefor and refusal (o) ; and so such an assign- ment may be within the Act. A building agreement, in which is contained a provision that all materials brought upon the ground shall be con- sidered as attached to the premises, and not removable with- out the landlord's assent, and that the landlord mav enter an ' take possession of the material upon certain specified default, is not within the Act ( /)). Nor again is an equitable (k) Stelii/ioffy. Mrk'tu; 13 O. R. 546. (!) Cra'.vvoiir v. Salter, 18 Ch. D. 30 : Sic'ciisuii v. A'/Vc, 24 L'. C. C. P. 245 : liaiikx V. A'o/>his(/ii, 15 O. R. at p. 620 : A/cDonaM v. Forrrs/ii/, 19 C.L. J. 241 : Forris/alw McDonald, 9 S. C. R. 12 : Lincoln U'tiirgon Co. v. Mnniford, 41 L. T. 655 : I'ohon v. Dcirccr, 12 O. R. 275 : A.i parte Crav- coiir, q CI). D. 419, (in) ToniUnsoii \. Mon-is, 12 O. R. 311 : Fryc v. Milligan, 10 l). R. 509. (n) Banks v. Robinson, 15 O. K. 618. (o) Jack V. Eagles, 2 .-Ml., 7 \. B. R. 95. (p) Reeves v. Barhm-, 12 (J. H. D. 436: E.\ parte Xe-vilt, 16 Cli. D. 522: Brown V. Bateniau, L. R. 2 C. P. 272; 15 \\". R. 350: Blake v. Uard, i() W. R. loS. «• ^' ^'- '«97, c. ,48, s. 2. ^, but without U,e;,:''h ""'"•'"' ^''"'^^ °^' P"'^^"^-"' Act, though t e Cds : "h'"'''""""^ ""^- '' ^^''^'^'" ^l- the equitable ass" "nm *t : ■ "f"''' '' "" P"'^""' ^^^ the debtor's intereCt " ,1 " " "^°^'"" ^'^- ^° ^^ ^^ possession of the debtor <-nm ''"'''" ^rst they come into the title or a third pe::^;:;!; ^^^^^^^^ "^^^ ^ -hject to the former rule {r). ^''' ^'^ '^'P^'-'t abrogating Nor does the Act annlv t.^ tlie advances (,v) • but a r,.., ' P^"""" making ''That upon :,^„:lt^'^-\;;;^^^e f,„o.ing terms^ second part shall have made Z ad '^'\P-''''^'^ of the of the second part sh-Ul hav" f '"""^^' the said parties preference for al^,K.nsadv ";. "'"" " "^^' '-" -^ this contract, and TeTan e X:,: V^°" ^^ ■^^'"^- ^' -^^- their preliminary construe ion tl ab T' " '''^ ^'"^ "^' parties of the second t^art H" ' "'" P''°P^^''t>' of the of the second p r J rl^t tf '' '" '"^ '"''''' "^ ^'^ P^""''^-^ rejected as hereinb^lr^; ,:„::,"- ''"''[' ''' '''"^^ '^ unless afterwards rejected h!'.""'" '^''^^ ^''^ ^^"^e, the first part, or approp ^ej T""' '/ '" ^^'^ "^^'-^ "^ -''---'^-^t;h:r:;nh-L;- '21 : cyu,/,„nn> v. A-.^Z-r/,/ ^ c P n \. "" '• '"'^'^"'"""- '60. H. n H- R. 95- • "• '" -^'-^ = ./-^- V. AV,i./«, , All., ; X. K. 466. .i >- • ^- . C. I . f,,^ : A',,..,,.,/ V JAA-,„„, ,0 L-. C. 242 ONTAKrO. !i ! it part," appears to be an instrunient within the Act requiring- registration (/ ). A simple receipt for purchase monev of chattels, not at the time separated or appropriated from a s^reater nundier of the same ki:id, is probably subject to the provisions of the statute under section 37 (//). A mortgag-e of wiiat passes by a grant of the land need not be registeied (v) ; but an agreement for giving a future mortg-age, or a covenant for a right to take possession of chattels on a prescribed default, or contingency, may be defeated, as against creditors, for non-compliance with the Act (section 11). An executory contract (as when a vendor agrees to manufacture and deliver certain timber to a vendee, or a tradesman agrees to make up and supply articles for a customer) is within the combined eflect of sections 12 and •^7 of the Act. Letters of hypothecation are not within the Act, nor are pawn tickets, nor in fact any transaction wherein the pos- session of the chattels is immediately transferred from grantor to grantee (tc,). To be within the second and third sections of the Act the mortgage must be given to secure an existing debt ; the legislature conter.^nlating: that, at the date of the transaction, there should be a bona fide existing debt (.v), and a mortgage is properly taken under this section when the creation of the debt and the execution of the mortgage are simultaneous, and part of one and the same transaction ( )- ). It has been held (c) that the owner of land upon which (t) Howitt V. Gzo-,vski, 5 Gr. 555. (u) And see Snell \. Hcii^liton, i C. & E. 95. (v) Ex parh- Bclrhcf, 4 D. & Ch. 703 : Ex parte Reyiuil, 2 M. D. & D. 443; Hutchiiisnu V. Kay, 23 Beav. 413. (w) Re Hall. 14 Q. B. D. 386 : per Bacon, C. J., Ex parte Xorth West- cm Bank, L. R. 15 \i^\. ()C) : Marsden v. Meadmvs, 7 g. B. D. 80. (x) needier v. Austin, ?a U. C. C. P. 334 : Middlebrook v. Thowhson 19U. C. R. 311. (y) Ex txirte Holland, zx Ch. D. 543. (z) Rose V. Hope, Z2 V. C. C. P. 482. w ^- ''■ >«97. C-. ,4«, s. purchaser or nnm^a,ree of .ho i 'T '''^''""'^ ^ subsequent -'-■ and has not :cU,:i ^ ^ ^H ^^"". ^^^'^^^^ '- -ney- ■^ ---'^a^or or land "! " "^j ^^'r^ ^'^;'"^' -rt,a^e. '"^'H.re lyin<. in heaps on the' Hnd , u''"'' '""'''K^''^^- "" -'^ ■•'■ .l.e purchaser of the ,u ^ o^ r , '""'"-"^ ^'^'^'■-^• -- the manure he nn.kes tn J, , :^'"'^''"" '" ^'^ '-^^ .mortK.a.^.or as well as to the c - ' '" ''''''' '" ^'^^ -'eed. since manure lyin in 1 1 ""'"'^"^'^^ (''• And a chattel which n.av be taken awavT '" '" ""''" ''''^ '^ (unless the contrary be stipulated > '''" °"'^^"''W tenant _ An instrument, in the form nf T^ ^^ "i»rto:aj,.-ed (,/;. -ithin this section of the Ac f .> " ""''''' '"' "^ -'^- *« of the instrument was to sec ' re iT'""' '''^' ''^^ '"^^"^ion be g'one uno to show what Th? '.'^'^ ^"^' "^^ -'^^-^ce can should be clear and con vmcin'w T''""" --' ^"^ ^"e proof A bill of sale of f^oods with .' , f' "'iJ'e tnan was ■'" >'■•>■ -'.,„^s, not reported. " ' '^ ^ "^^ '^^^ '«97, a. Toronto (c; //lomxoit V. ffWc/, 7 All XT „ (/) D„f„,rv V. 6>v;,. 4 H & NT ,„. ;,. ^'■^- Pnr^r Cooper, ,o Ch. D. j^ '' ' ^"''^'' ^^'^''^''' '° CI,, D -6 • ;u |i - -^i 244 ONTARIO. ■1.1 : 1 due tliereunder and expenses, the s irplus should go to the original bargainor, has been held to be a mortgage, but there the documents alone constituted the transaction, and apart from them there was no transaction at all {,{,>■). It sometimes is the case that a mortgage as to a portion only of the property mortgaged, or part only of the considera- tion, is not within the operation and effect of the statute requiring registration, on the principle of the maxim " lex non cogil ad impossibilia," while, as to another portion of the pro- perty, or a different part of the consideration, the mortgage is within 'he application of the Act. When such happens, then, if that part of the instrument which brings it within the statute can be severed from the rest, the mortgage, as to the rest, is not invalid for want of registration {//) : but if the one part cannot be severed from the other, then the whole is void; if it can be severable, whether the illegality be created by statute or common law, the bad part may be rejected and the good retained (/). Where the mortgage wa-s given to secure both a debt and also a liability by the mortgagee for the mortgagor, and the affidavit of bona fides was not in the form prescribed for either, but an attempted combination of both, it was held wholly void as against creditors under the Nova Scotia statute which set forth a schedule to be followed " as nearly as mav be " (j). And it may be on the principle of rejection and retention, when the contract is severable, that a mortgage made by two persons may be invalid, so far as the interest of one mort- gagor is concerned, yet valid so far as concerns the interest of the other {/:}. (g) North Ci'iili-al Wagon C7. I'- 14.S, S. 2. A "■^•^ •■"Ivanc.,; ,l,e'r.,c. ?h , H , u ''"""•"" '"'■ ""-' """'" l,e . himself uJe. ,„,;':,' ""^•'" '» ■"" ""- "> "■= "-r.^-ng.. "'"lo,. ,1,0 s,„u„?,;;. ""- """■'^'•■'«- f'-""> I'eins registered """•e obvious ,„,j ':l ^' ^''"'- '" "'» ™"'P"n.v ; bu, ,l,e power ,„ ,„kc i, „„) '; ? ^■"'■I'"""'""' '»'■ 'hoy have mai.uain an action a-a'-nst -. T ,' '""'■'S''''.^-^e, may S-oods .nc^a^ed, altl^u^h L Tf^^T' , '" '^"^'"^ ^l^ ■nterest in then, whatever • and s . ' "'' '^^'"^'fi'^iai work done for it L) , ' . "''""^'^3 ^^^ k^ooJs sold to, or a corporate body to horro.^ ^^%^'T'' ''^''^-^^ ^^ and to give securitv on cornoratV n ^°;P'"-ale purposes, way of chattel mort,.a,.e TZef T'' '"'" '•^'^''^-— t, bv ^;- congregation ^f the a';::^ ^^^-^^^rV^-- the sanction of the offiri-.l u r *- ""'^^■' of Canada, w th money by way of obat.e, ,„„ ,1", ' .'.'^^ i™ 7"> .<- borr„„. board ,„ defray urge,,, claims'"^ ' """"'=■"'-'■ - head of .be depar.,„e„. .olirrdir ■ r ";r" ^^^ (o) Z;n;7tv/ V. .V7(vr/, 7 ^ R \'^' (P) McGec V. .SV,////,, 9 l'. c c]' p_ g^ If ml m m 246 ONTARIO. i ! ■ banks may take, liold, and dispose of morti,'afres upon per- sonal property, by way of additional security for debts con- tracted to the bank in the course of its business. A transfer of goods, when they are in the hands of a warehouseman, who becomes the agent of the transferee and agrees to hold the goods for him, is not an instrument within the Act requiring registration ( appeared m pos- s was at "nstnimcnts executed 'aw, and the word ■ n Td' • "^ T ''"'''"'P^^^^^^ parties to the mon^a^r, Jl , "[' '" ^''^'^-'^^ t'un.^trh the 'aw of Ontario .^Zfjat '" ■''"^"'^^^ f^^--'""' "- respects complv with the s'tatutor r' "•'• '^'*''^^' '""'^^ '" ^" ^Vhen t'- property mort'lU^^^^^^ t'^e province at the time when th ' "'' "^^ ''"^'''^ of "^ the place of contract ^^^ ^I'r " '"•''^'^"' ''^^ '-^■ construction and effect of amor," "''''"''' ^aliditv. -moved to another pro vince f^'^'r ■';"' '" "^M-opertv i executed according, to the if I'" "''^''^^''^'^ ^^ "ot executed and recorded accordin'o- , ';, !'*' Province, yet if -'-- executed, it will he ^^^ ^J, f ^T "' '" ''^^^'"^ Provn,ce to which it is removed u', ^ " ''''''''''''■ ''" "'^ have the c„„„-,,,, ,•„ ^ ;, "° -;• " -V- vo„*e .„„„ actual (leliiorv oi,.,h, ,„ u '"" ™P"tat,„„ „f fr„„d ^««veo-,he,.e„V„,u,;*„l:„n;;:";;: -^- - a„ „ea. a actual and o„,„i,„„,, ,,,,, ,^ „" „o „ >' "^"""' "'■ """ "" (v) A'lvcr S/,r7 ,■ C„ V c •// „ ' • / II r re /so II , iQ , , „ "■■ ■' * - *^ ' '•— ■ "*:;;. .;'.v:';',:«r"- (X) Belangei- v. M,„„,,/ ,- q I' 'y) I Sm. L. c. :j. iK i r, n^ jti' hij! fii i,! 24K t>M.\i : the time of the transaction con- cerning them, are suhK,; U> rhe Act by virtue of section 37, but book debts are not -.i Jijn (he Act (/;). In endeavouring to reach the meaning of {he words in the Ontario Act, to say what is an immediate delivery of the goods, which are the subject of the mort -age or sale, as the case may be, we are to look at the nature of the goods and their locality, and the place at which the mortgagee or purchaser is to receive them, and consider of what kind of delivery the goods, etc., are capable (c). From the very diversity of things, what in one instance, would be possible, in another would be impossible. The law is reasonable, and requires not that which is impos- (z) Osier, J. A., Dominio/i Rniik v. Davidsnii, 12 A. R. at p. 92. (a) Fry V. Miner, 45 Pemi. 441 : Morsr v. P,r.i;-rs, 17 \. H, 286. (b) Thihaudeaii v. Paul, 26 O. R. 385. (c) Per Spragrgf, C. J. O., McMaster v. Garhnuh 8 A. R. at p. 5 ; Rx parte Morrison, 42 L. T. 158. '<• X. o. ,,S(,7, c. I4«. s. J. IVccautions are uiselv necessary, when if i that the statute n.a,■'"'■ "'"i F csMon ot the assignees (//). id) A/cMa.,/„ V. j/„„.,, t- , ^'""^, 17 U. C. K. 30 ''••*-•'• 1-397 (e) ^.,„v/.„. ,, ^;,,.„,,^^ ^^ ^ (t) /'(■^Wilson, c" I ]/,.]/, , ^ '■ h) TnW,,.,- „■;.:. ' -^ ^- '^- -•'36. ■'^'""'■""' V. Commen-ial ly/ory. W/ii/friir '"'<•, I o L'. C. R. 440. IMAGE EVALUATION TEST TARGET (MT-S) h /. V. 1.0 I.I £ IS 12.0 11:25 i 1.4 1.6 V V ^. ^ > > <^3^ A. ^ "^7 > c .Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 872.4S03 ,\ ■1>^ <^ ^\ C/u ^ •25° ONTARIO. I I Where the transaction is of such a nature that it was probably not contemplated that the document would be affected by the statute, the tendency is to endeavor to uphold it, if it be possible (/'), for if any class of Acts ought to be construed strictly it should be those which, having for their object the prevention of fraud, have in certain cases a tendency to invalidate bona fide transactions. Where fraud does not exist, this Act should at all events receive no more than its true construction (y). (5) As the alternative of filing- the mortgage itself, this section gives the power of filing a true copy thereof. Section 5, however, makes no reference to a ro/)): The latter section states that " in case such mortgage or conveyance and affidavits are not registered as hereinbefore provided, the mortgage or conveyance shall be absolutely null and void.'* It is possible that the words "as hereinbefore provided" might be held to allow the registration of a copy, but, in the absence of an interpretation of these words, it would be safer in ail cases to register the original mortgage. It is a com- mon practice to register the mortgage itseH'. the partv entitled keeping the copy. This course, however, is open to the objection that, in the event oi the instrument being questioned in a court of law, the expense and trouble of obtaining the attendance of the officer who has the original is necessitated. By section 24 a certified copy is evidence only of the receiving and filing in the Clerk's oflice. To prove the execution of the instrument, the original must be produced, and to do this, under the system of regis- tering the original, the clerk of the court, with whom it is filed, must be subpctnaed to attend, unless more than one copy was signed. It is, tlierefore, usual to make duplicate originals, filing one and retaining the other. The word " true copy " is used ; but this does not neces- sarily mean "an exact copy." It will be sufllcientlv accurate (i) Cameron, J., Scribiivr v. McLaren, 2 O. R, 279. (j) Goiigh V. Kvcrard, 2 M. & C, Pollock, C. B. at p. 8. n >»• o. i8i)7 where, fo with i4«. 2^1 r instance. an in 'n the copy, Gardno require the as any errors or om f'^''^^' of an "o"(^). The Act r's name was spelt copy filed to be an absolutel doe s not issions in the copy filed y exact copy, so long- eh ■iing it can by any ^"t that it shall be so true that not possibility misunderstand it(/). (6) The words "within fivo H-,,.. r t'-eof" exclude either the firsV „ ' , /j;;;^ !'- ---ion n^ort,.af,e executed upon the ,.th of ul '^ "' "'"' " reg.stered upon the .7th of Julv followi i"' J^ ^ '' ''""'-^y Sunday, it has been decided, councs Is . , u «ect,on 30, if the last day for filing, i, "/ '-■ • ^"' ^^ expires on a day when the offic t o eT""'' ""'" '"^ '''''' next day will suffice, and a simil , ° ' ''^""■"''"" "" *'^^ the Interpretation Act as J ^''''''^''"^ '^ contained in by statute "' ^''^•'-^'■"'"^' periods of time limited an hour, and thu ^^l^l^T '''''' ''' '^'>-' ^ --n benefit of every n.^;;':^-^;::^ S""' '' '"'''' '''''''' "^ A mortgfag-e or bill of sale th-,f i registered may. during the fi e d. b ?\ " ■-«"--^--">y re-registered (.) ; but'^^.ot ^ e,tl e 'til ) "' °'". ''' ''^ '''-' elapsed (p). i„ the latter ca e -m ! . ''^^-''^^'-''-i".^' Has '"-t be made and filed wlVl 7^:;^"^"^'' "'"''"«*" -^l^ -rtg..,ee take posseSorlL/^M f^;^'^^^-"' "' ^' — on Of the five days, Which ^^m::-:^--:::^ - ^''- ^- K- 355- ■ '"• '^- ' •• ■^""^^' V. .I/r/.v,;,, ,, (m) J/Ura>, V. PinkcHon, 7 A l^ ,„„ (o, /„ .. „>,;,/.,, .7 L.'t „ """ " '''■•"'"■^-- ^ «• «^ Akl. ,86. (P) "'^'■^"^'■/ V, AVsv, ,4 l„d. „ (q) /« r^ O'Bne,,, ro I >-■ f. L K .^i^ %; ='PP- xxxii n ! i 111 -O- ONTARIO. before others have acquired rights in respect to the property will make his mortj^age effectual (r), and he need not register the mortgage at all (s). The time from which the five days is to be computed is not the date of the instrument, but the date of the execution. The presumption of law is that an instrument was executed upon the day of its date, but this may be rebutted. The date of a deed or instrument generally means the time when the deed was really made or delivered, not always the day that may have been inserted as the date, which may sometimes be an impossible day (/). Parol evidence is admissible to shew that a mistake was made in the insertion of the date («), and it is not material that the date inserted in the body of the instrument differs from the date sworn to in the affidavit of execution as being the date of execution. The insertion of the date of execution in the affidavit must mean the correct date, and it is submitted that an error would be fatal. When asserting any rights under the mortgage, it is incumbent on the mortgagee to prove its validity as to filing ; and though section 24 makes the clerk's certificate evidence of registration, it is only prima facie so, and therefore evidence can be gone into to shew when the mortgage was in fact filed. A mortgage under this Act executed on a Sunday is not void, the giving or taking in security not being -ing or selling within the Act to prevent the profan. , of the Lord's Day (7))- (7) The words "except as hereinafter otherwise provided," now added, refer to the exceptions in section 15, whereby additional time is allowed for registration in the various districts and provisional counties. (r) MrTafTfrarf v. AVsv, 14 Iiid. 2,30, per Lush, L. J. , ^.i- parte Saffery, 16 Cli. I), at p. 671. (s) Per Sir A. Cockburn, C. J., in Marplex v. Hartley, 30 L. J. Q. B. 92. (t) Beekman v.Jarvis, 3 U. C. R. 2S0. (11) Shaiifrhtu'ssey v. f.ett'is, 130 Mass. 355 = Stnnehrenker v. Kerr, 40 Ind. 186 : Hoadhy v. Hoadley, 48 Ind. 4,^2 : Holmaii v. Poran, 56 Ind. 358. (v) Lai V. Stall, 6 I'. C. K. 506 : Wilt v. Lai, 7 U. C. R. 535. I! < IS The omission fro a fatal defect (tv) I'- i-''li-luiiii, Co I ^'"Z ^ • ( landc^c, 7 y. K. n^ ^^ • ^ ^^- J- (zi /-„/-,/ V. /wV//c, oO. H n .,r^ vv (a) DeFo^.est v. /;,,, ~,,// ■,. ^/^,^. ' ,y"">- ^- ^''>'/'. « Q. H. n. ,, ,, f ij>> 1 2S4 ONTARIO. Execution of a document under soul consists of three acts, VIZ., " signing, sealing- and delivery." The latter is froi completes the eflicacy of the deed, and it is from that occurrence that the deed takes effect, though there be a false, or impossible, or no date ; writings not under seal may be said to be executed when they are made and delivered {c). The witness is required to be an "attesting," i.e., "sub- scribing " witness. This corresponds to the Imperial Act, where the affidavit must be of the " due execution and attes- tation " {(/). Without delivery an instrument will pass no title to a mortgagee, either as against the mortgagor, or third parties ; and with delivery but without registration, title will pass to a mortgagee as againr.t the mortgagor, but not so as to exclude the rights acquired by third parties under the Act. In order to complete delivery, acceptance by a mortgagor or bargainee is necessary, and, therefore, if, after delivery and before acceptance, a creditor has acquired an interest in the property mortgaged, the mortgagee cannot set up a title anterior to the creditor by reason of the delivery (e). It cannot often happen that the question of acceptance by the mortgagee can arise under the Ontario Act, for he must be taken to accept when he makes the affidavit of bona fides. Even where the affidavit is made by the mortgagee's agent a copy of the latter's written authority must be attached for purposes of registration. It is not necessary to a valid acceptance that the instrument should come into the hands of the mortgagee, for oftentimes the facts are such as to constitute the morigagor himself agent of the mortgagee, so that manual acceptance is unnecessary ; for instance, an agreement beforehand, in pursuance of which the mortgagor executes and files a mortgage to secure a debt to the mort- gagee is a compliance with the rule of law as to accept- (c) Boff/ey v. A/rMick/e, 9 Cal. 430. (d) Imp. 41-42 Vict., c. 31, s. lo^ ys. 2. (e) MiV/er v. Blinebury, 21 Wis. 676 : WeMi v. Sackeft, 12 Wis. 243. «• ><• o. 189;, ^■_ ,_^8_ j^ _, «"« (/): but, if th -55 e act of executior '"ortga^.or is delayed a^;; ,' '"^'^"7"/'"'' "li"^ by the 'he delay ,„av ^e ' t v ' '-^' P--^' after ,he a,.ree,.e„t, Mere ^no.led.e ir::\.:tp : ^ " Ve' •■'^"'''-'" ^^^)- ^o son. act. directly or indirec ,rrat"ifvh: t,r'''"-^" '""^^ A n,ort^as:e executed and filed in pusun te ""'^'^^ ''^• ment so to do by the mort<^af,or m- v b •' ^"'"' '"''''''■ far as acceptance is concerned! thouH, d 7' *" '''''' '^ n^ort,.a,.ee, yet if the mort^^ac^e be .no " ""^''"'''" '^ ^^e '•^- agreed upon, the ex^ ^ ion Z'T'^'V'^^''^"' '° amounting to acceptance by the 1;;;^.'?;,^^"' ''' ^-" It IS no objection to the affid-.v-f^ % second christian name of the d.n. '-^''^'^■"fon that the or at all, as the common huL "'^ "°^ "^'"^" '" »■"". name (./, and the omisJLn ^^ H:::^ ^"^ °- '^'-•-ian objection to the affidavit (A). ^^P^nent s addition is no If, in fact, the mortirao-e is d,,!,. plied with, its object ansC d /tr"t'' ''" ^^^^"^^ -- fraud, the court will uphold.to \ ' u" "° ^"^^^^^^ion of makes affidavit that he "t both "^T" ''' """"'^ ^° -'""ch in fact, he only saw one (/ . ^-'^-^'ors execute, when. The affidavit may be sworn before inv i, . I'c, commissioner or other nersnn ^ ' ^^^' "°^''»''>- P"b- authorize. to take affidavits n and T "."^ "' ''' ^'^^^'^^^ J"--ceorb,,j„,,,,^,^--;- d o, the Hi,h Court of --.^^ort.a-.---(^);^-.^ (f ) n„^.r V. A„,^, 6 Cresh. (Mass ) ,, (g) Jordan V. Fan,s,vorth , - f ITil, ' J Re.rv Xe,„„„ Ld. Ray„,. 56. (k) 5rorf,<. V. A'«//„„, ,6 L- C R 1, (\) DeForreslx. Bunnell . ,c u C R „ (m) See section 33. ^L.c. R. 370. (■') Expa.teHeynuuu,, L. R. 7 Ch ^88. A- . il '!<■■ "I 1.1 I ^s«) UMAKIO. I i "sworn," or the word " affirmed " (^;). Affidavits 'of this nature will not be treated with the same particularity as affidavits used in proceedin',^s before the court, Objections which rest on a non-compliance in the affidavit with certain rules of couit established to regulate the practice and pro- ceedinj,'-s thereon, are not sustainable, for in affidavits sworn under a statute it is not necessary to conform to the techni- calities required by rules of court (/>). (lo) Should a copy be filed as permitted by the Act, in place of the orig-inal, then it should also be shown by affidavit that the copy is a true copy of such original. (ii) In the second edition of this work (p. 323) it was suggested that it would be better if the legislature required the affidavit to shew the true date of the execution of the mortgage. The Imperial Act required that the time of the mortgage being given should be shewn, and this is now necessary under our Act. (12) Where the members of a firm loaned moneys, taking the securities in the name of the individual partner who, in each case, agreed to accept the security offered as between himself and the firm, a chattel mortgage so made to the individual partner will be supported as against creditors, although in equity it is the property of the firm, and although the partner who did not appear as a mortgagee acted as witness and made the affidavit of execution (wi. The question was raised in Mr /.cod v. For/inic {11), and the court there held that when a bill of sale was made tq two jointly, and filed on an affidavit of bona fides made by one, the evidence shewing that the consideration was made up of two debts due the vendees separately, that the affidavit was still sufficient. This section is not limited to the case of joint mortgagees who are connected in business, either of U ;! (o) Pollard \. Hiiiiliiiirdiih , 16 C. L. J. ibS. (p) Movi-rw Davidson, 7 U. C. C. P. 521. (ill) Ifobhs V. Kitchen, 17 O. R. 363 ; 25 C. [.. J. 2^\ (11) 19 L'. C. R. 9H. « ^- O. 1807. w horn would be 1 48, with the m aware of all the circu """tgfag-e ; but that '"Stances connected lavit not connected inhV °"' °'' '"'^ "^^r.^.a^eos "nearull knowledge of thp ,-,v^. a'"u.tvn •^"-etimes it happen.ftlK t 'r;"'"^^---"^ ^'^)- ;equ,.site in the aflldavU is supplied T 7" ''' '" ^'^'-'-^Y " ' extent found in the instr^^, t . 1' rT''^ '" ' "^"- there.n made to the instrument it e t r\ '■' '''''''''' ^"fficently intelligible, then the obie^^ ;/ r'""'''^'^ ''^ -ade not g-enerally be pernntted to prev^^il/r " ■'"^'''*^'''^ ^'" ('3) The section now contnln. • the Act of .8,,. ,,3s in ■: en , '^ 7"'-^ "'^^^' P--'-"' ^o affidavit of thea^ent shall s^, ",";';; "''--'>• ^hat .-the c.rcumstances connected therewkl • • "• ^'""'"^ "^ ■-"' the ^'4) R. S. O. (,887), e 7V '•' '"■'^'^ f''^ mortgai^e of the ag-ent's authority shoulci'L'' '' •''"''"'"''''' ^'^''^^ '"i '-^Z"' pe-it. apparently, the ^°l?f-^--i. and did not Th.s was changed by the Act oT 8 ' °''''"''"'''' ^"'horitv of the original, by Lding af eV^fe'u" ^.''"^"'^^ ^^^^-tion authority," the words " or 1 1 , '*' " ''* '^"Pv of such ('5) It was not until ^h '""'°'''^'^" '''^^'f-" - 3. that an agent could male'the'lf ''^ ^^^^"^^ - ^ict.. ^- ,3-:4 Vict., c. 6. impe:a i Vl'^- '^ °^ ^^"'^ ^^^es. th^ a mortgage, the mortgagee hims ,f?T"^' ''''''' '"" '^''^^e of the bargainee himself) should "./ T ' *" '""'^ ^^ ^ "ale, '"ortgage filed under ha Act o t '^' ''^^'''''- "^nce / was held bad (,). The Ac 40 vC c' ^"^'^^'^ "^ ^ ^'^ent favour of the agent, and gave to b J' '"""' '"'^^ ^""'^^'- '" affidavit when acting for^era^ " '' P"^^'^'" ^" "^ake the can now be made: ' '''^'^^' "^"'"tg'agees. The affidavit ^"•st, by the mortgagee. Second, by one of several mortgagees. . ^i ■3 I ' M 1 ;'t il'/i I" if I I i !5« ONTAUIO. If ThirJ. by an as'ent of the niortLfaijce. Fourth, by an ajjent of the several morf^'ag-ees. It does not expressly appear, however, that an a{?enl of one only of several joint morts-aj,'-ees can make it, and an ag-ent with power to make an allklavit cannot invest another with his power delegated to liim from his principal. If the agent make the aflidavit, it must state, besides the requirements necessary under section 3, infra, the fact that he has been duly authorized in writing, and that the copy of such authority attached to and registered with the mortgage is a true and correct copy of the authority to him from his principal to take such mortgage in the name of his principal. The authority of the agent is not required to be under seal(/-), and it will be revoked by the death of the principal (.s), unless it provide otherwise (/). But independently of any provision to the effect that the authority shall not be revoked by the death of the person executing the same, every payment made by, and every act done under and in pursuance of any such authority shall, notwithstanding such death, be valid, as respects every person party to such payment, to whom the fact of the death was not known at the time of such payment, and as respects all claiming under such person (//). Until "The Mortgages and Sales of Personal Property Amendment Act, 1880," it was necessary for the agent to have a new- authority each time he took or renewed a mortgage, but this statute made the necessary amendments to enable an agent to take and renew mortgages on a general authority for that purpose (v). When the mortgage is taken to a trading company, then, if the affidavit of bona fides be made by the secretary-treasurer, although he is a shareholder in the com- pany, without the written authority mentioned in the statute being filed with the mortgage, the mortgage will be held (r) Bcechcrs. Austin, 21 U. C. C. P. 342. (s) Jacques v. Worthington, 7 Gr. 192 : Wallace v. Cook, 5 Esp. 118. (t) R. S. O. (1887) c. 97, s. I ; (1897) »-■• '16. (u) R. S. O. (1887) c. 97, s. 2 ; (1897) c. 116. (v) See s. 31. '<• ^- o. iS, ■)7< '4.S. s. ,. void (7f.), and -in ir i • ' ~'^'' company o. a dKuLr.;:;,;;;;;^^^'^,^;'- "--^- of a loan .'" "•''--'^ they can he ex ,; '""''"r '^""---^ '" "'^ -nlv wa^ '-Mef;a„c.„ot hyUeC :' '^;-^\jI-'-c,i.-ec,,ya,^ '^on.sKiered as the affidavit o he n . '''''"' '^"•"^' '^'^ ^l^-^ -.y the .ort^a^ee could n, ke hT^m^^'^^^ ""^"^ '" ^'^ -"y ts adm.n.strative officer ( ,.). h7^^''^'''"' "'""'^'y. throuj^h ^tands ,n a different position to i """/^'^'^^ "'' ^ --Pa"y °"e of the corporation, the h ef T"''"'' ''^^' '«»er i 2-" and representative T T'""' ''"' ''" ■'' — its officer not a corporator, a mere J ''"'''''"■ ''^ ^" ^'^'-cutive ^-cut.ve functions, actin,. .^ der h ' T-'^^'^'" •^'^-'■•ficd :l ''' '^^'-'-'-^t and board o ^i e ""I'^^T-y '-'^ ^"-ction O" any pnnciple of construction o' ' *'"', u ''^ ''"^'^"■^■^''"e -"- as ,„ any other position :;;arth;T:t^':r '" ''''' ^ '" °t a" ag-ent(,7). '"ortgagees or the agent of tl^^' """' '^^ ^^^veral g^'K-'-f (3) shall state (4Wn ' fiv"' •^"^'•^'"'^ ^-^ "^o-^t- qu.red by section 2 of h flT^ f° ^^at is re- gagor therein named is jus Iv ^ ^'^ 'h' ^^e mort- the mortgagee in the si mm en t ^'"^' >; '"^'^''^ted to p?ge(6). that the mor o- " e !" '^ '" '^'^ "^^rt- faith and for the exnrc I ''' executed in good (w)/-m./,»/rf/,.^..y 't,uitors (^) .".. Hagarty, C. J., /■^,,/,„/^ ^ t^" C- C. P. ^7.. II 3 ';! f |: 'M 1 1 1 Mi 26o ON TAKIll. ' I i : , writ of th(i m()rtn;;igor (9), or of prcvcntiiifT^ the creditors of such mortgaoor from olnaiiiing paymciu of any claim against him (10). V s. (I) It is not necessary that tlie alVidavit of the trutli of the debt and bona fides required by this and section 2 supra, should be made on tiie same day that the mort^'-ape is executed (/;) ; the decision in /Wry v. Ruilati was under 13- 14 Vict., c. (12, the provision of whicli statute was that the mortga},'e "shall be accompanied with an aflTidavit of the mortfjagee." The statute was complied witii if the afTidavit accompanied the mortgajje when it was rej^istered. By Con. Stat. U. C, c. 45, the words " tO!,'ether with" were substituted for the word "accompanied," making- the latter statute read according to the construction put by the court upon the words of the earlier statute. The words " together with," mean "simultaneously" or "along with." So far from the objection taken in Perry v. Ruttau being fatal, the nearer to the moment of registration the affidavit is made, the more satisfactory it must be ; because the question at the time of registration is not merely whether there was a debt due at the time of the execution of a mortgage, but whether the debt continues due at a later period, namelv at the time of registration. If this were not so the statute might easily be evaded, and a mortgage kept on foot for protecting the goods of the debtor, for his benefit, long after it had been satisfied wholly or in part. It is not necessary in affidavits sworn under a statute to conform to the technicalties required by a rule of court (r). Where, therefore, the jurat to the affidavit of bona fides used the words "sworn and affirmed," without saying which of the two deponents swore and which affirmed, and omitting the word "severally," the affidavit was still held sufficient [d) ; so also where the commissioner (b) Perry v. Ktittan, lo V . C. R. 6,^7. (c) Mover V. Davidson, 7 U. C. C. P. 521 : De Forrest v. Hunuell, 15 U. C. R. 370: Cobbett V. Oldjielil, 16 M. A- W. 469. (d) Mi>yer\. Duvidsoii , 7 L'. C. C. P. 521. ir ^i- '<■ s. ". l,S(, SI igned !tmd; «i jurat over il '-f«. J()i Olllc 'ivit may h ''"-' Words " ,\ (; e of th "-' -^"orn heforc a sol omV. etc. ••(<.). And an may he sworn h e mort^^•,^.ee•s .sol "--itor employed in tlu Obj: »-'^"'ion that til '^■'ore the niort^r '^■"'""s (/■), aiui pre "ot writtei le sc epoiicnfs addit 111 (nil, hut II 'i^ond Christ :i^'---.ctorily proved that - --n-.y be an honest on t " ' T"" '"" ^''^^y ---P-t the \ova Scotia Act th.t tl I • •" '''''" ^'"' ''eld under and of the words '' b C "'"T"" "' ^'" '^'''^'^ "^ -vearing The courts have uniform „rT "" '''' ^'''^' '^ ^'^tal (/f - honest transaction trr::'::?'; '''''''''^'' ^'' "P'^"^ ;'f - s'ip or omission ; but the l" H I f "'^"^'"^^ '"' «" account *-t that a chattel mort,4;orh'" '"^ "^^ ^-" '^o- ^^'ood faith, but has required the mo . "'"'^' -^'""P^-^ -ith t- 'ts character. StilHurthe tT '"""' '° ^'^'^'^ '^"^ °-th ;-ecorded in the form of an ifl d ! "T"'"^ '^'' °^^'' »° be to-:- 2::::;;;;; :■?-■" -«■... ^u-l /) zp •'"<'ie\. I odd, 22 \ \i ... '•S; 2jur. (N.s.)4^,,. 2,j •,*^„'^-^°7: Allen v. /•/,,„ , u t v (ij Sladden v ^W- / l ' ^^'^- • ' H. & N, ■ 'fi; »>' a I' i i J i i 262 ONTARIO. of the existence of claims against the floods of the debtor, but of the existence of a statement made under the sanction of an oath, and in comphance with the terms of the statute. To the attainment of this end it seems indispensable that it should appear that the afiidavit was sworn before some officer having- authority to administer the oath. It never could have been intended that the creditor should be left at his peril to assure himself by extrinsic evidence of the presence or absence of this requisite. A paper purporting to be an affidavit, but not authenticated as sv.-orn, is quite consistent with the supposition that at the last moment the mortgagee had shrunk from swearing to the necessary statements (/6) ; but when, in point of fact, the affidavit is sworn before a person authorized to take the same, and he signs his name as so doing, his omission to add the character in which he swore the affidavit, will not invalidate the mortgage, at all events not so if the character in which he took the affidavit appears elsewhere in the Instrument (/). Nor is an instrument rendered void under this Act if the officer administering the oath chances to sign his name above, in place of below the jurat (w) ; but it is a serious omission to omit from the jurat the word "sworn " or " affirmed," for such an omission is as fatal to the instrument itself as the omission altogether of the signa- ture of the person administering the oath (>i). The affidavit of bona fides must not be sworn before the execution of the mortgage, or the mortgage will be invalid (o). The test as to the sufficiency of the affidavit is not, as has been supposed, whether or not perjury could be assigned, (k) iVisbef V. Cori, 4 A. R. 300. (1) Hamilton v. Harrison, 46 U. C. R. 127 ; Bhiibcrgw Parke, 10 g. B. D. 90: Canada Permanent v. Todd, 22 A. R. ^15. (m) Moivat v. Clement, 3 Man. R. 585. (n) Pollard v. Huntingdon, 16 C. L. J. 168: Archibald v. Hublev 18 S. C. K. 116. (o) Reid V. Gowans, Out. Ct. of Appeal, 18S5, not reported : Building df Loan v. Betzner, 26 C. L. J. 189. i.S{ but whether the an affidavit as th '7. I. 148, paper filed uith the chattel e statute re ■(•l Hires ( 26-. mortg-ao-e is such If • , , '"'uiL require- It miffht be, and sometimes is fh the transaction between ,h '' "■^"' ''''-^^ the nature of "'■■'hin the application of e's;'?'' ''' '""^ ""' ""^ »^ ^e ""^er the circumstances fo ' , "'' *''"'' '' '-^ impossible affidavit uhich this section '' '"^""'^-^'^^^^ to make the -n ^e registered .ith:. r^^^i ""^ '^'"^^' ^^^^^''^^ '•epuf.nant to reason to hold th .t n ,' '"'' '' ^^■°"'^' ^^ ^'- Act, so.as to make re-'st : -^ "?^'' "^"^^'^'^^ ^ -'thin Pe-able to its validitv, and vet tl ! i^ '"''"''' '''''' ■"^'■- ^ k-'Hi that the affida'vit posit!-. " ■'' '"°'-'-'''.^e "f -such ^^ -acle, in order to re^^i ,• ^ T"''' '^^^ ^^e -statute to P'-operly made or legally recei^ f -""rt^.a^res, cannot be ^-•"■"^^ it. If a mortl.ai o 1 '' ^ '''"''''''' "' ''^^^^- ^-ed by reason that t^^e' d re;tirs 'T'I""""^ '^^^ ^^^^■■- complied with, then it can ot h m '^' -^'' ''""''^' ^e "•e^Wstration (y,. '*'"""^ ^^ ''^'^ iHeffal for uant of (2) There is nothin,- i„ the sMt . • •^ortgao-e beino- ,Wven to, and 1 e ' tr .'"'"""f "^' "'""^ ^ made by, a person to wl om M , 'u '""' °^ ^°"-'' ^^s whom he represents, or fcr 1 ". " '"'^ '"'■ ^'-^'-'• he have no beneficed in!::^ V';;: f'"'' '''" ''^^^' ever (;-). Hence it is th-.< M transaction whatso- corporation can, in certain c^" .w'f^ °^ "•^'— "^ a •« enabled so to do, take -, m V ^>- 'Statute such officer '^ebt due to the co o ,; bn 'T """'''^ ''' '^''"-''^ ^^ a required by this sectio'Th'b:;? "" '"''"^ ''^ ^^^■^--•^ "^ana^er or treasurer to take 'he m ?"'"''' "■°"'^' ''^ ''"■ ^'^^ (P) .\/.sAf/ V. Cori- 4 \ p 295: ^■v/«././/o.;„.;/L'R'Tr,^''f''' '• ■"^■'"-'""' '7 V. C.C V ■ (q) i9«/«'T(,/„ ^-. Hcni„mi„ ,6 I • r P R- 354 -• fr.,«,.^ V. .W/.., ,8 Gr •,',. ' '^' ' ■'^'"^"''•" ^ ' '^-'""■'''. ^« f. C R- 635. ^ • ^- R. 477 : /f.-.va,;l v. .,/,y,/„^/, ,, ^ I 2i,4 OMAKIO. i !•' I \'^}''\ i ! affidavit as agent, and a copy of his authority would require to be registered. This authority may be a general one to take and renew mortgages under the Act (.?). VV'hen, however, the president of a corporation makes the affidavit, he does not act as agent ; he acts directly and in chief, and not by delegation, and therefore the authority to an agent in such case need not be given (/). One of a firm of co-partners may take this affidavit on behalf of the firm (//). Ministers of the Crown may make the affidavit required by this section, in mortgages taken to them as the heads of their respective departments for and on behalf of the Queen (v), and in the Stale of New Hampshire it has been held that a similar affiidavit may be taken by one of the selectmen on behalf of the town, he being intrusted with its financial affairs {7i>). (3) The words "or of one of several mortgagees, or the agent of the mortgagee or mortgagees " added by the Act of 1894, were suggested in the first edition of this work, on the ground that their absence might encourage a contention that the requirements in the affidavit, when made by a mortgagee, or his agent, were not made necessary in (and their absence thuN would not invalidate) the affidavit when made by one of several mortgagees, or of the agent of the mortgagees. This contention was indeed since advanced. The contention, however, was overruled (.r), the cases of J/rZllLll rtllU iustiv du. n '"•"''''''' "^ '"-■"'■'"Sf the payment of money justly due or accruing- due (s. 3) ; challelV^"'^ T *"?• "^' '^"''P""^-'^f protecting, the goods and he m ;;::::: ;:""' ■? '^ '^-^^^^^'^-^^ •-'^-■■'- "^^ -editors of f^toTfro^;; '"•"' '^"^■"""^^ ^'^^ '-•'■"'''"- °f--h mort- stat^:^ anulavn ,s made hy an agent, it .^Lst. in addltioll; nel1Itu.\u': ""T '^ ""'" ^'' ^" ^"^ ---stances con- neccea with the mortgage (s -> ) Si,ouId the amclavit be mad'e by an agent, it need not state let) ;;7'-b-authori.ed in writing to taKe the mort- quent purchaser or mortgagee in good faith, to show that the age s not possessed of this quahfication. Whether he is o s not. , a ques ,on of fact, and if he is not so possessed, then the mortgage w,ll be invalid because it is not Hied with h :!:^;;f ,;;" ^'^-^ ^^'- '--'-i-^ i" -iting to ta.e thl 2 of th.s Act are here mserted apparently to call attention to agent (see s. 2). y,..: that he is aware of all the circumstances connected with the mortgage. circumstances (6) The first requisite oFthe affidayit of bona fides inyolyes the question as to what consideration will sustain a mort! sta^e of iv T T '''^"'■'''^'"-' ^y "oH-ving under what rroper^rar"" ''''' ''' '"'"-'' °^ '^^ ''^ "" ^^ A person who assumes the debt of or incurs a liability for (a) Carlisle v. Tint. \ A R 10 ' !! 266 ONTARIO. I I- another may take a chattel mortijai^e in security from that other, for his own indemnity, under section 8, for which a different form of affidavit is provided. It has been held necessary that the amount of the indebtedness be inserted in the affidavit of bona fides. To omit it entirely is fatal. Such a particularly important fea- ture of the affidavit should be stated with great strictness and accuracy, leaving- nothing- to inference, vagueness or ambi- guity, and it does not render the instrument less fatal that such a defect might be explained by referring the affidavit to the consideration in the body of the mortgage (r) : and the late C. J. Cameron, at the London Fall Assizes in 1885, strongly intimated his opinion in favour of upholding a mort- gage, in the face of the objection that it was fatal by reason of the omission of aiiy sum in the affidavit of bona fides. With the amount left blank, the affidavit would still read in the words of the statute itself, by treating the word " of" as surplusage, and would be presumed to refer to the considera- tion in tiie body of the instrument {(/). It has also been held that an affidavit of bona fides attached to a chattel mortgage, stating thai the mortgagor was justly and truly indebted to the mortgagee in the sum of ;£,"8oo, or " thereabouts," as fully set forth in the chattel mortgage ; " that the mortgage was executed in good faith, and for the express purpose of securing the payment of the money so justly due as aforesaid, and of securing the (mortgagee 1 for his said endorsement, and not for the purpose of protecting the goods against the creditors of the mortgagor," is sufticient where the mortgage itself fully sets forth the consideration, so that the true transaction between the parties is disclosed («■)• But should the affidavit state that the mortgagor was justly indebted to the mortgagee in the sum of $1,000, or thereabouts, and the consideration in the mortgage be $1,000, it is doubtful if the affidavit would (c) Mclnfyre v. Union Bank of Lo'.vcr Canacia, 2 Man. R. 301;. (d) Oliver V. Robinson, not reported. (e) Vnlentine v. Smith, 9 U. C. C. P. 59: Jones v. Harris, L. R. 7 Q, B. 157 : Blaiberg v. Parke, 10 Q. B. D. 90. «• ^- o. .Sc,7. C-. ,48. s. 3. 267 indebtedner^f he;:::;r"''-",^^-^^^''^ ^^^'^^^^'"^ ^^^ ^•- mortL^a.^e ( /•) v, "^^^"^f '•'^^^^'- "' ^^^^ «um mentioned in the siderttion me V i'-' ^'^' '""'''''"' ''' "'■^«''" -•^^ to the con- Pla " o -Tr- */ ""^'^"^ '"^^ ^■^''^^ ^•^^ --tai contem- tion to s?cL V,:: er ^:;,r'"°"": ^^•'\'^" -^ '-^ ^'- ■--- "iort^^a<.e bein.^ st u/d ^ ^^^"^'^''^'■•'^t.on in the chattel ^ood^^ca :;; :^t;;!,f^'rr 7' 7^^'''-' '^ ^^-^^ '-^^ shown that thor. ' "'"^ ^io,oc,o, and it was amou t : :/;:". "^^^: ^-^^^^^'^ ^'-^" --"^> --isfy that ;vas only S:.03o.8o, th; m^ i^ ll \ !;: [r .^"r'^^"'"'; fraud, not held to be void hs -u.■^in^ ''""" ''^ the L^round th-it th. • , ^^ " execution creditor on The word ''oLitr.t:,:'T"'r 7' "" ^^"'^ ""^^' '^"■ which fh„ ''"■^'^'^'^''t'O" 's a Ie8:al term, meaninj^ that for actua Ij pa d by the mortgagee to the mortgagor (/) Vet it -s not desu-able that the consideration, fs sta d in he w^:;"i.::::ef'^'r'^'"^'-'^^^^-'^^^^^^^^ mone> ,s lent , and especially should the interest not be so o?:h7i"t:;;:.r?;r""'^^"^^^^^'°"-^^^^^^^ morTi'f Uv b"""""' •^"'^^"""^^ "' consideration in the mortgage max be a circumstance to be considered bv a iurv '" dec.du,g the ,ssue of fraud or no fraud, it is not in itself (0 A^o.r V. AfMru,,,, Dean, Co. J., not reported. see EmoU v. Fr.r„,„:,yL. T. X. S. 7,5 -" " '''"''' ' "'' '^'^^^^ (h) Hamilton v. Harrison, 46 U C "r t,^. /> ^^^ ,., W. R. 882: Parkes v ?/ r.l T'o '^ ^""'^"^/Z' v. CW./, ,, .9 A. R. ,88. '^''' '" '^- ^^- •♦''' ■■ ■'f"^f^"''^or, V. /-«//,...„„, (i) ^.. James, L. J., ^.r ;i„./, r/,„//,„„,, ,6 CI,. D. 365. (J) he Juhnstonc, 50 L. T. 184. 14: j68 ONTARIO. i i IV : I, H Hi! sufficient, as a matter of law, to avoid the mortgafje (/(•); and where the affidavit of bona fides on a bill of sale stated that the " sale was bona fide and for g-ood consideration, namely, S830 advanced by the bargainee by way of loan," the addition of the latter words did not render the affidavit defective (/). In a case wherein a mortj^'-ajife is discovered to be void under the Act, and then cancelled, and a new mortgaije executed in substitution for the first and duly registered, and the second mortgage contain the same consideration, and describe it as " in consideration of /.'500 now paid," the consideration is truly stated, and the afiidavit is properly made under this and the previous section (w). And where the new mortgage is in substitution of the first, it is sufficient, if the second is duly registered, to preserve its validity against execution credit- ors (;/). And it does not render the second mortgage less valid, because it is intended to be eflective in the event of the first being invalid and void (o). In the case of a debt, the debt must be a bona fide sub- sisting one ; such a debt is a valuable and sufiicient con- sideration for a mortgage ( /)). But a mortgage will, as against unpaid creditors, be invalid, when taken in great part for a debt not actually existing at the time it is given ((/). And when a debtor mortgages all his personal property of every description, including the most trifling things, to secure a sum of money wholly disproportioned in amount to the (k) Marthinson v. Patterson, iq A. R. 188: Pnrkes v. St. George, 10 A. R. 496 : Hamilton v. Harrison, 46 U. C. R. 133: Hughes v. Shull, 32 Alb. L- J.I 337 ■■ Jnffray v. Robinson, nol reported, but referred to in Marthin- son V. Patterson, ante. (1) Ormshy v. Jarvis, 21 O. R. 11. (m) Ex parte Allani, 14 Q. B. D. 43: Ramsden v. Lupton, L. R. 9 e. B. ,7. (n) Ramsden v, Lupton, L. R. 9 Q. B. 17. (o) Cooper V. Zeffert, 32 \V. R. 402 : Ex parte .Xelson, 35 W. R. 264. (pi \orth V. Croivell, 10 X. H. 151 : Coolyw Hobart, 8 Iowa, 358: De Wolfe V. Strader, 26 III. 225 : Maitland v. Citizens' Xational Bank, 40 Md. 540. (q) Robinson v. Paterson, 18 U. C. R. 55. R. S. o. tpton, L. R. 9 value of the property circumstance (or tlie . '«97. (■•• i4«, s. nu)rt-;,<,'-e(J, it becoires oiisid er ation of a jury, apart fi 26q a suspicious from the of protecting the c X ' / " "'''''''"' ^''' ^^" ^'^^ P^HX^se otiier creditors'", ""' ''' '^''"^'^ '"^ P-P-^y from aiil^l-!:.::^;:o:'r-"^^^^^^'^^^ time of the exec '^^ 1^:''^'^^^^ ^" ^'-^ -ort,.agor at the affidavit of bo a Xs m r:r ^"f • ^" '" ""'^'"^ "^ ^'- was not actuallvp id ■:;;,; ;!"' ^'f ^•--'^•-^"-" -oney mortgage was upheld Z Z ' ^ •"'" "" ''""^^' "'^^ is owing at the da ' n. " ""' " "'^^ ^-^^'-i^'eration f, «iL till, udte or the mortp-jurp i/\ 'i-i,: , sideration " has a le-il ^.nJ ^'' ''■'""'' " ^''"- sum advanced, „ whfol, ,l,e mortKagor receh" foV the mor,s-„ge („, ; and i, has bc<^, tld ,Z " ^ T""^ \'/. vvnere a chattel mortgage is .nven h,. fi mortgagor .„ ,l,e mortgagee ,„ secure fn'e.i., ingr^'h h the mortgagor has the option of re,>-,vin„ n J , proviso for redemption, either i^, Z e ^ ,: .^her'" "' mod.ty, the affidavit, under this section " the,, , L, °"'" of the mortgagor to the mortgagee in tl, s m „ ,: ^f sufficient : and notwithstanding the fact th-.t ,ZT, chtuse in the mortgage provides for e ' p e, "^'T (r) Fleming v. Mc\„ughto„, .6 f. C R ,o. • r~, ■ ,■ 8. (b, : ^.„,«„ ,. rno.n,i,, , Taun,. .^^^ :'i;J:Z:r ' ""-' ' ^"'- (s) Afarfin v. Sampson. 24 A R. ,. "* '' (t) Beechcrx. Austin, 21 L'. C. C. P. 7,q (u) E.v pi,r/e Challinor, le Ch D 260- /".,///- (V) .T/«W//„ V. 5..>.. ,;> Con,;. 268 ' '^'' " '^^'''' " ^'^ '^^ '^^ -^''> I 'iMi 270 O.N TAKID. i j the niortgaf,''e can he uplicld a.i,Miiist tlie objection tliat the afFulavit and morti;aj,'-e do not correctly shew the real transac- tion between the parlies (tc). When the mortjjfaye transaction is one in which a loan is made by and secured to tiie morti,'ai,'^ee by the niorti^^a^^or, the niortf,'-a!4e is properly taken, and the allidavit properly made for the full amount, where the amount of the loan is made up in part of a note made and yiven by the mortfjafj^ee to the mortgagor at the time of the execution of the mort_i;ai^e, and not paid for some months afterwards (.v). Tlie mere fact that as to part of the consideration the mortj^aj^-ee has not made an actual advance, but is merely liable on promissor\' notes, does not iiualidate the morti4af,'-e, this Act not requirins^, as does the corresponding Knjflish Act, that the consideration should be truly expressed ( i') ; and it appears that the affidavit of bona fides has still to be taken under sections 2 and 3 when part of the consideration is to secure payment of notes already j^iven by a mortfjaj^or to a mortijagee, and at the time under discount (3). And where the consideration of the mortgage was covered by a draft drawn by the mort- gagee, a merchant, in the course of his business, on the mortgagor, his customer, and discounted at a bank, the mere fact of the draft being discounted does not lead to the assumption that the debt represented by such draft is paid, and that the remedy on the draft alone is to be looked to (a). Where part of the consideration money was paid to the mortgagor by cheque of the mortgagees' under an arrange- ment by which the mortgagor was to hold the cheque and draw upon the mortgagees from time to time until the whole amount had been paid, it was held that the mortgage was one to secure a present actual advance and was valid (b). (w) Reechcr v. Attstin, 21 U. C. C. P. 339 : Clark v. Bates, 21 U. C. C. P. 348: Baldii'in v. Benjamin, 16 U. C. R. 52. (x) Walker w Xiles, 18 Gr. 210. (y) Tidey v. Craih, 4 O. R. 696. (z) Fish V. Higgins, 2 Man. R. 65 : Hepburn v. Park, 6 O. R. 472. (a) Hepburn v. Park. 6 O. R. 472 : Hynian v. Cuthhertson, loO. R. 443. (b) Ross V. Dunn, i6 A, R, 55a ; 25 C. L. J. 604, '<• '^^ o. i,S,,- V. .48. And wlicrc a nion.^'i,, ■ to secure the „ l,„l . ^'""' ''' "'"■■ "'■ ""™ •■'■"lil"rs .ion \: ";""""• ;" "^■'"» "- «-•'. »i,„ „K. i„,o„. fid» aslro „ ;'"7«"'-'- •""' "- ^•"■"•■"■it of ho,,,., only (,■). "' ""^ '"■''' I" I"- a" inlor,nali,y his csionieKs ,;,,'";;;".'""",":"■ ■■'"" - - «« a!,'ain«all,hopa;,i.si ■„,',"'■;" """"""■' '"' -'•ixn pleases, or re- , , ' i " .^ " ui """"""■' '' ""' '' "= aUvanca.^es of cVoun.i,,; i, „ ' f irK"' "" >""" Pr.»..e..cas„„n.„eh^n.e.'„eel,;^:^:^,^™:;;:- .SKler,,t,on ol „ inortKage. „,„,( be considered the ,H>sitio„ If a:i;"::d ;' ; "" ""'" "-" '" ""^^ '° ■'- -"^ ^^ r cash, and the mortgagee at once place its vilno -. • 1 the acceptor's credit, so as to extin.^ . si ,, Li' T I" goods, and substitute only his ilhi • -' '"'' "'^ should the holde. of the ^M^^^s^ 1^',^ ^^^t', T thereafter the acceptor should be the b.nl.; , u ' ""^ the debtor or the Ur of L^^nlr:-:^;-::^^^^ stances, ,t mij,^ht be found that a dr-ift or h,M u -ort,a^or, discounted by the nfor ^Ige rs .irf '"'" .ood consideration for a n.ort,a,-eundfr:hisrcti '^^'" ^ and th! r""" '" "'u' ''' '"' '-^ ^^l^^" by the mo^t^a^^ee uiy each case, and .s a fact for determination by a jury(.) ; (^) Bank of Hamilton V. Tamblyn. i6 R 2,,. r^ , , (d) a,.^6.// V. Patterson, ., / c R 6. . V'A \ ' "'• •'■*''• cialBank v. »7/™„, 3 A. R. .5-. supersLded." •'" "" "^ ''""'"'" (e) Grants Law of Banking, 4th ed., ,4, ' 11 If] II. I ■ 272 OSIWUIO. and accortliiifj as the tlealini,-- is or is not one between the parties whereby the bank taUes the mortgaj,'ee as its debtor, and the mortj,'-aj,'or as his surety, or the mort<,'aj,'or as its debtor, and the mort},'-af,'-ee as his surety, will the indebtedness be said to be truly or untruly stated ( /"). If the bill were held by the bank merely as collateral, the paper discounted beinjj the mort^'-ayfee's note, and the bills of the hitter's cus- tomers, includinj,'- that of the mort},'-af,'-or, were delivered as collateral, there would be stronj,-- evidence that the mortg-as,ree was the debtor and the mort^ajjor the surety so far as the bank was concerned. When a mortjjfage is taken to secure payment of a note made by the mortj^a},^or, it is immaterial that a variance exists between the note itself and its descrip- tion in the mortg-aye (,;>-), so long as the note and mort<,'-af,'-e can be reasonably connected one with another as embracing- one and the same transaction (//). Parol evidence is of course admitted to identify a note with the one secured by the mort- gage (/) ; and, if it can be shown by such evidence that the note, signed by two or more persons, but described in the mortgage as signed only by the mortgagor, is really the note intended to be secured, the variation in description will not be material (7), or that the note set up is really the note secured by mortgage, though the latter varies from the note in not stating when the interest was payable (^) ; but a totally false description of the note in the mortgage will not be allowed to prevail (/) ; for instance, notes described in the mortgage as of different dates and for different amounts than the dates and amounts they contain, cannot be said to be identified by •the mortg-age (;«), though, if such notes be renewals of the (f ) Hepburn v. Park, 6 O. R. 472. (g-) W'chb V. Sli»ic, 24 N. H. 2S2. (h) Colby V. Everett, 10 \. H. 429; Robertsi (!) Holmes v. H inkle, 63 Ind. 518. (j) Robertson v. Stark, 15 \. H. loq. (k) Windrell \. Coney. 34 Alb. L. J. 210. (I) Pallet V. Heath, 15 Wis. 601. (m) Je'j.Xi)7, t. 14S. s. 3. 27^ notes^ri«1nally secu.vd hy „,e -nor.^a^e. a.u. tl,e latter .unci Z orrr-, r'"';"'"' ""' ""-• '""'••^-^-- '•- variance maj not nnalidate the mor.j,..^.e. and parol evidence on the point of renewal is adniissihie (/„. It is not necessary that the affidavit should state either the ■I'Hl pauI the other, accordin^^ to the circumstances of the affid. v„ „r bona fule. „„dor socio,, 7 i„ ,„, f„„, „„ .'d .md ,l.,t the m„rii;„B;e could „„i be looked at 10 uid ,l,e ffidav,, ,„ respect of ,he omission to swear ,0 a j , „ d true mdebtedness (/> ). ^ **"" When the money is really due accordin^^ to the mort^^a.^e may be so stated in the affidavit, without adding ti,e word^ 'accruing due." The omission of the words^- accru n^ due ,n such case is not a fatal objection to the mortg " even though the proviso in the mortgage states the deb ' I becomnjg due and payable at a future dav. If the evidence shews the mortgage to have been given to secure an o e d, debt, the mortgage will be regarded as given to se u e ' present debt, to be paid at a future day^- A mo t'L may ''a ^-en as collateral security for a debt of the ZnZ gor a ready secured by mortgage, and it will be sufficient'to take the n^ortgage under the second and third sections of the to It in the affidavit of bona fides. ^ (8) The words "estate and effects" are more compre- (n) Barrows v. Turner, 50 Me. 127. (o) Sguair v. Fortune, 18 U. C. R. 547. (p) Midland v. Cowieson, 20 O. R. 583. (q) Farlinger v. McDonald, 45 U. C. R, 233. fPi -'74 OMAKIU. iii s ; ■I i liciisiM- thai, tlie words " gooils aiul chattels," the former inclucliiij,', besides the l.»tter, realty, debts and choses in action ; therefore, where ,ii? aflidavit of bona fides to a mort- j;aj,'e stated lliat it was bona fide, etc., etc., and not for the purpose of liolditifj, etc., " the estate and efi'ects mentioned therein," instead of "the jjoods and chattels," it was held that the substituted words sufficiently complied with the Act(/'). (9) The omission in the affidavit to state that the mort- >,'af,'e was not made for the purpose of protectinjj the j^-oods "aj,''ainst the creditors of the mortj,'-af,'or " is fatal to the sufficiency of the affidavit (.?). An affidavit that the chattel morl<,'-a>,'^e was not made for the purpose of preventing- " the creditor" instead of " creditors " of such mort^'ajjor obtain- ing payment of any claims against him, is insufficient, even though the omission of the letter " s" be a mere mist;.ke by the person who wrote the affidavit ; it being the duty of the court to guard ag-ainst any artful attempts at evasion, by insisting- upon such affidavit being made as the statute requires (/). But when there is more than one mortgagor the affidavit will not be insufficient because it states that the mortgage was not executed for the purpose of preventing the creditors of such mortgagors from obtaining payment of their claims against " him " instead of against them (//). Nor will it be fata' to the mortgage should the affidavit, besides containing the word "him," instead of "them," further use the word "mortgagor," instead of the word "mortgagors." Where the two grantors are first called " mortgagors," and then the affidavit mentions the "credit- ors of the said mortgagor," it would seem right to hold that under the singular "mortgagor" each mortgagor is included, and that "any claims agiinst him, the said m(n-t!.;,.i7(,r," IIH (r) Mason v. Thomas, 23 U. C. R. 30.S. (s) BouHon V. ^mith, 17 U. C. K. 404. (t) Hardiiis^ v. Kno-.vhon , 17 I'. C. K. 564 : Xisbel v. Cock, 4 A. R. 200. (u) Bertram v. I'vntJry, 27 L'. C. C. P. 371. "• ^- o- i«M7. 1-. 14H, s. 4. Ii''ii ».a«::.„^;;;;;':,::::,;:,;,';:j',;"''-;'. <■"- -.»•,•„,, ,» „. P".v.noK of an, d.;™ ^ ..^ ""^" "'""^'f" '™" "".-nin.- ,; ■ "■ ■> '^ nV. ».y;.T;-,;:;",r„::r'-"">' " than to an \ct of P-ri; ■•muavit, anv more may be .hou^.t'^er:"' .•"/"?• "" "'"'^-'"' ^'^-^ unintentional,.; ' ^""J^'--'"'-'-" ^-ounUs, to have been rile omission does not ^r . He.-veo„ „,e i,„,„cCi , e !;l:""r:; ""''"' "" ""'"'■ «» statute. .0 Vict.. ,8, cTth-.--: ?""'""• '^ ^^^ ^'-' • within which i^str m nts , , rr 'r""'^-"'*'''^'^'-'-^'' Before then, though a re- '^^^^^^^^^ ■^'' -^''"^''^ ^'^^ filed- since the execution of an "' "^'^^''^ ""' have elapsej (V) /•flr/,-,,,,^.. ,, yrrno,u,ld, 4= -• C P I'- C. C. p. 4,.q. '^^ - C. R. 3,,3 : Tyas v. .)A,r.J/«..,.^,, fi A^-«./v. Cnrk.,X. R. ,„„ • '-^- ■'''''■'■''- -■ f^'-rkc, 3, f. C. R. ^^ , (X, Z)«,.„ V. Wickson. , O. R. 369 mil :7r3 ONTAKIO. Statute, 20 Vict., c. 3, that the rei^isteriiii;- of a chattel mort- gage within the statutory limit of five days did not cause it to operate and have relation back to the day of its date, but that it took effect only from its rejjistry, and that a fi. fa., placed in the hands of the sheriff between the date of the mortgage and its registry, would therefore cut it out (rr). (2) Should there arise a question as to priority between a chattel mortgage and a writ of execution in the sheriff's ■ hands, then the court will ascertain at what hour of the day the mortgage was executed, in order to give the partv equit- ably entitled the benefit of every moment o*" time (ti). The courts will consider a fraction of a day when the justice of the cause requires them to do so(/;). Of course the careful practitioner never fails to examine the sheriff's office for encumbrances against the property mortgaged or to be mortgaged, in addition to procuring a statutory declaration from the mortgagor as to encumbrances. It is from the execution of the instrument, not from its date, that the mort- gage takes effect, in so far as creditors and prior bargainees are concerned. 5. In case such niortgaj^e or conxeyancc (1) and affidavits (2) are not ret^istered as by tiiis Act pro- vided (3), the niortjrage or coii\e\ance shall be absolutely null and \'oid (4) as against (5) creditors of the mortgaoor (6), and against subsequent pur- chasers or mortoauees in oood faith (7) for \aluable consideration (arer to re<,'-ister the mortirap-e ifKolf (c ■ note (5) to s. J. I "■•-''?>>- 't'^elt. (See also (2) The af1ida\its are — /i 1 ti, , u- i • (.1) "I's clause refers to wli-.t ;.■ -i • i"f,^ res^istration Thn Vr '''"' '" '"-'''"" "^ '"^f''^"-''- ^- .■e;:istrati::sh:nt;:^r r:::' :r ■ ^^^•'"^^^- prior to section . - .,;,;, • " ' " ^'"^''^ '« nothinL-- fs real,,- ,„ ;:r;o;;ii;;;e;i:"""""-'"°"-^ ■" - ""-■ «- --^ui A mortKajie voij under this ,i.^.|i,,„ ;, ,. ,■ , creditor. i„„„,i„^, „,„,„ „.„^, ,,„;'" -; •;« «S.-.ns, all has take, po.sMssio,, „, „,, .,„„j,7, , "wrtg-asce the mottgascil properlv (,/| ■ ''""'-' n'«»«>-'i»" »f shall be void i„ „,-''">'■ . a pureliaser, or mort4ra<'-e nf •> . u mortga^ree, but no further ( /•) .,,,,1 T ^"bsequent the persons protected b v the i ' '"°" "'^ "'^ ^-'^''"'-^ ^^ -ort,a,ee becon:;^e.u U^^ TZZ^ "'^""'' ^'^^ "^'^'"^^' may remain thereafter (l!) '"^' ^""'^'' ^''''^^ fc) C/«r^,TO„ V. Mr.Uas/ry, 25 S. C I? q6 (d) C/arisn,, V. \fcM„slcr, 2, S. c' R qb' Boyd. C. ' "^'''- ^^"''*''- ^- '^-'•«'".. . O. R. ,,4, ^,, if) Ex Part,- Blaihrrp-, 2-iCh n a,»t t .. 2.1 Ch. D. 254. -^ ^''■' ^' *-''• D. 5-0 : i^.v/„;./e- Blaibry^, y.' -ts OMAKIO. i ! There are three classes of persons, as a.s^ainst each of wh,ch an unregistered mortgage shall be absolutelv null and void. I hese are— - (i) Creditors of the mortgagor. (ii) Subsequent purchasers" in good faith for valuable consideration. (iii) Subsequent mortgagees in good faith for valuable consideration. The reason for the statute declaring a mortgage void as against these three classes of persons, unless the' requisites of the statute are complied with, uill be obvious, uIkm, it is con- sidered for a moment how easily a dishonest person could continue an assumed credit by being the apparent owner of considerable eflects, whilst, in reality, he owed upon them more than he could pay ; and how easily honest traders might be defeated m their just rights by fraudulent encumbrances put upon a debtor's property. To invoke the aid of the statute however, a person must establish himself in the character of one of the three persons sought to be protected bv the statute (//). The l.iw requires either possession or registration ; one or other of these requisites must exist, and he who fails to pro- vide either, must sutler for improperly enabling another to appear to the world as absolutely owning propertv which in reality he does not. Between the mortgagor and "the mort- gagee however, no injury could result from a non-compliance with the statutory requirements ; and, therefore, so far as they are concerned, and all claiming under the mortgagor the administrator, or the representatives of the mort<^utor' the mortgage is valid without change of possession orV-is- tration. and it is valid as between the parties to it. even though It was executed by the mortgagor to the mortgagee with the express intent to defraud, hinder and delav the creditors of the mortgagor (/) ; and it will be valid and (h) See //a// V. Co/lhis Bav Co., rz A R 65 A.'kl IT'"" '■ '''-''""'"''■ ' «• ^ '^I'l- '■34: Bo„^;,^on V. ^„.^/,/„„, , I K- S. o. 1897, c. , ,8 s. r ettectual as a-ainst any person consentin.^ to it / /) V M P'^rtv to the insinimpnf 1. "^'"K to it ( / ). Neither instrunK-nt uh „ th ^ ch" , "'T""' " --'"'•'^'''^'"^^ the -" '^ 'raud , , ■ "'' T '^ ^^'f'' ''- "ther to conv oun i„i,,u, '' 7; ;" '•^'^^. -"J ^^o man shall set up his action ,A ■ '""""• '-'">■ '"-'■^ "-" -s a cause of -ne;;:t;:r^t::^j;;:::;'— /'•p-^onsa.ove^.en. - only he nK.,e jtiectuirt ^^s::;;r"''V"^'^'"' possession of the property mort^^a.^ed ei; If" , ?"'" "' rences the statute, in effect settles I "^' °'""''- proper notice to those d- sses ''" ""^^ '"'"^"''^"^ '"^"^ prejudiced were thev no, ;:;:V"""'-^ "'^' "^'^"^^ ^^ t'- ohject and effea of e i ' • •"■ ''''''"''■ ''^'^> ^'"'"?h those uho desire to av I thTm T"" '' '" ^"'"'^ "'''''' ^^ -" ^'--;;- statute, it rit:tr:h::r^'""'^>-- Sfiven bv rciristration th„ hecause notice is s^.ch io.is,aHo,:t::/:;,:7s:j^j^ -r^^"^'-^ -'""• which would not have bee ITI r "'''""^" •^°'^'' ^ ^'"« protection of creditors pu," f ' '7"'^' '^"' -"■"P'-V f- the llnless the mort^^i- 'e ^^'r" '''"" --"^^-.^-es (/). particulars with the rel'is t'l.r'"'';''"'' '"""'^''^^ ''" ''^^ -ill be invalid. He, Je , , , ""''"'""'^ '^' ^'^"-^ ''t-tute. it sufficient description of uie ! oods '""''"'''' "°^ "'"^^'■"^ ^' -.ainstsubse,:„t Purct^t^^^tlir' 'd" ^'"'^ ^^ such a mortK-af,re to the nurrhn •,? ' '*"'' ""^ice of (k) .SV.W. V. //,.„,;„, ,; L- ■' " ;- «^^"""-v. A-,V, , J.,, .V. s. ,066. Co/nn^,,., ,, ^,,,,,,,,,^ ^ ^^ • • • ' . 65 : »'./A- V. /?.„„*,,, 3 Ves. 6„ : (no .'/«^^»/^ V. rw.«„, ,„ u C R L 'i' 'lil i ai •: ; I -'80 ONTARIO. and mortgragree that there should be neither registration nor immediate possession, such would amount to an agreement to contravene the statute, the policy of which is to make transactions open and notorious, and the mortgage would be void ab imtio on grounds of public policy, so far as creditors are concerned (;/). By " creditors of the mortgagor " is meant anv persons to whom a debt is owed by the mortgagor. It makes no difference whether the debt be one created bv the mortga-or before or after the execution of the mortgage (.), and the creditor must be an opposing creditor (/,). h was at one time doubted if the Statute of Elizabeth applied to any creditors but those who were such at the time of the convey- ance (y). But there is no doubt that the Act makes no distinction between creditors ; and a fraudulent assignment IS void against both subsequent and existing creditors (r) But the chattel mortgage Act does not make void the mstrument as against " strangers," they not coming within any of the three classes of persons mentioned. And a sheriff seizing under a fi. fa., will be a stranger, and not entitled to the beneht of the statute, unless he shows that he represents a creditor, and he can only do this by showing a judgment (.). And It has been held that there is no reason for any distinction between this Act and that of Elizabeth in this respect, and as was said by a most eminent Judge (Boyd, C), (n) C/rrison v. A/rA/asf,,-. 25 S. C. R 96, />e. Strong, C. J (o) <>«/.«.. V. /••..«.., ,4 C.B. 4-0; .3L.J.C.P.5;.. KvparfeS^rp/,.ns, 3 Ch. D. 807 : Afari.j, y. Dougla.., L. R. ,4 K,. ,06 : Kidney v Couss- maker, ,2 \ es. ,36. pe. Lord Hardwicke : Walkey v. Burrow's, , Atk 04. Beaun,o..f v. Thor^r, , XVs. Sen. .7: Taylo. v. Jo>,cs, 2 Atk. 600: JenZ V. Vcug/ian, 3 Drew, 419. " (p) Bank of Montreal V. MrWhirter, 17 U. C. C. P. 506. (q) Kidney v. Coussmaker, 12 \'es. 136. (^)Graha., v. Furbur, ,4 C. B. 4,0; 23 I.. J. C. P. 5, : Mackay v. Douglas, L. R. 14 Eq. 106. (s) Marfyn v. Podfrer, 5 Burr. 263. : White v. Morris, II C B ,01c • Porter v. Flintoff, 6 L'. C. C. P. 338 : Grant v. McLean. 3 O. S. 44, '■ Powers V. Kuttan, 4 O. S. 58 : Cohnan v. Croker, . \^es. Jun ,60 ' «• «■ ». !«.,;, I'. MS, s. J. ,8, nas been said imv n^f u u. ''"- •^'-M/). 1 lie creditor, t being a creditor (IV ^" ''"' '" h'mself simply from hi.s instance of a credkor or "' ""'' '''' ^'°P''''' ''^^ the n.'ht to proceed ::;t^:r" "'" '" "°^ ^^^'-^^"•^'-'^ his 'ent disposal has bet: m, 'r .^[r/^l^' =/-,-'-- a fra.du- the court will intercept the fur , "'."'"^""^ '^ prop.ny, then and keep it in the ha^d of t; r"""^^;' °^/"^ ^^P-^v. conveyance, until the plaintiff. u '*"' ''^" impeached '"validity and a !co e !,f '" ?^"" ^^ ^-''-ation of its claimed "(.). A person JL ■^^^^'""" '"' '^' amount goods under a pa'ro a.re met""^ ] '? '°^ ''^'^•^'"-•^ "P"" possession of them, accfui. "n^' TL " ", T "°^ °'^^'" w.thin the character of a creditor ^ ' '""^ ""^ '^^^'^ •mortgagee, to defeat the cia m of :. '■"^"'^"^ ^^'-'^'^^ser or vaiuetowhom title passe^Z .jrtrr ■"•""^•^^^^^ ^^^^ was not registered (w) ^ u ^""^ '''tter s mstrument :---. "HiS, „, L:,L\„f ;^ /J- ,J°»-- '- ,„ ■ng: tne advances, or aeainst . .^'""^?' ^^^ P^-'^on receiv- er for the benefit of cre5it" n . ""f"'' '" insolvencv, debtor from disposing of " '''" '■"'^^'■^'" ^^'e ing the lien (v) ^ '' P''°P^">- ^^ithout first satisfv- (t) Barkers: Ueson, , Q. R rtd (u) Bariet v. /,<,^^„„^ .OR, S- C. R. 96. • '^- "4 •■ ^'«'-'6jo« v. A/rAfai/rr. 25 (v)/VrRo\J, C r„,„f./, 7; rm ]' , V I if nF. 282 ONTAKIO. .IM'^I 11 ■ 1^ :l _ t ; ■1 execution creditor or a subsequent purchaser for value may do (.vs and by section 38 it is specially provided that an assignee, under a deed of assif,rnment in 'favor of creditors, can attack a mortj^-ag-e as representing creditors, and take advantage of the want of registration ; and the creditors themselves may do so, though not creditors by judgment and execution at the time of the assignment (s). (7) It will be observed that in this section it is required that a purchaser or mortgagee should be such in good faith. Actual knowledge is not inconsistent with good faith («), but where collusion exists with the mortgagor to cheat the mort- gagee, a purchaser is one in bad faith, and acquires no title whatever ; hence it is that where a purchase is made with intent to defraud the mortgagee, the purchase transaction as to the mortgagee will be void (6), even though the st.atutorv formalities have been neglected by the mortgagee (r). A purchaser or mortgagee, for valuable consideration, though he may have notice of the existence of a mortgage, may still be a purchaser in good faith. Where, for instance, a mort- gage is invalid from defects in the affidavit of bona fides, or for want of proper description, a purchaser for value with full notice of the invalid mortgage, cannot, it has been held, be defeated as being a purchaser in bad faith (d). In New Jersey, Vice-Chancellor Van Fleet held that pur- chasers or mortgagees, to be in a position to avail themselves of an omission by an antecedent mortgagee, must have acted without notice of the rights of the holder of the antecedent security ; but not so with creditors. A creditor may know that an antecedent mortgage has been given, yet if it is not (y) Snarry. Smith, 45 L'. C. R. 156. (z) Kitching v. Hicks, 6 O. R. 739. (a) Sage v. Broiviiing, 51 III. 2\-, : XfcDown/, v. Sfnvart, 83 III. 538. (b) Fuller v. Paige, 26 111. 358. {c) Gooding V. Riley, 50 X. H. 1400: Pallerv v. Afoore, 32 N. H. 382. (d) Ed7vards v. English, 7 E. & B. 5;f>4 = -yorroif v. Rorke, 39 U.C. R. .^oo: AToffattx Coulson, 19 U. C. R. 341 : A«/>//;, v Anderson] %% 111. 120 : Porter \'. Dement, 35 III. 478. '- ^- o. i.S<,7, c. .48, s. 5. _,,s, ob'tl?" ","■'' '° "" ^'^^"' — ^ -f the statute, and he Under ?,r'"^ '"'■"'' to preference in pavment (.). chase s ';,"""■': •^"^' ''"^' ■^'''^^"^^- '' --^ '-'^'that p. - M ha"^; "^ mort^a^ees are not such •• i„ ^ood n.ith - if Lv '«''!-,'-(/). 1 he words " • J. I.c|. 652 6;6. (tj Partners Loan Co x- u ,. 1 ■ , Strong, ., Barb. ,X. y j L""';';"'™"' !ft ^^^"'^ '•^- ^••' 4^4 = Tyl.r v. • 5a>... V. Hen•» V. J/, 1*1 (<«/-, anno-, 2S N. ^■, .3-' •^■- H. 382 ■SV/«i,.-,.,-v. AV,.A-,.,;,W, 10 Wend. f I 284 OMAKUI. statute is not intended for tiie protection of persons who purchase or take mortf,raf,>-es while a prior mortj,'ajre appears to be in full vitality, but it applies to purchasers becoming such after the time when the mortfrajre should, in order to preserve its validity, be renewed (/(-). A landlord may become a purchaser in fjood faith from his tenant, within the meaninj,' of this section, either by taking- the goods of his tenant as so much payment of his rent, or by purchase in pursuance of arranjjfement. In either case, as between them, the property would pass. It seems, too, that the landlord would still be a purchaser within the Act should he, with the tenant's consent, purchase the tenant's goods at a bailiff's sale, instituted by himself by way of distress in order to secure his rent (/) ; but, to be such in good faith, he must become a purchaser after the mortgage has expired by reason of not being renewed, or subsequent to a mortgage void ab initio. A landlord who illegally distrains is neither'^a creditor, subsequent purchaser or mortgagee, and is liable in trover to a mortgagee for goods covered by the mortgage and illegally distrained, although the registration of the mortgage is invalid (;«). A purchaser who assumes payment or a mortgage is not a purchaser within the Act for the purpose of taking advantage of alleged defects in the mortgage (//), and of course when the amount of the mortgage forms part of the consideration ot the purchase, a purchaser cannot deny the validity of the mortgage {o), but this does not preclude either a purchaser or subsequent mortgagee from shewing that the prior mortgage was absolutely void, or that it has been paid, or that the property was, in point of fact, never subject to the prior (k) Hodi;ins v. Johnston, 5 A. R. 449; Latimer v. Wheeler, 30 Barb. 480 : Dillingham v. La.lne. 35 Barlj. 38 : Meeeh v. Patrhin. 14 X. V. 7, ; Gardner v Smith, zq Barb. 68 : ///// v. Beebe, 3 Keriian 556. (I) Farlingerw McDonald. 45 U. C. R. 23^. (m) Griffin v. McKensie, 46 U. C. R. 93. (II) Greither v. Alexander, 15 Iowa 470. (o) A'ellof^'w Serord, 42 Mich. 318. 4J '<■ s. o. IS,,;, ^■_ ,^,s_ ^ . ^^^_ his mortira.re and d -^^Z , ' ''"" P''^^P'-''-'y "'ulor ^- ■ .--■ -..»;«„:', :;^,;;,;:,: ■:;,:;"""; i;---' "» proceeds towards linni^l.,- "'^''^^^ "'"^l ■TPly the surplus ■^"^;.a.orasa.a;::':;;:-r:;r:— - 'h^' -vason that -.u ■ i" '"^•-'-^""' "-uler the Act. for '^'M.). There is a" uuo^^.^f ^^' '^'^ «■-'--• chat- --•■ and ..suhsec,uenr,, :":::'' ''''''''' " -""- words " sood faith ' affec o. . , •"^^''t«-'-'f,'ees." The -ns. and have no rete^ ; , ^ '"' ^"^ ^'^''^^^^ ^'' '-- '^-t,.,,vis void as aJfstc n ■' '''■"''■^^"^= '^-^"^ " ^i'^n_^.^easononhe.^;:^'-:^t;;;:^?:''^'--'^ ^'•- : hut. if the statute do .;"">' ^^^ '"■'^^'■'■^■^- ^^'" ---- of which is rc-isterec, then i ^^ ' '"•^"""''t^-ak'es. neither i" .ood t^uth.'lhe cu -J 'et^, rr'r'"T"^''^^ '^ ''^'^'^ -ort,.a,.e has prioritv over th st ' ^'^^^'"^ '"^ '^'^^■^^"^ The reason or this ij heca.'" '";':;;:' '"'^ -'--^^"'• that such a mortL^aye sh-ill h. , . "'' ''^"^''■"' "^melx- ■sequent mortirairee who h-,. ■ 'ly-ainst a sub-. " !■> " ''O lias reiristiiro/i u; «'mply that as a-ainst such mort ' mort.i,ra^.e. hut T-i , t,«wii.-M sucn mortyairee t sli-iii u • • The clear direction of the Act is th-. '''"'• •■eS-Kstered, shall be absolutelv voi 1 s T" ""''"^^^^^' """ mortga^^ees in good faith. Does th 'fol/ "^ ''''^'''i'^"'^ sequent morti,^i,.ee does n .. '''" "'^"^'''^ ^''^' -^"h- . .i,ce does not rej,nster his mortgage? The (Mass.) .94. ^ '"'• ('^I-*^^-) 354 •• M„„„A,.,/,- V. .,/„,/;„_ , j,^, r £an.a.^.s- v. ^«r«.a.*, , Ch. D. 20, (s^ I'armers Loan Co v //^.,v • , Eq. 652, 656. --O- ( .N . \ .) ,,90 : Say re -. H....,_,,^ ^^ ^ ^ ■If, '.' i j i i 286 OMAKUI. ( ) i statuli' says it docs. The statute prescrihes hut a siiij^rle con- ;ond mortjj-aj^e priority o\er a first miref^'is- dit ion to i;i\e a se tered mortj.jaf^e, namely, hmui /it/rs in tiie party tal\in},>- it ; it is not, therefore, in tlie compe'ence of the court to retpiire the performance of a second conditio n, nameiN', that sucn second instrument must be put first upon the record (/). An auctioneer wlio sells mort^-'atjed chaitels, in if,'-norance of the incumbrance, luider instructions from tiie mortjjcaj^i'or, and deli\ers the i,foods to the purchaser from him, is liable to the mortj^a}4'ee for con\ersion o( the f,''oods, notuithstandinj;- that the provisions of the Act have not been complitu with by the mortj.i^af,'-ee ; and the auctioneer in such case is not in the position of a subseciuent purchaser of the j^ootls {u) (8) A purchase of ^oods from the maker of a chattel mort- gaj^e in consideration of the dischary-e o( a pre-existinj^ debt, is a purchase for \aluable consideration within the meaninj^ of this section {2'). 6. Every sale (1) of j^oods and chattels (2), not accompanied by an ininiediate de' r-.-ry and followed by an actual and continued chano^e of possession (3) of the ooods and chattels sold, shall b(.' in writing- (4), and such writinj^ shall be a conveyance under the provisions of this Act (5), and shall be accompanied (6) bv an affidavit of an attestin^r witness thereto o^ the due execution thereof (7), and an affidavit of the bar- gainee (8), or his agent (if such agent is aware of all the circumstances connected therewith) (9) duly authorized in writing to take the con\eyance (a copy of which authority or the authorit)' itself ( 10) shall Ix; attached to and filed with {1 i) the conx'eyance) (12) that the sale is bona fide and for gootl consideration :i:^. (t) Dr Ciiiirny v. Collins, 21 X. J. Eq. ^157. (u) Johnslon v. Henderson, 28 O. R. 25 ; 32 C. L. J. 670 : Cochrane v. Rvmill, 27 \\ . R. 776: Consolidated \\ Car/is (1.S92I, 1 O. B. 49,. (v) M'illiiuns V. Leonard, 26 S. C R. 406 : Taylor v. lUakehck, 32 Ch. n. s6o. \ lirst imroi^is- takiii),'- it ; il t to rL'c|iiire V, that such >rcl (/). in if^'iioraiice mort^-jif^or, , is liable to vithstamJiiif,'- implitci with ise is n.-»t in Lis {/<) hattel inort- f debt, he meaning" ^Is (2), not d followed session (3) vriting (4). under the ipanied (6) •eto o^ the if the bar- ware of all (9) duly ce (a copy d) shall be ance) (12) isideration I : Cm lira no v. kclock, 32 Cli. «■ s. I). ,«,,-, ^. ,^j<_ ^ fj «7 otheruise the sale s h /l * •^'■^l'^''^^- thereof (, 6) ^'-creditorsofth^^ .;•:"';;; >;'*'^'''-^^-'- •s^--quent p.irchasers or m.M- .; ' ''t'-'"'^ '^"''- '■) ''^ all instances where (or •, , 1 u. absolute beneficial interest n'lss • r ^■^^"''i'leration. the -stsasalewithin.,::: ;::-;-'■- -^-r.,h... question of property passintr is r ''''"^^" ^^"^- ''"'k- Jo constitute a ' a.iU ^ir e^ n::: ': "'^ ''' "'^^"•■- . VI.-,, !>, ,1 sale Ml fw) .S7,.rvv,^„;, V. A'i,T, ,, r C C P «-•• P. .45. ° ^- '^^ '•^'>= ^"^'"--nso,, V. A',>,., .4 L-. C. (y) /V-A^;./,-,,,, V. 7/,.,,,„,, s o. R. 20. i I _'HH OM.\Uli>. writing' within tlu' Act ; but it must ;„nouiU to at, assuraittv of the chattels at law or in c.|uity (■:). .\ssij,'nmoi,t.s for i\vj Ivnoht of creditors ^cnerallv. without preference or priority, are hy the Ontario Act respoctin- assijr„mcnts and preferettces In insoKent persons excepted from the operation oi' this Act ir,). If the sale o( -oods morts^'af^-ed is by a I,mdU>rd or public orticer there is nothinj;- to prevent the mort^a^ve from buviiif,- just as any stranj,'-cr nn'-ht ,\o, and standing- upon his ri},^ht as purchaser, but if he choose to buy as a mort-af,a'e merely to protect his interest, or to treat his morl^n^^c as still subsistinJ,^ he may ,\o so, anil the mortj-a.yor's rij,du to redeem will still continue {/>). A sale of ^oods which are in the hands of a warehouse- man, who becomes the ;it;ent of the transferee, and ajjrees to hold the ^.-oods for hini, is not a sale within the Act, so as to require rej,ristration of the instrument of sale {<■) ; nor is a s;ile of t,n-owing- timber {// ). Where a conveyance of personal property was made bvante- nuptial settlement by the future husband to ;i trustee, to hold to the use of the bars^-ainor until the marriage, and thereafter to the use of the intended wife, who was also a party to the conveyance, it was held that the wife, who was described as the bargainee, mi^dit properly make the aflidavit of bona fides, and that her beneficial interest in and possession of the g-oods enabled her to maintain a claim thereto on interpleader with a creditor without joininj^- the trustee (e). (2) The expression " j,'-oods and chattels " is used in the restricted sense of movable j^r^ods, and does not include terms tor years in real estate { /"). {?.) Ex parte Cooper. ,o Ch. D. 313 ; Ex parte Ode/l, lo Ch. D. 76 (a) R. S. O. (1897), c. 147. (b) Severn v. Clarke, 30 U. C. C. P. 372. (c) Jones V. Henderson, 3 Man. R. 433. (d) Steinlwffv. McRae, 13 O. R. 546. (e) Connvll v. Hickock, 15 A. R. 518 ; 25 C. L. J. 86. (f) Frazcrx. Lazier, 9 U. C. R. 679: Harrison v. Blackburn, .7 C. B. N. S. 678. "• -^^ *'• ''^V-. r. ,48. s. „. -- as is open and -cas ^ M ^ r:'" """ ^'^-'^'^ '"■ •— - tlicreoC. ■'"■ ^^'"'^••^■'" to adord puhl,\- notice U) The uorti ■• uii(i„,r •• ,„ ,1 , -'.-raved, lithographed iij l ""''' "'"''''' n-'-^^'C " -ale of chattels hv parol with ■ ''"''' '''"'''"''• ^'^'"'^ a '-'" valid, uhen the . c " '" '' ^'""^^ ^''" P— ion He ■'•'- .VHuirenK.nts of the c r"/."'^' '" ""' ^^"*^-^^-cd > -'^' uore hy parol, and it \;'"'' '"' ^■^^""^"^"^ -'th if the h-ause registration uould ,"" '•'""^"^"- ''' '''-^^^' t'^at therefore becomes nnnecessarv (/'r ' ''''' ""^ ""P^^'^-ihle. it '5) '" lUher vvnrJv »i, ' • . ' -'-vHtin,or::::!;.;:;:r"'^'^^''^^^^''^^ ('') "Accompanied" is also the uor,l connection in section 2, uhi,.,, ,.! "'''' ''■^^'^' '" the same ^'^af^iJ^iiider::^;::;:-:^^-'^- i^ "oed not be made upon the s-.m! ■7''''^"'''''^'"^' ^^'^^ess. but executed. Jt uill be Tufficient t 7 "^ ''^' '"' ^^'" -"^ '-s period, in time to file the instrum'"'\ ' ^l'"'' '^"'^'^'■'M^ent '""ited by statute for that du nT . '"'''"' '^'' ^^'^ davs t'-^ afiidavit that it does nit stT"'' '"1 " '^ ^^ ^^•^-'"-•tion "to was executed (/,. and in this ;:.;;" T' ^'^ 'I'' ^"' ^^^ -'e hat recuired uith chattel mort,.' . ^: f^^^^^'^ '"ff-s from ollow that anyone connected utt the b " '^- '' ""^'^ "^^' "■om bein,. a witness, but the b 'in ''""'' '-^disqualified W'tness ( /). ^'r^.amee cannot himself be the /„> R o ^ f-""^'' as a uitness. (R) R. s. o. 18S7, c. I s 8 . . 0) J.«/ V. a„.v^, , g^ V. D. Ir Mi ' 290 ONTAUIO. ■f 1 i w (8) As power- is -iven hy section 2 to .-in aycnt of a niort- ir;ii,--ee to make the aOklavit of bona fides, so liv this section is power o-iven to the a-ent of the bari,rainee to make a similar aHicla\it. The allidavit can be made by one of two bart^ainees, when the conveyance is to two jointly, and tiie consideration is made up ot tw o debts due to the vendees separately (/). (9) Similarly to section 2, the as-ent is now required to be aware ot all the circumstances connected with the takin- of the mort-a^re. Hven before this requirement appeared in'^the statute, it is difficult to perceive how an a-ent could honestly make this affidavit without beinj,-- aware of all the circum- stances. Section 10 also provides that the affidavit of the agent shall state that he is au are of .-dl the circumstances connected with the sale. (10) The words " or the authority itself " were added by the .\ct of 1894, in order to permit the filin- of the oris,n„;tl' where previously a copy only could be filed. The sin-ular anomaly which existed up to January ist, 1895, is ''now rectified. (11) The words "and filed with" would seem to be a repetition, as filing,- was necessary under a reasonable con- struction of the section as it read prior to the .Act of 1894, where these words first appear. (12) Under this section, not only must the orii,>-inal or copv of the agent's authority be filed with the convevance. but it must be attached thereto. The latter is not required in the case of an agent of a mortgagee taking the affidavit under section - which merely requires that it shall he registered therewith.' As to a general authority to an agent, see section -,i. (13) The affidavit of bona fides must state : (i) That the sale is bona fide and for ^ood consideration, as set forth in the conveyance. (ii) That it is not for the purpose of holding or enablin<- the bargainee to hold the goods mentioned therein against the creditors of the bargainor. (!) McLeotiw Fortune, 19 U. C R. 100. ^nt of a mort- tliis section is ii'.KnM,oMU-.„„„, Ix- uphold,,,,, """' ^".'>."l".-.l,„„." ,1,0 "».". Wo and for «o h c.^ ' "'"" """ >'" '"'- i» "hi: ;:•::, :;t,;::: z:':;;:;' " "™ -^ "- 1-».. .™.n "■'...-•I' it i« the „„,i„. „r ,„„ ZI^T ■ ""■ ""■ »"" »"' ..'"' i« .' «-ood consideration b , ^ P"""'".."' '"toe to, "".■...M--) and Hlood co„»ider;I„ ^7"""' r"" ""' , > ,, '' ^'^■"1^'deration of 90; 3 >„.. V. s. 80 ; .6 L. 1 c,:; ;: '^°-^ = ''"'"" ^- ^-'":.. . k. .. j. f") Z^'-'- Wood, V' t- t, •*^-'- W. ""Y';,^''"'-^-. L. K. „ K^ .«.,^' ^ ■'■ ^-= 7 J-. .V. S. f,. ,. .J._ [,:■ (q) r,nvn.shend v. Windham 2 \\.. Q 495, 499 : 2^./,,.^.. v. /.„/^„;^^ ^^.^^^ ; /).^ v. 5/,.,^, , - r,,.^, . (••) ^CW V. McPhenon, ,7 r .' V f,^*^' '^""' 54. 6.. " '. *^*'- '39: Ward v. Shalh'lt ■, \- <> ^ •• Arundell v ^<"'. ^ \ es. Sen. 308. '""'"' ' ^ «'■''• ^e"- .8 : A'amsden v. //,,/ '1 ^i I V', 2q2 ONTARIO. I ! f f li ' III 11 natural love and art'ection, is a "^--ood" consideration, althoiig-h the transfer maybe voidable or objectionable under statutes relatinj,'- to voluntary or preferential conveyances (,?). {14) The words " not for the purpose of holding-- or en- abling- the barf,'-ainee to hold the s^-oods. etc., ;ifr;nnst the creditors of the bar«,'-ainor," must be read as meaning-, that the bargainee should swear that the object of the conveyance was not merely to enable him to protect or hold fraudulently or colourably the f^-oods for the benetit of the bar{,'-ainor af,'-ainst his creditors (/). Where an affidavit accompanying an assignment for registration stated that the deed was not made for the purpose of enabling the "assignor," instead of the " assignee '" as required by statute, to hold the goods against the creditors, the assignment was held bad ; for, though it might be a mere clerical error, the court, by accepting such an affidavit, might be assisting in an intentional evasion of the statute. Though the statute mentions the word " goods," still an affidavit of bona fides will be sufficient when for " goods" the words, "the estate and effects mentioned," are substituted therein ; the latter words being more comprehensive than the former (it). Though there be two bargainees, and the affidavit of bona fides states that the conveyance was "not for the purpose of enabling the bargainee to hold the goods against the creditors," etc., the instrument will not be made void (v) ; but should the word "creditor" instead of "creditors" be written in the affidavit, the conveyance is void {w). (15) The conveyance, with the affidavit ot bona fides and affidavit of execution, shall be registered as provided by sections 15 and 16. The question whether a copy of a bill of sale, with the necessary affidavits, can be filed under this section (s; .Unfheu's v. Feaver, i Cox, 280 : Tivvncs case, 3 Coke 80 ■ L, C. I. (t) Arnold \. Robertson, 8 U. C. C. P. 147. (u) Mason v. Thomas, 23 U. C. R. 305. (v) Tyas v. McMasler, 8 U. C. C. P. 446. (w) //nra/injv. A'nuw/son, 17 L'. C. R. 564. Sin. Ml, a!tlioiif,^h ider statutes ,v). tlinj,'' or en- ;i(r;iinst the iiij, that the eyance was idulently or inor af,'-ainst rallying- an Eis not made tead of the ods ag-ainst , thoiifj-h it epting- such evasion of ds," still an f^-oods" the substituted ve than the the affidavit not for the ods aj^ainst le void (v) ; editors " be la fides and by sections 5ill of sale, his section, ;e 80 : I Sm. in substitution of th % e hill of sale itsolf. aim >fo f'^o.ourt nW/...vv:vv. rV....,.vW/,,,,^, ■ ■ tliero concurred with Robinson CI • ' ^" '^'^''^^"". J-. --vtion should bo read in ' •'•' ' ^''"-''''^''■^-' that this ^-'-rsectionso h^ tu ;i"7"?; T"" ^^^^'^^ '^ -^^ ^''^" ^'^^' copv wi 1 ,.. ;; 'n ,"7 "'"• " ^^'^" '"-t consider «-si,,n,nK-n -anj ot^ he ■ '"^^^'•■"^'^'-" -'' tHo fact of the --'^ou.hthco;;.::..;r::^;-,;i:,:7;;---.^vouid s'^rnatures of the parties, whic-. is nm h '"-^P^-^'t-n^^ the 'j 294 ONTAUIO. I ! such advances (3), the time of repavment thereof not benio- lonoer than one year from 'the niakin..- of the agreement, and in case of a mortgaoe of ^roods and chattels for secunng the mortoagT.e\epani.ent of such advances, the tmie of repayment thereof not bemo- longer than .)ne year from the making of the agreement (4), and in case the mortgage is executed "1 good faith, and sets forth fullv bv recital or otho'r- vvise, the terms, nature and effect'of the agreement(s) and m case the mortgage is accompanied hv the' affidavit ol an attesting witness thereto of the due ex-ecution thereof, and by the affidaxit of the mort- gagee, or m cast; the agreement has l)een entered into and the mortgage taken by an agent duK" authorised m wnt.ng to make such agreement and to take such mortgage and if the agent is aware of the cn-cumstances connected therewith (6) then if accompanied by the affidavit of such agent, such affidav-it whether of the mortgagee or 'his a-ent stating that the mortgage trulv sets f.^rth the aoree- ment entered into between the parties thereto' and truly states the extent of the liabilitv intended to be created by the agreement and covered hv such mort- gage, and that the mortgage is executed in good taith. and lor the express purpose of securino the mortgagee repaxnient of his advance-s, and not for the purpose ot securing the goods and chattels men- tioned therein against the creditors of the mortcra-or nor to prevent such creditors from recovering 'any claims which they ma>- have against the mortga-'or,' 7) and in case the mortgage is registered as U- tl'7is Act provided (8). the same shall be as valid and bindin^- as_ mortgages mentioned in the preceding sections of this Act. S7 V-. c. :,y, s. ;. (I) A mort-u-e that is j^iven to socuro an existin- debt only, \v,ll come under the operation oF the second section of K- s. O. iSc)-, c. 148, s. 7. for :„:,;:;:::':■'"""■'' r" "'"■'■" - «"«' ^ ""•■■-". '"-0".. i:r;.:t:;„:;::r"""""' ^'-'- ".c opera , if ,l,i,, ,:;;„" V '?'■'"*•" "••'•'" ~" '~ ""I'"' W«» „i,l,i„ ,1,0 \clb.-™..i , "WrtKi.Ku i, „„„., ,1,,. TI.e purpose „f „,, ,,„„„ '" "°'^'''- '-'ryoi. business',,,. ^»™»" .0 e„„,- ':.:^ss ".:::, ■:;:,■ .^' "- -"*■ •'-• l"ir Ihan a c„,„icle,,„i„„ „f ,|. ,, , : """""«' •-•'" '"' "'ore ^ndo.se„,e„,. „, o.be/,;! i^: 1'"" -«-«-■ ^.v another. But, because unJer'this^^ , ■ ' ''"'"■"" '"'■ triviuK or taking, a ,ali 1 ' I"" °"'-' '~ "'I'al*' ol' e-tsat tbeti,„t tbj 'lelr X,: rb'.'" ""V" ' necessarv that inslrumem^ nf ' i '^eLomos the more with th;..ost ie.ur" ;.::;' v"^"" ^'^-''^' ---tched observance of vhi • u •", h " '•"'"'''■^ '^^ P'ovided. the H.ll he necessary to their vah'ditv. A .'°4, L. K. 3 K,. , .. / ,^,,;- : ^^ « • ^f = Afrnr. v. /V/...^,,,, r.. n. . Ex. •■'t p. 207. ' ^ *■ '^- •♦9C^- <^'«"/"'/'« V. />,r»„V, ,;, o. R. {f ) A"/,?/- V. .Sy,.,.;;m«, 21 Gr. 2-1. I, '.' w 2t)6 ONTARIO. ' ^ II i :r cnmph.-.nce with these statiUory .afef^uarcls Can never interfere -th an honest transaction, while it ,i^ es to the public that protec .on -.vh.ch ,t .s the policy of the law to secure a,.tinst fraudulent and covnun.s transactions. I, is oi' the iirst neces- s,ty to secure ^ood taith, and prevent error and imposition n deahn,^ and the statute therefore makes it requisite that Z^'^'': n""^' '''"'''. '" ^— '-'-ation (.^, 'uKlshouid and .ftec ot the agreement." besides requirin^^ affidavits of goo a.th to be made by parties interested, '^o particuh form of words ,s necessary to create the a^^reement in ur.tu.^. so Ion. as it embraces all the requisites ^nd fbrma t.es o the . ct. Bein,. a conveyance upon condition, it is properly made by deed(/.). but there is no necessitv for its bemf,r made under seal (/). Should a mortL^a^e bi> iriion f.,,. »,. "^ "^^ "*- .'>'^^" foi two purposes, partiv to secwe future advance.s under this section, and partiv fo.'- an advance of money under section two, if the Act is otherwise comphed w.th the mortf,ra^.e will not be invalid. The instru- ment should be considered as divided into parts, relatin.. re.pect.vely to these two purposes, and as if each of such parts were a .separate instrument ; but as to each part the require' ments ot the statute must be carried out as if each part were in a separate document (/). What advances are "within the statute is no longer a matter of doubt. The weight of opinion was alwavs w^U. the vew that the Act extended to advances, either in monev or in goods, but the mference from the word " borrower " is that the advances made are intended to be returned; and when the advance .s of ^^oods, not of money, the mortgagor does not usually return goods (especially when the goods so advanced (g) Arnold \. RobeHson, 8 U. C. C. P. ir- (h) Flory V. Denny, 7 Ex. 581, 2, L. J. Ex.' 223. Me 504 '^'""'-" " '^''"""■'' '' ''• ^- ^- "9: Gerry., uife, f; ( j) Hughes V. Lift/e, x-j Q. B. D. 207. leveT interfere le public that eciire at,'-ainst le first neces- itl imposition "ei.|ui.site that r).:iiHi should ^rins, nature aflulavits of >'o particular ^reement in and formali- idition, it is ■ssity for its es, partly to lartly for an is otherwise The instru- rts, relatinj,"- fsuch parts the require- 'i part were o long'er a ys with the noney or in er " is that d when the >r does not .1 advanced '/"'^ 5 Bing. 1-. White, 47 'fi t^^apartv nvu' 1.. ."''"' ^ -J- ' '^^='-^^^"^'^' that "an advance ""der an ^Z t l"^' T !'" '"' ''' "^'^■''"- '^^ ^^ "-''e -- not con ::,■';;'''' ""■^■="'>--'- '-^'" that the statute -editor. . , o t ,r " '""">■ "^'^•^"-- (^) = - that a -Act must however nrevn-l • construction of the t'- strong reason.'^:; ;::; c '! '^ ^'^ '--'thstandin. --'-ici to he within the t;r;;;:^-ii;tHr(:;^^^^^'^^^'-^ ''Incro\:tr''^''^."^-^^^^^^^^-ionar^^ therefore a mc;:;2;;;ri:.r'"^ ''■ '^'^ ^''—'" is taken in f,.rert nart r i ' ''' ''■''''■""'' ^■'''-'^'itors. which ^^ ^^^vanceAvhicr^;:^;:^^,:: -^ --^'bjxistin,. - to make, but has mereb- talked tfrnt' T.''' '" ^"■'^'"^' when the n,ort,a,e is 'exec, d J T,''' '"' '"^ ""' '"^^'^^ -akin^ the advances, in o d^ o m L ^'^^.''"^P-^ '" view in against creditors, must b^ ::::^: ^'-'--"t valid as "ito and carrv on h, ■ '''.''"'^ble the borrower to enter r«»K adv.:;: •„:;:;:;; r, 'T "*■"""- ""• ^ -^^ -.»„„a'-Me ..:;:,:,:' o-^eir; ";,:.,'":^"^""" ""- '■"" enable the borrower to H. u^ '''' advance would -.«- .o be .„.. .„■„ ,„,j^',^^ ;;f;::riL::L^ */''*■'■'";'-■■ •^"-■-•■■-•■CR. 6,,. (") ^obi.son V. /'a/..,„„t ,8 U C R .= '■ '' "'■ (o) .?«* V. ^■/^^w^,,, 2, Or. 25,". ■ ■ '"''^' (P) Ex parte Johnson , 26 Ch. D. jj8. ^ 1 m 2t)S ONTAKIO. ^Wliii I ill il 1 nH'rtf,^1Kt.> Riven to secure the same will still h Act (y) e uithin tl le (4) The t ini must not he tor e tor the repayment of the at! I lousier period than on makino- o( the ai,Teement, and th \ances made e year from the recital or otherwis e u A I aj^reement to repay the ad IS must he fi pon the face of the morts illv in a,i,n-eement to repay within oi \ances " on demand. shewn bv a.ije itself (r). will not mij,'-ht not be m; time for repayment be stipulated 'to be wit^l le year. The demand ide until after the year expired, and unl mort{,>-a.i,-e is void (.v). Hut into for advances to b wh ;ss the liin the year, the lere an aj;reement is entered and a mortf,>- 10 made in sums, and ture from the a< ^^-lf,'•e is taken to secure their re advan reement, in the t ices, cannot alone defeat the mo at times specified, payment, a dep;ir- imes and manner of such be urt^ed to a jury as tion (/). rts,>-ai;-e, thouyh it ainst the bona I m;iv "ides of the tra nsac- If tl le re'nstered inst m ent, and provides that tl le mo enants and stipul;itions contained i rument refer to another instru- rtf,'-aj,'-or will perform the cov- in th mstrument could not he sai effect of t (ft) ft made bv an d to e latter, the resristered le ai;-i-eeniem (//). is provided bv sectioi contain the t erms, nature and ai,'-ent it shall state that 1 1 lo that if thi ilTid av It is cumstances connected with th le is aware of all th e cir- (7) The aflidav it e mort<'-at'-e. (i) That t must state ie morti^a^--e truly sets forth th tered into between the parties th le agreement en- jii) That it (the mo lereto. 'iti;ag-e) truly states the extent of the (q) MrAca/t v. Pinkcrloti, 7 A. R 4(^0 P. 309 : 0,U.noB.., v „VA...-, 43 V. C. R. 460 : .V.,. v. Luny. L. , ; i ;/•■' ■. '° '■ ^^"''*'''' ''• ^'^'"•^'^"''■•™". '.3 A R. „6. ■ Q. B D. 6,9 : Mclv.L'r v. .S/nngrr, ,3 Q. B D. 392. ' ^^ "" (tl Sf range v. Di//n„, 22 U. C. R. 223. (ii) /.I'c V. Btiriii'x, 17 O. B. D. — , lu- uitliin the m K. S. O. 1 807, c. i^S. s. H. 2gg -eel hv such n,ort«a..v " --'-'^--mont. andcov- •"•■> -5 roN,,,,,,. ,„ ,1,0 place „r r.,n„„„ic„, "■ '" '■'"- t^.ken by an^ieemd ,'?.'''■'-■ '"'.'"S^Se has l,cen -such n,^r gaol " ,d ■ ' h . ""' "' "■'""« '" "'^'■' iwiiied (6) bv th,. iffi I '"•-'^V'" .i). ilien, ifaccom- 'i»t .be ,:,o g^^g 'L";;"s::°; '"-'««". ^-"tb^g created, and co\ered bv sudi li:;; ma i i m •'"*' OMAKIO. mortgjige.. ami that such ,n„rt-ac^,. is executed in ..^■ood huth and tor the c.xprcss purpose ol" securing- h<. mor ,^ra_^-ee against the payment of the amount .'il- h.s habduy (7) for ih<: mortoao„r. as the case mav he. and not for the pmpose of se-curino- the ooods' and chattels mentioned therein a-ainst the crtxiitors of th(.' mortga-or. nor to prevent such creditors from re- covermg any claims which they ,nav have against such mortgagor, and in cas(.. such .nortgag,; is reo U. C. R. 579: ^,//„^^, ,, .„rA.„„, ,., L C. R. 205 : /foe v. J/r.AV//, ,4 V. C. C. P. 4.4 : 7-;,o„>f,sor, v. 2?.„„,.//, 22 L. C. C. P. 393. m M i>. iS(i r4«, 't; IS reofis- i and iC, which is 'o an atk Ljuati. t-loscription. tho recital com, inapt and erroneous, the latt ^)i nns thai cr will not tin. -''-'^'t^ the former (..,. But the true charaCer'of ^h;;;;^ Z -nsueratum must be set out. ,f ti,e n,ort^a^e is ^'^I^ h"S<-e, u will m-,t su lice to >it'it.> il, , . -1 • debt (.V). ^-onsideration as beinj,^ a The indorsements and liabilities here referred f , ^::";c:;::,';';;'S:,::rti;;f*v"'™"™''-'-'-''" secure a mort.^■,iree -,l- Inst V • "'^^'■'^'''«'^' ^'i^^^" U> tiesA,.Hncur^d'^„:t; hn '" '"^'^'^-"-"^ - ''aHili- Renewais of an^nr:m:r':^^^r:;;C':r^''^^'' v:'- may. however, be secured for th.v ^ ^ suretyship ties. There is nothi ^ ;JS^ fth " ^ '" '"' '"" "^''"'- a.reement to indorse. ^ t;ii:t r;;;L:rt;;i,:" for the mort{,'-aj,'or {3) '"lure .m\ liability .ad^:r';::;:3rt:t::::;::^:— t^:^^'- strument within this section,^.nd w^e^ U ^1^^;^ '" J"' curred for one person, and security bv u^ , ""^ '"■ .nven by some one else, the mortgage' .L-hd tTb'"'"' affected bv the \ct (u) " \VU^ {,ase was held to be not probable ,l,a, section, „ „„u ,; ,„1 ^.u „ "■ ,"""'■■'"•• -.e .be Ae, eovo. a„ t™„ae.,t bAiX' ;;;:,r 7;;.;: (w) r/,n>ssr//v. Marsh, 53 L. T. 32,. (x) Belknap v. Wendell, 31 .\. H.'ga. (.v) -l/nMcr,? V. /:i'«<:/, 28 L'.C R -itn' -,(^, t- .66: /.,....„, v.-.v„,u.,.i^:7',^^8cf^';;::^-'r''"''^^-^- L;. C. R. 3,j. . Jy 1-. ».. K. 380: ODonolwe v. Wihon, .,. S 2:^:nit"^^ - ^if ^77 - A. K, . p, 3,,, C. p. 5. : .U.,;,ers v. Z,../, ,8 U C r' " ! "Tu " ■":'"'• " ''• ^• 210: Clarirv. Bates, 2. U C C P ,.8 " '' '''"' '^ ^'■• (b) Pey Harrison, C.J. Bafer.'nn I I/" , ; i 303 IVMAKIO. H m isylKvlod that iv-isliation woulJ now havo lo Iv made with atlulavits of oxocuti.n ami ho.ia fRk's" umlor section i i, (2) The statute iniporativoly recniiivs that the liabihty. in- ei.rrod by iiulorsenieiil or otherwise, shall he limited in tllira- tion lo a period of one year from the date of the morl-af,re, and the instrnment iniisl shew on its faee that the notes in- dorsed, or any renewals thereof, will fall due within the year, otherwise the mort-aj^v will he invalid as aj^ainst creditors or purchasers (r) ; and so ..trict is the law in this regard that t!ie days of ^race on a promissorv note are counted, and if they extend the liability over the year the mort^i^re is bad (^^ e ^i\on as seeurit\- atraitisi ih n .., 1 "lent ariil iliii ;, 1 r 1 • "f>'""^' H'.il cnilors,.'. ;k „, I „,„','" ■'7'-'l»"-v «..l. IIK- M;m„o. Iw„ ,1,.. --::';:;;:';^::;;i;r:;;-r- ;i ;:.::';:;::::;-;;;i: s'slent with the mortj,^a.v but h.' " ^' ■""^'^'^ -t -s i-ieon- entirety is ..hhI witlun't ,1 M " "'^" '''''''^•'^'^ ■'> "^ clavi, „.,. '^"' "'^ .Kldauinal words i,, ,ho .,,,1- '"' ''' ''"'' y^'^r from the ,/a/r of the mort^a^'e, not from the ,ur,//i>i'\r'" .'•'"'"" '"'' '^"^'' not be on the dav of the d t f ;'r"''."'^''^-'' "'"> appear by the recital, th.n^u th. '"""at.on i„ time the proviso will not 'le proviso be silent as to time note mentioned „, .H^7 ^''''''f '''''''' ''^ ^^^'-^ ^o .H^ recital and th. proviso w I h u """"'"'' '"^'•^'^^*- ''■'- the recital compile: :it:;':;;^-;;^-^-!--d. if mentioned therein applies to bo V ! ,'""?'"' ''' ''"^^^ may be ..lowed in ascertaining L fS^'m ^""" '"'^ -'^'^■"tliKs section of the statutt of tho ' "'"^^'■'^^'.'^^' .-«-or "that he wil, pav thrnot r-mTr'" '"' '"^^^'- prom,ssory notes which the mort^^a^e 1 h '7 ''" •' '''"'' for the accommodation of the momCo ''"'''' '"'"''"" "othecomes immaterial When it istr^e^t^lrr::::: (f ) £»/•««// V. Green, 8 A. R. 366 (g) Re //,?7t.f.r, 21 Ch. D. 871. (h) Embiirv \, Wf^f . „ '«'. I3.A. R.3S7, ,^C. L.J. 6,6. \;i I I I 304 ONTARIO. ant is only personal, and does not atrect tlie property mort- ga^-ed, that the covenant, not beint,' a part of th^ mortf,'-a{re, as a security upon the property itself, it becomes immaterial for these reasons that it does not set forth fully " the amount of the liability intended to be secured " (/). It has not been so decided, but it is possible the law may yet be found to be, that a mortj^ajre g^iven to secure indorse- ments mig-ht stand as ag-ainst creditors, etc., for the indorse- ments of those notes which would fall due within the year, and be void as to others ( /). If it be the intention to renew notes, the indorsement of which is secured by mort^-agfe under this section, then it must so appear by the instrument itself (/?•). And a mortgage cannot be renewed under section 18 so as to keep alive the security in favour of indorsements on renewal notes which do not mature within a jear from the date of the mort- gage (/). (3) Tlie good faith to be considered is that of the person from whom the consideration moves (/n). (4) The mortgage must set forth fully by recital or other- wise the terms, nature and effect of the agreement, and the amount of the liability intended to be created ; and further the mortgagee's affidavit must state that the mortgage truly states the extent of the liability intended to be created by the agreement, and covered by such mortgage (;/). Because section two says nothing about the consideration for the instrument being set forth therein, it has been held that an erroneous statement of the consideration will not, per se, (i) Sprajrjfe, C.J. O., Driscnll v. Green, 8 .A. R. 366. ( j) Burton, J. A., Driscoll v. Green, 8 A. R. at p. 374 : see Kitr/iing- v. Hicks, 6 O. R. 739 : Mtnvat v. Clement, 3 .Man. R. 58s. (k) Turner v. Mills, 1 1 L'. C. C. P. 366. (1) Turner \. Mills, 11 U. C. C. P. 369. (m) Per Wood, V.C., I/ohnes v. Penney, 3 K. & J. 90 : Thompson v. Webster, 4 Drew 628. (n) lUirber v. MaePherson, 13 A. R. at p. 362: Parker x. Morrison. ^(^ N. H. 280 : Ex parte Webster, 22 Cli. D. 136. m K- s. o. 1897. I'- i4«, s. H. n;,1ni;: J*;;"^'-'^"^^ ;-'- ^^.u section (.,. hut the „,ean- t'- ImpeHa," Cn^;; ^'^'^ ^^^'^ --"- ^^ ^^^ 'iaHIit, as i„ V\ here there is a collateral atrreement to th ^vli.ch does not appear as nnrt .f h '^ort^a^-e for instance a verh .1 ^ ^^'^ --onsicieration, as. -^isterorno :t; J'l:;::;^'^"^ 'y ^'^ --t^a^ee not tc: a higher rate onnte:.Xr:;::i:f " '" '"^^^^^^^^^ P^>'^ collateral a^.eement is no p. , / T" ^'^"^"^ ^^^ ^^' ^^en such consideration cannot be snid u hi ^^""^■^'^•■'^^'■^>". and the reference thereto is on •tt;d(;.';:"r;^' ^^' '^"'^ ^^^^'"- another and former conveviro ' '^ '"strument recite .-Roruill ^erformthe ;;•;':' T''''^ ^hat the n.ort- '•" the said recited indenture "iT ' '^^'P^'ations contained -ent does not contain the te m 'T'''"' '''' ^''^ '■"■'^^^- a^-reement between the p- rZ " ."' ""' "'^''' "'^ ^'^^ -valid (.). thou,W, a collateral tr;em;^,t r' ''"'''" '^ and n,ort^a,ee as to the applil^ i" '^,': """^ """^-^^- money need not be set forth (v) ^ consideration the public notice of the "encuit:^.:^ t:::;::^' '^'" ^''^ property, and to enable it to ascertain the ful '. '"'""' '''' the mort^a,or has incurred an indebtedne!: "' ''' ''''''' l^iteral exactness in describing the ind.'h^ . qu'red; it suffices if the descriml ''^ '"'''-'^^"'"ess ,s not re- (o) rif/rv V. 0;,i6, 4 O R fiofi . n , n^oo,.. srou, 55 i„ J,,;. "• '5^ • ^-^« -• -sv. rr,v.^., ,0 A. R. ,pr, .. (p) Hamilton v. r//«^,<., 7 O R n . 'N. H. ,0,. -^ • "• 2')5. /»'/^;,„/, V. Wculall. ,,, (q) iff.r A,,-/^ Pofiphnvr!/, 2, Ch. D. .3. (r) Lee V. //,,r«,-.9, ,7 g. p; j, ,. m 'ifii t #3 M-^' m 306 ONTARIO. Of correct and full inforniation. without danger that the language used will deceive or mislead parties (/)" It should be noticed that the uords -,,„.>.„, of the .ab.hty are here used, while in the latter part of the section the expression .s " ..vAv,/ of the liability." Although there is probably no real difference in meaning, it will be weM to follow the statutory words. " extent of the liability " in the affida^•it of bona fides, to which the latter are applied. (5) The agent must be aware of the circi.mstances con- nected with the taking of the mortgage. I, is open to any- one attacking the mortgage to shew that the agent is not posses.sed of this knowledge, and if such want 0/ knowledge IS established the mortgage may be declared invalid (,) It shall state that he is aware of .,// the circumstances connected with the mortgage. '"ccctu (6) The affidavit of bona fides, whether made by an agent or by the mortgagee, must accompan\- the mortgage when registered. The word "accompany" is here u^ed in ' same sense as that in which the words " together with" are used in section two, meaning " simultaneously." or " alon-- with (?i). ' "^ (7) Where an affidavit stated that the mortgage was made to secure a mortgagee against the payment of such liability of instead of " for " the mortgagor by reason of the notes' the anguage was held to be equivalent, and an objection thai the liability referred to was that of the mortgagor instead of the mortgagee, was overruled {,,). An affidavit is insuffi- (t) sy^efip^ra V S/,.^/,an/, 6 Conn. 37 : A///*... v. GnS^^oM, 4 Conn 58 ^nni V. Branr;,. ,0 Conn. .60: A>„^.. v. B.ni, „ Oh'o ac • S. ... : Jfo.^,, V. Jia,Uj,, 32 Conn. .88: Pa,;„ ,. /,,,,„„, ^is ,0 M^y V. M^ 5 Ohio S. 78: /V/.. v. S„„V,, .0 y.',J'%^',: Com, 3," . '' " "^' '' ''" "' •• ''"'''•■'■ '■■ '"""•■ ^4 (11) Cameron. J., Carlisle v. Tafe, 7 A. R. at p. 3c (v) Grindellw Brendon, 6 C. B. N. S. 698. ' " '<• S. o. 1S97, f. j^«_ >, f^_ ^•leiit which complies in -JI .,.,., , „ -,1 , t'- section but lits the ™,s " " '^ -^-^oments of -ort^a^or" in that p ^ ::! .^f "^^ ^'^^ -^'"^-^- - the tlie mortL^•,..•e uus n\f ' necessary to state that ti^e .00.: i:h;;: ,::::;;- ^;-'-p-p- or secnHn, tors of the morto-a.-or " . , "" '"^'''""■^^ ^he credi- t- omission u.: : intent- 'i';rV'"'v "^ ''"^^'^"^^ ^''- "- ohiection that the .m^^^ ^L th^' 1^'^ ""' ''^ ''''''' '^' pose of . p.otecth.^ ' the ^00 N::^ '^t !"" '' '"' '" '^"'- "^ortj,aj,e a«-ai„st the cp^ditor '"'-^"fonecl in the phrase •■ for the purpose of 's' '"' ''^''■' ""^'''''' ^^f" tf^e tels against the Jl^aL^ L Tl , " ^^""^ ''"' '^'^^^- chattei mortj,.af,re, bv tuo mor/J." .- o,-. '"' ""'^'^'^'^ ^'^''^^ ''^ f-th, a.nd not tor th'e purpose oVs'' '", "^""^'^^"^ ''" ^^ood tels a«-ainst the ereditirs ^ he n r'"'^ '''' ^^"^^"^ ''"^^ '"■'^''^t- o"t addin,- the words ''• or eitherofT"'. '"' "'"^^'"'"^ ^^•'^''- -ort,a,.ors. or .-anv o ei h Tof t "" '" "^^'''^'^ ^'- -•ciitors (.). The words V!' ^^^L 7 th" -"^''"'^ ''' ^-^-.a^ors. and ..an, or either f.; ..t": ''' r''''''' ^o.s, are implied, following, the maxim • ''^'''''^' -''^-'^^'- t'nent in se minus : minus h so . \'"^'. ""'"'-^ '"ajus con- Where h, a clericr; rS^r"^-" • "his ; instead of .> nn- " prece;^.^^::;::^';::;"' ^'^ --' referrmj,^ to the liabilitv incurred it 1^ - '''''"""' '" "o ambi^niity in the expression t;.,' ,'' ''^''' ^'^^•'^ ^^'^^-^ "ot invah-date the security"^; ""^ "''"'' '''""^^ ^^"' A chattel mort.t,rajre may be Lnven bv th.> i u ■ .w.te, on obtaining- her bar of in,-h, 7 ■ '^"'^haiK. to the (w) J/„M,^,, ,.. ^,„„,/,^ ^y L'. C. R ,,. ^,<-. w V. *.;..y7;,°i::*[.'-,"^''"' -;■■ c ,. ,,36. '7 A. R. 2 !lli^ m I', 53 26 C. L. J. 3 'J. I I, 308 ONTARIO. I I to be incurred. It beinjr impossible in such a case to state it precisely, an approximation must either be made to satisfy the provisions of this section, or such transaction be considered as not within the Act (A). (8) The sections of the Act here referred to are numbers two and seven. 9. The authority in writing referred to in the two ne.xt precechiio- sections, or a copy of such authority shall be attached to and filed with the niorto-aoe s? \.. c. 37. .s. 9. ■'^ •'^ ^^ to. The affidavit of bona fide.s reciuiretl by sec- tions 6, ; and 8 may be made by one of two or more bargainees or mortgagees ( i ) and if made by an-acrent as herein provided the same shall state that he is aware of alj the circumstances connectetl with the sale or mortgage, as the case may be ^7 V c 27 s. 10. ^^ ^^' (1) The affidavit is only required for the purpose of afford- nig- information as to grounds upon which the claim to the goods is made, and one affidavit embracinj- the requisites of the statute affords that information, as well as affidavits of twenty bargainees, if there were so many, would do (c). In one case, it was contended that although the statute per- mitted one of several mortg.agees to make the affidavit, the spirit ci' the statute required that it should be so construed as to limit it to the case of joint mortgagees who were connected in business, either of whom would be aware of all the circum- stances connected with the mortgage. Hut it was held that this contention was untenable, and that there was no reason why the court should assume that one of two joint mortga- gees, even when not connected in business, should not^'be (h) Morn's v. Martin, u) O. R. 564. (c) He^vard v. Mitchell, i ■ U. C. R. 625 : McLeod y. Fnrtuuc. m U. C K. 100. :a.se to state it :icle to satisfy be considered are numbers ) in the two :h authority jrt.fraot. ^7 ■cd by sec- vvoor more iy an 'client that he is 1 with the 7 v., c. 37, 'se of afford- claim to the requisites of affidavits of I do (r). In statute per- iflitiavit, the 1st rued as to e connected the circum- is held that s no reason int mortga- ■>uid not be liilf, ig V. C. '^•- ^- o. 189;. ,-. ,48, S. I,. .1*"; capable of makin^-.he affidavit with a full knouled.a. of dl the circumstances {(/ ). ^ '"' Cou/nfr/s to Civc .l/or/i^r,,,,,.,. /,y, ■ '"- "Pritssttl shall be affida.its „f cxcciiti , ,1" ■'5"'"f ;'«<'thcT with otherwise si,ch cnve,,an n„,,,±. '' ""^"?»K<--» (2). be absolutely mill ,.'"""' "r/iKreement shall .ho nt<«,a^.t, ;:^:i,; ■: £;«™n,^*''"" -' . p"rc„.s„s o/»„4„:r,:„;j-:; "-''""■ »""-"-- Althous>-h the unrriu <',. , "^ are here u:;d. i i "t^ab^T?'' ""T"^' ^'- ^'^--^--"^ " ducible from the uo d ''" ''''" """'^' "^^ ^- covenantorpro:i::rasr:Z^tT:^""'^-^'^^ menl, it would havu „„ v.lidi,. , V ? """ "" "'■''""-*- (^)Thi., action I :*;•■'' ■■•>-" P^Perty. R. 100. . 30 L. C. C. P. 363 : .I/,/,,Wv. ^«^/„„^, ,g u. C. 'I 1 1 11 ?. ii u .»< I* ■ t ! i I I ; I ! 1 J m 310 ONTARIO. fixes „o limit of time within which the morttraf,.e is to be ^.ven. and provides for no extension or other considera- t.on movm^. from the mort^^agee. the presumption of fraud declared by the Assij^nments and Preferences Act, when h. assignment is made within 60 days after the mortf^age, will st.ll anse although the a^n..u.^ was more tha.f t£ da's prior to the assignment (/,). (3) The words '■shall be absolutely null .-md void. etc. ," to the end of this section, are identical with the language of section r ■ see notes to that section. 12. Kvery covenant, promise or airreement (i) to words 'Ih' ^'^)«^^«°,^^--' chattels (3). in whateie words the same may be expressed, shall be deemed o? thlsT ' rt "•' '^'"''''^ ^^■'^'^■" ^he meant-ng ot this Act. and unless accompanied by an immedi- ate dehvery. and followed by an actual ind con inued chano^e of po.ssess.on of the said jroods and chattels hal be n. wr.tmg. and such writino- accompanied by affidavits of execution and bona hdes shall be reois- tered within the time and in the manner prescribed as respects bills of sale by this Act. otherwise the said covenant, promise or aoreement shall be abso- lutely void as against the creditors of the banrainor and as apunst .subsequent purcha.sers or mortgacrees in good faith (4). 59 \'., c. 34, s. 2. * word^ .^" ""'' '" '^'' P''''''''"^' ^-t'-^- i" -'lich the same ^vords coven.-mt promise or agreement " are used (2) Nothing is said specifically as to contracts of exchange of goods, and although rules of law rel.uing to sales . nly^ contracts o. sale, it is still a matter of doubt whether Statu- tory requirements in respect of sales will apply to exchanges(r). ^^ (3) Section 37. providing that the Act shall extend to mortgages and sales " of future goods or goods not com- (b) J....S-. V. A'no.v (,897 = , 24 A. R. .0, ; 33 C. L. J. .o>. (c) Fatn„n„c, v. BuM, 7 Bin^. 574 .. /;,„„.,../ ,, D.„r, 3 Can,p .op • Hamsun v. Luke, 14 I\I. & w. ,39. ' ^ ' ^99 . u •ti;af,'-e is to be :her coiisidera- ption of fraud Act, when an mortj^age, will than 60 davs I void, etc.," to e lang-uag-e of ement (1) to in whatever be deemed the meaning- an immedi- d continued and chattels mpanied by ill be reois- ' prescribed lervvise the all be abso- - barirainor mortj^agees ich the same ed. of exchangee ales i; ply to hether statu- xchanf,»-es(c). II extend to ds not com- 3 Camp. 299 ; K. s. o. 1807, c. ,^8_ s. 12. 1 •'^" Pleted and ready for deliverv vv,-„.m — ' «ro:.„,e„,: ; ,i;."t, T„':;;v'°' ", """" ■" aa-reemenf^; >. . .• , '^^'^' ^'''^"^ "^'it section the w,„r;,c, (rf,. ' ■ ""- """ '""' ""■ '""king ot PHi'■;;:;^'::r■v^;■:':;,t;' " ^t-': '■■ • »-■-*« f- » 't work and labor be bestouod In , '''"^'• -;^'tis not annhin^.Hi.,r^ '; :;:;;.;--^:-t'-t ^^^ subject of sale, the action would be 7^ ^ , '""' ''' ^' '^' if the contract be such that w „ :_, h';;"'^'- '^"^ '^'^^^ '' ^ut in the sale of a chattel, the n.rtv • ""' " ''"'''' ''""^"'^ labor (,.). ' P''''> ^'^'^"'^t -ue for work and dispropor^on in :!Co^z':: ;'.::' JT''''' .■^-' ^'- not form any test, and if a sculptor b ' "^'"''"'''^ "^"'^ work of art .he contract Is ^^^i' ^^^'''T' ^^■'^^^'^^'^^ '' of a ci.attel { /). ertneless a contract tor the sale .\nd an order <>i\en for •■ . 1 .ract for „ork a,„| ,„„„ ,^'7 ""^ "' " ■■''"'">• '""I ■>". a c„„- .And where bv a contracr ti, . n I pern, and the contract to assiirn thus (f) Z.V V. r/,-/^,,, , B & S. 272 ■^■' •■ ■ C. R. 442. (g:) ""//.W,.. V. ,r/A.„;,, 33 L-. C. R. 443 ' •-• «-3/9: 14 L J. C. P. ,(„. HI i', , ill' ' 4 iS ' i Hiiii I ■' ■ O.Mario. becomes a complete assiirnm.'iu if tl, . . , cle.scribed to be dentin J .' • ^ ''" ^""■^■'^'"tlv fc ne Kkntified on acciiu.s.tion bv the seller (i) tin.. ben tbe contract. as .t^j::;,::^,:::,;^::-^ The property may pass by the contract itself ar « " t.me as the parties intend it to be transfe e :r .^ pose of ascertaining the intention re^^^ ^ t^t wl ! '"" of the contract, the conduct of the pi ^s ',,"'• ^'''"^ stances of the ca.se (^). ' ' ''"'' ''^' ^■"■'-'"'"- '-'"'^'^^'' tl'fferent intention appears where .h> n • (4) riie latter p.irt of this section froir the «n„ls •■ i, „ The „„rd barija.nor ■■ is .id. enough in its nteaning to J Co,,/,,,,;, V. //„.,//,., 5 H. L. C. 673. J^) S,.a,. V. .,/„„.,, „ ^„p. ,,,.. 3,,^ ^^.^. ^, „,^,^,^._ ^ ^ _^ ^ ^_ (I) .ftw/, V. Moo,,., u App. Cas. 3S0. (m) Ftirlevv. Batcf nt r r,v. " ■^ ,he siirticientiv e seller (/). ^•ific j,'-oocl.s, and tlesl roved at the tract is void (j). t'lf, an.! at such .ind for the pur- tl to the terms •Hi the circum- ■e the seller is 'Id tor the pur- '. the property and the buyer li\orabIe state, St or do .some or the purpose pass until such nless a dift'er- iiscertained or sscription and ^riated to the to the buyer, words " shall on 6. < meaning- to '//, lo H. L. C. f- R. lo C. p. 5 B. & C. 857. ■<■'■, 2 Exch. I. '^U7, c. 148, s. i_^, .<'.•» ^vhosuhs^::; r;r:;r;:*:r'■•"^'-''•^^'-•-- f^■H^■e. or for a future "r , -l '^"'''''''" ^^^.'^^' ^^^'^^ '" '-- those uho acuallv ^^ c?, .:^ .T"' '" ^'-tin^uished them. • ' -^V'"^ '•''^^" ■' niort«-a-e upon provisions „f this W u.Vl! ' ^^^'''^' ''^96. th(. tion was efW I hitwh' '" 'Y'\^^ -^>ch reuistra- the said date^Kl s^^c "^Ih:: ":^^r'^'^ '"^^^hs after tend and apply to e rv u ''"' '^"'^ '^hall ex- agreetnent'tUe'b^^ t tll""T"' 1"'"^'^^^ --' (')■ 59 \'.. c. 34, si '' '"■ '''" •'^^'^' ^'^"^ and*::,X::d':;o:;x;;;:: rrr-^pp'^-a case tri^ "PP--ista.--H„„,, i, ,„„ promisee, and .l.'erefo Vo °™: ""' '"""''"'"' "' '> '"" I-' '"at -. as as„i„,,. ,„b,e,„e„, p.^haser, „. ,„„„. ■'.-4A.R..6..MaxwelIonStaU.,e.s,,,.ded..c,8. !'!■ ''II 3H ONTAKIO. IM' li ! ill ft'af,a'cs in ^rood faith " for \ •,l„..hl« ^^'"-' a*.rce,.ent tor a n;;;^:^'. """^"''^" " '" ''- -se purchasers or mortirairoes in ' • '''" "^'"'""^ "'"bsequetit a».reen.ent under se^^^T : ^Z ' V" /"^ ^"^'^ "^ ^^ - '" '""tKe a sale. the office of the cKrk ,?f T r "^''■?,^''^-'^' (') ''n county or union of ct ie vlu-reT "^^"^^ "^ ^'^^ "^-pKa.^.ecI or sold is at the ti .e of ,h" ^''""''^'':^>' ^° •such instrument • and cv^rv ^ . ."^ ^'^t.>cution of •-^iJ such instrunK.; pre" Ld'to ] "' }'' t''^ ^'- pose, and shall endorse dull '" ^'''' ^^at pur- the same in his olf'a ^^ T,^.'^^" ^-ne of receiving (Jj W here the To^rk r.- i i sold .re situate ^i^Ctjoi^tl^^f^fT'^^'r" '" Muskokaor Rainv River rl, ' "■''>' ^°""d. be filed within te,^ di vs Vr n, i' '"^""'"'^"ts .shall '" the office of the ce- of r" '='"f """" 'Ik--™'!' of;Hed.tHcti„.M!^:^,;:f;l^-^W^n Court -M lrr'rate'\s::;\^;,:'' p"""^"- "r'^^'"-" °^ Haliburt.),,, the s aid ' , ™V"""'"' '^"""tv of ■^"•en dtty,, fro,,, lee "f"" "t" '* «'«' "'■■I'i of .l,e clerk of e Fir« Di '"'' '^J':'''" '" 'I'e office Provisioual couuty. 59 V c 32", j'"" '"' ''"^ *"'' -l^irr:!;Se'tit&^st£r^^""-p"'■^ -d ,„.tru„,e„t. shall be filed' «"thil, tl'd^^sfrt I JCation •• i„ the- case ''K'-'iiist .subset|uciit "1 the case of an le." "f^fl in tin- j)r(..- ^■gistertxl (i) in ■y Court of the Jie property so ne execution of •J< (2) shall file n for that pur- iie of receixincr 37- -s. II. niort_iraoeci or s of A)goma. "^1 instruments t'le execution -«'urt clerk in ate. [iiortn-agecl or i^'^rry Sound, '•unients shall :ution thereof i vision Court tuate. lortgaged or li County (jf ■ rtled within i'l the office t <><■ the; said lortgao-ed or mitouiin the n days from (/) NothiuL'' in fhf. f,.-.. fons contained shall 1 ''"'' P'/'ceding suhsec- ^'Ction or other proce di t '""f '' '" ''^^^^^^ '^"v ^lay, i89i.invth;drt^'S^^ required to be filed under rh ' ''''^ "istrunient •Statutes of Onta o 8s' ^ ^ 7 "^' "' ^'^" '^^'^''■^^•^' calle^ Acts is such instrument. <:7 V r '- o"" J'''*'^^' "^' ^''-n^^ 0/ " •. C. J7, s. 28. ('^') "Clerk of the Corinf,, r^ - ', Act shall include he oL^rs" "^^^^ ^'-^^ '" this -section. ofticers mentioned in this persons inte^Ited^T !!lJT'''l"^ •"e^-istration is that all ^he mortgaged or :;,T p';: ':^ '" "-'-- -^v interest in regarding that propertv pl ■ ''*" P'''^'--"''e information pe.--b.the baU:;or Xi;:::^ :;^::';r"^'r^^' '^- .graj^e be.ng considered evidence o 'Id V " " ""'■ ■n order to protect creditors n . '''"'''"'^ 'lecessarv, -oodt^ith^anda,;;:;;:;'':;^:::---^^ acquire any interest in the mnrT , ' °' '^^'"'"'^' t^> • -- rnie shonid Be X^^T^^^^T ''''''''' ''^^ bargamor might overcome this n '"°'-'J,^agor or "'■tted to retain the propertv Ind ,'"^^- "'"P^'^^"' and be per- by uhieh creditors and Ttl" h '' "" '""^ '"^'"^^^^ -• '-"-' "^'Vht be notified of his fi,r hi ■'' '^"'^'"'-^'^-^ ^^"'' ''"" b-nces upon his property K-'^"'"""' ^"^ "^ "'^ '■"-.m- hardship upon a debtor to be en "^r', "! """"-" ''''''' ^ ^''^at °f the very property- b\ wh't T"' "'' '" '^^''^"^ '^— -«" h«-i, but which is -the ve' me T '^"'>' °^^--"-^ his iiveii- ''^'^^er^ means for satisfying the debt for .Vfy ONTAKIll. 11 I ! ■ which the property is spn.riM. d • H. Puhiici.v ,nu ^ "L^'"""""""' ■'"" ""-■ ^™- or fraud .bovo-momionou, ;■,"""" '""'■"•■' "" ""•'■•"'« person' prop,,,, ' ,,"'*""!-' ■"^■"■••l'ra..co or ,r„„.,f„ „f ^ '— " i" n^e^,': : ;■ ^:;;:;:"L;r""" """ -""" .-nsfor, when p„,.„,i,,,;„,';,,;„\;;-->-;-e. and »"Ncin,ent pnal,,,,, "'""" '" '^ '''•'!"'». "r »iu.n.d'i d ' :^; :;;,"'""»--*.'-. ..> ^„od ,;,i,„ ,^;„, and frauduk.n , r pX ■''"? """"""'"'^ "" ""alid ^^■. ™«rooHn.^:i;.;!r::rr,d'';r:::,:r,r"' r '•' law bein,, ,l,at " „„ „,an shall Tc, " li' r ''""''""° "*' ^"^i: "'» '■•f< - ^- " .or „is r„ ;':„";:,?- ' ^ ^- passer. Should -mv nn« ''^^" "^^ '^ wrongdoer or tres- the charact ? a ' edi :';"''"r "''' '^ ''^'^^"^'-^ ^'^^^ i" ^ith, ta.e Possl^r^^LT: :r :;r^^^r^' '- ^°°^ -.•t.-.^ee or bargainee wo:7bTe.nitieTfo "''' ''' replevin or trespass against any such ^^rson (T). ''" ""°" "^ cirC'"'^ V. .u...., ., o. K. .o,: ^,„,.„. ,, .,„,^.^ ^ ^^^ V. r,^r;,<.,,, 35 Ala. 13,. ./'./7''"^, 30 .^ro. 423 : .1/0,-^ow [!' H K. s. I'. 1 (-2) Ttu ^*>". c. 148, S. I , tlie o(I 'iistrdmeni .>'7 '^i-- of the clerk i,| th "^ iiientiDnocI riho ^"iioii „( count . 'It the time of th •es, iis the ca «-' cinini\ >ic fiiav 1' vo arc f„ be filed R ^'k'isrratioii ""K'e of posse t' execiitio;i of ll court of the county o, where the property ^f ri I i\t .1... * 111 or 111 CO ssion. '*•' "istniiiieiit re^'istered within tl ^'Perates and takes eff, execution (,v), "ipliance with the .Act, K'-'M'f, or conv mortp-; period of live d, 's equivalent to eyancc, properly "''■' "P""- ''•om and alter th »ys relates back, dur It has b " field ij.der ing-a vacancy in i.ie off -omcwhiu simil e uav (if its !"■ statute, that "■hen performed bv , ny ,,,,''1' ' , '^''^'' ""= "linf,' is valid t.me bein^ (/). ' '' '"' ' ^■''"'•J,'^-' of the odice for the (3) l^pon receipt of -, ,„... rented to him for that purpose ,77"; ""'^'' ''^^ '^'^' P^e- 't has been held that'fihnT o sts i;.' '■"", '''' ''^ ■^--• ■n-'^trument to the proper ofteT;;) ," T^^' '^'■'"^'■"^' "'«^ -ord '.file," at common law 1 m Jl ''' ""^anin^ of the wreupo,, which writs and othe' XI bit •' '"■"'• '''''^' '"• are fastened or filed for the more ^r L" '""''^ ^"^ "'«">* turning the same ••(.), would indicate that u""'" "'' ^'^^''>- tory use of the word was correct T... '''■'"•■^'"' ^^^""- n;ort,.age with the clerk does not "'"^'"''^'^■'"^' "^ « M^']^. Should the clerk recede i wir""'^"'''^' '^""•^''■^"•- --eR'ster it for a few davs there i r "'''''^'^i^'^- "ot to ^^ '-St until further-orde^ e ' "''"'^'"'"^'--^tatute. ■nstrument („,, ; and. the fact of LTT^ concerning the ''- -nstructions, and endors „i tt r^'"^" ^""^'•^O' to "-^ it-eceipt ^y ,,.. ,-';^; -- ^^ t;me of fi,^^ ■^eate a fil.ng within the (•<) Section 4. (t) /.'/,/,o/,y. c„„k; nBarb rv \- , . :';";':""V; '"""^''- ^^ ^^ c. : I J : '"'■ "• -^ ''• '^- ^^^ ■■ "''">' '/ k "^w' 11 3i8 ONTARIO. iii' statute (.v). Nor will the receipt, out of his office, by the clerk after office hours, constitute a filinj^, thous,'-h he endorse the hour of the instrument being handed to him ( v) ; but should the clerk be told to file the instrument when he gets his fee for so doing, and without getting it he files the docu- ment, the filing is good by reason of the presumption that when he did file the instrument he had been paid his fee (s). It is not the clerk's duty to inquire into the truth of the statements contained in the affidavits any more than it is the county registrar's duty to make such enquiry when he re- ceives for registration a deed properly proved. The original indorsement by the clerk, made in pursuance ot the Act, upon any instrument or copy filed under this Act is evidence only of the time of receiving the same in the proper office. The clerk shall note the day and hour of the instrument being received by him, by indorsement, and from such time the law considers the instrument filed. Anv omis- sion, error, or mistake on the part of the clerk, in making his indorsement, cannot be used to the prejudice of the mort- gagee or bargainee (a). Any person is entitled, upon tender to the clerk of the proper fee under section 29 (ten cents), to an inspection of any of the instruments filed in his oflRce in pursuance of this Act'. 16. The said Clerics respectively shall number every such instrument or copy filed in their offices, and shall enter in alphabetical order in books to be provided by them, the names of all the parties to such instruments, with the numbers indorsed there- on opposite to each name, and such entry shall be repeated alphabetically under the name of every party thereto (i). 57 V., c. :i7, s. 12. (x) rowH V. Griffith, 17 \. H. 165 : Pnrkcry. Palmer, 13 R. I. 359. (y) Hathnimy v. Howc/l, 54 N. \". 97. (z) Connard \. C -.[ifa/i, 55 Iowa, 538. (a) Durfi'r v. GrinneU, 69 111. 371 : McLaren v. Thompson, 40 Me. 561 ; Mews V. Mems, t,^ Ala. 28 : Partridge v. S-.voszey, 46 Me. 414. f K. S. O. 1897, i4«. 1") (1) It foil 's very important that the clerk should o\v out the instruct :arefi ons as to the Illy „„. V J ' --VM... ,.3 iL- uie manner ot retristration' n« iZ' ;";::,'". """"^ " "'">• «'« - ->. -" perty without notice. '*^resiecl ni the pro- Section 15, sub-section f i ) uhi,-l, .>i.. , . ■ . ^r the clerk's guidance sulI:^talZr '" '" -'""'""^ first duty, when an instrument is pr"; : , '^'^'V-'T- "'-^ tration. is to endorse thereon the tin. o Tree vi r ,: ''''- and then to number it. The instrumpn. u VJ ^ ''''"'^' consecutively, and the c.er^t ' ri^:,:,';; .l^'^ "'''''''^'^' the parties to the instrument in ^^l^:^":!::^ ^jr':^^ all the names to the instrument in each entry and ^ ''"> to each name in the book he should enter the n'ul T'°"'' v.ously has endorsed upon the instrume n i e ' T I -^ T om.ss,on to follow out these requisites will no hnTi ht f' ' mortgai,re or bill of sale, for the statute in . '"\'" ^''^te the merely directoiA-, and does not m k h " '' of the registration of the in^um^; I,,'^" ''" '''^'''^^ "^^ tHe^::r^:;r-;^-^:-X:;^--e,istry beyond fi.edbe^rethee.pirationo?tr:-:/r«;.r;::-.-^,;^ under sect on J. rel-itP hu,.i. ^ 1 "a\s it will, ^'on 4, relate back, operate and take eff•p,•^ f.^ ., moment of its execution ^'°'" ^'^^ / .1 / ■' ".•:■: tic. 500. Holmes \. Stiroul,- -..if Wis. .55. ' ' '^•^- '"" ■■ ^"""' V. M:,s^on,r. 50 1 ) ) ' 320 O.MARIO. I! ■ ! I:i iii uf!i III county or union of counties or territorial district in which the o-oods and chattels were at the time of the execution of the mortga.cre. to another county or union of counties or territorial district, or to the said provisional county, before the payment and dis- charge of the mortgao-e. a certified copy of the mort- gage under the hand of the clerk in whose office it was first registered, and under the seal of the court and of the affidavits and documents and instruments relating thereto filed in such office (2). shall be filed with the c' >rk of the County Court of the county or union ot counties or territorial district to which the goods and chattels are removed, or in the proper office as mentioned in section 15 in case such goods and chattels are removed to a territorial district or to the said provisional county, within two months(i) from such removal (4). otherwise the said goods ancl chattels shall be liable to seizure and sale under execution (5), and in such case the mortgage (6) shall be null and void as against creditors of the mort- gagor and against subsequent purchasers and mort- gagees ,n good faith for valuable consideration as It never executed. 57 V., c. 37, s. i ^ ; 60 V., c ^ s. 3. ^ • J' (I) This section does not contemplate a removal of the broods and chattels beyond the province. It has only refer ence to the case of a removal from one countv to another within Ontario. The rule is that the validity and effect of contracts relatin.^ to personal property are to be determined bv the laws of the state or country where they are made, and as a matter of com.ty they will, if valid there, be enforced in another state or CO. ,try, although not executed or recorded accordinjj to the law of the latter. This rule has been applied to a great number of cases of chattel mortgages where the mortgagor removes with the property into another state, continuing h, '<■ ^- O. i8g;, c. 148, s. 17. ^^^ possession of it, permissible bv the l-iw of fh« r circumstances tint hnd r ^°''"'^'' ""^^■'• 'atterstatebva s- ? ""'""^^'^ been executed in the fc -'sc creditoi s or purchasers {d ) and for ,uZ^ ; °,;*^ ' '- .^-^-^ 1"!^!,. he re.o^ed, healer,^;;:';,:';'^" ' ■-"■;-■'■■• ---vai. ,. .„,. from a„v caJe , T 5:!!: " ''» "''.^-■■>- "a,-. H,„, does, der..,i,e,, ,.,.. Z^Z^yl ^!!^Z,""'''' T' ""' mus revertendi, to reside in nnVi " "°^ ^'^^ '-^"i" ?oods and chattels vitht. "'■''"'"' "'^""'"^^ '"''^ keeping them ui;;;!: ^ ::r 1^ -mention of pern.anent:y this section applies (/) 1'-^ ' '° ^"'^"^'^ '^^^ -"emoves, then ;..en out of t^: j^Li 'o;i::::z:::':.z ^^^""^^'"^- by anyone other than the morf.r., '^'*^°'^"^"^' then removed tbeira,ency.thestatu;:r:t^;;;7:rn°"'^°"^'' low that the section will „ot annlv sn l '' '"''' ""' ^°'- is i^^norant of the remova 1^' ''nc wh^"'' " ^'^V"""-''^^'^^^^ mort,.aged .^oods from the n Lf'" ' "' 'T'"^*^^ ''' ^'^^ a valid m.rtga..e removes tl ^ ^ f f'^;",^ "^ 'T'^'^y ^^' -rt,a,e is filed, the purchaser r.^^ b ec "" fl u"" ''' S-ag-ee should have refiled his securitv in h '"''"■ they were removed and ,n vhi '''°""'^" '° ^^'^'^h The moment the ,o;r ^ r '::^: ^„;::;^ "^ ^^^""^• chaser, the mort.,a.,ees cause of Si '^ t^" ' '^ T' b.m, of which he could not be dive ted t '"""''''' '° with the requisi.es of this section (/) ' "--compliance The Act does not cover th.e cise of -, ti.u case of a permanent remo\al (d) A'e.'iian v. Simso,,. 3, Alb. L. J. ,,8 (e) C/arkcv.Bnfes, 21 U C C P (0^«Vv. Ar/-, ^gAla.'yoj ' ■'"'' (S) r«r//m,„. V. ^,W;,.^, 3 O. R. 462. (!•) C/«^Xvv. /y„/,..v, 21 U. C. C p\„ (') IMffins V >//;ufe„, 5 A. K. 449 ■ I 1-11 f.; nr^Tfi;. 'r Ij:) •■'-- ONTAKIO. Of the resid ice of the n.ongagor. The ^obds mort^^'.^ed may be .n one county, the mort^^agor's residence in another ; .n the former count;, the instrument must be remastered ; but no provision exists requiring registration of the mortgage in any county a mortgagor may move to. unless, of course, he takes the goods with him to such county. (2) A copy of the mortgage and affidavits and documents rehitmg thereto with the clerk's certificate under the seal of 1 . court, must be filed in the office of the countv to which the goods are removed. Should the goods not be permanently removed until after the mortgage has been renewed, then certified copies of all re newals, as well as of the original mortgage itself, with all affi- davits, must be filed in the proper office of the countv to which the goods are removed; ■/.!.. ortgage has been assigned and assignment registered, a conv of the latter is also necessarv The following is a form of certificate that mav be used •' , ' ' ^^"""^ "<" the County Court of the countv of do hereby certify that the annexed paper writing marked " A " .s a true and correct copy of the original chattel mortgage , r."; "'. ^""'"^ =^" ^"dorsements thereon) beariit date the - day of , ,8 , which was filed in the office of the said court at o'clock in the noon on the day ot - — -, i8-. [//• ^/„. „,,„.^^„,r,, i„„ i,,^,„ ,,,,„,,^^f ^^,. assigned, aM and that the paper writings marked " B" hereto attached , true and correct copies of the renewal (or assignment .«■ M, ro >• .nay be) of the said mortgage filed as aforesaid with all endorsements thereon, and of all affidivits statements, documents, and instruments relating thereto' which said paper writings marked " B " were r;spectiveh' filed in the office of the said court as follows (/....,,, ,„ni,c Uuies ,^t J,n,^ ,,nUhc numbers a,nl other specifications of cad, doc,nnent)\. and that there are no other affidavits, documents instruments or other papers relating to the said mortga-.^ filed in the office of the said court. Dated this dav of ,s '■^■'■'"1 ■ ■ c.c.c. roods niortg-aged lence in another ; re^Mstered ; but the niartg-agfe in :s.s, of course, lie and documents nder the seal of county to which noved until after copies of all re- ielf, with all affi- county to which Jen assigned and also necessary, nay be used : ounty of ig: marked "A" lattel mortgage hereon) bearing led in the office >on on the ■ been n'liv.vcci or marked " B " the renewal (or rtgage filed as 'fall affidavits, lating thereto, !re respectively 'icre xe/ out /lie •C'.itinns of each ts, documents, said mortgage R- s. o. 1897, c. 148, H. ,8. -aun,:::!:;:;;;---;f ^^' ^>- '- ^'-. and have Z ^^^^^:'^:ZZ "1 ''' '"'^'' " "^^-" " --S a Pu^Htion either the first or "t '''' ?•""'' '''-''"''^■'' '" <^«"^- "- ^enth ofjanuan t:^^; '^^'----'--adeon ^v.th the affidavits, e'tk wil b' "T °' '''' "'''''^'^^Se day of March folloiving. ^"'"P^^^ «''-^'' °" the tenth tl-'^n.!^:M:;;:,::\'^;^-ed from the day upon which date when the chattels pass tiu ■': ■'""' P'-^^-^"'"ablv the the removal thereof, and n 7 ''' ^'"' ''^ ^''^ ^^^te of the removal took place fron, eir","""- "'' ^'" ^'='^^ -'-n (5) The execution und hT,'""' ■•■"''"'■" the county, .'^hall be liable for seizure niJ^/ '''^""■^ ^'"" '^''''^ttels mortgagor, and the purchasers ''" "^"''^'"■"tion against the chasers or mortgagees from'tl, '""'"tya^-ees mean pur- (6) The sectton c oe ^ T'''''^''' '^'^^ tion 6 of the Act. ''^''^'' ^" ''"'^ ^f sale under sec- o jh.s Act (3), shi/l ceairto be Sd M P"^^"-- the creditors of the nersonT i ^•^^' ''' '^S'Unst t" Scod n„-th for va^u lb e ' f ^'"'' "'^--t.yagees .t'-' expiration of one >4ar f onf th'""',"^ ^^*- ■^^- .ng thereof (5), unless,^ wTthiThiv t' °' '^'^ ^^- preced.ng the expiration of th' ' ^V^'' ^^^ '^'^^"^^ year, a statement exhibh Lc th. .'"'"' '^^ ^^"^ '^^orto-agee, his executors S '"^^'^'''-''^ '^^ ^'^e -^s in the prop:;n,f;:^;:;;";---rs or oth.. and shewinu- th 't- amount sti!! due f( ewmg al ■nterest thereon, and sh ;'ymer,ts made si k '" Un ( 324 ONTARIO. ^n I ! on account thereof (7), is filed in the ofFce of -i.e cerk of the County Court of the ^ or the authorirv itself shall be tiled ^ 4 w h " ^lat the statement ,s true, and that the mc^ ul'e n t'. t.._. n.ohi, by s.mply remaining,, passive, allow their ^.cum.es to continue upon record lon^ aft^r the • ^ .ot.Jb o, part.ally safsfied. to the great injury of the bus.ness commuu.ty, who. without in.H.irin<. ivom the parnes themselves, would ha^•e no means of ascertain! ^' he true position of a mort,..,.or with whom tC . f ciesn-ous ot don.g business. Its object is obvioush to prevent the mort.gage being used to shield the 1 "tte Is from the chums r. creditors after the debt for which J e mortgage was g. , is satisfied, and also to give credito s format.on at the end of the year as to the state of the debt secured, and whether it is in progress of liquidation (I) • and furthermore to make void as against subseque. t pur-' chasers etc., a mortgage not renewed at the end of the year ; the mtent.on, in both cases, being to prevent intending purchasers ben,g misled at the time of their purchase f ThemtenUonoftheActis to give reasonable inLmat L.^^J tl^se who deal wUhpersons who have executed bills of sale but ^h" :s:M:r ^^- ^^ ^'-^ --''----^^^^ (k) A'issockv.Jarvis, 9 U. C. C. P. ic6. (i) Burton, J. A., Hodgius x. Johusto:,, 5 A. R 4-, (m) Ex parte PoppU-.veH, 21 Ch. D. 73, 80. ' Vi^'^m '%/. f. 148, s. 18. .'-5 Should the result of a search N« f r . that such mort..a,.e had not L 1 '' '"^'''^-ffe. but the requireme„ts-;f t sit on" h""!' '" ^"''"^'^'''"- "■'"' vvould be at libertv t^.^^^! viH H " ^ ' P"''^' '^^ ^^^'"^'''"^ nskof his interests bci, I " "^"'•'Sragor without anv (.) Bv "ever. Irt?'^ '""' '" ''"''^ "^ "^^ mort^^agee -stance, .-ere valid Isbist ""''"^" '''^' ''" ^'^ ^-t Renewing under this stio''^^ ?"'•■'■'" ""''^^ ^'^^ ^«- -■"8- an invalid mort^a-" "i '"' '""" "^^ '^^^^ of mak- -th the Act, in thf ^i^^^:^,/"'^- ''-" a compliance Rood. Refilin,. , mort^a" ^tid Ld" '■'"' ""^^^^^^^ the mort,.agee against irabHitH^, h s T'""" '' ^° ^^'^»- inoperative, when the notes' or ,J '"''°''^'^"ients, will be matured within a year from the date oI'h""'""'' '^"^^ "°' Although there is an express „t° '""'•t^age. under sections 7 and 8 gi C SrC Z ''^"'"-^^ ""^^^'''^-^ endorsers or sureties when tt "^"''V'^'^'^'"^^'^ °^ to secure than one year from the da oh"' " ''''"'"''"' '"^ '-- 'i-it express or implied as rellr , T^'' '''''' '' "" -^h - secure a debt uLler s:c ^ ' ra^d'th'^T^^^^^^^ ^'^•^" secfon requires a " renewal " at th i.d" f h' " ""' ^'''^ d.cafon that the debt should have tl,. '■'^'' '^ "° '"- Where it is intended Z '^^'"'■"^• should not require renewa b.; T'T^^ '" ''''''' a debt -the time the original re^ st^ w" ,'' '"' °'' '' '^'^-^ venient practice to malce th^ ime" o """' '^ '^ '"^ ^°"- months from the date of the mort!. ''^Payment eleven he ample time to obtain retwaT^ f ''rr'r^'^^^ "-^ -av as otherwise-as in thecase of " b" ^ ^'""'^ '" P'^>--^^'= become necessary to prepLe and h ""''"''^""- '^ """^^'^^ statement and affidavit before the J ", ''''"'" '''' -•— al - order to place it on reco^be ore 2 t'^' "' ''' """"''''^^^ costs of preparing such renewal st.t '"^'''''' ^"^ ^he enewal statement and affidavit would (n) AWn' V. Jams, 2. A R ,,s ^.,. overruled. ' ^- ^^S : 0'.\,77/ v. s,„, ' ,. r J r • '5 *-. L. J. ,,4, fill. ' f HH.Id be ref.Ied in order to preser\e its vahditv (//) ac.ditor.ho.be.,rethee.p^:u:::f;';r;rr or,i,nnal hi,n /// . ^^'^"'i'/""" V /.o.h^r, 35 Barb (N. V.) .S (u) //o,/^r,„,, V. Johnston, supra : see Thnrnt,,,,,, v r' / . m f '\ 328 ONTAIUO. m ■ and seliMu; -.-, ,ior, the less valij on that account (w). The WorrLs " crcdu.rs," "purchasers," etc.. mean creditors, purchasers, etc., of the person makin^^ the morli,^age. hence Ns here a morti,^a8:e is satisfied quoad the goods, the mortiraL^e cannot be properly refiled, though the mortgagor remain in possession as before such satisfaction. When, upon default, the mortgagee sells the ■-. ■ mentioned in the mortgage the purchaser, thou,,,, he allow them to remain in posses- sion of the mortgagor, is not required to refile the mortgage because he is not a purchaser of the mortgagee's interest in' them, but a purchaser of the goods themselves, nor is it necessary in such a case that, as against the mortgagor, here should be a bill of sale of the goods, nor in the event of there bemg a bill of sale, is it necessary that the same should as agamst the mortgagor, be registered (.v). If, however, instead of the mortgaj^ee selling the goods themselves absolutely, he sells merelv his interest as a mort- gagee, then the purchaser, or as the latter then would be his assignee, would require lo refile the mortgage ( i-) _ Wehave seen >i,at it is only as against the pc'..ons men- tioned m the statute that ih- mortgage must be renewed • .^ence ,t is that a landlord against whom an action of trespass IS brought by a. mortgagee for distraining upon the .^oods mortgaged, for his rent, cannot object to the morb^a-e on the ground of not being properly renewed unde, "tlL section (c). A creditor can take advantage of a neglect to refile, no matter when his right .. crued, whether prior or subsequent to the ■ 'ault ..:ade by ,,,. mortgagee in refiling (.,), and his having notice of the mortgage does not prevent him availin- (w) Cooi' - , Swire, 9 App. Cas. 653. (x) CarlisA -. Taif, 7 A. R. 10. (y) A'aref v. Kosher, 2 Q. B. D. 361. (z) Griffin V. MeKensie, 46 U. ^ , R. 93. (a) Moss, C.J O H ns v. >W.„, 3 A. R. 4^2 : nompso,, v I anvechten, 27 i\. Y. 5t.h ^ •t a purchaser after the expiration of the vear procures refil ,^^^Tr"- '" ^'" ---^■-'-^^^-. if the mor^^a J b^no cefiled, uiul this s so as wo\l i., fi,» r (b) Ed-!vards v. EdTKanh, 2 CI. D 29, (d) Moffattv. Couh.n, .9 U. C. R 34, ^ ^ ^'^^^ (e) Hod^in. V. /,,/„,,./„„, 5 a. R. 449. '^^ Burton, J. A., Hodgins v. Johnston, s A R at n ,-. V. /^o^..//, 3 R„b. N. V 438 "'• " ''''^' ^'^ = >"« ♦ft:: I ' \ 1 1 i i I II Wi .v>0 ONTARIO. sccDiul mortgage in lieu oi' a t\irmcr one which he neplocts to renew, a imii-t(4af,'ee waives his rii^ht, as was the ease in Cniirfis v. H'cM {//), where K. niorlf^a^a'd a liorse witli other property o the defendant in April, 181)4, and the mortj,mf,'e contained a proviso tliat il' lie should attempt to dispose of the property the defendant niij^ht take possession and sell. !•:. disposed of the l)orse to the plaintitV within a few weeks. This morlj,'ai,>-e was not retiled, but the defendant took another in which the horse was included, in I'ebruary, i,S()5, for the same money with other advances. In July, havinf,' first dis- covered the sale, he seized under the proviso, and it was held, that bavins: nej,'lected to refile the morts:a<,'e and taken another, he had lost his riyht to seize. (5.) The mortj,'-ai,'^e shall cease to be valid after one year from the filing-- thereof, not from the date thereof, and, if a mortf,'-aj^ec wants to maintain his prior security he must refile a statement exhibitinj^ the interest of the morti^aj^-ee, and an afhdavit substantiating,' such statement from year to year, having- within proper time refiled it, according to the statute, at the expiration of the first year. The renewal may be filed on the anniversary dav of the original filing if the hour of filing the renewal is earlier th.an that of the original filing (/), and although not necessary for the decision of that case, the opinion was expressed by Patter- son, J., that the day of the origin.al filing should be altogether excluded in the computation, and that the mortgagee would be entitled to the whole of the .anniversary day for filing the renewal. But there will be no necessity for renewing a mortgage after the time when the debt for which it was given is Ijarred by the Statute of Limitations. At least, a compliance with the statute, in periodically renewing the mortgage, will not ex- tend the mortgage lien beyond the time when an action might be maintained to recover the debt. (h) 25 U. C. R. 576. . . (i) Thompson v. Quirk, 18 S. C. R. 695 ; .iffirming 1 X. \V. T. R. part I, p. 88. K. s, o. i.S.)7, f. 148. s. iS. 331 ^^ K)) The statute roc|i.ircs that the rcCilinf,' shall take place within thirty Jays" next preceding: the expiration of the year; where, therefore, .1 mortf,Mjre of personal property was rehlecl with the county clerk, forty-seven clays before the expiration ol a year from the first (ijin-, it was held insiifli- c'eiu (,/). The thirty days is to be reckoned back from a vear trom the f,l,ng of the mort>,rajfe, not from the date of the mstrument. and the thirty days is to be next precedin- the expiration, not next precedinK the a.n' of the expiration of the year. It has not yet been decided what the effect is of refihnf,' a morfnaoe within the proper (ime on an air.davit, verifying the statement, sworn to more than thirty days before the expiration of the year ; but it is stron^Hy adyi'sable to have the aflidayit made as nearly as possible to 'the day when it is hied in order more clearly to meet the wordinj,^ of' the statute in shewing the amount still due (/(•). The statute requires the clerk to endorse upon the mort- gage the time of its filing; hence, in computing time runnin- Iron, the act oi' filing, a fraction of a day will be considered!/) The refiling is nugatory if done either before the thirty days begin to run, or after their expiration {/>/). (7) This statute rccjuires two things. (!) A statement exhibiting the interest of the mort-agee m the property claimed by yirtue thereof, and a full statement of the amount still due for principal and interest thereon, and of ti/l payments made on account thereof. . (ii) An afridayit, stating that such statement is true, and Sprague, 20 N. J. Eq. 13. (k) Griffin V. McKeuzU\ 46 U. C. R. q-. (1) McMartin . McDousall, .0 U. C. 'r. 399 = Pugk v. Duke o, L^ds, ./or.'s, 3 L. C R 280: S.a,>n.n y. /;„^,.., ,6 Ohio. 209: 0„„/,hrf^ y. 'ooT^.' '°' '■ ^'"'-'•-^■^■'— /"> Co. ..BoulJ., L. K. (in) Xmvll y. Warner, 44 Barb. I\. V.) 258. M ) : I i 1: li I ! (J:^^ j|l!ff ') I m •^•^~ ONTARIO. that the said mortgage has not been kept on foot for any frauuulent purpose (;/). ^ The statement exhibiting the interest of the mortgagee in the property, required on renewal of a mortgage must be pos,t.ve and distinct as to that interest. ,t sh'ould g" such creditor"" " °' '■" ""°""' ^''" '"^ ^^ '° --"^'^ other creditors, or persons, to judge how far it would be safe or prudent to g.ve credit to the mortgagor (.). The statement ■s .nte-^ded to supply the place of a new mortgage. It migh be d.fficult to obtain a new mortgage at the end of a year There would be no obligation on the part of the mortgago^ to execute ,t, and no necessary inducement to him to do so A co.r.-.n.ent substitute, and one within the control of the creditor, ,s given by the section we are considering, and the statutory terms should be strictly complied with. The information made necessary is as to the followin.^ particulars : ^ (i) The interest of the mortgagee in the property clamied ; ' t'^"^) (ji) The amount still due for principal and interest ; (111) All payments made on account thereof ( /,) or if none, it must be so stated. Tins statement cannot be made by the mortgagor without authority, however accurate and bona fide it may be (^), but there ,s nothing to prevent the mortgagor acting'as agent for the mortgagee for the purpose of refiling the mor;gage,\hough ■t he IS in possession his so doing is regarded with grave suspicion. The statement must show the interest of the mortgagee in the property claimed, and it must contain a full statement of the amount due for principal and interest (r) If made ,n good faith, with reasonable care, and if it be substantially correct and accurate, the statute will have been (u) O'llall'nui V. .9/7/.?, 12 U. C. C. P. 465. (o) Theviutv. Prince, i Edm. Sol. Cas. 219. (p) Barber \. Mauirliaii, 42 U. C. R. 134. (q) Xeiih'U V. 'Warren, 44 Barb. (.\. V. 2,8. (r) Reynolds v. Williamson, 25 U. C. C. P. 49, t on foot for anv in the property R. s. o. 1897, c. 148, s. 18. complied with (.V), and a fail a debt of severai hundred \\ b lire to -ive credit for $2.00 it 's necessary is that the stat will not vitiate th e refilins ipon (0. tors of the amount of the m ement should notify cred appears to reauire « "^^ '"''"'" ("'• The statute The stateme !:,;::;:'';?:, t" ''r - "'--^ ^--"^• ment filed on a re e.y If a ^ °' "'"^ <""^- ^ ^'-'^- the mort^ao-e as to til '"""''S^^^' ^vhilst not affectin.. parties to t^i:::: ^^i^^:" t7' '"^^^^" ''' -'^-^ in favor of all those uhom it' s t .'""^ "'"" ^'" "'^'■^^^^^- tect, and who haye dealt u on 1 J :• '.f ".^ '1 ^" " P^°- and, a,.ainst them the mo^t^a,. e ZJ T ''"''""'"'' any greater sum than is cont^i 'ed in "' """^''^ '^'^'" often happens that the statemen . , ''''''"''''' ('''>■ It -^fy the .atute ; hut, u^r :: L^: t\:':- ^- -^ read m conjunction with it the t,,-. I , '^'^^av.t, and the statute calls for. It ormeH ".' "" '°"^"'" '''" ^'^^ ^">b•thea«idayitsuppL?rL:;:;^-::r^'---^ statute was not complied with if ,h . -''tatement, the contain the necessary inLmaio„ir''^'"""^^ '"'''''' ''" ^^ V. -SV/A " that the nu^rt,...™ I r ''''" ""' '" '''''"''"■-" part of what should be i ^ he '" """ ^'''^'^ ^° '^^''^'^^ ^ he would haye to transfe tl th r'"' '" ^'" ^'"^'-^^-'^ ^^an afficlayit that the mortjt e^ ' m t""^ '" P°^^'°" ^^^ ^'- ^--•"ient purpose, a^d^h n n^;,? "- '^^^ "" '^^ ^^ any statements arc tru^ " f v) T,;" ' n"'" ""^P'"'' ^'^^' ^'>- " f''^- ->'-.. 5 X. Bank R., 50^ '''• (^) 25 1-'. c. c. p. 49. I 'I i.!|'! ; I 1' 1 1 '■11 in ONTARIO. Statement. In Jl a/Ar. v. .^7/..v (.), Movvat, V.C, expressed a d.flerent op.n.on, and the later decisions have established a rule d.rectly opposed to that laid down in cr/Mlon,„ ,, .V///. The rule .s now established that the statement and affidavit! when they re er to each other and are meant to be read o,.ether, can be so read, and that if, to^^ether, ti,ev contain ent (/,). If the affidavit follows the terms of the statute, and vhth^h ^^;';^--^^ -'-n read together in the sense in uh.ch they would b. understood by ordinary Enj^lish-speakinc busmess men. con.ey with reasonable fulness and fairness" the mformat.on that the deponent is still the mort^.agee of the ^^oods descr-bed in the mortgage, and that a certain s m rem..uns due for pnnc.pal and interest, and that certain pav- ments have been n.ade on account, then the intent and spiHt of the statute are satisfied (n, and now bv section ^o .he sh^tement and affidavit shall be deemed one instrument, which would seem to confirm the latter decisions. (8.) The affidavit can be made by any of the followino- • (I) hy the mortgaf^ee. "^ ' (li) By one of several mortg-agees. (iii) % the assignee of the mortgagee. gagei'" ^^' '"•' ''''^"'' '''""'"^ ^- ''' ''^•■°"-'' ^^">' '""•■t- (V) By one of several assignees of the mortgagee V.) By the agent of the mortgagee or assignee. - vn) I^v the agent of the mortgagees or assignees. (vn, By any next of kin. executor or administrator of a deceased mortgagee (section 22). i:U 18 Or. 210. ri!^.''z'!rL R ^ c 'p'^y '"'t'"' ' '■ '' ^' "• -^ ■■ -^ ^-'^- ,",' ^- '^- *" *-• '-98: Join, V. //arns, L. R. 7 O R . -■, • ,u nanbury v White 2 W ^ < " f/ ^"^'""''^ ''■ ^ '''•''■ 5 H. & N. .j .. 'O n lilt,, 2 H. *. C. 300 : //„//„„ V Rnirii,,,, 7 E. .-i B .j^ R. ■';. o. 189;, oiigli any mort- 'ifong/ian, 3 A. R. fix) % any next of 1 any assi^r„ee of a mo (x) B\ km. i-tgaj,'-ee (section 2 14H, s. 18. executor, or administrat or of anv ■2). next of kin, executor or adi strator of anv a -rtga,e. so under'n^ -^ ^^^'.^^^ ^^^ ^° ^^"^^ one. His authority should be n ^ ''"'""' '" ''""""' authority must be n w i l^;"'PO'^ely to renew, and the statement. A a t o it T'l' ,"' '^ ""' "'"^ ^'^ — -' authority to ren v u ^ "';'? ^^ ''^^''^'^^^ -- not be an ^-^- pouer to take indu ^:;:'';;tT.:::'^^"""^' '■°^^^^--- renexyal became necess.rv , '''' '^'^P^'^ially when cipal ; but section Xr^^'^^^-r ^'^ ^'•^"^■^ '^^^ the prin- in a manner seeminl! to n' K^th';.''',"'^- '? '"'^ ""' -"-^' the former. Sections 2 ~ I ' '""■ " "''^ '"'^'"^'^^^' i" agent taking the mortgleVan 1 '':"'""'' '^"^'"^'■"" ^^ f''^' fides, as being a^yare ofaM th •" ""^'' ''" ''^"'^'''^""^ "^" ^^-'a with. There is no Ich '^"■'^"'^■^'""ces connected there- it follows' thi to :; k zz r"'"°" '" ^^-^ «^^^-"' -^ aware of all the cirun f Ic '''''''''''''' '^^ -"'^^ '"e of the instrument."^ '" '''""^'^^''^" "''''' ^'- -newal (10.) It is no objection that the nffid-ivif ■ states the amount due for inte est u t " " '" °"' '•'''^■ f-ture day. the day of refili^r he :,: ''''''' '.^ ""' ' where no fraud is intended, thmrW h ?''''"' '"''^' advertence, stated at a few H h. ^ ""^^ ''" '■^' '^ '"' ;ne,. includes a triHing sum whlrh^;:!;;::^; -..:;: -^ to charge ; ihrough a mistake of tw 1 • •^>'^'^''ad no r.ght bold .„. object o,%efili„; L/ed ,U ", ' '""" "'" "°' The alfiUavi, „„,s, ,,ver ,l,t lhrl,„', ""'""■■ '"' «' ■substuu.ionof „,e ,v„. 1/ ^^ t™? ''" " '.?-" ^^= for .he „.„rd .. „„e,. ,, „ f„.a,°o^;.i„„ t:;"";',:; " -'»«■'• (e) fio'-'oMs V. )r////„„,,„„, 25 L'. C. C. p. 4c. 336 ONTARIO. IV difficult to point out what difference in substance tliere maybe between the meaning of the words, yet the omission, or change of a word, may laci< a strict compliance with the statute. The mere omission of the word "really" in an affidavit made under Revised Statutes of Ontario, 1887, c. 134, s. 3, is a well- founded objection ( /"). The addition of the word " correctly " to that of " truly," will not, however, nullify the affidavit (g-). 19. The Statement and affidavit mentioned in the next preceding section may (i) be in the form given in the Schedule B to this Act, or to the Hke effect ; provided, that if any bona fide error or mista'ce shall be made in the said statement, either by the omission to give any credit or credits or by any miscalculation in the computation of interest or otherwise, the said statement and the mortgage therein referred to shall not be invalidated, pro- vided that the mortgagee, his executors, adminis- trators or other assigns shall, within two weeks after the discovery of any such error or mistake, file an amended statement and affidavit in the form given in Schedule B or to the like effect, and referring to the former statement and clearly point- ing out the error or mistake therein and correct- ing the same ; but if, prior to the filing of such amended statement and affidavit, any creditor or purchaser ov mortgagee in good faith for vduable consideration shall have made any bona fide ad- vance of money or given any valuable considera- tion to the mortgagor, or sha'll have incurred any costs in proceedings taken on the faith of the amount due on any mortgage being as stated in (f ) Jackson V. Knssp/l, 26 U. C. R. 341. (gr) Barber v. Maugha,,. 42 U. C. R. 1J4 : sec also De Forrest v. Bunnell, 15 U. C. R. 370 : Harding v. Knowlson, 17 U. C. R. 564 : Brodir V. Ruttan, 16 U. C. R. 207: Mover v. Davidson, 7 U. C. C. P. 521 : Afaxtvcll V. Ferric, 8 U. C. C. P. 11: Nation v. English, 7 E. & Bl. ^^. «■ ^- O. 1897, c. 1 48, S. 20, 21. -■>,>/ the renewal statement and affidavit filed, then the S^vr:gi:^r"-r ^^^ —^ - advanced ' as a o es i ^"'^'^'7^^"^" g'^'^n or costs incurred ^msUee s^ n l'""'^ '"^^ T'^'''''' ^"'•^haser or fiJed. 57 v" ,3!;'';;' ^-^.^^^ement and affida^-it first strJJd '^pe:Li:;:7i:;;f {^- ''- '''-'' -'<■• - - ^^ — statutory form! ' ' " "' "°' --Pulsory to use the mortgage " will invE '', "'' "'^'^^'"^^^ '^'' ■^^*-' fc. & uiii uiv.uiu.ito the renewal (//). are, by section ,6, r,,,u „ t< b. ^1 "^ 'f """"<=d and the like fees sh i h , , , i "'"' '='"='-ed, entering ,he s,- me ■, , n ' '""'r , '"' '^''"S and entetinl such 'ZrZ::^ "'^ ^t'-^"' ''i!'^ '^"^ 21. Another statement ni ;„ i the provisions of section 8 id, CdnK"" ^«"!! by the said°„io„ "f ''''T'™'''"W'''='l^''-<--d •hereof (3;. sl^n ": se i ZTm!T!T "' 'T cred,.ors of the persons „,.kV;'s' tf^^' ^a:?,":,', 'll: (li) McXicholl V. A'/A'o 2,S r r J "' ''^ '^^ L- J- 95- Pi-r Dartnell Co. J. ii'ei' 338 ONTARIO. against purchasers and mortgagees in good faith for vahiable consideration, and so on from year to year, that is to say, another statement as afore- said, duly verified, shall be filed within thirty days next preceding the expiration of one year from the day of the filing of the former statement (5), or such mortgage or copy thereof shall cease to be valid (6) as aforesaid. 57 V., c. ;^y, s. ly. (i) By this section the legislature makes statutory law that which was held to be necessary by the courts in Kissock \. ,'an'is [i), a.nd Bc(iiiiiio)if \. Cramp (J). It will be observed that this section only refers to a second and subsequent renewals, not to tiie first renewal, which is still governed by section 18. Every statement on renewal must shew all payments made on account of the mortgage from the date of the mort- gage, not simply from the last renewal, and the earlier re- newal statements cannot be read with, or in aid of, the later statements (k). (2) The second renewal must be filed within thirty days next preceding the expiration of the term of one year from the day of filing of the first renewal. The day of filing is to be excluded, and the whole of the anniversary day is given within which to file the second or subsequent renewals (/). (3) The words " or copy thereof" must refer to the case of a copy of the mortgage itself being filed in the first in- stance in place of the mortgage; it cannot refer to "the copy " filed on renewal, because filing a copy on renewal was done away with long prior to the enactment of this section. The use of the words, indeed, seem to be quite unnecessary, for the copy could not be valid, and the mortgage invalid. An (i) gV. C. C. P. 156. (j) 45 U. C. R. 356. (k) Kerr v. Roberts, 33 C. L. J. \ov. ist., 1807, per Ketchuiii Co. J. (1) Per Patterson, J., Thompson v. Quirk, i8 S. C. R. 695. 1 I i m K. s. o. 1.S97, 1-. 148, s. 22. .,,, Lu ue ail ttiat was necessary. (4) Tho „.OKl, !,„.. ,„ecl are "shall cease to be valid " null „„;; ::,;r -^ "'"="' "- "■°"'» »- ••*«" ^^ absolutely thim- 7,!!.! '''"° ""™ "" •'"■■"'"' «"'"■'■' ""'« 1"= filed is witbm ^-n.eti„,eL,;t:^a7:;-4tr::zt:;;-- of . ,tn,- • decL":;,' :,oni x-:^:;rbr ;t"''';'""'"^ anv sucn a: .iq-nee, the ass (mmetu or tU^ I required ^ iaw^U) "57 V.! o^ J".8.' '" '""""" 34° ONTARIO. 'W (i) The following: persons are empowered by statute to make the affidavit : (i) Tlie mortga^'-ee (section i8). (ii) One of several mortf,'-ag-ees (section i8). (iii) The assij,mee of the mortgaf,'-ee (section i8). (iv) Any assif,niee claiming- by or through any mortgagee (section 22). (v) One of several assignees of the mortgagee (section 18). (vi) The agent of the mortgagee or assignee (section 18). (vii) The agent of the mortgagees or assignees (sec- tion 18). (viii) Any next of kin, executor or administrator of any deceased mortgagee (section 22). (ix) Any next of kin, executor or administrator of any assignee of a mortgagee (section 22). (x) Any next of kin, executor or administrator of any assignee, claiming by or through any mortgagee (section 22). (2) This section formerly required that the assignment shall be filed in the office in which the mortgage is filed, regardless of the statutory provisions for the case of a per- manent removal of the goods and of the spirit of legislation requiring registration in the county in which the goods are. It was therefore suggested in the last edition of this work that to comply with the spirit, and carry out the letter of the Act, the assignment be registered in both counties should a case arise such as suggested. The present section is in an amended form, making it clear that registration shall now be made in the county where the goods are. (3) Should the affidavit be made by— (i) The assignee of the mortgagee ; (li) Or by any assignee claiming by or through any mortgagee ; (iii) Or by one of several assignees of the mortgagee ; (iv) Or by the agent of the assignee or assignees ; (v) Or by any next of kin, etc., of any assignee of the mortgagee ; (vi) Or by any next of kin, etc., etc., of any assignee claiming by or through the mortgagee : by statute to any assignee ■■■ ' o. ,897, c, 148, s. 23. ,^, the HssT; '" ''''""'". '" '" °''''' ^'^'''' '^^'^ '""^t be Hied be ; f r" •■ r "" """"" -^'^-"--"^s. as the case may be, throu.ijh which the assij,.nee chiims. mustt n'V"^'" "''''' -'^■'^'^'""^-"t. or several assi.M,ments. and'lhe ^f '"' r"^""""^' ^" -^'^""-"ts. must be filed. orfi.!!;; :;^njr r r '^^"' ?^" ^^"^"-'"^ ^^ -"-'^^^ assignment s ffid-u of'" '""■^"'"-' ^^^ "^'^'^^'- ^^^ wifSss. section i^tt" U ,:::r'7 '^ '' ^^"^^^^'•''"^ made bv a revf J i' affidavit for renewal is formed thereupon ''"" '^"'''"^ '"'''>• ^e in- ^/-^-^^^^r. /. Scanr Bonds, etc. of Corporal^ous. 23. (/) In the case of a mortoacre or convev ance of goods and chattels of anv company incornor' a ed by or under any In.perial Act or'charter or bv C tnada'o "In- ''" "^. ^'^"^^^ "' ^'^^ Don:inion o'f panada, or b>- or under any Act or charter of the Province of Ontario, made to a bondholde or bond holders, or to a trustee or trustees, for the purnos; of securn.,- the bonds or debentures o such com pan>^ „,stead of the affidavit of bona fi les renu.red by the sections 2 and 3 of this Act (,) it sh t be oe niecl as thereby required, made by the mortcr-ureo or one of the mortgagees, to the effect tha the s^iid mortgage or conveyance was executed in ^oodfakh (m) ^' ■^- R- 39; 30 C. L.J. 32. '§}\ 111 >42 ONTARIO. ;' f ■' ( ' f. i ! i I i \i and for the express purpose of securing the payment of the bonds or debentures referred to therein, and not for the purpose of protecting the goods and chattels mentioned therein against the creditors of the mortgagors, or of preventing the creditors of such mortgagors from obtaining payment of any claim against them (2). (1 Where tlie mortj,^a8-e is to a trustee for (he debenture holders, the trustee could not swear that the company was justly and truly indebted to him in the sum total of the deben- tures; for the nature of a security by bond or debenture is that the indebtedness is to the respective holders individually for the amount respectively allotted to each. (2.) A debenture commonly means an acknowledgement of indebtedness by a company, importint^-a covenant oroblig-ation to pay, and usually secured by some chargfe (;/). Usually it is one of a serial issue, ranking- pari passu, but a .-iiigle debenture may be issued, and any document which cithc* creates a debt or acknowledi:,'es it. is a "debenture" (r;). The commonest form of debenture with trading companies istlae "mortgagfe debenture" whereby a charge is created upo'A the property of the company, and if it appears that the intention was to create a charge, and that the parties who in- tended to create it had the power to do so, it will be given effect so far as the immediate parties are concerned, notwith- standing the occurrence of a mistake in the attempt (/>). But an agreement with share underwriters merely provid- ing that a trust shall be created in favor of debenture holders, but not in fact creating it and to which such holders are not parties, does not constitute the underwriters trustees for the debenture holders nor prevent a subsequent alteration of the agreement (17). (n) Edmonds v. Blaina, 36 Ch. D. 215. (o) Levy V. Ahercorris, 37 Ch. D. 260. (p) He Strand Music Hall Co. y 3 D. J. & 8.147. (q) Re Hansard Publishing Union, 8 Times L. R. j8o. \vleci},^mcnt of t orobligfation R. H. o. iSq;. V. 14S, S. 2V 3,, A body corporate is entitled to i,oId p-operty and to dis- pose of ,t with the same freedom as an individual, unless there IS an express prohibition from so doiiij,' (/-). A trust deed securing: debentures is in its nature a mort- fo r,; T"" """"'■ '"'"■'^ '''' '"^"■" ""' « -"-eyance to trustees o hold upon trust for securing to the h. '.Icrs of the deben- te -,. hut perm.ttu,,. the company etain possession n. 1 t ,,akes delault or is wound up; the intention being that the mort,.,^e or conveyance is to be a floating security onlj. and not to hmd.- the company dealing, with theproperty compr.sed u, .t m the ordinary course of its business 'bu, 1' to create any char^^e rankinj,^ beioro it sh.!?.!'./'"''"'""'-"' '"^•^"■'^''^"'^^ »- P'--icle that the trustee hal have power .ns.ead of sellin,-. to appoint a receiver or to carry on the busmess ; also, that the trustee shall, on requ.s.t.on by a flxed proportion of debenture holders, call a meetm,. o. the debenture holders to discuss and determine any matters afiectin,^ their interest, and the manner of ad'er! t.s.ng or g,v.n,. notice of the meeting, and the regulations to be observed thereat. The trust deed should also provide that a reso ut.on passed at the meeting shall bind the remaining debenture holders, when a majority in nun,ber and value of the debenture holders present have voted i„ its favor The debenture holders are cestuis que trustent w.thout any right mdependently of their trustee, to sue the company, excepfon the trustee's refusal or neglect to do so (.). ^ ^ (2) In the case of any such conveyance or mort- gage made by an incorporated company, the head suchM:'",""' " '"' "''^'" '''' i^-viLe of Ontario such .lortgage or conveyance may be fil<,d within thirty d.tys mstead of five days, as" provided in sec t.on 2 ot this Act. and the sam^ shaU be of the 'hke (r) ffe Patent File Co., 40 L. J. Ch 190. (^) Rf Empress Engtnecnnir Co.. i6 ilh Vt ,^-- n j Ch D -- . P, I- „ ., -3 • <"'"<>' V. Gaudy, -lo »-n. I). ^, : Re I rcguay Rn hmy, i , Ch. D. 372 ir i !i ' \ HI ■^9i W.W ^..'^ IMAGE EVALUATION TEST TARGET (MT-S) /. 1.0 I.I m - 1^ 40 2.2 2.0 L25 i 1.4 m 1.6 Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 l\ a>^ c\ \ U : i t ■ »>8- m. 344 ONTARIO. 11 i( force, effect and priority as if the same had been filed within such five days. (3) Any such mortgage may be renewed in the manner and with the effect provided by section 18 and subsequent sections of this Act upon the fihng of a statement by the mortgagee or one of the mortgagees exhibiting the interest of the mortgagee or mortgagees in the proi)erty claimed by virtue of the said mortgage, and showing the amount of the bond or debenture debt which the same was made to secure, and showing all payments on account thereof which, to the best of the information and belief of the person, making such statement, have been made, or of which he is aware or has been informed, together with an affidavit of the person making such statement, that the statement is true to the best of his knowledge, information and belief, and that the mortgage has not been kept on foot for .;ny fraudu- lent purpose, and such statement shall be filed instead of the statement required by said section 18 of this Act. (4) If any mortgage as aforesaid be made to an incorporated company, the several affidavits and statements herein mentioned may be made by the president, vice - president, manager or assistant manager of such mortgagee company, or any other ofiicer of the company authorized for such purpose. 57 v., c. ^7, s. 19. (5) Where such mortgage or conveyance is made as a security for debentures and the by-law author- izing the issue of the debentures as a security for which the mortgage or conveyance was made, or a copy thereof, certified under the hand of the president or vice-president and secretary of the company and ^- o. iS(,7, c. 1 48, ne had been by verified attached porate seal attached th mortgage or convev III affidavit of the secretary thereto or indorsed thereon, and having the cor ereto, is registered with th( mce, it shall not b same shall T' 'l'''''''^"^'' o*" conveyance, but the he s4,e , v'm'^ ""'? r'''''''' ^° ^"^ ''' ^^^J'd as if provkf:;d "'" ^'^''^^ ^"^^'"^"^^ - - ^'^i^ Act (6) The preceding sub-section shall anplv to everv rnnr 1' ^ ^ ^^ ^^^^>'' ''"^94. but nothing^ herein contained sha 1 affect a.u- accrued rights or a^v 60TT .^4^'f ^r^" ,he .3th day ofl^priUS^^;' 24 A copy of any original instrument or of a anfs/atr ;'^' T ''"' ^^'^ ^^^-esaid (.), inch.dLg any statement made m pursuance of this Act. certi- fied by the clerk ,n whose office the same has been filed under the seal of the court (3), shall be- received |n evidence in all courts, but only of the fact th t he mstruments or copy and statement were received and filed accordmg to the indorsement of tie clerk thereon, and of no other fact; and in all cases the of'fhis CT"'""' by the clerk made in pursuance ot this Act upon any such instrument or copy shall be received in evidence only of the fact s'tated the mdorsement (4). 57 V.. c. 37, s. 20. registration can be proved : thereof'- ^' r ''^^' °^ ""' ''''^'"''^ instrument, or of a copy undT M: le:''"^^ ''''' ""^"^^"^^ «'^^' --^'^' ^y ^>- clerk ml'Zlu ^/' ,"'' '^''"^"'-■''''" °f 'he original indorsement made by the clerk upon the original instrument or upon the 4ll • 4 !"f| 346 ONTARIO. Either of these methods affords evidence only of the fact that the instrument, or copy, and statements were received and filed accordin<,r to the indorsement of the cleri< thereon. The execution of the instrument would still have to be proved by the production of the orit,'-inal, and by proof of the signa- ture in the ordinary way. Should the original be lost, and for this reason the party setting it up be unable to produce it, secondary evidence would be admissible to prove its contents, (2) Unless instruments under the Act are properly filed— filed as required by the statute— then it would appear that the means afforded of giving evidence, pointed out by this section, be- come of no avail. Everything hangs upon the provisions of the statute being faithfully complied with, in their directions as to filing. (3) The following is a form that may be used, of a clerk's certificate, under this section : I Clerk of the County Court of the County of do hereby certify that the annexed paper writing marked " A." is a true and correct copy of the original chattel mortgage from A. B. to C. D., and of all endorsements on said original mortgage, bearing date the . ■ — day of 18 — , and filed in the office of the said court at o'clock in the noon, on the — — day of Dated this day of 18- . [Seal] (Signed) C.C.C. (4) It appears that the entries in the book kept by the clerk would not be received in evidence to contradict the clerk's certificate under this section (/), for the certificate is conclusive as to the filing and indorsements («), but as to nothing more. It is no proof that the paper purporting to be a copy is a copy of the original mortgage when a copy thereof is filed in the first instance (v). (t) Adams v. Pratt, log Mass. 59. (u) Thayer v. Stark, 6 Cusli., (Mass.) 1 1 : Jordan v. Fanisworth, 15 Gray, (Mass.) 517: Hcadx. Goodwin, 37 Me. 181. (v) Bissi'll V. Pearce, 28 N. Y. 252. sed, of a clerk's iisivoi-th, 15 Gray, lf>97- t"- 14S, S. 347 Disch 25. \Vh kargc of Mo/'/p-acrc. refristered under th ere any mortc,raoe of goods and chattel S IS provisions of tiiis Act (i), such mo gage may b, discharged (.) by the fiHng/ n the 'i^ned V; Ih ^'^^ "^"" i-s-^-istered, of a certificate t ratnr ^ ' "^o^-^pg^'e, his executors or adn.inis- tratws (3), ,„ the form given in the Schedule A hereto, or to the h'ke effect (4), 57 \' c ." T^ .. parties in j;L.;x.:\j::.:;^Tr—-^ By v.rtue of this section the clerk is compellec, to re' e : d file any certificate of dischar^^e of a mortgage, registered und r the prov.s,ons of this Act, but the certificate^m.st b du • proved for reg.stration by the afiidavit of a subscribing . ^ ness, pursuant to section 26. (2) The debt beinq- the; " nrinrm-.! " n,-,.i fi • , , . " iJiincipai, and the niortirap-e securuv the '.adjunct,- when the debt is paid the mort - tl secunty forthwuh ceases to exist (.). A parol release ^^a morto^age .s good when supported by sufficient consideration And a simple receipt in full of the debt secured by the mort- gage IS a sufficient release in equity. When a bill of sale is given as security, it becomes, as be- debt, as ,f the instrument had contained a defeasance ( v) nosesT'"' "'"" '''' ^-'^'^-8'es the mortgage for all pur- poses, hence a mortgage given to a surety for a debt, is dis- arged when the debt is paid, and cannot be contimied i^ behalf of a new mortgagee for a new debt ( y) Releasing a surety to whom a mortgage is given as security (w) Jack^n V. StaMouse. , Cow. ,.. : Crosh^ ,. a.,,.; ,y .M.. 36.. (x) Mallaydv. ff "/-Mw«/,, 84 III. 446. (y) brooks V. Ruff, :i-; \\^, 3-,. (^., 1 ') m \ I i rli llfjlHI I: !! r^^a 348 ONTARIO. against payment of a debt, discharges the mortgage (0) ; but payment by the surety of the debt does not discharge the mortgage (a). It does not render the mortgage invalid be- cause no time is stated in the defeasance clause when the mortgage is to be paid, except where the statute expressly provides otherwise. An accidental omission of this kind can be supplied by verbal testimony, and an intentional omission is met with the rule of law, that the mortgage must be paid within a reasonable time {d). Where the time for payment is stated to be, "when the borrower is able to pay", then the debt is payable at such time when it can be shown, that, to public observation, the mortgagor's affairs are in a flourishing condition, without showing further thr.t the mortgagor can discharge the debt without inconvenience (r). Should the mortgage ndme a day for payment earlier than the date of the mortgage, then inasmuch as such is an impossible date for payment, or?.; testimony would probably be admitted to shew the true time for payment (d). After default has been made in payment ot the mortgage, or after breach of any of the conditions in the mortgage entitling the mortgagee to possession, and the mortgagee takes possession, then upon a tender of the money and its acceptance the legal title revests in the mortgagor without a re-delivery or re-sale, and without cancellation of the mortgage (<•). If the mortgagee has not obtained possession, or taken any steps to seciire possession, and the mortgagor make a good tender of the mortgage money, then the mortgagee can be restrained from taking possession (/"). (z) Sit III Iter w Biuhflditi; 30 Me. _^^. (a) liryai, v. PMani, ,0 Allen (.M.-,ss, ) 81 : PackhanI v. Kiiuniimi, ., Iowa, 2ig. (b) Bynim v. Gordon, \\ Mich. 531. (e) Re Roxs, 29 Gr. 385. (d) Fi,//er v. Ari-er. i H\\\ (\. V.) 473, (e) Pdtcliin X.Pierre, 12 Wend. (N. V.)6i. (f) Mersfrnt v. Puiiipelly, 46 Wis. 660 : Airher v. Cole, 22 How. (\. V.) Pr. 411. • ■d V. Kiuirinaii, 1 1 , 22 How. (N. V.) X. S. O. ,8c,7. c. ,48. s. 25. 3^,, A mortgagre may be discharged othervise than by pav- mortV. T: ,'^!^'"-^'''"'^^" ^>- t'^- mortgaK^ee of the properly mortgac^ed to h,s own use may be treated by the mort^a.^or mort^;;:r ^' ''^ r"^"^"^ '''' '-^^- ''— -» '^ '^e mor gaged property by the mortgagee after maturity of the mortgage may or may not be satisfaction of the mort.^ge (/,) Th debt .tself. though it be the principal, and the mor^g ge be th m„dent, may be uncollectable, and the mortgage lit. ema n und.scharged. as when the benefu of a bankruptcy law s taken by the mortgagor, or the Statute of Limitations in- Tbrm "o'"tr" r 'r-''' '-''- '- ^^^ amount -te t dve hi - , T '""'• "^'^ --'^^-^-, by consent, may wa>ve h.s hen on the goods mortgaged, and preserve hi per- sonal remedy against the mortgagor ( /) ^ hJJ ""'l'"''':'^' ^ n^ongngo will, though it continues valid betw en the or.gn.al parties, become null and void as aglh creditors, subsequent purchasers, and mortgagees in rod fa.th for valuable consideration (section ,8, ante^ T e lapse of Mme, therefore, as to them, serves to invalidate the ,.0" Rage, and usually mortgagors are content with this, retaining m the.r own possession the evidence, as against the mortgag e of the mortgage having been released. As the obtcf of registration of mortgages is to apprise the public of aC,^' financial position, so is this section intended to inform the public of a removal of the incumbrance as well as to ben ^ the mortgagor's financial position by affording him an oppo' tunity of giving official notice of his circumstances having b en altered. In view of the financial position and deali," of business men now so well known through the medium o commercial agencies, merchants and others relieved from in umbrances will gladly avail themselves of privileges affoTded by his section, in order to strengthen their credit L imp o e their business standino- -h'^vc o * (g) Davis V. A'idrr, 5 Mich. 423. (h) Carpenh'r v. Bndfres, 32 Miss. 265. (1) Cmne v. Paim-, 4 Cush. (.Mass.) 483. (J) Conkling V. Sherry, 28 X. Y. 360 : Bra.uU v. /A,./,,,, ,5 „1. 453. iJ ) \\\ I *''. .VT- ONTAKIO. ill (3) The certificate of discharg'e of mortgapfe can be signed as well by the assignee of a mortgagee as by the mortgagee himself, his executors or administrators (section 28). (4) The form provided by the statute had better be adhered to (k), but there is nothing to prevent the conveyancer adopt- ing any other form, provided it produces the precise legal effect, neither more nor less, of the statutory form, and that the variance is not calculated reasonably to deceive those for whose benefit the statutory form is prescribed (/). 26. The officer with whom the chattel mortgage is hied, upon rc-ceiving such certificate, duly proved( i ) by the affidavit (2) of a subscribing witness, shall, at each place where the number of the mortgage has been entered, with the name of any of the parties there- to, in the book kept by him under section 16 of this Act, or wherever otherwise in the said book the said mortgage has been entered, write the words, " Dis- charged by certificate number {stating- the number of the certificate)," and to the said entry the officer shall affix his name, and he shall also indorse the fact of the discharge upon the instrument discharged, and shall affix his name to the indorsement (3). 57 V., c. 2,7> s. 22. (i) By this section is pointed out the method of registering the discharge. It is the clerk's duty to see that the statute has been complied with (w). (2) As to who can administer this affidavit, see section 33, post. (3) The clerk's duties under this section are : — (i) To satisfy himself that the execution of the discharge has been perfectly proved for registration, (ii) To number the certificate. (k) Davis v. Burton, 10 Q. B. D. 414. (1) Ex parte Stanford, 17 Q. B. D. 259. (m) DeForrest v. Bunnell, 15 U. C. R. 370. t, see section 33, R- s. o. 1S97, 1-. ,48. s. 27, 28. ... mort, '"'^ T" 7'"' ■" '"''' ^^'"'^ ""^'"'^ '^'' ""'"ber of the rj h f.\ " '" '"'^"^^'' "■■ ''■'''''''' "^herwise the mort- m mb ; " h-'"",'' ^'" ""^'^' "^'--h-f,--! by certificate when the : ""^•'^'-■'' '-'--^-. to the provisions of section .7 When the mortgage has been renewed. ('V) To each such entry to affix his signature. (V.) To such indorsement to affix his signature required b, ,he prel'infj^.lI'.r^'S'^-,:",;;;'- only be m.de upon tl,e state.nent and X aWt fi^ed on the hist renewal, and at the entries of hj„, ment and affidavit in tl,e said bo k( ) „ v' c. ;^y, s. 23. ^ /• 57 v., shal/lf h"°" T '""'^'' ^'^'^ ^'^^ ''■^''''^^"' and affidavit shall be deemed one mstrument, so that the indorsemen s need not be made both upon the statement and rthe affidavit ; ,f made on one, it will be sufficient. 28. In case a registered (i) chattel mortcra^e has been assigned 2. the assionment sh■^\]('•\^ proof by the affidavit of a subscribi g '1?, 'essTT be numbered and entered in the alphabetk^a c rmej mortgage book, in the same man'ner as a ch' te mortgage (5), and the proceedings authorLd bv hJ next preceding three sections of th"s Tct Iv anH shall be_ had, upon a certificate of the as 'ic^ ee /ef proved in manner aforesaid. 57 V c -7^2 have'l:in':eS::::^" °"'^ ^'^"" ^ ^''^"^' --gageslich -.ee,w::;th:ret.:rsnfitr^:-^^^^ • 1 4 v1,1- O.NTARIO. Ml I! if . ' the lei,'al owner. If tlie mortgajjee was entitled to the possession of tlie property, the legal effect of his assignment is the same as if he had been in possession of the property and sold and delivered it to the assignee. The latter may recover possession in the same manner that the mortgagee himself miglit have done. .An assignment of the mortgage and of all interest therein contained is an assignment of the debt(//), and an assignment of the debt secured passes the equitable interest in the property mortgaged (r^). If the debt be in the shape of a negotiable promissory note, then, by transfer of the note, the indorsee takes the benefit of the mortgage. The mort- gage is the incident, and the debt the principal ; hence, if the debt be transferred, the mortgage passes as incident thereto(/>). An assignment of part of the debt carries with it an equi- table interest in the mortgage pro tanto {■), and, until the right of redemption is barred, or the liability discharged, the assignee will step itito the position of the mortgagee, taking over all the latter's rights at the moment wiien the assignment is completed (s) , including right of action, in some cases accruing prior to the assignment (/), though apparently not in all (//). When the debt is assigned without the mortgage, though the mortgage passes too, yet, without assignment, the legal interest does not pass in the mortgage, and the assignee could not maintain replevin or trespass in his own name (v). Un- (ii) Jones V. Hiigfri'ford, 3 Met. (Mass.) 515. (o) Laugdon v. Ihiel, 9 Wend. (.\. Y. ) 80. (p) Eiirl V. Stamp, 13 N. \V. Rep. 701 : Lucas v. /{arris, 20 III. 165: Hill V. nevhv, 13 \. Y. 556. (q) Eiiimoiis v. Dowe, 2 Wis. 322. (r) Moody v. Kllcbc, 4 S. C. 21. (s) Beach v, Derby, 19 111. 617. (t) Langdon v. liiiel, 9 Wend. (N. Y.) 80. (u) Bo7vrrs v. Bradley, 4 Bradw. (111.) 279. (v) Ramsdell v. Tewksbiiry, 73 Me. 197 : Crane v. Paine, 4C11SI1. (Mass.) 483. • K. S. O. '«')7. I'. i4S, s. jH. Harris, 20 111. 165 ; r'/;c, 4CUSI1. (Mass.) 35:. bein>,r jrood (,„,. '"'^ '^"^ ^'^^ title ot the mortgaj^^or (3) The word " sli;ill " h-,^- u , word "mav." which ' f f ^"^'^'^^"'"'^^ here for ^he to re,nster\„ , "•"/"'';"^''''>- "■''^'^- -^".v ""c wishing. is otherwise c n.p i^^c^ w f /r" "'"' ^^•'"" ^''^ ^^^'"^^ But it would app:;;Lrs;i,x ^,r:;;r "' ^^^"^^^''""• mortgage whether he re-nsterhis . ''" "'"*''"'" °^ « ever, he rec,uires to ren^w h '■'''*''"'"'="^ "'^ ""t. If. how- section or tLs aJ^ ^Z^I^'^Z iT ''' '''''''"'' of filin,. the renewal statement file h" . " "' "" ''"^ has also been held in New Vor. t^at ^ 217"' ^•'^" • '' - gagees. for which cl^ssealoeth "'''';'• "'^^^^^"^^^ --^- tection. A .ort.a^or on redden L'rinrTr'^'"? ^ ''''■ the categrory of a .../«.,.... />,^,^t 'Z ' ' '"' '" >ng of title made by the mort-.a^e tTimolv ""T"' ''''''' the mort,.a,.or regains his original i te' h " " ' "' defeasance in the mortgage withou -, ^ ' ^'"-^"^ of the should have actual notice^f th r sL "" ''''''''''' ""'' debt. The assignee should ^o l:^'^^:^^"'''!^ ^' ^- but at once give notice to th. ''•^'"'e'^ h-s assignment having become the ig e cf '""'^"^"^ ""' ''^ ^^^^ "^ ^is vent any further dealing be 'e. X'"-'^^' ''"' ''^"^ '^- -ortgagee by which ife mtht h. "'°:!^'''^'-'^ ^"^ the mortgagor, having receive; he noHce'?:';?' ''\ '''' deal w,th the mortgagee concerning he C.'"" "? '?^" do so, however, anv payments th.t hT ^"''^''Sre ; should he . payments that he might make would be (w) 7o„cs V. //u^ff,,or,/. 3 Met. (Mass.).,,, (y) r-or form of notice see Appendi.x. r:,!i it HI 354 ONTAKIO. mil fraudulently received by the niorljj;-;ij^ec, ;ind void, and of no avail on the part of the niortj,Mf^or (5). Hut should the assij^nee be the purchaser of a note the payment of which the mort^'aj^e purports to secure, then, even without the pre- caution bcin^' taken of ^'ivinsjf notice, the assij,niee cannot be prejudiced by a release j,''iven by the assijjnor to the niortj^a^'or after the transfer of the note {.\\ 7 Mooro, 617 : Rarh'r v. Richarihon, i Y. & J. 362: I.cgk v. Lcgh, i Mos. & P. 447 : Wild v. Williams, 6 M. & \V. 490: Buckliy v. London, 3 Conn. 76: Webb v. Steele, 13 N. H. 230 : Blake v. B/ie/iiinan, 22 Vt. 548 : Jones v. Herbert, 7 Taunt. 421 : Crook v. Stephen, 5 Bing. N. C. 688. (a) Dick V. Moivry, 17 Miss. 448: McCorniick v. Digby, 8 Black. 99. (b) Ho;eard v. Gresham, 27 Geo. 347 : Niehols v. /-iv, 10 Mich. 526. (c) R. S. O. 1887, c. \22, ss. 6-13 ; U. S. O. (1897) c. 145. :l 1 li- S. O. |,S( i4>', s. j«. assi .■>o."> 'K'l'lU'dt. or lip t acijiiiiwl notice of tl " '1'^' time when the Mlorti,^•,^,ror has 'enerally speaking,-, a cl lie a,s.sij,Miiiiont of tl ie trior linage {(/). '■''Iiity must he Hose in action assij^Miable onlv yiwecn the orijri„al part must yiclJ where it ; issi^r„ed subject to th e ei|uities exist! thai thi es to the contract ; but tl in nir ^■ontracl that it must h l^pears from the nature or free from aiul cliff. ive b. Ill's is a rule terms of iiiiairectecl bv sucl en intended to be assignable th erence that the assijr„ee | us, where the plaint equities (<.). It makes no '•■•s no notice of th secure certain mo riev with i^ave a chattel ii proviso enablintr tht e equities ; mortJ,^-li,re to H to to take possession .md sell in as 7 ^ "T, "."'"'^'^^^^^ i" execution bv anv creditor ot'^ "" ^'^''"'^ ^' '''^''^ -ere so taken.' and t c^ I ,d '^.r^^^''^^'^' '''-' ^'^ ^"^cls been assij^ned bv 11 to k n "" "'' "'"''^'^S^ had the plain.Ur sued .Lt,:r'1r' ^''' ^'"'^^ ''-"'' executions, which we^ ^ ^ r ^ t r^"^' ''' '''' ''^'^ was held that the defenduu as s • 7"«y secured ; it a^rreement (uhich die t . J e't" ^-•;. -"^■"' ^" ^^"^'^ though without notice of it, nh^ the •'"' """""^'^^ were illegal ( /). '^^ ''''' ''^'^^"'e ^"^1 --^ale An assij,rnee of a morttjaee which i,- ■ u off, cannot look to the eoods .!= . " ^^''^^ ^^^'^ protected bv the Act tf '^ ^'''""'^^ ^''^ -■'''«•- -' persons (d) Eirlcsnne v. //otc, •! A R --• . i/ ,■ V. /•.//.«... ,0 Ho;w. \t ';,v : /";';:;;• f'T'-.^ ^■''^^•- --4^ = ^'-"'':" r^.W/, 3 Sand. Ch. ,o. C/,// • /> / ' ' "' ^"''- '''^ = ''""'-" ^'^ 247: .I//,m,vv. Governor 2 fohns cl '^^ " ^"""'^ ^'^ ^''"''■''. ■ W-s. Paige. 202. "■♦= ^'^''•'-''."w v. Evcrlson. 5 Je) Lord Cairns in >r<..,i.,„v. .!/„,/,,„,„,, .^,^^, (t) JA,;-//;, V. /y,.„r/««,,, 45 L'. C. R. 20- '^''' •■'^^• (k) //'^/-^f' V. Ifughes, 6 Q. B. D. 676." '^ ..! ' \*\ |K«? 356 ONTARIO. I (4) There is no objection to the solicitor of the assignor being the witness (//), but it has been held, in effect, that the assignee himself cannot be the attesting witness {t}. (5) As it is not compulsory that an assignee should file his assignment of mortgage except in the event of the mortgage being renewed, it would seem that an assignee when seeking to enforce his mortgage prior to the period when it should be renewed, could not be prejudiced by the registration of an imperfect assignment ; if an assignee's security be good without registration, imperfect registration could not make it bad ; but this would probably be otherwise in the event of a conflict taking pla<:'e between the assignee and other parties after the period has elapsed within which the mortgage was required to be re-filed; because then the statute requires also that the assignment shall be registered, and this section requires certain formalities to be observed in its registration. As the statute does not make registration compulsory, the assignee of a mortgage for valuable consideration will be preferred as against a subsequent bona fide purchaser of the same for value without notice, even though the assignment be not registered (J). (6) In addition to the mortgagee or the executors or administrators of the mortgagee mentioned in section 25, the assignee of a mortgage has, under this section, the power given him to execute t'.ie certificate of discharge of mortgage. 29. For services under this Act the clerks afore- said shall be entitled to receive the following fees : 1. For filing each instrument and affidavit, and entering the same in a book as aforesaid, fifty cents. 2. For filing an assignment of any instrument, (h) Peinvardcn v. Roberts, 9 Q. B. D. 137. (i) .SV(f/ V. dandir,', 7 g. B. D. 516. (j) U'i/sun V. Kimball, 27 N. V. 300. R. s. o. 1897, f. 14S, s. 30. .10/ Therewfth"? ''' ^T^'' i"clorsements in connection inerevvith, twenty-hve cents. 3. For filing a certificate of ciischarae of anv in- mer;connect"H'^i"^' ^^' f'^' entries'^^nd iX^e- ments connected tiierevv.th, twenty-five cents. 4- For a .nreneral search, twenty-five cents. hundred words. ' '™ '^'='"' f°'' <=^">' 7- I-or extracts, whether made bv the person whr, ru;fdr:5^.™rdf ■ l'{, ": f -' -" »"» ^^ Miscellaneous Provisions. kf^\\^)J^'T"^''' ■ ^'">^ "^ ^he provisions of this Act. the time for registering or filing any mortPa"e bill of sale, nistrument, document, affidavit o-odS the office in wh.ch the registering or filimr is to be made or done js closed, and by Reason thereo the registenng or fihng cannot be made or done on tha^ day, the registering or filing (2) shall, so far as the tt ''' ^"^^^ -'■'' "^'^^ be open (3)°';; V.,'c^T Act^'L'tidn ^T^rT': '" ''' ^^™^ ""^'^ ^'- Interpretation bvanvttV '* ""'''' '''''' where the time hmited byanj Act for any proceeding or the doing of anvthin.. under ts prov.s,on.s expires or fails upon a irolidav'the Tim " l.m. ed sha I extend to and fhe thing may be done on irdlv next foliowmg which is not a holiday (i). ^ 0^)R.S.O.(,887)c. ,,s.8(.7,:R.s.O.(.897).. .. Hi! I I 35^ OMAKIO. lll^ i i ' (2) The connecting of the words "registerins,^" and "filing" in the manner this section uses them, indicates that the two words are synonymous, or, at any rate, that, so far as the statute is concerned, they are intended to be used in the same sense and to mean the same thing. The literal meaning of the word " registration " is " the act of inserting in the regis- ter," and thougii tlie old common law meaning of the word file, viz. : "a thread, string or wire upon which writs and other exhibits in courts and offices are fastened or filed, for the more safe keeping and ready turning to the same " (/) in- dicates the like, yet the later definition as to when a paper is filed, namely " when it is delivered to the proper officer, and by him received to be kept on file " (w) seems to declare the existence of a difference in meaning ; indeed, it has been held that the latter definition is the meaning to be given to it under statute, unless a contrary meaning is made to appear (;/). (3) Except on Sundays and legal holidays the oflfice shall be open, hence the meaning of the word " closed " in the sec- tion means closed by reason of the day being a Sunday or legal holiday. Should the ofiicer be absent from his office during office hours, and from this cause, a mortgagee be unable to file his mortgage, the day none the less would count against him, and he would be left to his remedy against the clerk. A person in charge of the ofiice on the occasion of a vacancy, may re- ceive and file a mortgage or other instrument under the statute, and it is supposed that a person in the ofiice doing the clerk's work, with the clerk's authority, would be capable of receiving and filing instruments u'nder the Act (o). 31. An authority for the purpose of taking or renew- ing a mortgage or conveyance under the provisions of this Act may be a general one to take and renew (1) Whart. Law Lex. (ni) Bouvier's Law Dictionary. * (n)' Gorliam v. Siii/niH'n, 25 Minn. Si, S7. (o) Bishop V. Cook, 13 Barb. (X. V.) 326: Dodire v. Pottey, 18 Barb. (N.Y.).93. H:1 iSy; iiii,-" and "filing-" ates that the two at, so far as the used in the same iteral meaning of rtingin the regis- iiing of the word wliich writs and ;ned or filed, for the same " (/) in- .1 wlien a paper is roper officer, and ns to declare the , it has been held given to it under to appear (;/). s the oflice shall osed " in the sec- a Sunday or legal his office during e be unable to file ount against him, ' clerk. A person vacancy, may re- jment under the n the ofTice doing would be capable Act (o). .king or renew- the provisions :ake and renew V. Po//e^, 1 8 Barb. ill '4«. s. 3.. ,., veyances to the mort- .c. 37. s. 31. ^ilJ or any mortoacres or con ga.^ee or bargraiiice ( i ), 57 V aeeln to'tT''" '■'"" ""' ''''''" '"'-"' '-^^ '-^""^-i^^- 'o an sufTcent authoruy to the agent to renew. To enable the a.^ent vhidH^t;;;:^"^ °" ''- -- -^'^-'^>' -^ ^^^ u^p - take ; ; 'fe^rtT' ''' ^'^'r'' ''''''''' ^° '' ''- ^e;;,..ortgis^: :::;-:- r'r^r:^;-^ :^^:re;:ir^^^;t:£-':;L->-- niiirpri tr. u^ ■ ■ ■ course the authorities are re- quireci to be in wnfimr ti,„ u "■<- ic I'l vNriting. ihe " conveyances " referred to nr^ conveyances ,n,.„Ced .„ „pe.„e „s „„;,,.,,,, .„^;ZZ:: «,^fc ^^l '"""i '"s'^n'enis mentioned in this Act "";e:^L,'tn:;;!=-,r:s^^nit^r scr,>t,on (.) thereof that the ...^^t^t th ret' readily and eas.ly known and distinguished t V' C. ^7. S. 5 2 0/ * •) 32. .(0 This provision was first introduced by 20 Vict (,8-7) c- 3 ; the word "suffiripnf" h„- u '' "-^■' \^°o7), .0. ...c >vo. .. c.c*:=L„;::;i-r:r''-",:::;:::r under ,,ec.,on, ., 6, , and 3 would undoubtedly b/inc|udrd but strange y enough ,l,e san,e form of words is he eTo ic^Je j a. appeared ,n the statute before the enactments as t^ „„' tracts to give morto-a"-es nr tr. .>^..i., i . b >-^''&a^es or to make sales now hcnmnnf^ri „ 1 . (-"acute It will be betfpr u- ti-, uc o ,h an as,ij,„„,e„, o, „,on,„,, recu.red t:^ re ' tered, to comply with this section. or 1'! "°' '''''"'!'''^' "' ^"'^"^^" *he bargainor and bargainee or mortgagor and mortgagee, that such a full and uffic en description should be contained in the instrume t i pomted out by this section. As to creditors t el eq e i.i 360 ONTARIO. taking possession of the chattels by the mortgagee or bar- gainee will not avail as against persons who became creditors or purchasers, or mortgagees before such taking of posses- sion (section 40). (2) There are no words in the chattel mortgage Acts that have produced more numerous decisions than the words, " such full and sufficient description," etc., etc. The neces- sity for a full description is explained in the words of the statute that the goods and chattels mortgaged may be " there- by readily and easily known and distmguished." The object and policy of the law was no doubt to prevent secret and fraudulent assignments and mortgages of chattels, and to afford means by which persons having dealings with mortgagors, or otherwise interested, may readily obtain accu- rate information by an inspection of the instrument filed, and to enable such parties to distinguish the articles assigned. And if persons who claim under such instruments do not take the precaution, or the trouble, to follow the enactments of the statute, and omit to describe in some reasonable way the chattels intended to be mortgaged in the instrument itself, so that their identity may be ascertained, and if loss by reason of such omission is tne result, they are themselves to blame (/). What is such a description is a question that has arisen and still is frequently arising, and has occasioned not a little conflict of judicial opinion. Anyone who may read or examine the instrument containing a description of the property sold or mortgaged, should be in a position to identify the chattels from the description itself, and by means of enquiry which the instrument itself indicates or directs (tj). It need not, however, be such a description as that, with the deed in hand, without other enquiry, the property could be identified, but there must be such material on the face of the mortgage as (p) Prr Morrison, J. A., in Ho// v. Carmichacl, 2 A. R. 644.' (q) Cliapin v. Crane, 40 Me. 561 : Elder v. Miller, 60 Me. 118 : Sliowc- ffiiii Bank V. Farrun, 46 Me. 239: Winter v. Landphcre, 42 Iowa, 471 : Smith V. McLean, 24 Iowa, 322 : La'.vrence v. Evatts, 7 Ohio St. 194 : Tindall v. Wasson, 74 Ind. 495. s. o. 1897, c. 148, s. 32. 361 would .nd.cate how the property may be identified if proper enqu.nes are .nsftu.ed (.). The description should be such as o u,, , ,,, ^^,,.^^. ^^ ^.^^^^^^. ^^_^^ „istin,nMsh the .^oods Zts^::!:': t "" ^"^'^ -"' ^'^^ ^'--ftheexecutLof curren . ' "' "' ''"•^' ^^'''^^^"-"t period during the rv to h"/ ''yT'T ^^"'^'''^'^ ^•^■^- "---^^ '' '-^ -t "eces! tne property as to enable a person to distinjjuish the articles I^ of th rZT"'^ '^"^'"'■'■^' ^^^ '" ^^ '"^^^P-^'-"^ '•" ^he the time the """ '"' '"' '" ^'" "'"^^ "^ '^^^ P-^'" «t he/a7e io ff "M"' P"'^^"' '"^'^ ^^-"^-■^- but for those umbe l.: . "^^ "^^^--t^-.^-^^ "--^t prove that such lumbtr uas made out ot the identical Ioj,s mort^a.^ed (..) and a mort,..,e of leather, covers shoes .^ubseque^tK m de om such leather^. A mort^a,. of " ,00,000'feet of ^ i t Rncr. u.thout further description has been held to be void tor uncertamtv ( r) • but if tu. t ■ ■ ., nronertv bv U V • clescnption identified the property b^ Us mark .t would be sufficient, and especiallv so .f the description provides a means of separating, the mort- jra^ed property from others of a like kindL) Befbre the passing of 20 Vict., c. 3. questions arose in (s) /'<'M\ilson, C. J., r,w,f///v. .14,.// ,, L- C (• P ., (t) Holt V. a,.,„/<./,„,/, , A. R. 6.39. ''"^"- " ^ ' ^ ' ' - '-»' P- ^°9. (u) "Wn' V. .SV«'.>/-, .14 Mich. 60. (V) .VrCal/x. JfW//; ,3 S. C. R. ,33. (W) »7t//r v. /?roTi.;,. ,2 U. C. R. 477 Jx) Putman v. 0«/nV, ,0 Clray'iMass. ) 3,. y) ^"^'-*-' V. J/^..„. ,0 Mich. ao3 : 8 CnU-al L. J. .,7. (^) .)A.n/,«./. A„/. /y„., V. AfrLauMin, , McCraiv, .,8 36: ONTAUIO. i^V: ' IP ( P .1 : ! our courts as to the sununcncy o'i a doscription'of ^oods at common law. So at common law the schoclule of personal pri^perty in these words, "all the horses, mares, cows, heifers, calves, sheep, lamhs, pij^s, waj^-s^ons, buf^-.s^'y, harness, farmiui,'- utensils, hay, household furniture, hooks, and everv other article or thinf,-- on or about the south half oi lot 24, in the third concession in the township oi London," was held to contain a suOicient description [a). Cieneral words are some- times all that can be employed in describing- property intended to be covered by an instrument under the Act, unless a minute list is taken o\' every article mort,i;ai^ed, and then it is neces- sary that the location oi the property, at the moment o\' the execution o\' the d\i<:d, should be defmed and ascertained bv the instrument itself, and, to ensure accuracy and safety in the description, the statement should be added that the articles, etc., are all the i,'-oods answerini;- such description on the premises (/;). Thus, a description of the {^--oods assis^ned as all the ^>-oods, etc., of the assii,nior, beini^- in and about the warehouse on Y. street, and all his furniture in and about his dwelling-- house on VV. street, and all bonds and securities for money, loans, stock, notes, etc., etc., whatsoever and wheresoever, beloni,nns4-, due, or owini,'- to him, was held sullicient to satisfy the statute 20 \'ict., c. 3, s. 4. (r). Property, such as bonds, bills and accounts, railway stocks and thinf,'-s of that kind, are not required to have that particular description necessary under the statute in reg-ard to other property (d). An assign- ment in the form of " all the assignor's personal property and effects whatsoever and where.soever," will be insufficient, these words being- too indefinite; their use gives no force or meaning to this section whatsoever (<■)• When the locality of (a) Bdlhi'cll \. Bcddomc, 16 I'. C. R. 203. (b) McCdllw Wolff, 1;, S. C. K. 130. (c) Harris v. Commercial Bank, 16 U. C. R. 437. (d) Harris v. Commercial Bank, 16 U. C. R. 437 : Ihirclctt v. Hunt, 25 Me. 419 : Russell v. Wintcl, 37 .\. V. 591. (e) Harris v. Commercial Bank, 16 U. C. R. al p. 444 : Ho'.vell v. McFar- lanc, 16 \j, C. R. 469, \l I i *'• '«<)7- I.-. uS, propLTly in a iT'-'noral w 3Ck s cle orcls 'I'V usual niortifaijv i i.lesLTihmL'- til arh iiul sunicientlvclofinoJ tlKMl sunicicni. til of th lOOS, .troo Js aiitl chattel s morloa. HIS, Roods, hoots aiKJ si ■irnishi,,- j^roocls a.Kl stock- f^''ii;or, aiitl bcin iHiinhci- thico, ( • i niorl '^■■■'.i. e niort millmcry tiooJ in-trade," i of • aiKJ al tlu clr\- ,"■011110111011 s bei sid "«■ store side of Kin III tl- Sniitl low in the possosy sion i,'" street, in the t store occupied bv him, I's Ulo on ■ioiith ou n of -- -, IS a .i,'-ood and sufficient description (/■) and •, ,.■ ■„ . i ' ■.". •'^^""' ■""' kind, uhere localitv i ad Ti ' ^'^-^nption of this tho instrument pre i , ■ '" "'' ''■'■' '"''^ '*^'-''''''-^' '"--^^"^ other articl" ' r I ; '^^ '''■' "''' '"''^"•^'>- ^'--""-^^ -<>icientdescr;;:^r;v':;^•n^'^"'''^-^■''^'^'^'-^ t'-t werein,hesli:.p: u,\| \^^7''-'-^^ instrument, and such a U ■ ^■"^■^■^'"^^" ^f the -uid, occasion a ^o.c;i;;:r^'^ M^''-' :'"' '"^^" '''^y covered bv the mor ■ • '" '^'^-"^'»>'"^^ the propertv i" tho meantime ^/:o:r::r"'" '''''' '''-'' -''--■ the promises to Wp,^ i^ ^ '" l^'^^'^' -- '--'^'h upon oxocution of tho La 1 u , ^^''^' '"' '^'' '''''' '^'" '^'' -'^'''-'-^■-^H.,a:;'::;:i:;;'--:-"v^^'^'^^^^^^ "-'^inod Mhat difficultv a hailitf wou , " , \ "'"''' '' ^vore in the shop at tho time t '>^'^^'^'' '" ^'''^''''^^^ .a.o(.). Toaviidthonr :i :■:r"rf'^^'"^^'" upon stock so described it is -.1 .■ ' ■ '"^^''t.'.-<'i:e tho dood coverin.. toe hr . '"' """''""^' ''' ^''''''^^' ''^- ^um, stock b.ouf,dit mto the shop in reneual, (f) CiDikliii \. Shell V \S V V ,r /- , -^V r/,/.^.//, „ Gr 40 '.l:«vr '""''"• ■'^'■^■"■""' '9-^- V. ..,: C. I'. .303. ^ ■ ^'"'"^^ ^'^ ^^"'"^' "/" ^'M''- C.nuu/a. , , L-. C. (h) yP«.w V. <:b«^.-^ ,4 u. C. K. ,,, ^'^ "'1 l4 'fi I' ' if t lli'' ! ; !!! 364 ONTARIO. substitution or addition to that which may be mortj^ajred, for, unless the deed so provides, and it clearly appears from the duijd itself, to be the intention to brinf,^ within its operation after-acquired property, the deed will not have such effect (;); and even thouj,'-h the deed contain a power to seize ail jjoods, chattels and etTects, the power will not otherwise be extended to t,'oods not upon the premises at the execution of the deed(/). This may be done by the mortf,^at,'-e includinj,^, in addition to the stock upon the premises when executed, any and all stock purchased thereafter by tiie mortj^agor and which may be in his possession upon the said premises during- the existence or continuance of the security or any renewal or renewals thereof (/t). A description of property as the "live and dead stock, growing and other crops and other goods, personal chattels and effects whatsoever, which at any time thereaflc- should be in or about the same or any other premises of the mortgagor, whether brought there in substitu- tion for, renewal of, or in addition to the goods, chattels and effects assigned, or any of them, or otherwise howsoever during the time that any money he owing upon the security "(/), or as "the stock-in-trade, goods, chattels and effects which should or might at any time or times during the continuance of the security be brought into the messuage, warehouse and premises, or be appropriated to the use thereof, either in addition to or in substitution for stock-in-trade, chattels and effects now being therein or any of them" (;«), is good. An attempt has been made to draw a distinction between sub- stituted property and after-acquired property, as to the com- pleteness of description, but it is doubtful if such a contention is tenable (;/). (i) .Viisoii V. McDonald, 25 U. C. C. P. 435 : .UrPhcrsoi, v. Riyiiohls, 6 U. C. C. P. 401. (j) fafi/irM V. /////man, 6 Scott N. R. 967: 6 Man & Gr. 245 : 12 L. J. C. P. 311 : /?vevf V. Wliitniorc, ;^3 L. J. Ch. 63. (k) A'(> nirl;i'//, 21 Gr. 492 : S/cp/wns v. Pence, 56 Iowa 257. (1) C/enien/sv. A/a///ie7t's, 11 Q. H. D. S08. (m; /azanis v. Andrnde, 5 C. P. D 318. (n) C/iide//\: Ga/s-avrfliy, 6 C. B. N. S., 471. uord to cli.i K. S. O. I.Sc) " instriimeiii dcscrihint: at 1 4). On the other hand a d premises after the disch ption will not cover iri,'-e in bank- of the first part doth all his rifcht and cl loscription as follow; '^si-n unto the party of th Th iim to th rood is and stock in trad e party c second part store of the said partv of the i^ZnT, '" """'^ '" "" iiie said stoi-L- uItiII u, i 's '-'"~ ^ -or, or which are now or shall be on any other premises in the City of London" cannot extend to i^-oods manufactured on new premises and which were- never (r) Lnnn v. Tlwnitini, i C. B. 379. (s) Luiui V. Tlwniton, i C. B. 379: Short v. Rutlan, 12 U. C. R. 79- Cummiuirs V. Morgan. 12 U. C. R. 56.!; : Omgrevc v. Evctts, 10 Ex. 297 : Mogg V. Baker, 3 At. & \V. 195 : Gale v. Rur„cll. 7 O. B. 8,o : Otis v. .V,7/, 8 Barb. 102 : Yates v. Olmsted, 65 Barb. 43. (t) Anderson v. Hi>-,i-''-'- upon n.,,ic,, situate upon that s.ro,! ,,., """'"" ^''' "- --iK-or The word stock is a convertible torn, It is ,h > ^ •, , property of a merchant tr-.,i capital or any business inch^ "^ i!.^ ;:;:"' ''' ^^^■"'^-'>- '"— ' in it mav mean the stock^t '' '"^'"'•' •''"^' '''■''^''''' ■•'■'^> a KH. an. shoei;;t;:::.^:r:::2;:f '"-^'^-^^ ^^ as, '■ the stock-in-trade of the mo^^:^ :.^::T" ^^ not sutlicient without mention in the instm ' ? r ■ '' or occupation of ..he morf^a-^.r -u j '"^'^"" ,^"^ ''^ "'-' "-a^ie cient without mention of l^X :;'^;^P-^'">- -s U not su.H- ciee^rb^t rr^::: '^^^'■'^^^' '- ^"^ ^---^ ^^ the lrtgai,'ecl is a stock of i.iruirs, chemicals, and other j,'oods, such as a clrugj^ist usually k>; "« to sell. Where the description was "also the followini,'- fjoods and articles, heinj,'- in the store of the party of the (irst pari, on the corner of Queen and May streets, in I he said town of Brampton, that is to say, eif,'-hty-rive jjallons o( vinc^'; ir. Kivmt the lont,' list, and " also the f olIowMii,'- j^'oods, beinjf of stock-in-trade of the party of the first part, taken in tht month oi' April last, that is to say, sixteen pieces of tweed," it was held that all the j,'-oods were sulliciently described, for the last parcel of i,'-oods mi^dit he taken as iilescribed to he in the store (ti), and where a schedule was headed " household fur- niture and property of J. R. McD." and the several apart- ments containing the furniture were specified, it was held sullicient, as it might be assumed to rcfor to the party's rrsi- dence {/)). Hut a description such as the following : " all and singular, the personal estate and efTects, stock-in-trade, goods, chattels, rights and credits, fixtures, bot^k debts, etc., and all other the personal estate and effects wlialsoever and wheresoever, and whether upon the premises where said defendant's business is carried on, or elsewhere, and which the said debtors are possessed of or entitled to in any way whatsoever, including among other things, all the stock-in-trade, goods and chattels which they now have in their store and dwellings in the village of Renfrew aforesaid ; also all and singular the personal estate and effects of every kind and nature," etc., is not a sufficient description within the meaning of the Act (c), because, no doubt, there is a total absence of description by locality : The omission to identify by locality makes the foMowing (a) Malli,-rs v. Lvuch, j8 L'. C. R. 354. (b) Fruscrw. Bunk of Toronto, 19 U. C. R. 381 : sec BliilU rg %. rnrke, 10 g. B. D. 90. (c) XoldH V. DouucUv, 20 C. L. J. 16. «• >*• 11. l.S(,- Uhiiit ri> \. ParkCy M^^, S. ;„.. 369 :*"^ ^^ ''ether upon ,ho prc.nis " '"'^"^'^ ^''- ""^1 «-l,ere,soever. '^ --•'-' on. or cIscX : : ,""r^ """'' ^'^'^'-^' 'n.sines P-7--' of o. en.itie. : '^ ,:;"'^-" "•^' --' ^'^"'^'ors ..e '^""Houorcls..,v,u.,l,erupon ,; • •' "''■•"'^^■e'--" With- Y •;-- - carried on. o^Z^T::'^ '''"''' -'' '^^^^^^^' ;"«'■ ■■'.Hi uith such uords i^^ , 2 '"^'^---n-p.ion uouhi he .'he K'oods are described as hei i ' ' ''"'' ''''''' '"- "-"^- of '^ '>' quite consistent «-ith the Iwt'" ''"'-■ ''••"■"^•"'••"- P'-^'-nises ; "■a« "elsewhere," and '• els^ ) "^'i!^'^ "^^"' ">'" --v -tide '•>om the uords '• furnitur , ,'"'*''"' """^'^-I'^re " (,/). '^/'-'-aii.y.theass;;;;; ' ,'^;;'';-'-iptioniais refers to the ..ort^.a^-or's rlsid n ', T '''^" ^^^^-r^'ou r-^as "blankets and counu:;^r^^ "'^■'^■er." "«-|ass," "electro ,' ''^^"'^el'olcl linen. " ''^•'■-a/- and "earthed:::::./': ;';'r'^^''-: "-^'^o> eom-n^^ w.thin the ^^eneral t^rn s • f ■^''"^'"'^>' "-''"'^^'^ '^- ■^^^'« "('■)• The words •. , " , ';"-7-^> and household -atches. jewellery and electr s , T^ "' ^^^^'^' ■'"'" -'^er '---^^- is in the possession' , "''"^"' "'^'^"'^ -''^ ''-' ^'-'te >^[ore." is a sufficient descri^ on '"^l'-^"^'^^'" i" his said electro-plated ^oods and wZ ' "^^^"'^'^^tandin^. that the .have Heen identified ther^ 7;; "'t j^^^^-'. and n,i,ht one kuchen table, four Jh-'irs '' ^'''''''' described as ''all contained in and about thedwelln" J^"'^^"''''"'"^^ ^h'-^'^) the mort^.a^.or situate at, or o .^"^ '"^'■-'^^^"'^^' and barn of he sufficient (^.). ' ' °" '^'f^' '-'•^•. has heen held to (e) fr//.™. V. AV..;;,1 c J" ./ ««A.««, 9 u. c. c. P. ,30 : J,- 2'^ ;^'^; -f l;. c. r. .^^ , ^..,^^,,,^^ 7;;l" ^"'1 "-^^>>- ^i-./„ t;^- ^ '^- 'j,^ ^'^-'-". .9 l-. c. r. 38:; (g) Xuf/niss V. P/t, air, Silver Plating Ct 37 U. C. I. K. I >ig, 53- ■3O.R. ^,3. w^m-"^ M 370 ONTARIO. ! ^ / I i i 'M It must not be uiulerstood, as beini4- tlio law, that, with- out a description by locaMty of the property mortf,''a},'-ed, the deed necessarily becomes imalid as aj^-ainst the parties attacking,'- it. If the j^-oods are themselves described with reasonable clearness, so that their identity is unquestionable, then the description will be j^ood without any mention of a place where the ^'oods are at the time oi' the execution o( the mortj^aj^e (//) ; and even should the wront^ locality be men- tioned, the reference thereto will be considered surplusai^e, if otherwise the property is sutlicientl)- itlentified by description in itself (/). I'\->r instance, the description of " two sets oi' bliicksmitli- in^" and one set oi' waiCi^on-maker's tools cc plete," in itself affords no means of identifying' the snoods intended to be mort^aj^'ed, but with the assistance oi' locality it becomes surticient (/). And, also, where the i,''oods were sjiecilied as particularly mentioned in a schedule annexed, in which they were described as " one bui^jc}', '-^'i'^ cutter, one cart, one bread sleij^h, two sets of harness, one horse, one chaff cutter," and the foUowiui^ household furniture, namely : "in tiie small parlor, one stove," etc., etc., enumeratin_s^ the articles in the different rooms, the description was held sufficient as to the furniture, but insufficient as to the Other g'oods (^). On the other hand, it is not dillicult to perceive that a careful and minute description of some chattels, such, for instance, as " one brown stallion ten years old, one bay horse eis^ht years old, one black mare nine years old " (/), even without locality, would facilitate identification far more easily than an imperfect description of an animal itself, even with its where- abouts at the date oi' the execution of the instrument carefulh defined. Locality of a mere loose chattel is held to complete (h) .i/,is<»i V. McDonald, -'5 I'. C. C. P. 435. (i) Spauldini^x. Mazier, 57 III. 148 : .idtiinson v. /'clcrson , 34 Alb. L. J. 373- (j) Mason v. McDonald, 25 L'. C. C. P. 435. (k) Sutherland v. \i.\on, 2t U. C. R. 62g. (1) Corneillx. Abe//, 31 U. C. C. P. 107. 10 la\y, tliat, with- y mortj^ag'ed, tlie ;ainst the parties es described with s iiiiqiiestioiiable, any mention of a e execution of tiie ;" locality be men- ■red siirplusai^e, it lied by description ets ot" blacksniith- L.i'"p!ete," in itself s intended to be cality it becomes were specified as 'd, in which they er, one cart, one one chaft" cutter," umely : "in the atins^ the articles i held sulhcient as er goods (/f). On ko that a careful uch, for instance, ? bay horse eit;ht (/), e\en without ire easily than an ■n with its where- itrument carefully i held to complete 'licrso/i , 34 Alb. L. J. O. i8g /> 148, ^ '""'I and suffi know I .I-'- 371 c'lent desc e'scription of it, bv uHJch ^•" ="'^i clistiuLanshed \vU " ";'■' ■'' ''''''"'' '^ '""-'' ^^" ^^■''^''^■ '^ "--iption as can m b, \ " ""^"^'^"^'^ '^ ^'^ '- --'' -^ ^'-in.uishe;::'^^^:t,.t;;tr^ ^^'^''^•^''-- characte^sticofaMimmov.bl. '" I ^ " '"^'"'^^'^' "^-' --trinsic evidence ('" '"' ''"'' '" ^" ''^ ^--^-H^'ence ^""pir": •;:;' "r::;'^ -^^^ '7 -^ Hi,, . sa. is „ot ..d u-hereunon the chattCs •,,-.> ) /^ '"'^' '''^■<''l>ly whereat or hill of sa,e sha„ be void'as t^Zs r^"'' '"^""^^ ^'^''^ '^^^ ■speafica„v described • ,1, . , I^^rsona, CattCs not -^'-i-pecies.:;^' r:,;r::r"'^'^^^'-''-^'--'-''"^^ ^'-'-Ivria,Act does not ";, •''''""' ""' ''-'"^>- ass.st in ascertaining- the iden^r"''""' ""' '^"^"''> '^^ statute is directed at iden '"h r ^ ^""'^ = '^^'^ ^ -"" ^'-^ -ould lead the be l ; , "i';^ ''^. ^'-'^'^. -n- words advisable, but are nece:;. ^ a k, t 'T"^" '""^ "^ -">• lo-a,ity. identification is im'!;. "■"'"'''• '''''■''^' "i'hout locality becomes a sine qua non TI, r • '- f- ^-^ '•• M^-i non. 1 he Imperial Act ar - i-Possible, then desj •pt;;:^ to be directed toward^ enabhm!: ,'?' '"'''''''' Act appear^ deal with anotlier ner..„ .^ ' '^.^"'■"^.^^" ^^'^^^ '^ about t. deal uith anotlier person to ::e XZ- H " '^ '"^^"^ '^^ K.ven a bi„ of sale of his ...ods ( ; o ''='' '"'^^^^■' ''-^ -me object, with the additK ,na, ii^'t,,,^^;;' T'^''^^ '^^ ^l- read.ly and easily distin,uis,,ed Sti ''"'' "'"' ^' decstons under the Imperia, Aa m , ,'' "''^^T'''' "^"^ "Pon our statute, on account o "^ ^ .t^'^'V'^'-'^ t'e.HK^ used in t,,e former to interpr th ■''P--"--''l'y " •■eqmred. This word is a word o T , " '^'''''^"^- t,K.rebv extent, at all events, to ,i: -[t;;;^':;-;''^-''-'---- cannot be satisfied wit,iout "'^7? '^' 'lescnp,,o„, and it description which help t,;:^'"'^ '■" '"^^ ""•--^^^• ^^-est of the things :;r:;;:e^;:'''^f-r^-''- '^^s. me description (111) />fr Wilson C I \- ; ,. <"' 45-46 X-ic, 'c ;i-' •'"'"' ^'^ ''""'"■^^"' 4 O. R. a, p. 440. '^- 4-^ :/0>u.s V. /^„../,. l^'k. V g ^J ■■ ,^-;- A-^" ^''A ■'/-. />«.., ,5 Ch. ''''^''-M.--.y, J., /,,.,„.,: ,^:,«;/^ i^s I I, / ( UMAKUI. sluHilcl ill sonic way he s]iocitically applicable to the particular chattels assii;ne(.l ; it is not satislietl by words whicii will answer just as well lor any other thintjs o\' the same kind and equal in number : theretore a ilescription o( " tour hundred and flit)' oil paintins^s in i^ilt iVanies, three hundred oil paint- itii^s unlVamed, lilly water-colours in t^ilt frames, twent\' water colours unlVamed, ami twenty i;ilt frames" was heltl not to be siiecilicall\- desciibeil within the meanini,' o( the Imperial Act ((/ ). Localit}' must ne\crtheless be understood not to iiavo the efTect of preservini;- the valitlity of a i;oneral description inher- wise bad ; for example, a description of "all the mortj^'af^-or's cattle" on a lot, specifying' the lot, would not be a jjood de- scription, within the Act, of the morli^aijor's iiorses, thouijh it is the law that "horses" are covered bv the wonl " cattle " {/■). Some property, especially such as from its nature or quality, is moved or taken .about from place to place, can be best described lor the purpose of identilicition by simph- an accurate description of itself. Dispensint;" with such des- cription, and relyinj^ upon its identification by describinj^- it as of a certain locality at the time of execution of the mort- .trai;e, mij^ht easily prove unsatisfactory, especially after a lapse of time and a continual clianj^'ini^ about of the propert\- itself. SlierilTs and others cannot be said to be protected by locn/i/y t^iven one hour to an article— as a watch, chair, table, cow, and the like — which may be removed the next hour, and when an inspection of that locality the next dav would be no assurance that the articles then foimd there were the same articles which had been there and were transferred the day before (.v). Indeed, the addition of "locality" may (q) Witt V. liautn-r, 20 Q. R. O. 1 14. (r) Wright v. Pvarson, L. R. 4 Q. B. 582 : see Colani v. Pagf/l, 12 O. B. Vi. 66. (s) Wilson, C. J., Conu-ill w AM/. 31 U. C. C. P. at p. iio. o. |N( U.S. iTcito an addilioiial rs inscilcd risk tii til :iiul rclieil 1-' sociiritv, for \vl correi;! statcin upon (ami it len "localitv t'lK (it liH-aliiv ,i^(.MieraIly inscrteil) in 111- •■is siirpliisa-e (/), vit pr. "iii^lit, if it lid latc tliL- mort not I U! rc'iectod ^•■'■•.i,^^' ; thus, describiiii/ tlu .^-->.'':;:::-:;: ,::::::■ '"v^ '"■•«--«" co.Kvr,K.cl („ ' ii "'" """'""'■ '""I '■'•■rlf.'^.KCcI, were .1.0 1"... c.r „: :i, ,; : ' i"^-" '» ""i>->'.^" >--. ,., '<' K i« ina™.;:. .:; ;' r;';;r,r- "^'««« - »Nic„, a, .1,0 ,i,„„ „,.,„„ „. ':,,;:;•:"■'•-'«- '-> w.ns. for instance if ,1,, i "'^''.''> '^•^•■"■'vwii,^ ,t in other wlWchthenionC;/ s ;^T^''^'"'V'^ " -' ''^'y '--es pore,,..., ,.„,„ ,, , „,„ „e,;; ■ , ;■- ,";7';;;;-';"' 111) Gmss V. .//^s////, 7 A. R c,, . i / ' .(ii i ' ! 374 ONTARIO, I r i ,1 U} i sufticient to pass the property, it being merely a matter of identification ( r) ; and in lil " """J^:"'^^^'^'' ^^ ''-•^' ^'-> '"ortgagor has more than one of h. s,,,e kuKl. if the deed ,nves no further information than ,s to he accitured from the words, "one buj,'t,n-." There- ore such a description is decided to he insufficiem (,.). and M^ u.h,.^ more than simply the generic term of a ch^Uel or other article ,s required, it should be either minutely des- cnb d or ,nven a locality, or it should be shewn that the nK.rtgagor has no n,ore of the same kind. Hence, a mo pge of a horse, describing it as "one sorrel horse." app^.^ U> be etect.ve tor want of suHicient description ,„i ani'o i: a tyrant of a wagon as "one four-horse-iron-axle wa-on " ^v,thout anythmg more definite (/). and so also is a mortgage ot t ree yoke of oxen." because there is nothing whate e to enable one to .dentify them from others of a similar kind •should the mortgagor have others (/). ' But "one brown horse, ten years old; one bay horse, ught years old; one black mare, nine years old," has been held m our courts to be a sufTicienl description [k) It sometimes happens that property becomes intermixed u.th other property of a like kind. It is the law, in such cases, that when the owner oi property mixes his own with that of another, and thus prevents identification, the one who so m.xes loses his right to his own property to the extent required to make up the property of the other, and to that (e) Cross^velU^. A//n; 25 Conn. 30, : AV//,. v. /^r,W, ,; Miss 80 (n CaMnW/ v. rnK,6n\(,re, .3,. Alb. L. J. ,96. ^' (K) ^o/f V. Ctxrmiclmcl, 2 A. R, 630. (h) Montsromery v. Wrlirhf, 8 Midi. 143. (i) Xirhohon v. A'arp,; 58 Miss. 34. B/nielj> v. Patrick, 67 \. C. 40. (k) Cornell V. Ahcll, 3, U. C. C. P. 107. 2', Conn. 31 [ .■>/ 76 ONTARIO. f i if hi II extent it becomes the property of him whose rijrhts are iiuaded. If iroods are mortt ,"-ed, and the inorti,>-at,>-or inti. mix them uitli otliers of a Hke kind belon<,'-inj,'- to him, so tliat tiie mortj^-ai^ed property cannot be distini^iiished or separated, the morti,'-ai,'-ee is entitled to the whole, e\en as a.t,'-ainst a consis,niee of the mortj^agor, and can reco\er the full value thereof, for the property not mort!,'-ai,'-ed becomes accessorial to the morti;a.<;ed property, and subject to the lien and opera- tion of the mortj,^a,i;e, provided of course the mortj^aj,^^! pro- perty cannot he distins^uished (/). There seems to be a doubt whether parol evidence is admissible to identify property re- g-ardin^- which there is ambij,--uity from the description (w). In the States of Massachusetts, Michij^an and North Carolina, .such evidence is admitted, at all events to explain ambi"-uitv in cases of j^eneral descriptions (;/). From a perusal of the authorities the author, in the first edition, ventured upon the following- epitome (o) : — (i) If the property covered by the instrument is sufiiciently described so as to make identification unquestionable, without mention of locality, then it is not absolulelv requisite that locality should lie added ( />). (ii) Where j^eneral words are used, or the floods mort.ijai^ed are described as of a class, then mention of the correct locality is indispensable {- ^'-" "I-" ^-Hls no, in intontio, ;:';;:" '^^ '^^ '"'— ^--^ -^i--i (^). i-. the tion of the mor,;;.ivV; •"^'""''^"^'^^^'^■-i"-"'- -P--- deed iu). ■ ' "'*^' '"t.mated by otlier parts of the (vi) The words " stoclc-ln tr..,i^ •• • ti» court will k,„|< ,, , ,, '■"'." . '-''" "" "'l<'">Kili.,„, bm o-e. u- i>o.ii,i;\:\::;;;;r'--:,- -;;■■;;".-.-. ^n mortf^-ag-ed (v). "'iture o( the property (viij The assumption from the \vor,I« -r • household stuff" is that the ,1. , '^'miture and ^-^or-s residence (..,! ^ '"""'^"^^" '-^'^^^ '" ^'-' --.- (viii) T),ough there may be an error in one of tuo ,. , • t'ons ot property, the one that is incor o u ■•■'''■ a.K.U,e other retained, and the d:;;-X:r::,cU;^^^^^ H.;;^t::r;;;:;;:tr;;:;:r;e:;:--^^^ -"-erw^^mader:;:;:::-:---^-----^-^ (r) Hoif V. Canitirhncl 2 \. R 6^q (s) >P.' y/^/V/v//, 21 C;r. 402. (t) JA7.v,;« V. McDonald, 2i U C C P .,- (i» .I/«///<./-,v V. /,,-«,//, 28 U. C. K. 3^ . ' (V) »7/.TO« V. AV/-/-, ,7 L'. C. R ,6s'^ ' (w) Frasey v. A,«X. ,;/' r,n;,„lo, .9 L'". C K vS, (X) F-aldv.Jo/,„s/on, 4, f C. R 440' ""^ ' (y) Rosev. Hope, 22 L". C C I' ,s, ^- \ 7. : AW..V V. McMicluu,, \ C.' Ir 1 R "-" '" ''''""""""' '^ ^^ ^ '^''^ \'-) White \-. Bro7i;ie, 12 V C R ,- i!i i 1 ! f'- 378 ONTARIO. i ! :ii Klllir: (xi) Ifg'Oov'tS are referred to as all being coiltained in a schedule, general words in the mortgage itself will not em- brace other goods than those mentioned in the schedule (a). (xii) The words " all the assignor's personal property and effects whatsoever and wheresoever," are insufficient id). (xiii) Bonds, bills, notes, accounts, stocks, etc., " ejus- dem generis " do not require the usual particular description necessary under the statute (c). (xiv) The words "any and all stock purchased by the mortgagor, and which may be in his possession upon the said premises during the existence or continuance of this security, or of any renewal or renewals thereof," is a sufficient descrip- tion to pass after-acquired property (). cks, etc., " ejus- CLilar description lurchased by the on upon the said of this security, sufficient descrip- equired by this by any judge, ther person in take affidavits . justice of the s shall be pay- 57 v.. c. 2,7^ ny commissioner ipreme Court of of the Supreme ir of the Court of id ; or a judj,'-e of )r Ireland, within ider his hand and •ate of any city, or Ireland, or in d V. Rotvcliffe, 6 Ex. +44- f44- ie, 5 C. P. D. 318: s. O. 1S07, (.-. ,^s, s. y. an\- colony of Her M; certified under tl towi ijesty, or le common so; in any foreif^n country, 379 and '-■'"'rponite. or a supreme jurisdictioi jud^'-e of III 01 arn- or such city, borouf,'-h ■ourt o( Record or of Great Firi, • ' '" ''"'' '"'''''"'' '''■^'^^"^nnf,' to the crown of courts of Rccc d ™," v, ■',■"" '" ■"'" '" ""> "< "■« the poace, under this section -, Tl^ ^ ' / ''" "' jurisdiction as a magistrate extes" '«: c '"ttt 'I'f ,h' peace , none cotn.t, cannot proper,, adntil, li r i:^!',.: m a different county (/). rtmaavit An affirmation 'can be administered instead of an oath It will be observed that the Ontario Evidence Act (/A A person who prepares an assignment of mortgage may (el R. S. O. (1887) c. 61, ,. ,, (1) Reynolds v. Williamson, 25 U. C. C. P. 49 Hi 38o ONTAKIO. i . u ! I I 1 administer an anUlavii undor this Act as commissioner (/), but not so if lie be the niorl},'-ai,'-ee (/•). It is important that tile person wlio atlministers the aHidavit sliould not ne^'iect to subscribe liis name to tiie jurat. In tiie case of Xis/ii/ v. Cock (/), it was decided that a chatte' mortf^aj,fe was invalid as aj,'ainst a subsequent execution creduor, on account ot the si^niature of the commissioner to the allidavit of bona fides bcinj^- omitted, e\en tlunit^-h it was so omitted thiou^di inad- vertence, and allhoui^-h it was satisfactorily proved that the oath was in fact administered. In delivering' judgment the Chief Justice said : " The real question is, not whether perjury could be assii^ned, but whether the paper filed with the chattel mort- g-age is such an affidavit as the statute requires. In that enquiry, due regard must be paid to the objects which the statute was designed to effect, and the mischiefs it was intended to remedy. These have been rendered familiar to all engaged in the study and practice of the law by the explanations of the courts in many cases. It is sufficient here to say that the legislature has not been content diat a chattel mortgage should be merely stamped with goou iaith, but has required the mortgagee to pledge this oath to its character. Still further, it has required this oath to be recorded in the form of an affidavit, which must be sworn before one of certain named officers, and must then be filed along with the mortgage. This was obviously for the purpose of enabling creditors to satisfy themselves, not merely of the existence of claims against the goods of their debtor, but of the existence of a statement made under the sanction of an oath and in compliance with the terms of the statute. To the attainment of this end, it seems indispensable that it should appear that the affidavit was sworn before some officer having authority to administer the oath. It never could have been intended (j) X,j,'!ly. P.-ll. 7 V. C. L. J. 322. (k) Bcnmaii v. H'hi/)ny, 20 Me. 413; Honiticrs v. Dole, 61 III. 307: Wihou V. Truer, 20 Iowa 231. (1) 4 A. R. 200. N. S. i4'\ .>.>• imissiiiner (j), inip(irtant tliat kl not ne>4'lect ,se of A't'shcf \. ge was invalid account of the t o\' bona fides tli.oiif,''h inad- roved that the jutltjment the ■jury could be '■ chattel mort- .lires. In that ects which the ^chiefs it was red familiar to le law by the I sufficient here it that a chattel i iaith, but has I its character, ecorded in the before one of ^longf with the ise of enabling' he existence of f the existence n oath and in the attainment lid appear that vint;- authority been intended Dd'c, 6i 111. 307 : ,1«I requisite V '"'' "' "^'-' P'-'?«^''Kv or absence of thi. a^Jh^l^ate ::ZZV'-: " '' '" '''''-'' ''"' '-' tion tiru .,» , • ''""'' ^•""^'^''■'"t with the supposi- "M. at the last moment the mortj^affee had shrurkT swear.n^^ ,0 ,he necessary statement ^'' '^7 ''^'^"'''* ^'^''^ looked the ci-.s« nf , • ,\^'"^'"- ^Ve have not over- been held i, ^ .r^^^ '" "T'^ '^^'^^^^ '" ^'^i^iavits have been secured ^l' ^^T ''''^''^''' ""' ^'''''^ -^'" "-' record, al.h u, ; hT' '''':"'' '''" "-' '"•^^--n, on received byth^^olernnL:: ;"■"■'' "" '^^^'^ ^-" cliflFerent principle which ^''^'^^" ^.^'^■'^-'^■' depend upon a poiicy of ;;eA:;;r^m;r :;::*;:':;: :r^^- ^'-'•'- notice of the existence of a cert un T ""' '"'"■"^^"' property. Here, as we have -dreui h " T'"' ""^''''"^ entitled to more The inf ' '"".cated, the creditor is mure. ine information to him th-it fi,,. chattel mortg-age executed by his debtor IZ r u " ''' to which he is entitled bv the Ac XV u' '''"''' "^ '^"' information is given when h' fin ^^? '^"""'^^ ^old that such Which does ..ot'ap;:;:^^ 1 . 'b :::i^r ::r'^^^^^ ^^''-^ nized authoritv, or sworn at all "'' "">' '■^'^°&- a .;;:; ^i::;:r:c:d::t::;r r ^r ^■"'^^"^'-"-^'^-- a slip or omission. VVe . Z^ ^r t aTr d "" -'''7^'' "^ orevadL,thesait:t:^.:.:::'-----;^^-de of a deliberate f^ar ftfs ^t jr " f ' '" ''' ^°'"'"'^^'- the absence of the commt:^;; rnarerri:; ■? ""'''■ '■'' and provoke attnrt Ti '^'^^^^o"'" 'nvite suspic on obiigrtion to^u" : an/i'irittr^ r^' '- --^^ - unreasonable and unju's o :;c:\re 7 '''''''' undertake the dilTicult inH J '■"''^°'' ^'^f^^"" to Himself that it :f::tt ea "siTrr::' t: "f -' '''-'''"^ which would be liable to be deeded bv^r."'"" ' '^"'^ ueieaiea by the testimony of a 38a ONTARIO. commissioner of whom the creditor had never heard (w). Then-fore a mortfjaj^e not rej^iilarly on file, as havinp^ been improperly completed, in so far as the sij^nature of the com- missioner or tiiat of the person takinfj the affidavit of bona fides or execution is concertied, is not notice to creiiitors or purchasc'rs (;/). And so a paper purporting to be an affidavit, and not authenticated as sworn, is consistent witli the theory that it was not sworn to. It is part of the authentication tiiat the word " sworn " be inserted in tlie jural, and there- fore it is that the omission of this word is fatal to the suffi- ciency of the affidavit of bona fides (d). If, however, in point of fact the affidavit of bona fides or execution is sworn to before a ci>mmissioner or oilier officer authorized to administer the allidavit, then, if such officer's sij,'nature is added to the jurat, the omission to add words showinjj in what capacity the allidavit was taken by such olficer is not a fatal objection to the allidavit i />) ; such an objection is merely a technical one, and it would seem that, if the party be named at all, the court may examine to see whether he is one of the commis- sioners ((/). The fact that the deponent could be convicted of perjury demonstrates that the omission to add the character of the officer is not fatal, and, on perjury being assigned, proof could be adduced shewing that the officer was com- petent to administer the oath (/-). 34. This Act shall not apply to mortsrajres of vessels rej^istcred under the provisions of any Act in that behaif (i). 57 V., c. 7,7, s. 34. (i) This section has a much wider application than is im- plied by the mere words it contains. Whatever is on board (m) Xisbct V. Cock, 4 A. R. 200 ; see also Hill \. Gillimin, ;,9 N. H. 88 : Becker \. Anderson, 11 Xeb. 493. (n) Frank v. Miner, 50 III. 444. (o) Pollard \. Huntingdon, 16 C. L. J. 168. (p) Cheney v. Courtois, 13 C. B. N.S. 634: Hamilton v. Harrison, 46 U. C. R. 127. (q) Per Lord Abinger, Burdekin v. Potter, 9 M. & W. 13. (r) Ex parte Johnson, 26 Ch. D. 338. 'w(f//,;,9N. H. 88: II V. llarrisnii, 46 bL^r'' •'"''. •\'"^"''''"'"'''>' "«"'^'*a'-y 'or the tratlicand Ixcent *T u ""' ''"^ "'"''" '■''^ ^n'^'^ «-' intent of, he tel Mor^,a,.e Ac." If it shoukl he lu-ld olhcruisc. tlra tflass, crockory, Ivds, bcilJin.-- nl-it,. «»,- the vessel, a.ul tha, the mo u.^' h . ■.•' "' ^'''' "' ^•'^'- "^"'K' ot a rey steretl vess..l uas exempt trom ref^istry under the Chattel M^r^X^i^ but art.c.es on a vessel simply .sod for mere anuremen*,.; c.f,^ as a piano, could scarcely be held .. . • r >-niv.vi^ nc nelU as p ISS1I1<' to -l morf RiiRee of a vessel (/). ' '^ *' '"'"^'• The word used is " vessel " Fn ti,« 1 • 1 , 1 . *>--'«->ei. in the Imneria Ai-t i«-.« vhe word .'ship "is used, and it has been held tt':':'; d-s not mean what in ship-buildin^ ,s techn.callv cal^d h.p orthat would confine it to a vessel of a partL. ViV- but the expression must include whatever in popular I'm' •l^at m popular lan^a.ag-e ,s called a vessel. Anythin.^ bevond .^mcre boat ,s ordinarily called a vessel ; therefore a C uZ : ^^rr; ^'^7':^'-"^- - -- .oods is :^i 0.1 wli.^^'-'' •^"'' '^ '^ '''> ''""^"■"' if tho.e vessels onlN whch require re^nstration under the Acts relitinL^ to registration of vessels are meant by the above section (T)^ J> P.U.I.. V. ^,, , L-. C. C. P. 5,. : ,ee C.,- v. .„..„, 3 r. ^ e. (t) St. /ohn V. BuUivmil,, 45 U. C. R. 614. (u) Gapp V. /?«;„/, ,g Q. B j5 j^ (V) ^>"'«''^"'<-{-o/-Z«„r/o«v. Z,«„„/„„ ,c P D .^^ I 384 ONTARIO. itvi i ! ! ),(!il KM 35. All chattel mort^ai^cs rt-latiiio- to property within any township, cit\', town, or incorporated vil- la^x-' forniin;^- part of a new count)', at the date the ])roclamation tonning the new county takes effect, shall, until their renewal becomes necessary to main- tain their force against creditors, siibsecjuent pur- chasers or mort_oa(rees in i^ood faith, continue to be as valitl and effectual in all respects as they would have been if the new county had not been formed, but in the event of a renewal of any such chattel mortgage after the date the proclamation takes effect, the re- newal shall be filed in the proper office in that behalf in the new county as if the mortgage had originally been filed therein, together with a certified copy under the hand of the clerk and seal of the county court, and no chattel mortgage in force at the said date shall lose its priority by reason of its not being filed in the new county prior to its renewal. ■:,■; \\, c. t,"/, s. t,^. 36. Every person shall have access to and be entitled to inspect the several boc^ks of the county courts, containing records or entries of the chattel mortgages and bills of sale filed ; and no person de- siring such access or inspection shall be required, as a condition to his right thereto, to furnish the names of the parties in respect of whom such access or inspec- tion is sought ; and all clerks of the county courts of the province shall respectively, upon demand or re- quest, produce for inspection any chattel mortgage, or bill of sale, filed in their respective offices, or of which records or entries are, by law, retjuired to be kept in such several books of the county courts ( i ). 57 v., c. 37, s. 36. (i) This section enables the mercantile agencies to make a search daily of all instruments filed on the previous day, and thus to obtain a complete record of the registrations from time to time. '«97. c. 148, ,1/- 37. 'I'h( proxisions of thi s Act shall extend to stan(lin„ <»! the niaknio- of such goods .'^ cha^:,-;''™," 1 ™s .r;;r ;''", ;'-■ r' some future tin,,- or'thVX 'li^^livwc.l at tinKMi,e ,„aki,,, ;,fyj;i'ut;;;r.,r:>i, ■''i.V'' f ally ,.r„ct,r«l or pr.n.Vled, or Ik ^ rc'uK ' r, F ami noluhhstaruliuc; ,|,at so,,, ■',,',• ,"'''-''"■'•>"• for th. ,„al"''•">'<' "'at this onentoattaci, h, \ 'nclud,„g „ ,„ that it would be upen ro attack bvsubseauent pvpr-iif;,-.., ^ j-. . --.H the P"-aser\„.e:rerd:tr- - -r a pi" ^rrs- :edt tt„~e rdTr r- permits the mortP-airor fn r.,^ ■ • ^^§^^' '^"'' '"^ purchaser . t s'^S^""^ '^o '^emain in possessinn fh« a^^ appear to require the registration ot ■. hi 1 nf ' ''°"''' the mortgagee's creditors bJZ , ''''" ''" ^-^'"•^' S g e s creditors, but seemuigjy „ot as against credi- (w) Srver,, v. C/ari,; 30 V. C. C. P. 363. «rt;i ^ii S ! ; i m III U- 386 ONTARIO. tors of tlie mortgag'or, for the registration is requii'ed only as against creditors of the bargainor, subsequent purchasers from ////)!, or ///s mortgagees in good faith, and the bargainor in such a case is not the mortgagor, but the mortgagee (r). Although formerly the chattel mortgagee of after-acquired goods might be postponed to a legal title acquired from his mortgagor by a bona fide purchaser or mortgagee contracting as to the goods themselves (s), it would now appear that priority is given to a contract or agreement in respect of sucii goods when duly registered, as against a subsequent bill of sale by the acquiring party by virtue of section 37. Crops to be grown may be covered by a chattel mortgage; and where the expression used was "crops which maybe sown during the riirrenn' of this mortgage " it was held that this covered crops sown after the mortgage fell due but while it remained unpaid {a). But a land mortgagor after default is, as far as crops growing upon the land mortgaged are con- cerned, in the position of a tenant at sufferance, and cannot, bv giving a chattel mortgage upon the crops, confer a title thereto upon the chattel mortgagee to the prejudice of the land mortgagee who enters into possession before the crop is harvested (b). A mortgage of future acquired goods, although in form a present charge, is, in law, nothing more than a covenant, promise or agreement to make a mortgage upon them, and takes effect as a transfer of the goods only from the acquisi- tion of them, and then only by virtue of the equity which the mortgagee has to enforce a legal transfer, his title being pre- ferable to that of an execution creditor (c). A description in (x) Kissork V. Jarvis, 6 U. C. C. P. yiT, : Patcrson v. Afausrhaii, 39 I'. C. R. 37'. (y) Carlisle v. Tail, i A. R. 10 : Cookson v. S~/■ xSr ittario Loan, 46 U. a chattel morto-atre of after-'ir,!,,;-^ 1 1 • , . terms was h .1.1 ^r .' ' ''"'■^■''^M^". ej goods in the folloui,,.. lerms was held suflicient and hindin . AV /,; i" ^-. Sen. ,49: . A.k. ,7, .. in,rdy. T,u-nrr, . Ves. Sen':,,;' ' ' (m) Vrt/ V. Clandge, 7 Q. B. D. 1516. IH m r ■ 'f^^ M.4-Wi (■■*i ! i m 111 I f Ii^l 390 ONTARIO. them as before the assitjmiient as if they were his own property, yet still accounting to the vendee, the juryhaving negatived the possession of the trustees, it was held that their verdict for the defendant should not he interfered with(«)- This decision was anterior to any of our chattel mortgage Acts. The earlier statutes may here be mentioned as shewing the foundation upon which the numerous authorities are based, prior to the chattel mortgage Acts. In Hnvard v. Mitchell {,0) a step further was made than in Annstnnig v. Moodic to perfecL the change of possession, and the transferee travelled and took possession, but at once re-delivered to the debtor as agent of the creditors, and still the change of pos- session was not sufficient ; for the delivery to the agent was held onlv equivalent to a symbolical delivery, and therefore of a character upon which the title to personal property, capable of delivery from hand to hand, should, for the future, depend. Furthermore (as shewing the insutiiciency of symbolical delivery to take assignments out of the operation of the Act), in a case where it was witnessed by the writing that the mortgagor thereby gave to the mortgagee possession of a quantity of goods by delivery to him on the day of the date thereof of one black horse, which was not taken away but continued to remain as formerly in the possession and use of the mortgagor, it was held that there was no change in possession (/>) ; and, even had the horse been taken away, and from the time of delivery continued in the actual pos- session of the mortgagee, there would still not have been a sufficient delivery of the whole which was capable of actual delivery {q). (nl Armsfmiiir v. Moixtic, 6 O. S. 538. (o) He'.vard \'. MittlicU, 10 I-'. C. R. 535. (p) McMarlin v. MrDougnll, 10 U. C. R. 399 : Steele v. Beiiham, 84 N. Y. 634 : Otis V. Si!/, 8 Barb. (N. V.) 102 : Hunford v. Archer, 4 Hill. (N. V)27,. (q) Per Pollock, C. B., Taitner v. Scnveil. 14 M. & W. at p. 37, correct- ing: a dictum of Taunton, J., 2 A. & E. 57. R. s. o. i8(,7, t-. 148, s. ;(,. .,,, An immediate delivery may be made witiiin the meaning of the statute, notwithstandinf,Mhat an interval of time, -reater or less according to circumstances, elapsed between the execution of the instrument and the actual taking possession by the vendee or mortj^atjee (r). Mere words of delivery are insuir,cie.u, where, for instance, a mortgagor points out a drove of cattle, and savs " I deliver the property to you " (s). It has been held that if one of two partners in trade mortgages the plant, stock-in-trade, debts and profits to secure the re-payment of a sum of money lent the other, and the mortgagor is allowed to continue in posses- sion of the things mortgaged and to retain the management and visible ownership of them, the mortgage will be void as against creditors if lacking registration (/)'. Though timber may be delivered by marking it with the initials of the assignee («), our statute requi.es, in addition to delivery, an actual and continued change of possession of the things mortgaged. Hence, in S//o/-/ v. /e,t//t,f/ iv), a deliver)-, if such it could be called, of saw logs by marking with' 'the transferee's mark, was considered but a symbolical delivery, the assignor continuing in possession as before, and therefore the delivery, not being followed by an actual and continued change of possession of the thing mortgaged, the necessity for registering the assignment arose under the express words of 1 2 Vict. , c. 74. Both ( 'itmniings v. Moi-gmi (-w), and Middle- brook V. Thompson (,v), are distinguishable from Short v. Ruttan, supra. In the former case, though the timber re- •M 1 ' . at p. 37, correct - (r) Height V. Munro, q U C. C. I'. 464. (s) IWtcr V. Parndcy, 52 N. Y. 185 : Ihdlis v. Montgomery, 50 X. Y, Smith V. Monro, 11 \. \\. 252 : Doyle v. Stevens, 4 Mich. 87 Menzies v. Dodd, 19 Wis. 343. (t) Longman v. Ttipp, 2 B. & P. \. R. 67 : Ex parte hoss, 2 DeG. i, J. 230 : West v. Skipp, \ Ves Sen. 231. (11) Stnveldv. Hnglies, i^ East, 308. (v) 12 U. C. R. 79 (w) 12 U. C. R. 565. (x) 19 U. C. R. 207. ) ' M J I I II I , f |i ! 1 i::!l ^02 ONTAKIO. mained in the possession of tiie assignor as it had done pre- viously, and the plaintiffs were not otherwise in possession than by the mari'agee, must II of tlie assifj^n- jntiniially after ir otlicr of wliich complied with, ion of iiousehold ins a third party iff in possession 1 continuing to :h will not con- issession " here fiken by a mort- vhose mortgage sold under the ^er had obtained as against ex- it the change of lediately acconi- from that time, must invariably find be contined 1, although the ijdiate delivers " l-fS, s. ;,,,. . at p. 489. VVo have seen, hou .ver. that though an interval of time elapses, perhaps even of a feu weeks, greater or less accord- ing to the c,rcums,.„,ces ot the transaction, between the time of the execution of the instrument and the actual takin. possess.on by the vendee or nu.r.gagee. nevertheless that .h; :^:;r(.r'^ "' ' ^^^"'"^ ^""^'■' •• --"- -■ •■- The change of possession is to K- open, or in other words a vs.ble change ; but even that will „o. st.llice if ,he charac- ter o the change be not consistent with an honest transac- t.on (.). And although it has been said that visible posses- s.on cannot be put higher than actual possession (/,,. i, would seem from the statutory delinition here given that the legis- latures haveoverriddon that doctrine.and that there is required somothmg more than actual change of control, for goods mav be in the true and actual possession of one person and in the apparent possession of another (,/). Where, for instance notwithst;.ndmg actual relinc,uishn,ent of possession t he- former owner continued his residence, his presence about the place and occasional user of the subject matter of the mortgage, in the eyes of the public the same as formerlv so that they could see nothing to indicate a change, then' the statute IS not complied with (/-). If there has been a chan-e of possession, upon an .-..ctual sale, and knowledge of the change ot possession is possessed by the particular creditor who invokes the aid of the statute, then it is immaterial whether or P.ot the change was apparent to casual on-lookers, and the statute will be complied with (.v). And where material is sold and delivered, to be worked (n) /fniif/i/ V. A/tinni, q V . C. C. P. 462. (o) in/s„n V. AV.., ,7 l\ C. R. ,70: A',vV/ v. .VrDo,,,,/,/, ,(, V. C C P ' 147. • (p) Jessel, M. R.. Kx parte Saffery, 16 CI,. IX at p. 670. (q) Rnhnison v. Tiickrr, i C. & E. 173. (r) Danfonix. Danford, 8 A. R.. 5,8 : Fta,^^r^: Pi,r,r, ,8 X. H. 348 (s) Danjordx. Danford. snpra : Gibbons v. ///, Asv», , ,s I- J. Q H iiq • 53 L. T 910 ; 34 W. R. ,40. ^ ^ ^ ' i'^ I, 396 UMAKIO. m up l\v the piircliaser's forcmim in roiiairiii);- a vessel, as well as hv the seiulur, and is left on the xeiidor's premises, where the work is to be performcJ, and apparently in his possession as helorc, possession would not be siillieiontly chan},'ed to do away with the necessity o( a ref,'istered instrument aIthouf,4i formerly (7) a difVerent rule obtained. In cases where the vendor has not the property in his possession, nor vet the rij,^^ to its possession until the hap- pening of a subsei.|ucnt event or somethinj,-- on his part to be performed, the Act will now apply (section 37,) (//). The Act will also apply to ^'oods in customs ; but if they are warehoused in a bonded warehouse under the provisions of the Customs Act, no transfer of property therein is valid for the purposes of that Act, unless the transfer is in writinj^-, sif,'-ned by the importer or his duly authorized at^ent, or is made by process of law, and unless such transfer is produced to the collector or other proper customs oMicer, and is recorded by him (7'). Bui registration of a bill of sale of snoods is not necessary when the j^oods are in the hands of a warehouseman, who becomes the agent of the transferee and agrees to hold the goods for him (tc). And the Act does not apply to letters oi' hypothecation accompanying- a deposit of goods by mer- chants or factors, or pawn tickets given by pawnbrokers, or in fact to any case where the object and effect of the trans- action are immediately to transfer the possession from grantor to grantee or mortgagor to morti^agee (.v). Strict compliance with the Act is necessarv. notvvithstand- (t) Gi/dfrshrvf v. Aii/f. 1(1 U. C. R. 401 ; and see .T'rPa>-//aHif v. Read, II Allen, (Mass.) «3i : J.„tlin v. Gnffiths, 35 H.nh. 58: U'/itv/ri v. Xir/w/s, 32 Me. 233: If ',■/,/ v. Cutler, 2 Gray, (.Mass.) 195: Patrick v. Afescrve, 18 .\. H. 300: Dayle v. Stevens, 4 Mich. 87. (u) Gurney w James, m I'. C R 157, no ionjjer applicable. (v) R. S. C. 1886, c. ^2, s. 81 i and see Harris v. Commercial Paiii; 16 U. C. R. 437 : J/a_y\. Security L. & S. Co. 45 U. C. R. 106. {\v) Jones V. Henderson, 3 Man. R. 433: Re Cunnin;rham, 28 Cli. D. 6S2, Com, Xat. Bank of Chicatro v. Corcoran, 20 C. L. J. 272. (X) Re Hall, 14 «J. B. D. 3S6. '■'^'•7. >■■ I4.S, s. ji,. M>7 , notuithstand- question of law. hut ono of f. ■. t'"- Matiitf. ,.s not ;, s.ron^. ;,vcT»i„„ ,„ i,„.r,„i,„. , , , "' ''' "J".''«^' "'"'' i» When. „.nvov„, ....io i, ^ el, '," l;:';:;?''''^' «-■'! '-•"">• and „,;.,.„ i» u:,v , 1: 1, rr,";' '""V"'' ' "''->■ I lie actual change which must immecli-.teh r„ii - the san,e change which nu.s, con.i. C ''''" '' ^^''^ be said that the change continues u en h "f "'"""' entiy resumes his place in the shop, con, .i .;,''" "7^":- Cuestion. one day after the sale, tllg, ^^^ ' /^^'r '" salesman fo: the purchaser (r). ' '''''''' ""^ Actual possession, taken by the .rr-.nfn„ i^n of sale, even though tai.e;/;;:;^~::r^^ crcumstances which per se would 'nun t a f^ .r: " preterence may exclude the operation of the Aci "^ though when possession is tak,;, ri. ufullv .h. ' (y) .9/,«r,. V. 5w/M, 45 V. C. R. at p. ,„ (z) Waldu-v. Gmiige.HV C C P .i ^ v 6,1 : iVoTrf V. AW/, . 27 Conn "s,8 • w '' ^ '' '^'"""P'""' 9 Co„n. ■mine V. ./.„,„, , • p,„,, \^;.^ ',V ;,;;'-f' (r; - ■'^•-'-. ^ ^^•att.s. .43 . (a) Scribnerx. McLaren, 2 O. R. 2-ii. (b) Burton, J. A, Pc//iiry,-i, x- Ti, V. Ktnlock, 12 A. R. 367. • "! «■ K. at p. ^78 : see Scribner (c) Scribner v. Kinlock, 12 A. R. 367 (d) Ex parte Fh- teller, 5 Ch. D. 809. I ^i r : J :ii II I 398 ONTARIO. as against everybody, thoug-h the filing be irregular, or evert there be no filing at all, though the description be insufficient, and though there be other defects which, had such possession not been taken, would have been fatal to the mortgage. The taking possession amounts to an identification and appropria- tion of the property (<■) ; and where property passes by a bill of sale, and the mortgagee takes possession, and has actual possession with such change as the statute requires, though before the mortgage becomes due, he still has the right to retain the goods as against an attaching creditor, subject however to the mortgagor's right of action, if any, for taking- possession before default ( / ). Where, according to the torms of the instrument, the grantee, upon default made by the grantor, is entitled to the possession of the goods, upon demand, and makes demand, but does not take the goods out of the grantor's possession, there is not such a change of possession as to prevent the application 'of the Act U'). If a bargainee, or mortgagee, does not actually get possession, diligence in attempting to get it will not help him (//). Nor will an ineffectual attempt to get possession be sufficient to satisfy the Act ; nothing short of taking the property out of the actual possession of the mortgagor, or equivalent acts, will prevent the statute from applying (/), and although an action be brought by a mort- gagee7or recovery of goods founded on the wrongful act and refusal of the mortgagor to give them up, the demand, fol- lowed^by the action, is for some purposes construed as posses- sion taken of the goods mortgaged (_/), yet such is only constructive possession, and as the change is not an open one affording'public notice it will not suffice. A landlord who, by arrangement with his tenant, pur- (e) Mornm' v. /^eiii, 30 Wis. 81, 84. (f ) J?u6i>i.K V. C/iir/t.; 45 V. C. R. 362. (g) Ancona v. Kogers, i Ex. D. 285. (h) Per Mellish, L.J., Ex parte Jay, L. R 9 Ch. at p. 705. (i) McKellar v. McKibbon, 12 A. R. 221 ; 21 C. L. J. 414. ( j) Hyman v. Bourne, 5 O. R. 430. his tenant, pur- «. s. o. IS,,-, ,.. 1^8 ,, Chases liie latler's cliatiels at ., i,.,;rro-- rent, though he „nv h ' '"''-' ""''" '"«'■"« for appearances rV'h rr:::™,:, .''"', T" "■° """'■ '" "" tenant. The fact ,h-^ t . ■ "'""" "■'"■'° ''" "as -i^ case wi, ,heei ;;;:":? ,"V' '"'"""" '""^^ -<« „ee. f„, „„ actia, cha^:' j i.::::::;;^"" - •"- .He^ ::::u,:c;':ri;";'t;:;r;^ '-»-"" '^'-i-re h, within this definition (/). ^^ °' P'^^^'-^^^'on 40 A niorti,vaoe or sale declared by this \ct to nets ceased to he valitl as aoainst creditors and snh -sequent purchasers or mortoac-ees shi Im t L K subsequent taking of possessi.^^o? d^ h lis' .^^ .^aoed or sold bv or on beh-.lf ^f ,u " •■-■^ '"'^"- who become creditors or onrrl.-, ■ •'^'^'"^'^ persons i.efor. ,t,ch takin, .? p:^^'-' ) "Vrv^'^-^^f s. 40. ^ ' ^^ ^ ■' ^- 3/. es.a:^si:;r,hr;:::r r^;;r?'^:^^ ^"r"°- -^ ll.e Court of Appeal held tl . T "'" *""' "''"" n.ake ,,„od a d^fL i - a J:':.!;^"''"'"" ""■" ""' Haen. valldl, teg.tered hona ^ ^hf:^; \;r;;',: ^til >:;:n.thi;orrer^'=""''"-'»^''''^-'"'-'-."'-- (k) Farliufrcr v. McDo„„l,i, 45 U. C. R 2,, (I) Hogaboon, v. Graydon, 26 O. R 208- 1, r r T (m) 19A. R. ,88. '^•298. 31 C.L.J. ,00. i , ' ;i,i I f' 400 ONTARIO. t >:4 Where the mortgatjee took possession of goods rightfully as against the mortgagor and before the creditors iiad obtained judgment or execution, but after the)- became simple contract creditors the taking of possession does not make the mortgage valid (;/). ^ lorci'iiicii/s ic/n-fr />ossi'ssio// /fassi's ivitliout ownership. 41. (/) In case of an ao^reement for the sale or transfer (i) of merchandise (2) of any kind to a trader or other person for the ptirpose of resale by him in the course of btisiness (3), the possession to pass to such trader or other person, hut not the absolute ownershif) until certain payments are made or other considerations satisfied, any such provision as to ownership shall as against creditors, mort- gagees or purchiisers (4) be void, and the sale or transfer shall be deemed to have been absolute, unless (a) The agreement is in writing, signed by the parties to the agreement or their agents, and (/;) Unless such writing or a duplicate or copy verified by oath is filed in the office of the county court clerk of the county or union of counties or in the proper office in a district in which the goods are situate at the time of making the agreement, and also in the office of the county court clerk of the county or union of counties or in the proper office in a district in which such trader or other person re- sides at the time of making the agreement, such filing to be within five days of the delivery of posses- sion of any of the goods under the agreement. 57 v., c. T^y, s. 41(1); 58 v., c. 24, s. 2. [2) In the territorial districts of Muskoka, Nipis- (n) Wood V. Brunt, 32 C. L. J. 775 {per Ketchum Co, J.) following Claikson V. McMaster, 25 S. C. R. 96. ■sing, Alo-oma. ThuiKlcr F^-n- -,,. id- the Peace s ou b .;, '""'.'^-'^'f '.^^at If a CkTk of Parry Souncl 7 1' h:^;!^;'^ /-; ^^e district of a.c;TeenKMU rccjuirin:.- ■ ' • f ; , 'y'-^'l'^'^^''!"' then any district shall h ■ lik'^I in h' h^'" ''!: "'^i^' '" '^"cn the Peace. "''^ "^^'^^ '^^ '^^'ch Clerk of \J) ■'iich an aorccnicnt ti-, 1 • ^Iwll n.u Mir„., pure ™' V 't "«";-■'' "'"' ''I'--''. (-/) Ihe provisions of this and th,. f the tin. poss^^r if :;^:Xf ;r ^^'^'^^ 1 aciclrcss of the manufacturer la i or '.I'^'r ","' same pauued. printed stam,,., . ' ''^ the or otherwise plainl utu- '"■ "''^''''''"^ ^'^^'•■^-" or chattels vvhere the '^ I T-' "*"" ^^'^>' ■^""^'■^ or other i.:^^lt'nS"";j^r^^^Ti''[--'- respectively provision is nl^ b d. ' Act "'^ ""^^ conditional sales of chattels , 7 V , ' ^'''l^^'ct.n- . ^ . , . " -^^ ^•' ^- 3/. s. 41(2-4). (1 j A sale IS a transfer nf iho -.u 1 ^ >" =^ thin, for a price i, Inl • .: ^t t "' f'""' ^"^^'^^">' which the owner deh-vers .?n/l • transfers the act h. pas.,,. .™ H..,";;;: r;,?;;"r,j:,:;;:';; -"" '""- °^ 426 *^'''- ^-38 . Aodc-yfson v. »7Aui-, 36 Conn. (P) /^e,U V. Z/z;^^yi„o/ Co., 26 Ind. 294. ;! iil ■;«;,' 402 ONTARIO. tides hiving- an intrinsic value in biili<, weight or measure, and \vh> h are bought and sold (>/). The term may include horses and trucks when trans- ported or otherwise dealt with as merchandise in a mercantile sense, but when they are driven aboard a ferry boat in charge of their drivers, who are passengers, and remain in their charge upon the trip, they are not shipped, taken in, or put on board, as merchandise (;-). And fri'it has been held to be included within a statute declaring an implied warranty on sales of mc^chanaise (.v). (3) The "purpose" here mentioned must, it is submitted, be the purpose of both parties to the agreement ; but may be inferred from the nature, quantity and condition of the goods agreed to be sold and the surrounding circumstances. Where a stock of goods in a store is included in a sale of the busi- ness as a going concern and of the good-will thereof there could be little doubt that the " purpose " of both parties was that the goods should be resold. (4) " Creditors, mortgagees or purchasers." What is evi- dently intended is creditors of, and purchasers or mortgagees from, the trader or other person who is the conditional pur- chaser or transferee and who obtains possession, thor.gli it might better have been so stated explicitly. Sub-section 3 may be looked at to indicate the meaning of this sub-section, and there it is purchasers from tlw trade)' or person uforesuid who are protected. If a purc'iaser buys only the right and interest of the condi- tional bailee, and undertakes to pay the purchase money still owing by the latter, such purchaser cannot take advantage of the want of registration or of the absence of the name of the bailor from the article (/). But the purchaser may show that the claim of the bailor (q) Citizens Bank v. Xaiifuckct, 2 Story (U. .S.) 16. (r) Tlw Garden City, 26 Fed. Rep. 766. (s) Blackti'ood \. Cntting Co., 76 Cai. zi2 ; 9 Am. St. Rep. 199. (t) Cn'itlwr v. A/r.vani/ef, 15 Iowa, 470 : A'cdog-v. Sccord, 42 Mich. 318. ;;lit or measure, What is e\i- m of the bailor K- S. O. |8() has been paid a lien or reservatio 7. <■• 148, t'l- that th !»-' chattel \v, "1 of title (//). IS never in fact subject u 42. (/) lucry cicrl. rccjuircd lo in; ry '■(.■,i,n"stt'i-c(l wi th vvh 0111 instruments are f fhis Act, shall on .;^Xe^^Z ^, ^'"'T'''^ '^' in each vear. transnii t h \ r "^ '■ "^ ■^^^"^'^^'"^' '--turns which shall set out '"'^'" '^^ ^grictdture thi:L:i:e;r:l;-hlt";:,7;i^^^--r-'--ais, monts for the Ix-iKrl P ,^r """'"-•'' "' »»»'»"- mems for the bcii.-fit ,,f • ""'"'"■'' "' "■■<'-:'t;n- J«"uary, and ' "^^'-'""'"K l^t saiil ,.st ,hy „f '"'•"ts for th' ™efe"?,- ^""'r'"-' """^'*'-„f.s,„o-..- '"•.lischar.«i i„ he a .T^!'"'" ,"" ™""' '""' «-^Ul;:eh^;-;^;^:;!lr:,;^cMe,,,., „„.. chads' and1:^,™;t:fi;rrr^;^"f -•''■'- i" the .said rettirnHsha r„ . '''". .'";"'^"' "' cre,lit,„s -•vcnti occu,,..',:; , ' ',;::";:;' ;--R-h<-- '""rtga^or. or a.ssig„.,r,s as "Sc , ' "'■"'''"■' '"" & '^ a.s stated m the instruments, Met. (Ma.een reiieived was re-rcgistered), in the office of the Clerk ot the Court of the of . on the day of .-^.I). , as No. (here mention the day and date of registration of each assignment thereof and the names of the parties, or mention that such mortgage has not been assigned, as the Jact may be) ; and that I am the person entitled by law to receive the money, and that such mortgage is therefore discharged. Witness my hand, this day of A.D. Signature of zvitness and state] ^residence and occupation. J A.B. 57 v., c. 37, .Sched. A. K. S. O. 1897, f. ,48. S( iiKi.ri.K B. 405 si:c lo\ U)_ St, itcment exhibitino- tl K' int(T(.'st of C.I), in t] he propertv rnentioncci in u cnatt,., n..rtc,a<,e dated the r',/'^ ''" .madebetween A.H., of ot the one part, and C.l)., of of the other part, and h ed in the office of the Clerk o the of ^7,!''^^'^^, ,, "■ .on the day 01 , lb and of the amount due for nrincinal Ihe .said C.l)., is still the mortoaoee of the s-nVl e sa.d R.1-. ,s the assionee of the .said niorT™- by virtue of an ass.o-nnie.nt thereof from the said CD to him. dated the dav of r^ w // case- mrv />,j. ' ' '^ ^) {or as //n- No payments have been made on account of the then h^^,^ been made on account of the said m<.rt- 1H96, January .. Cash received. ... $,00 00) The amount st.l due for principal and interest on the sa cl nlortga.ire ,s the sum of $ follows : (/icrc- give the computatum ). computed as CD. of the m the County County of ] j^ '^^o ^'it- / " of . ^'^^ niort.cragee named in the chattel mortoaoe mentioned in the tore^^oin^. [or am'exed statement (.. assignee of the n?,rt.,Vee nameclfi the chattel mortoage mentioned in the forego-""" ^ - annexed] statement ' ■' ■ ^ and sa}' (as fh, C ( ase may be), make oath If; i ■ i V. ;« 406 ONTARIO. 1. That the foregoing {or annexed) statement is true. 2. That the chattel mortgage mentioned in the said statement has not been kept on foot for any fraudulent purpose. Sworn before me at the I of in the I County of , this! day of 18 ,( 57 v.. c. :,j, Sched. B. REVISED STATUTE.S. 1807. ClIAI'THR 75. An Act respecting the Costs of Distress or Seizure of Chattels. Her Majesty, by and with the advice and consent of the Leoislative Assembly of the Province of Ontario, enacts as follows : — 4, No person making a seizure or sale of goods for default in payment of the principal money or interest secured by any chattel mortgage or bill of sale shall charge any greater or other fees or costs with respect to such seizure or sale than those set forth in Schedule B hereto annexed. 59 V.. c. ^^, s. 1(1) part ; 60 V., c. 15, Sched. A (75). 5. No person shall make any charge for anything mentioned in the said schedules unless such thing has been actually done. R.S.O. 1887, c. 63, s. i part; 59 V., c. '3. s. i (2). statement is ioned in the foot for anv Sched. H. M07. Distress or i and consent Province of ;ale of goods al money or Lge or bill of fees or costs lan those set 59 v., c. S3, 5)- for anything ;s such thing ^ c. 63, s. I «• ^-^- '^^Z. c. 75. 407 '^1 IIKIXf.K H. (sKfTIOX 4). Cos/s of Seizure under Chattel Morf 0,0 es or I^Uh of Sale. -^ no.' Jc:«n';^'^' *'''•"-■"■''■-■'•-""'■'"" "f-i<^h.te ^ r; , . ■ ■. -f I.OO. 3. One man inri in Charlottetown. (i) To avoid usel (■ prothonotarv of the S upr'ine provinces, we omit all refi erprctations of expres ess repetition of law applicable to all tin int of the book. Sucl erence to cases already discussed, and K'iven in previous parts sions alrcadv (2) This Act has been ail absolute bills of s;\ can be found bv ret erence. unended {u) so as to provid th e KTantee shall. ilo shall be fraudulent and void unl e that actual upon execution of the ess possession of tl ave the possession thereof. 2. The t;.\ le chattels, and the grantor instrument, take cease to said which alreatlv ha\-e 1 '■cution of all such Mils of sale as af ore- made, shall before lih'no- thereof, I x-en or hereafter shall be before the prothonot whom the s, lb ary or deputy prothonot ime shall be filed. I subscribing witnesses thereto, 'or cdo;ment before him of th( )(~t i)roved on oath arv, with acknow ors in such bill of sal w notary, or deputy prothonot, hich A' one or more of the In- the personal tie grantor or grant- ath the .said nrotho- o to ad mini o ster, and which acknowled iry, is hereby empowered tie execution shall 'niein or n roof each and every such bill of sal (-• cndorsetl on the back of and )ro\-ed. e or writing so j)r()duccd leputy proth()iiotar\ 3. 1 he comm and also signetl by the proth(jnot irv or issio in the Supreme C .... Island shall be, and th (a) 4' Vict. V. E. I. (,878), ners appointed to take affidavits ourt in the several counties of thi.' e\- are hereby empowered to iffii 1 1 r ' I 410 PKINCIC KDWAUI) ISLAM). Hclministcr an oath to any witness or witnesses who may come before thvin to jjrovc; the cUie execution of an\ such bill of sale as aforesaid, or taisi; the jiersonal acknowledirment of the '--rantor or '^rantors therein as aforesaid ; and the\ shall thereupon, and upon th(! hack of each l)ill of sale;, certify the proof or acknow- k:d!4nient so made before them respectively, in man- ner as set forth in scheduU-s (A) and(H) to this Act ; for which service the commissioner shall receiv c the sum of two shillini;s and sixpence, ami no more ; and the' prothonotary or deputy prothonotary, itter such proof or acknowledgment before himselt, or on receipt of any bill of sah; so certified by thi; commis- sioner as aforesaid, and on receipt of the lees cUu; 10 him therefor, shall receive, file and enter the same in his office; in manner as hereinafter mentioned. 4. In case the witnesses to any such bill of sale shall die before the proof or acknowledgment and hlinLi- thereof as aforesaid, or cannot be found, or shall be absent from the Island, then execution of the bill of sale may be proved by affidavit before a jud,L,re of the Supreme Court, to be attached to the bill of sale In- any person or persons, to the effect, that the person makin^- the affidavit has seen the crrantor or the witness or witnesses, or one of them, write, and is well acquainted with his or their hand- writing-, and believes the handwriting set to the bill of sale, or subscribed as witness thereto, is of the proper handwriting of the grantor or witness as the case may be. and such affidavit shall be signed by the judge in the usual manner ; and he shall be en- titled to receive the fee of one shilling, and no more, for administering the oath and signing the affidavit ; and any bill of sale with the affidavit in this clause mentioned annexed shall be filed with the prothono- tary of the Supreme Court in Charlottetown. i'*^'":), f. (). 4" g ,J-^': ''"''■'"'" '']•'" ''" ^'""IH-'Ilc-(! in attend l„.,on. the prothonotary cK.p.ty f)r„th.,notarv. iiuluc ,.r c„m- any such bill of sak- as at.,r,-sai.l, unless there- shall have been previously u.ulm.l to hi.n. or he reasonable compc.nsation lor his, or her trouble an .nK^ at and after the rat,- ,,(■ (ot,r pence per mlel^ travelhn^ expenses, for (-verv mil ', be trav^-^cl h com,n^toa,.Iretm-nin^lronM,..pla..;whe^.^ shall be made of the bill of sal, ; : l.hn ts,- h.' n<;ss shall refuse to atten,lbef;,-, .In- p' .per fhce w.thn, s,xdaysafWsucht,MKl.a:^io[esa:d^hc person or pcrs,>n.s rec,uirin- the . ct,-n,lance of 'such vvtness may make oath before anv on,- of Ij,.- Alajestys justices of th,; p.ace. an,l th,-r,-in s,-t forth the necessity of such witness' att,-ndance bc^forc tl e |ud-,-, prothonotary, deputy prothonotary or commis- si„n<-r the makm,^- of such tender, and the amount theieof and refusal to attend ; anl or nronertv ^ f'' '''":'''-''^ ^u I '11 r 1 . I'Li.-iuii niak n<) or Ku-ino- e bill of sale, so long as they shall rem.dn or1 ' ''i^ upon any house, mill, warehouse, bnildi,- Jork yard, land, farm or other premises occupied by bin ' or so long as they shall be used or eniox-ed i v J many place whatsoever, notwithstandi4'thtf;>r Hn'o^h ^^^'■^^^"-y have been taken^by or g en to any other |)erson. ' b"'-" . j6 prince ■ ^\VAKD isL.wn. Schedules to which this Act refers. Schedule (A). {Oath of subscribing ivitiwss.) On the day of personally appeared before me, A. B., of , and being sworn, testified that he is a subscribing- witness to the within deed or writiiig, and that he was present and did see the same duly executed l)y the grantor {or assignor, as the case may be) therein named. E. I\ Prothonotary, Deputy Prothonotary, or Commissioner, in County for taking affidavits in the Supreme Court. ( V '1 Schedule (B). {Forin of ccrtijicj of acknoivkdg?ncnt.) On the day of personally appeared before me, A. B., of and acknowledged that he did freely and voluntarily execute the within written deed or writing, to and for the uses and purposes therein mentioned. ^ t- E. F. Prothonotary, Deputy Prothonotary, or Commissioner, in County for taking affidavits in the Supreme Court. affidavits in leared before [ that he did written deed poses therein affidavits in 'CIIKDULK 417 (C). c — ^ M u \ b>5 > 11 b/: a, ,. u u CbH u 4-> 41 bx) oT 4» 4-« ^ c E 1> c -o 2 0) 1) !« oT o « •£ C = J? "! I. • « O (U _ c ^ - c ^ o = :^ .ii^ t/5 JO c ^ tfl ca re cs M c — : f ~ t/! ' y. fil W t^ 1 '.- c a> O E ■g c V .•« o JS STATUTES OF 1869. Chapter 7. An Act to amend the Art f^r r. expense Be t th-rlf * mconvcifence and sem.or„ftheGovernn,e„e c"'"1 '^'^ '^ ^'l"™'- follows, that is to say!!- ' ^"""'^'' ™^ ^^^^-Wy as !• It shall be the duty of the prothonotary. or any '/I m 1! ^^jg I'KIMK KDWAKl) ISI.ANH. dei)uiy prothonotary for any county in this Island, with whom any bill of sale shall have been regis- tered, to mark the same satisfied on receivii)g authority to do so from the grante(> or grruitees of such bill of sale. Pro\ ided thdt such authority, from the grantee or grantees of such bill of sale, be given under the hand of sucli grantv-c or grantees in the form (A) in the schedule to this Act ^nne;'.ud, signed and acknowledged before a commissioner for taking affidavits in 'the Supreme Coun fc^'- the county vvherein such bill of sale is registered and certified I y such commissioner. For entering such satisfaction, the prothonotary or deputy prothonotary shall be entirled to receive a fee of one shillin,^ and sixpence, and the commissioner taking the acknow- ledgnsent of satisfaction, the sum of two shillings and sixpence. f I Schedule (A). In this Act referred to. On this clay of A.D., i8 personally appeared before me, A. B., the grantee named in a certain bill of sale, dated the day Qf A. D., 18 , and made between him and C. D., of to secure the sum Qf £ and acknowledged the same to be fully paid and satisfied. Taken and acknowledged before me the day and year above mentioned. ^ A. B., Grantee s name or mark. E. F., Commissioner in County for taking affidavits in the Supreme Court. 4iy le the day and jnty for taking '«7\ I'. 7. STATL'THS OF isra ChaI'TKR ; prevenfn,^, l.VaucIs In- Sec," Pil r I "i^ of personal chattels." f""- "f Sale [Pitssed April ,81/,. ,s^g 1. All absolute bills of sale and cU^^A. purporting to transfer the nro erfv i^' 'T'^'""^' the -rantorto the -ranL^-T^ , ^ ,'" "'^^^"^''^ ^'^^^ tionally. shall be fnSe.n ^''^^"'"^^-j^"^ ^'"^•"^^'- betvveen the grarLr and ir /'f ''?'^ ^^"^^^I^^ ^^« shall forthwith, upon the r^'^' ""'^^'l ^^e orantee actual possession ruhclvutels'" I'T""'' ^^^^^ shall cease to have the ^^:S^^^:^^ ^^^^^^ set forth, shin br"rel:d"71;r ^K ,'" ^'^^^^"■" standinq- the srmu/n. , "''''^' ""tvvith- session%f thf h t?el t^h""' '"'f ^'^^ ^^^^"^^' P- chattel mort^ao-e bt .e'-s er ?" '''''''' '^^'^'' ''' ''^"^'^ twenty-third vfctorfr^ I "^ P"''"^'^"^ ^" ^^^^ Act. ^ant^orhis^-ort^-,-- -^^.irthe in the form set forth i^r '^'l '='"'"'^' '"ortgage (which Xdavi shI he S™ ■} °f ''^"^ Schedule to such chat 1 utltr.tuh/"'"" °^ "'""'='' and truly indebted ^o^l^e^li^ee^!;:",'," '"'="''> j,rantee in the amount r u ( I !'(( "•I Hi' 420 I'KINCIC KHWAUn ISLAND. l.' ! 'if i '.i expressed in said mortgaf^e, or that a consideration of the nature and amount therein expressed for the making thereof really and truly exists. 3. Sheriffs and sheriffs' bailiffs, constables and all persons authorized to levy under any execution issued from any court in this province, may levy upon and sell any chattels mentioned, described in, or con- veyed by a chattel mortgage. Provided that the amounts secured by all chattel mortgages duly regis- tered prior to the levy, together with interest as ex- pressed in such mortgages up to the day of payment, be duly paid, and shall hold the surplus toward satis- faction of the levy. 4. Affidavits required to be made by grantees of chattel mortgages under this Act, may be sworn be- fore any commissioner for taking affidavits in the Supreme Court, or County Court, or before the pro- thonotary of the Supreme Court, or deputy prothono- tary of the county in which such mortgage is re- quired to be filed, or before any clerk or assistant clerk of the County Court. 5. When any chattel mortgage is produced for filing, purporting to have endorsed on or annexed thereto the affidavit required by the second section of this Act, the prothonotary or deputy prothonotary to whom the same is offered in order that it may be filed, shall file such mortgage without proof of the genuineness of such affidavit upon the execution of such chattel mortgage (in other respects) being proved in manner required by the Act twenty-third Victoria, chapter nine. This Act shall be construed as part of the Act hereby amended. f«7S. 421 {Affidavit ^< 'IKDULK Fr.K.M A. of ,i^ra,ifcc of chat Id D ominion of Canad; iiiortoao-c, ) Pro VI nee of I- nnce Edward Island, t of the Act I, of i,, p County. as the case may hcV the .rr-infr.. ^ '-"""^y K^^armer, tees mentioned in the vv^thirchattel"' "^ '^' •^'""^- of i„ p^"^' niortgaae, or I, gra,„ee „. one of .he .id g™^:^'^,^:,:^^,^ . Je'^i' really td-^lviSf 1" ^'"^ '''""^' -'"■ sideratio,^herdn ^,^7,^";^"^' ^:,''?^^^' ^^'^ ^he co'^;- my knowledgeTid S erth;'"^. '^'''' ^" ^"^^ best of executed forThe ptoo e o. J-?."^ T''^''^ ^'^ "-^ d^y of befor; me. ^"""'>' ^^^'^ A. B. 423 PRINCU EIMV.\!;n ISLAND. tm STATUTES or 1SS9. CllAI'TKK 9. An Act respecting Witnesses and Evidence. 49. A certified cop)' of any bill <>f sale or chattel mortg;t|j,e duly filed, certified under the seal of the Suprent' Court and the hand of the officer with whom tlie ()riL;'inal bill of sale or chattel mortna^e is dejx'sited, together with a certificate; of the filing" given by the said ofificer shall be recei\H;d as evidence of thf, contents of such bill of sale or chattel mort- gage, and of the filini^- thereof, in all courts in this province, and before all persons having" b)- law or by consent of parties authority to hear, receive and examine evidence. ■ i Forms. <^^'I.ATTKI. M()RT(;.\(;H. (•ciirni/ fonii. R. S. O. ,,S,,7, c. ,48. This InclenU.ro, made (in duplicate, the Jav ol — - . one t un-sand eij^h, lumdred and - _ between \ fi Of the [town] of . ;„ „,e Countv ot _ ^'^ -^^ '^■; r//A///«;,| hereinafter called the mort.^a-or o. ,1,' r . ' ' " and C. n , of the of • , " '""^ '''""^ = .... "^ ' . '" the countv of — , hereinafter called the mortt-airee of th.. ^ . • , 1 iir-, , , '^"s'-'-i I'l ine second n;irt • —":::"'•;" n ■"""'^^^"- '^^ '^-' '- -----i:;:of P eseiv ;^:^!"T 'f ^^'^ ^'^^ ''^'^""^ -^'^ deliver, of th^ h bv b ' " r"^^ " ''^"'•^" -■•<"-^'ed,ed) doth goods chat., „ personal property and effects hereinafter n-,r ■cularly n.nt.oned and described that is to sav. f.. p" ticu marked A ] | ,, , ■ „„,,^ „ j-^^^ ^^^^^ ^ dcscnption or chattels are the property of and now in the possessk.n of the n-t^agor. .md are now situate, lyin. and bei„^ J ^^L^ and about t e pren.ises of the mort^a.^or, situate [ ^ s ,ro„,s, \tc are each artic/e as neaHv as possible I I//' // /. / • . / • and chattels wh.ch ,hall i,ereafter be brou^Wn upon th^ said prem,ses, or upon an, other premises ,0 which the mortga;^. mm fl 424 KOKMS. f , ,ii ' t may roiiio\c tliiriiifj^ the existence of tliesc presents or any re- newal tliereof, and the inort^a^or dotli liereb) aj,'reo that all such ^•lHH!s upon beinj^ si' brou^'ht into possession shall at once become mortj,'a},'ed h\ virtue o( these presents. | To ha\e and to hold all and sinjjfular the said j^oods and chattels, unto the mortg'af^^ee, his executors, ailniinistrators antl assij^ns to the only proper use and behoof of the mort- ^■ai^'ee, his executors, administrators and assigns forever ; Provided always, and these presents are upon this express condition, that if the mortj^aj^or, his executors or administra- tors, do and shall well antl truly pay, or cause to be paid, unto the mortj^-'aj^'ce, his execiUor^, administrators or assig-'ns, the full sum of dollars, with interest for the same at the rate of per cent, (a) per annum at the times and in the manner following, that is to say : [//err inscr't the time and mode of payment. \ Then these presents and every matter and thing herein contained shall cease, determine and be utterly void to all intents and purposes, anything herein contained to the contrary thereof in anywise notwithstanding; but provided that if default shall be made in the payment of any sum due hereunder, whether for principal, interest, or otherwise, then interest shall be paid on any sum so in arrear, at the said rate, until the whole sum due shall be fully paid. And the mortg"agorfor himself, his executors and adminis- trators, shall and will warrant, and for ever defend by these presents, all and singular the said goods, chattels and property unto the mortgagee, his executors, administrators and assigns, against him the mortgagor, his executors and administrators, and against all and every other person or persons whomso- ever : And the mortgag^or doth hereby for himself, his executors and administrators, covenant, promise and agree to, and with the mortgagee, his executors, administrators and assigns, that the mortgagor, his executors or administrators, or some or one of them, shall and will well and truly pay or cause to be paid unto the mortgagee, his executors, administrators or assigns, the said sum of money in the above proviso men- {a) See ante, p. n6, note (i). ^"\'li:i. M.iKli.AUKs. 4 -'5 t'O'K'd, with interest lor I iK'siMu... r times and in tho m-.nn .,- " '"^"■^•^•■"^' ^^" f''^' ^'"vs and t'K. interest tiu-reon. o^ an tn,: '^7--\ ^-'^i-'-'. or of K..Kor shall a.temp to sell ^ "" "' "' ""^ "'^ '"-^- PanuiththeposseLion. J.'T;:,'''^ of them, or shall atten.p, t^ :tr: ? ''" ''"''^ "'' ""^' thereof out of the Count' of -^ , ' '"'"' ^'^ ''">' I'''"-' where they now arel without .!,> ' '"''''"' ''* "''" P''^''"i"'" his executors. ad.ii;;;;;;r ::;;-•'; ;^' ';;-;-t.a,ee. or disposal thereof first i i '''"'« "s. to such sale, removal ti-vldihe^:i; :Jr;''^'"'''^''''^^^^^^^^^^^ adn,inistrators. anv wri ""^--^^'"Kor. his executors or or taxes in respect of th . T ''"^'''"' '^^'" •■'">■ ---^"t or may hereafter whil.> tu; ""- "'^^^' 's. uns„,isfe.U f.; rpeli:' " ---^-J.;.. rcn„.i„ „„p„ij „ mad. U...W, „ri;:;!;:„:;;;;;,:^:,;;•;::,;'7;■;-' ;•■-..">• c;.rr.„c,„f ,„i. „,;„,.„,., :i :;;;":^ :„ ;';3- " k .n. at l.„« boforo ,1,0 s„„,e ,|,„|| b,,,„„,^. ^„^[:°'~- ''"\'' gagee. hi, cxoa.tors or aclminisir,, ,. "'°"" cha„.,,s in Ja , rl , 'H' " "™"' ""■■ "''' '•™''» -^ »^a" ^e d, ir:„:' ,:z,: ,tr;rr;:- ;;::■■ ™" ''^■'"'■" h„ exec,,,.,,-, „,. a,„„i„i.„.,„„,,, „„,„ ,„ ,^. i,,,,,,:;''-'^;^ 426 FORMS. insured the said goods and cliattels witliin the meanint,'' o\' the pro\isions of this indenture, or sliall abandon the said t,''oods and chattels or any part tliereof, or mai "•"" "'■■■»■■ - And the morttratror doth mif .i, r , . " 's»-" uotn put the mortgairee n full nnwcoc :iif, •u\ f I. I- 428 FORMS. All J the mortj,'agor for himself, his executors and adminis- trators co%enants with the mortj,'-agee, his executors, adminis- trators and assig-ns that he and they will, during the continu- ance of this mortgage and any renewal or renewals thereof, keep up the amount of the stock in trade in the said premises so that at no time will it be less than the actual cash value of dollars if sold by public auction, and that should the same at any time during such period not be of such value (as to which the mortgagee, his executors, administrators and assigns shall be sole judge) all the niv^.iey secured by this indenture shall, at the option of the mortgagee, his executors, administrators and assigns, immediately become due and be payable, and the mortgagee, his executors, administrators and assig-ns shall thereupon have liberty forthwith to take any and all proceeding's for the better securing himself or themselves, and for the enforcing and obtaining payment of the moneys secured hereby, as though default had actually been made in the payment of the moneys secured hereby or any part thereof. And the mortgagor for himself, his executors and adminis- trators further covenants that he will, during the continuance of this mortgage, and any and -every renewal thereof, insure the goods and chattels hereinbefore mentioned against loss or damage by fire, in some insurance company authorized to transact business in Canada, and approved by the mortgagee, his executors, administrators or assigns, in the sum of not less than dollars \o>' in a sum not less than their full insur- able value] as security for all moneys secured by this indenture, for the benefit of the mortgagee, his executors, administrators and assig-ns, and will pay all premiums and moneys necessary for that purpose three days at least before the same become due, the loss, if any, to be payable to the mortgagee, his executors, administrators or assigns ; and the production of this indenture shall be sufficient authority for, uid the said insurance company is hereby directed thereupon to pay such loss, if any, to the mortgagee, his executors, administrators or assigns, and the mortgagor for himself, his executors and *^(i!l I - i ill!! administrators herohv -.ury..^.^ .,,. , , .„ and deliver over ,o the mor, , ! " T- "'" "" ^^^"^^'"^ ■•*-'^" tors ur assiP-ns ever^• . •''*-^' '^'^ executors, administra- thereto appertaining- ;' ' '■' ''' '"^"''•''"'^^ and the receipts Provided that if the siirl ,„ kept duly renewed, and de , 1!^'"'' " "^'' '^'''''^' ""' "^^^ hisexecutorsorad; 'tr' o '"'"' ""' ^'" "'^'''^^-Sor,. or of any sun. of n^ "":::: ':''>'"7^ ^^^ ''^^^'^ ''^^'^'^^"^^ premises whereon the said , , ?'' ^'' ^^" ^'^^ --^"f ^'-^ the ti-e situate, the mm;:^r M^ ^^ ^ "^'^ "^^>' ^^ ^ «"y assigns may pav the samf ' 'T ' ''"'"^'"'•'^f'-ators or added to the d;bt herebv': '^ "'"'^ °' "^^"^>- ''^hall be the said rate from t'e 'd • ^ ' ''',"' ^"^" '^^^^ '— ^ ^^ repayable with the monevs ne f",r '''i"'"'' ""^' ^^^'" ^^ these presents. ^ '^"'"^ '^"^ thereafter under Provided that until default sh^ii 1, ^ • covenants or provisoes herein . ! "''''^' '" ^">' ^^ ^^e have peaceable and q"e " ^ "f ' '^' """'^^^^ ^^^-" and chattels. ^ P^-vBss.on and use of the said goods n^ini^iio:' c^'::^;„:r,:^ ""''''-''-' ''- ----- ^^- accept the bills, not!s or t r^'.^:™::,:^ • '^ '""' " ^'"^^ mortgagor, his executors or dt^bi^ 1 l'"?"7^"^^ '^^ ^'^^ person, for the said moneys or anv of Th '"'' '''^''' or collateral security for the si r ^l ';:' T,!^^ 7^^^ may accept renewals of the same in „ h , P^'^^ '^^-^^of. and time to time, and mav compo nd th sam! " '" ''''' '^""^ relinquish the same oV anv of then Vi or" 7 ''' ^'^"' ^'■ without a«ecting or prejudicing uljgl^^:;''^" 'T"'"' the mortgagee under these presentrfuhf I ^^ ''"'''^''' ^^^ collateral to all other claims ' a .".'^ft'^ "^ --^'^>- ■n the premises]. ^ ""^ ^''^ mortgagee [Provided that neither the execution n^ 'hi» mortgage »hal, „i„d „„ m„r ^^ r,;:;,;^ '.r'"" ''' g-age monevs nr 1-,^,;., j f'"*''^'^ ^f* advance the mort- remaind"] ■ ' "'"^' •'^'^""^^'' ^^^ '" advance the And the mortgagor for himself, his executors and adminis- i ■ii i " !r : (>M m 430 I-OR.MS. •I « trators co\enaiUs witli tlie mortgag'ee, !iis executors, adminis- trators and assii^iis that lie will pay the costs, charo;es, and expenses of and incidental to the taking-, preparation, execu- tion and registration of these presents and of every renewal thereof. [And it is hereby understood and ai^reed that these pre- sents are a collateral security only.] In witness whereof tlie parties hereto have hereunto set their hands and seals. Signed, sealed and delivered, |.SV^;/(y/1 A. B. |.S(V//] in the presence oi' [having first been read over and explained]. [S/lmail E. F. [S/^/icd\ C. D. [Sea/\ Ontakio, Countv of — • AFFIDAVIT OF BONA FIDES /o accompany above chattel mortgage. R. S. O. 1897, c. 148, ss. 2, 3. of- the I, C. D., of the I County of , J mortgagee in the foregoing mortgage {occupation) the 'i'o wit : [or bill of sale by way of mortgage (a)\ named, make oath and say : (i) That A. B., the mortgagor in the foregoing mortgage [or bill of sale by way of mortgage] named, is justly and truly indebted to me, this deponent C. D. the mortgagee therein named, in the sum of dollars mentioned therein. (2) The said mortgage [or bill of sale by way of mort- gage] was executed in good faith, and for the express pur- pose of securing the payment of the money so justly due or accruing due, as aforesaid, and not for the purpose of protecting the goods and chattels mentioned in the said mortgage [or bill of sale by way of mortgage] against the creditors of the said A. B., the mortgagor therein named, or of preventing the creditors of such mortgagor from obtain- 4.? I ^"■ViTKI. MOHn.M:KS. '"«■ payment o{' anv i-l-.;,,, A. B.. - ^'■""' "-"-t hin, t|,e said mort.^^..gor Suorn before me, at the- of! -• 'n f'le Coiintv of . ,,,■ ' , ,.. dav of ' x ,, ' , l-*"^'"'«' CD .\ Co mmissioner, etc. AFFIDAVIT o7execL-TIOX 0/ a chattel mortgafre. ^- S- O. 1897, c. ,48, s. 2. I J. E. F., of ( the County of ' tion) make oath and say "k! did see t!,e fore-oin- Ontario, County of To ui: : , """' "^^'*e oa \'- ) 1 nat 1 u'.is person' "S mortgage K hUl of sale b^.r^'m"' '"' ""'^ '" '^'^^^^^ sealed and executed hv A ' H ..^ "^^ ^'^' '"" ^"'^^ -«"-'. (-^) That the „ame"F F /''' '^^""^''^'^ '^''^■'''^^■ to the execution of the iid m^ :;: i:';;;^^;^^^ ''^ '^ --- ^vr.tmo- of me this deponent. ' '"'^'l'^''' '''"^d" (3) Tha, the said mort,a^e was executed at the ' '" t'^e said Countv of on th "T~ ^^' -— A.D. 18-^. ■ '" the fi;,,. ^f- Suorn before me, at the — . of -- , in the Countv <,^ - .,,.• I .f day of A. ij ,g_ ''^" I t''^/' It chattel nidrtjriii^cc R. S. O., 1897, c. 148, s. z. Ontario, County of To wit : I, G. H., of the — the County of , — and sav : m of -, make oath (i) I am the properly authorized aj^ent of C. D,, the nsortjjafjee in tlie fore^oin_s,'' morti^aiji'e \or bill of sale by way of mort.'J'ag-e («)| named, for the purposes of the said mort- ^ajje l^r bill of sale by way of mortg^age] and I am aware of all the circumstances connected therewith. (2) I am properly authorized in writing to take such said mortgag'e ("^ bill o\ sale by way of mortyajce], and the paper-writing^ marked " B " attached to the said mortgage [o;- bill of sale by way of mortgage] is [my authorit}' or] a true copy of my authority to take such mortgage. (3) That A. B. , the mortgagor in the said mortgage [(»' bill of sale by w»y of mortgage | named, is justly and truly indebted to C. D., the mortgagee therein named, in the sum of dollars mentioned therein. (4) The said mortgage [or bill of sale by way of mortgage] w'as executed in good faith, and for the express purpose of securing the payment of the money so justly due, or accruing due, as aforesaid, and not for the purpose of protecting the g-oods and chattels mentioned in the said mortgage \or bill of sale by way of mortgage] against the creditors of the said A. B., the mortgagor tiierein named, or of preventing the creditors of such mortgagor from obtaining payment of any claim against him the said A. B. Sworn before me, at the ' of , in the Comity of — this day o'i , A. D. 18—. [Sigm>d\ X. Y. A Commissioner, etc. {a) See f<3>Gt note on page 43 1 \Siffitc(t\ H. CHATTKL -MORTGAGE -, make oath R. S. O. ,8c,7, c ,48, s. 7. ^a^or, of the first par;; and C. n":'^/"""' '"f '"^^^■ ■■1 theCountvof _ , "''- of- - fe'-a^-ee, of the'second part • ' '"''''^'"'■^'ter called the mort- »dva„ce,, the mortgage l,.„,l,« "■" ""'' ""'I' "Pon ,„e ,«„e,„e,n o^ , ; , ';-'/;7'"'--"''-''' -"' "^"-J, .he«e presents „» securi,,n, u: ^ o ^ "rr; ", :"''' """" thereof, to advance to f h , '''^'''^'-"- ''■''^ t'le repayment Sonars, in fth^:rsr ':/"^^^^'^^-/'- -7 of uhereof is to be advanced to th. ' ''"''"''• ''''^ '^""^t from the date of thes'^res 1 thT^"'^'^''?'' '" ^'''''^ '"^^^^ months from the date This "''''°' '" '^^^J Whereof in [three] monthslri^r^l^'th:^^'^^^"'^^ and m consideration thereof tl . Presents ; agreed to execute these rsent in "h'"''"'^^" '""^ ^'^''^ ^'^^^ ment of the said advances h "" '" '"■'"" ''^'^ ''W'- hetweentheparti:s;C:^;,.:J:!:f;;:;;^7^^ -^.a.re^ ment thereof shall not be for . 1 !n "^' ''^ '■'^'P'^>- from the making of te^IlntT ''r' Z'"' "^^ ■^•^^^'■ is the day of the date of tLep/:!!! :"'-■' "'""'"^- ^^'^■'^■^ Now this indenture vvitnesseth th'-.t tl, pursuance of the said a^^reement an , '"ort-^agor in mil mi I Mil 434 FORMS. fl! To hiive and to hold all and sini,ailar the said jj^oods, chattels, property, and eiVects hereinbefore t^ranled, bar- g-aiiied, sold and assijj^ned or mentioned or intended so to be, unto the mortii^aiiee, his executors, administrators and assij,'-ns, to the sole and proper use and behoof of the mortgagee, his executors, administrators and assigns for ever ; Provided always, and these presents are upon this condi- tion, that if the mortgagor, his executors or administrators do and shall well and truly pay or cause to be paid unto the mortgagee, his executors, administrators or assigns, the tull ymii Qf dollars, at the end or expiration of [tenj months from the day of the date of these presents, with interest at the rate of per centum {' --' '"- and in ^aicl sum or monev in ,1 , "'•■'^'^' ''" ^''^' Payment of the interest thereon, or 'anvp-nM!'," T"-'' '"^'"tioned. or the fall a.ten,pt to sell or^p t';;;'' T'' .'" ^"^^ ^'^ -'-^^a^or tlie possession of the said ..,,1 , , '" '"'•■ ""''-'^ ''art with -■ ^Hal, attempt to r: le , ^ '"'"' ^■'""^"^' ''' ••'">• ^^'^ tl^-m, ^"■"ic- Conntv of _! l^ """' ^''' '"•^' '^''"■^ "^^^reof out without the consent of thlnK^;i.;::""'7r ^^'-^ ^'^- -u- are] trators or assio-n,, ^o such ,,,, " •'^'''' ''" '•'^^'^'^'^^^'•^. adminis- fi'-^^t had and obtained i'.ht' 'T"""' '^"^ ''^'^^^'" ^'^^^^^ ^'^ains, the mort^a.^; , '^ ^' '^" " ^'^^ ^''aH Iv issued -■i' -- summon^tW a' mone" i " ," ''^''"-'^^'"ators. anv ^-". - any warrant Vu".;^ 7""' ^^ ^^^^ ^'^ ^^'^ exect^ respect of the premises „" """^ ^"'^ "">• ^^nt or taxes in c'^aueis oran^par;'^:;^ :rv:;;:V'^^ 7'^ --'--^ rency of this mortiraire or -.n/ ■ '""^ '■"■■'"«■ Hie cur- '-- the mort^t^: I; " ;;r: ^^;;--^ '-ituate, or ment to be obtained a,.ainst him fo; l" . K '"'"'' " J"'^^- the said goods and chattels o . Tu ' ^''' ''^^'" '^^'ff'^'- taken in execution, or sha 1 s 1; ' .l ''"" ''' """^ ^''^^^ - '•ates, duties or assessmen f' '" ''' P^"""^'^ ^^'»- 'axes, or may hereatte;;:::;r h^ ^tl'"'''''' ^^ '''''' '^ -- ^^^ shall be in force be liable or^^''^"','"' ""-' ''"'''''^ ^^ereof unsatisfied for a period of ' ' J-^^'^u, to remam unpaid or -ade therefor, or if the .tk^o 'viall tl't"""' ';""""^' arising out of the land or nrl, ''' ''''>' ^^^ ''ent currency of this mortiratre or .n, " tmie dunng the at least before the st t'' I'Ve""" i'"^"'' "^-^ ^^>'^ .a.ee, his executors, ad,;- La to^^r "^ ^ '" ''' •"°^^- any time feel unsafe or insecure or . t '''"'• '''°"'^ ^^ chattels in dan^^er of bein.rsnl, ' '^"'"' '^' ■^"''' ^'^ods and shall be made h, th p "L" ' "'" T"""'' "^ '"" ''''' "^^-'t performance of any of the covenants by' f. Ill • i jl m 436 lORMS. the rTioi'tt,'-af,''or in this indenture contained ; or if the lTlortf,^'li,fO^, his executors or administrators, shall tail to insure and keep insured the said jjoods and chattels within the meaning o*' the provisions of this indenture, or shall abandon the said j^oods and chattels or any part thereof, or make an assij^mment for the benefit of his creditors, or be arrested on any criminal charg-e, or if a writ of capias or writ of attachment shall issue against the mortg'aj4or, then and in everx such case all the money secured -by this indi iiture shall, at the option of the mortj^-afj^-ee, his executors, administrators or assigns, imme- diately become due and be payable, and it shall and may be lawful for the mortgagee, his executors, administrators or assigns, with his or their servant or servants, and with such other assistant or assistants, as he or they may require at any time during the day or night, to enter into and upon any lands, tenements, houses and premises, wheresoever and whatsoever where the said goods and chattels, or any part thereof, may be, and for such persons to break and force open any doors, locks, bars, bolts, fas'. nii' .fs, hinges, gates, fences, houses, buildings, enclosures. ■ ,: Mlaces, for the purpose of taking possession of and remevsnt; the said goods and chattels ; and upon and from and after the taking possession of such goods and chattels as aforesaid, it shall and may be lawful, and the mortgagee, his executors, administrators or assigns, and each or any of them is and are hereby authorized and empowered to sell the said goods and chattels, or any of them, or any part thereof, at public auction or private sale as to him, them, or any of them may seem meet. And from and out of the proceeds of such sale in the first place to pay and reimburse himself, or themselves, all such sum and sums of money and interest as may then be due by virtue of these presents, and all costs and expenses which may have been incurred by the mortgagee, his executors, adminis- trators or assigns, in consequence of the default, neglect or failure of the mortgagor, his executors, administrators or assigns, in the payment of the said sum of money, with interest thereon^ as above mentioned, or in consequence of such sale I ll\ri|.;i. i mortj,'atjor, .ire and keep jailing' o' the o said i;oods iif^nment for my criminal lit shall issue case all the iptiv.Hi of the ■ii^'ns, ininie- and may be riistrators or nd with such equire at any on any lands, d whatsoever thereof, may en any doors, nces, houses, )se of takinjj chattels ; and >f such g-oods .wful, and the ^ns, and each id empowered them, or any to him, them, ale in the first lives, all such hen be due by les which may tors, adminis- ilt, neglect or linistrators or :, with interest :e of such sale MHIMCAciKs. or reinoN a! as ab I unto the mortgagor, his all i''\«-" mentioned, executors, 'i"«-l ill the next place I 437 o pay aaministrators and »ei^u„, .,K, „■,„ ,„,„:,:; „" - :::"•;- :"^- ■!-■ »>■ «-h .n/:,.; ■:;::i'-x:;:';' "-"'■ " ■"-"'■• ' - '-™- an. wi,h .„c ";,:",;;';,;■"";;;■ ""•"•-■ i-" "^-- ■<. assign,, ,h„,, i„ ,,:,",;■ „\ '"'f"' """■■"«r„,„rs ,„„, -•'" '">'■ a» n. me,, ,: VI :;:;■; ::"";;' '- '->■ administrators shall ;:,'^;;:;;;^;:;f- '^ — «- - unto the mortgagee, his execu o "'' ''"'"' ''^ ''' P"'^' all such defide^v a "^ r ;,Kl "TT''^""^"' ^"^'^"^• expenses which mi, C' CX:::^tlf ^""^ '"'' his executors, administrators or a i , j^ ' , '"^^^'■^^••'^'-. seizure and sale; '"^ ''"'' ''^^'"^ ■'^"'^h Provided that the mortgagee, his executors, administrators o ass„.„s, may, m default of pa^me.u of a.n- ,f the pvn^^^^^^ of unerest or mstalments hereinbefore mentioned c Ln ;.ntont,.mortg;,ee,hisex:::2:::;:;„^^:;;r:^^ interest thereon or Ly .u^ ^L t^ 1:':;: .^v^ T '^ ^'^ part thereof, it shall and may be lawa.lt 'rr:^;: ^^ ex^ tors, adm.ntstrators or assigns, peaceablv and q^tK to ha e, holJ, use, occupy, possess and enjov the said Jood' and chattels wthout the let. molestation, v'iction,!!'"!' or mterrup.onof him, the mortgagor, his execu to s.'^^^^^^^^^ trators or ass.gns. or a.ty of them, of anv other person or persons whomsoever ; ' ^-^ Person or And the mortgai^or doth put the mortgagee in full posses- IMAGE EVALUATION TEST TARGET (MT-3) A t/j fA 1.0 I.I ^1^ 1^ 2.2 1^ 7.0 11:25 III 1.4 - 6" 18 1.6 Sci^ces Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 s V qv ^^^ 4»^ ^\ i » C/a I< i I ' ii ';< i I Ir^f'i 43S I-OKMS. sion of the said t,^oocls and chattels, by delivering,' to him at the soalinf,' and delivery hereof this indenture in the name ot all the said goods and chattels ; And the mortg-agor for himself, his executors and adminis- trators, further covenants that he will, during the continuance of this mortgage, and any and every renewal thereof, insure the goods and chattels hereinbefore mentioned against loss or damage by fire in some insurance company authorized to transact business in Canada, and approved by the mortgagee, his executors, administrators or assigns, in the sum ot not less tlian dollars \or in a sum not less than their full insur- able value) as securitv for the moneys secured by this indenture for the benefit of the mortgagee, his executors, administrators or assigns, and will pav all premiums and moneys necessary for that purpose, three davs at least before the same become due the loss, if anv, to be payable to the mortgagee, his executors, administrators or assigns ; and the production of this indenture shall be sufl^cient authority for. and the said insurance companv is hereby directed thereupon to pay such loss, if anv. to the mortgagee, his executors, admm.strators or assigns; and the mortgagor for himself, his executors and administrators herebv agrees that he 'vill on demand assign and deliver over to the mortgagee, his executors, administra- tors and assigns every policy of insurance and the receipts thereto appertaining ; «... Provided that if the said insurance is not effected, or not kept dulv renewed, and default be made by the mortgagor, his executors or administrators in payment of the said premiums or of any sum of monev hereby secured, or of the rent for the premises whereon the said goods and chattels may be at any time situate, the mortgagee, his executors, administrators or assigns mav pav the same, and such sums of money shall be added to the debt hereby secured, and shall bear interest at the said rate from the day of such payment, and shall be repayable with the moneys next falling due thereafter under these presents. Provided that until default shall be made in any of the \i I ■ le in any of the til. Mil; I. .\hikt(;.u;es. il 439 anonants or provisoes lierei,, co.itained. the mort-a-or shall 'lax peaceahie and quiet possession and nse of the'said -oods and chattels. ^ Provided that the morti^a-ee', his executors, administrators or asMf^ns may at any lime, and from time to time accept the h.lls, notes, or other ne.Lrotiahie instruments of the mort- J^^a.i^or, his executors or administrators, or of anv other person for the said moneys or .any of them, or as further or collateral security tor the same or any part thereof, and mav accept renewals of the same in whole or in part from time'to time, anu may compound the same or any of them, or relinquish the same or any of them, with or without securitv, without atfect- in.^^ or prejudicing the ri^dus and remedies of the morti,^a>^ee under these presents, (which shall be a securitv collateral to all other claims and rights of the mort^aKa^e in the premises]. •And in consideration of the execution of these presents the mortga^^ee covenants for himself, his executors, adminis.rators and assigns with the mort^-a^'or. his executors .and adminis- trators, that he. the mortJ,^agee, his executors, administr.ators and assi^Mis will faithfully advance the said sum of - — dollars to the mortK^agor in the manner and at the times hereinbefore specified. And the mortgaj,air covenants for himself, his executors and administrators, with the mortK^aj,^ee. his executors, adminis- trators and assi-ns that he, the mortj,^-igo-, his executors or administrators will pay the costs, char^avs and expenses of and incidental to the takinj,s preparation, execution and ref,ns- tration ot these presents, and of every renewal thereof In witness whereof the parties hereto have hereunto set their hands and seals. Signed, sealed and delivered ) \S/)r„e(/\ A. B. [Sca/.l in the presence of j" \S/^//a/\ C. D. (.V,v//.J d..- 1 1 #■ 440 Countv of FORMS. AFFIDAVIT OF BO\A FIDES. Mortgage to secure future iidvances. R. S. 0.,i897, c. 148, s. 7. I I, C. D., of the ' tlie Countv of of To wit -, the mort- gagee in the foregoing mortg;ige [«/' bill of sale by way o'i mortgage (//)] named, make oath and say : (1) The foregoing mortgage truly sets forth the agreement entered into between myself and A. H., the mortgagor therein named, the parties thereto, and truly states the extent of the liability intended to be created by such agreement, and covered by the said mortgage ; (2) The said mortgage was executed in good faith, and for the express purpose of securing me, the said mortgagee, repayment of the said advances which I have agreed to make to the said mortgagor, as set out in the said mortgage ; (3) The said mortgage was not executed for the purpose of securing the goods and chattels mentioned therein \or in the Schedule attached thereto marked " A, "J against the creditors of the said A. B., the mortgagor, nor to prevent such credi- tors from recovering any claims which they may have against the said mortgagor. Sworn before me at the of , in the County of this day of A.D. 18—. \Sigucd\ X. Y. A Commissioner, etc. \Signed\ C. l..-. For affidavit of execution see page 431. {(i) See note (11) on p. 431. ■k: sale by way of t'HATTKI. MOKTCAGKS. ^^j AFFIDAVIT OF HOXA FIDFS in' AGENT. MoHga^rc t„ scan' futun- advances. R- S. C, ,89;, c. 148, s. 7. Ontario, County {:,'( To wit '. '•-• 1'"., ^yi the tlic County of oath, and sav : oi in make bill of JI'^""™"""" "-■' '""'' '"'"''-• f"<=».'»"'^' "'""^'••'f.'e ['»• . di ,a-.:i"' nrr^- •"« -■"» »•"«' ™- ->" •"" th^ m / by me tor. and on behalf ,.i C. D. a^^r^ed m untin^ of the said C. D. to make s^h ^. circumstances connected therewith. mark.d B, ,s [., true copy ofj my authoritv to make such agrreement. and to take the said mort^^age ' (3) The said mortK^a.^.e truly seis forth the aL^reement erednno between C. D.. the mort,.a,.e therein .t:: ex ent of he hab.hty mtended to be created bv the said a.^ree- ment. and covered by such mortf,raj.-e ' ^ theTxnr""' '"""^'^^r^-^'^ '^'^-^-^ - ffood faith, and for the express purpose of securin^^ the said mortgagee repay- m t ot h.s advances which he has agreed to make as in e the .g^oods and chattels mentioned therein [.. in the schedule attached thereto markprl " A "i • ■ >- >i-iicuuie said A H M.7 ' ' ^'^'""^ "'"' creditors of the rTc.vt- '^.'■^^^•■^^^"'■. "^■- to prevent such creditors from :;::;^:;;S;'">- ^■-'"-^•'^'^•-'->- -y '^ave against the said Sworn before me, at the of ) , in the County of this \S>\n,cd\ H. F day of -, A.D. ,8 -. ) [Signed \ X. \ . A Commissioner, etc. («) See note («) on page 431. 442 l-OKMS. , I ! , n CHATTEL MORTGAGE To sec tin' fnt lire advtniccs of goods. R. S. O., 1897, c. 148, s. 7. This iNnESTiRE made the — between ^^i the of - 18 day of - — , in the County of part, and -, hereinafter called the mortgagor, oi the first — of the of , in the County of -, hereinafter called the mortgagee, oi the second part. VV^HKRKAs, the mortgagor is carrying on business at as a , and has applied to the mortgagee for advances of goods to be supplied to him upon the usual terms o\ credit, from time to time, for the term of calendar months from the date hereof, to enable him to enter into and carry on his business with such ad.ances, the term of credit for any of such goods not to extend in any case beyond the day of , 18 , \suc!i ihitc not Id be more //inn one yenr frtwi f/w date of t/ie >nor/giige\. Anu whereas rhe mortgagee on the faith of the security given, or to be given by these presents has agreed to make such advances of goods on the usual terms of credit from time to time as the same ma}' be required by the mortgagor in the usual and proper course of his said business, for the term of calendar months from the date hereof, pro- vided he shall not be bound to advance in all goods to the amount of more than dollars in value, and provided the term of credit for any of such goods shall not in any case extend beyond the day of , 18 — , [siic/i da/e not to be more tlian one yciir from t/ie da/e of t lie mortgage\. Now therefore the mortgagor for the consideration herein- before recited, and in pursuance of the said agreement, hath granted, bargained, sold and assigned, and by these presents doth grant, bargain, sell and assign unto the mortgagee, his executors, administrators and assigns, all and singular, the I'MATTi:!. ■\iiiRT{;,\<;i:s. 443 usiness at Roods chattels and effects pa.tieularlv mentioned and de- scrtbed ,n the schedule he.vunto annexed marked •' X ' a ;t ti '---'-'-e granted, baf^ained, s.Md and ga t, H,, ,,,,., ^^,^^^ administrators and a.si:,nis, to the sole dm- ;;^::r" "^: ^'"' •^^'^^^^^^^^'■"- --^='«-^- '^i^ -:c:t administrators and assit^ns lor ever Provided aiuays. and these presents are upon this express rators. do a.ul shall uell and truly pay or cause to be paid to ^e mort,a^ee all sums of n.oney uhich shall become ^^^^ b> the ,.or ..aj,or to the mort^a.^ee for or in respect ot' 11 Roods wh.ch shall be st.pplicd by the mort^^a^.e to tl , o^ Ra,..r dunn,. the period of--., from the date ,Z ptmc ua^ly ..hen the san.e shall become payable accord!^ to he terms o credit, uhich shall not extend in anv case beyond m..i "r r-' u '^ • '^""' '^''''' P''^^'^'^ '"Hi everv matter and thm,. herein contained shall cease, determine and be utterly v.d to all intents and purposes, anything "e en contained to the contrary thereof in any .^ise l^Z tratt" ? ir"?^^? ^^ '^'""^'f^ '^'^ --"^-^ and adminis- trators, shall and uill warrant and forever defend bv these presents, all and singular, the said goods, chattels and'effect unto the mortgagee, his executors, administrators and assigns Ramst him, t e mortgagor, his executors and administrat^ .' and against ail and every other person or persons uhomso: And the mortgagor doth hereby for himself, his executors and administrators, covenant, promise and agree to and uith he mortgagee, his executors, administrators and assigns, that he will pay or cause to be paid to the mortgagee all sum ot money which shall become payable bv him, the nu.rtga.^or to the mortgagee for and in respect of all goods which s^all be supplied by the mortgagee to the mortgagor during the said period of months from the date hereof, in accordance 444 rORMS. .; < with tlie said agreement, punctually when the same become' payable accord! nj,' to the said terms of credit, which shall not extend in an\- case be}ond the day of i8 — . l'ro\ ided that should default occur in payment of the price of any of the j^-oods so to be advanced, or in case the mortg'agor shall attempt to sell or dispose of, or in any way part with the possession of the said t,'-oods and chattels or any of them, or shall attempt to remove the same or any part thereof out of the County of , \or out of the premises where they now are] without the consent of the mortt^aj^-ee, his executors, administrators or assij,'-ns, to such sale, removal or disposal thereof, first had and obtained in writing, or if there shall be issued against the mortgagor, his executors or adminis- trators, any writ or summons for a money demand, or any writ of execution, or any warrant of distress for any rent or taxes in respect of the premises, in or upon which the jaid goods and chattels or any part thereof may at any time during the currency of this mortgage, or any renewal thereof, be situate, or in case the mortg-agor shall suffer, allow or permit a judgment to be obtained against him for any debt, or shall suffer the said goods or chattels or any of them to be seized or taken in execution, or shall sufi'er, allow or permit any taxes, rates, duties or assessments whatsoever, for which he now is, or may hereafter while this mortgage or any renewal thereof shall be in force be liable or assessed, to remain unpaid or unsatisfied for a period of days, after demand lawfully made therefor, or if the mortgagair shall fail to pay the rent arising out of the land and premises, upon which are situate and lyings the said goods and chattels, at any time during the currency of this mortgage or any renewal thereof, days at least before the same shall become due, or if the mort- gagee, his executors, administrators or assigns, shall at any time feel unsafe or insecure, or deem the said goods and chattels in danger of being sold or removed, or in case default shall be made in the performance of any of the covenants by the mortgagor in this indenture contained ; or if the mortgagor, his executors or administrators, shall fail to insure and keep '■"■\TTi:i. MORTCAC.I-S. 44: ir::;;,:^:;;;;;:°t:;;:t';;;tr::r'V''-r"""--'- and chaltcis or ,,„v p.r, , ,' ""'"" ""' '•■"'' ->""l- •he Ke„e„, „r hi! ' .X r:"; ",:;;'^,'' i'" ""'«"-'"' '-■ cliarm-. or if a writ nC .. ■ '"rested on any criminal a.aiL; ,h. ,;„ ,",;,;"i;::^„:;': •"•--..„..,„ ., .,„„ monov secured bv U,k ,■ '" "■'"''■■" ^"^•'"■■"'■••- »" Hie -n«^.K.ec, „i' 1.:::.':;;;::;:;;;::;";"' "■^' ':^'" '"- diatelv become due -uul u\ ''""" '"^^'^''l'^'^ ^^r assigns, imme- lawad ,br the n" !,. r r • ''"^ assigns, uith his or uidr^en'mr""""' ^'^'•"'■•-'-'-- -" otherassistantorassis::^ ;:,X:'r'""'^"'^"^'^ timedurinirthedavorni^rh// • ■ '' '"^'WL'Te at any tenementsrhou^;.:d p^m^ :;'';T'"" '"' "'^^^" ^'"^ '-''^>^. -^ere the said ,oods a^dZ;;r::r;:;rr^:r^-^^ be, and tor such persons to break and fl ' "'•'■' locks, bars, bolts.' tastenin^s.^'rt^a^ T" " 'i '""'" buildin^^s, enclosures, and place for' tU ''"''''' ^''^''^' possession of and removlufttf ■ , ^''"^''"'^ of taking, upon and from and aZ he t ,ki, ^ •""' ""''"''''^ '' ='"^ and chattels as a^res.-^.t^:^!!^:;:^ -.---- mortgagee, his executors, administrators L '^ or any of them is and are rreb; lur T'"""'' '"^ ""''^ to sell the said goods anV^t , ' ^r^^^ hlT^^^^'^^^^^ part thereof, at public auction or pri ate Tl'I !l ' '"' ""-' or any of them may seem meet ''^ '" ''"' ^'^""' And from and out of the nrocepds r.f -. i ■ ■ place .0 pay and reimburse '3^0^ . ^IT IJ" .I,';" "'"? sum and sum, of monev and inlerct as J T i '' virtue of these presents' and , ! , • ""■"" "" ''"« ''>• have been incurred bh;!' ,';,:: ^ ""'""" ""'"' "'">■ •rators or assigns, in conse.t^ fo^ t^Zri, "TT' failure of the n,„rt,-agor, his e.ecuto I tj;^ i's r ,t "' m ■IP' 446 l■l1|^\l^. MK'll Mlfllllls ;is niav remain al'UT >ucli sale, and altor pay-. iiK'ii! Ill" all sucli sum or sums of moiiev aiul interest ihereon as nia\ be due by virtue of these presents at the lime ot sucli seizure, and after payment of the costs, char^a^s and expenses ineuried by such seizure and sale as atoresaid : And the morti^-aij^or doth iiereby for himself, his executors and administrators further covenant, promise and a,i;ree to and with the morti,'-ai,'-ee, his executors, administrators and assii^ns, that, in case the sum o( money realized under any such sale, as above mentioned, shall not be sufficient to pay the whole amount of principal, interest, cost and expenses due at the time of such sale, the morti,^ai,'-or, his executors or administrators shall and will forthwith pay or cause to be paid unto the mort^'-ai^ee, his executors, administrators and assii^ns, all such deficiency, as well as and includini,' all costs and expenses which may have been incurred by the mortj,'-aj,"-ee, his executors, administrators or assigns in and about such seizure and sale ; Provided that the mortgaj,'ee, his executors, administrators or assigns, may, in default of payment of any of the payments of interest or instalments hereinbefore mentioned or any part thereof, distrain for the whole principal sum then unpaid ; Provided always, nevertheless, that it shall not be incum- bent on the mortgagee, his executors, administrators or assigns to sell and dispose of the said goods and chattels, but that in case of default of payment of the said sum of money or the interest thereon of any sum due hereunder as aforesaid, or any part tliereof, it shall and may be lawful for the mortgagee, his executors, administrators or assigns, peaceably and quietly, to have, hold, use, occupy, possess and enjoy the said goods and chattels without the let, molestation, eviction, hindrance or interruption of him, the mortgagor, his executors, adminis- trators or assigns, or any of them, or any other person or persons whomsoever : And the mortgagor doth put the mortgagee in full posses- sion of the said goods and chattels, by delivering to him at the sealing and delivery hereof this indenture in the name of all the said goods and chattels ; 'I'M II I. \UMMC,Ai;i:s. 447 ..■-r.;;;:,rs:;:::;-'::.r^ <^f' thismor.^ra., ,,ul -, ' '' ''"''"'^' "'^' ^'ontinu.-uKv transact husinossinCurui' "'"''""•■ ■■'""^^^'•'^^'^' '^^ than ,ioll-.r^ I,.. • -^ • '" "'^' '"'" ^^' '^'^' '^•-'^ aNe value) a :^ :;:;:■;:"'" "^'' •--''-- '''--^ or.ssi^ns, and uill „ v T^ ' " "-^•^-^- '-''"i"is.ra.ors I- . "'" P'i> ■■111 prLTtiujrns ;iiKl iiioiiov.. ,i . - — -'- »-;.i:,s;"':;'r •"■'--"■"'« hi.scxocutor, or administrator.!,, ' "WrtnaKor, »-'.■ a.., »„. or ::;:; : ':^ti,^;:',,r,t°:,';'''''^■"':''■" a.d^i.::i-Zt'J:^;;'r:::t,r:,::"--^-- the said rate from the d'iv J '"'"■'"' '''^ repayable with the n oLv' „ex f M '"T""'"' "^' '^'^^" ^^ these presents. ' ^"'"^'' ^'"^^ thereafter under Provided that until default shall be made in -mv .f H ' ih J m ; !!f ^^8 lOUMS. I'rmiclcd that tlu- rnoitt,'-:ii,'-ce, liis executors, administra- tors or assi^nis may at any tiiin.', and tVom time to time accept the bills, notes, or otlier nej^'-otiahle instruments of the mortf,^af,'or, his executors or administrators, or of any other person for the said moneys or any of them, or as further or collateral security for the same or any part thereof, and mav accept renewals of the same in whole or in part from time to time, and may compound the same or any of them, or relinquish the same or any o( them, with or without security, without atTectim,' or prejudicinj,-- the rij,Wus and remedies of the mortj,Mj,'-ee under these presents, | which shall be a security collateral to all other claims and rights of the mort^^ajjee in the premises). [Provided that neither the execution nor resfistration of this mortfraj^-e shall bind the mortf^af^ee to advance the mort- j,Mj;e moneys, or, havinjf advanced part, to advance the remainder]. .And the mortf,'-agor for himself, his executors and adminis- tratorsconvenants with the mortgagee, his executors, adminis- trators and assigns that he will pay the costs, charges, and expenses of and incidental to the taking, preparation, execu- tion and registration of these presents and of every renewal thereof. (And it is hereby understood and agreed that these pre- sents are a collateral security only]. In witness whereof the parties hereto have hereunto set their hands and seals. Signed, sealed and delivered, "j [Signed] A. B. [Seal] in the presence of ■ -r-. ,i r- r^ la n [havmg first been read over and i *. J 'J explained] For affidavit of bona fides, see page 430. For affidavit of execution, see page 431. 440 that these pre- .ve hereunto set CMATTi:i. MOkTCi.AC.K moHirtigor. 1^. S. O., i,S.,7. c. 148, s. H. clav of A. D.. -- in the Coimtv This I\nE.vriK-K mailo the '« , betucLMi A. M., of the Ot" I . . .■■...!>. V luilliv «-p ■.■^■,.r::";;,."i:^":,' --'■ ."'■ '"■^- of . , . . ''' . "1 "'^- County ,„,, , ' ~~~' li-Tcinatter called the mort-ai,a'e. o^ the seconti part ; '^ "■ Whereas the iiiort<''ai>-L'i' -it ii, . .- . ,- ■ ,- , . 'i^a^Le, at the request o( the niorfa.'-or . Jl ^Z And whereas i„ consideration thereof the mori..MH,r has a^^reed to enter nUo these presents for the purpose of in d^ ,„ ft ■"^ and savn,^ harmless the mort^a^ee, of Ld iVom p ^ ment ot the s..d recited note or any part thereof, or any notes modat on ot .he mort-a^^or by way of renewal of the said extend the tmte for payment of the said recited note or the b.l. y o the nK.t,.a,.or beyond the period of one vear f r m the da e hereof, nor increase the amount of the said liability beyond the amount of the interest accruing, thereon - d a.an,st any loss that may be sustained by tl^^ mor^^^j ' ZZl '-'"^^^•^'^-"^ ^^ -'''•■ -ited note or anrr^newal Xow this indenture witnesseth that the mortj^a^^.r for and n constderat.on of the premises, and of the sum ot one dollar of lawful mo,.ey ot Canada, to him in hand paid by the mort ga,.ee, at or before the sealing, and deliyery of thes'e prescM t 45° I'OHMS. ' * the rccoipt wliercol" is liorchy ackiio\vlcdi,'-cd, doth hereby t^ranl, bari;ain, sell and assiL,ni unto the morlj^-aij^-ee, his executors, administrators and assis^ns, all and sinj,^!^^-, the ^'oods and chattels hereinafter particularly mentioned and described, that is to sa\- : \IIcrc insert a particuLiif di'scription of tlw urticlcs intended to hi n/or(i;(/ord. | To have and to hold, all and sinj^nilar, the t,'-oods and chattels hereinbefore i,^ranted, bar^^ained, sold and assii,med, or mentioned or intended so to be, unto the mortii^-agee, his executors, administrators and assiijns, to the only proper use and behoof of the mortgagee, his executors, administrators and assigns for ever ; F'rovided always, and th-se presents are upon this condi- tion, that if the mortgagor, his executors or administrators, do and shall well and truly pay or cause to be paid at maturity the said note so indorsed by the mortgagee as aforesaid, a copy oi' which said note is set out in the recital to this indenture ; and do and shall well and truly pay or cause to be paid e\ ery other note which may hereafter he indorsed by the mortgagee for the accommodation of the mortgagor, by way of renev^al of the said recited note in the said recital to this indenture set forth, which shall not extend the liability of the mortgagee beyond one year from the date hereof, and all interest in respect thereof, and indemnify and save harmless the mortgagee, his heirs, executors, and administrators, from all loss, costs, charges, damages or expenses in respect of the said recited note or renewals thereof as hereinbefore set forth ; then these presents, and every matter and thing herein contained, shall cease, determine, and be utterly void to all intents and purposes, an\ thing herein contained to the con- trary thereof notwithstanding. And the mortgagor for himself, his executors and adminis- trators, shall and will warrant and forever defend by these presents, all and singular the said goods, chattels and pro- perly unto the mortgagee, his executors, administrators, and assigns, against him, the mortgagor, his executors, and administrators, and against all and every other person and persons whomsoever ; I'lATIHl. .\IOKTl,.\t.!;s. 451 ■■ ■'ItLZs:'^:::::;:;;';-;- ;-■ -'-'^ '- ^- - hsh.. executors, and administrato,., f,-om all loss::o:; ' clMr^o . damap. or expenses in respect thereof; And also, that in case default shall be ,v •- i„ the ,v,v iL countv ot ,v-the prem ses where the s-,„. , ::i;::;^rs;':=;:^:^:f---- ;-----^adHeen^t:-::;ri:;;!;;]::;th:et^n;^ -ued a.an,st the mortgagor, his executors or ach,^ s .' tors, any ..r,t or sun.mons tor a monev demand, o "; oi execut.on or any warrant of distress for anv rent • ,• .e ■n respect o, the premises in or upon which the ..id ^. I, -u^ chattels or any part thereof may at anv time durin.^ ' "" renc>- o, , „,,^^,^^_ ^^ ^^,^^. ^^_^^^.^^^ .tee .. case the mort,.as-or shall suffer, allow or permit a 2 u. sajd s:oods or chattels or any of them to be seized or 452 FORMS. Pffl if unsatisfied for a period of days, after demand lawfully made therefor, or if the mort^-agor shall fail to pay the rent arising out of the land and premises, upon which are situate and lying the said goods and chattels, at any time during the currency of this mortgage or any renewal thereof, days at least before the same shall become due, or if the mort- gagee, his executors, administrators or assigns, should at any time feel unsafe or insecure, or deem the said goods and chattels in danger of being sold or remoyed, or in case default shall be made in the performance of any of the coyenants by the mortgagor in this indenture contained ; or if the mortgagor, his executors or administrators, shall fail to insure and keep insured the said goods and chattels within the meaning of the proyisions of this indenture, or shall abandon the said goods and chattels or any part thereof, or make an assignment tor the benefit of his creditors, or be arrested on any crimmal charge, or if a writ of capias or writ of attachment shall issue a'-ai'nst the mortgagor, then and in every such case all the nuonev secured by this indenture shall, at the option ot the mortgagee, his executors, administrators or assigns, mime- diately becom. due and be payable, and it shall and may be lawful for the mortgagee, his executors, administrators or assigns, with his or their servant or servants, and with such othe'i- assistant or assistants, as he or they may require at any time during the dav or night, to enter into and upon any lands, tenements, houses and premises, wheresoever and whatsoever where the said goods and chattels, or any part thereof, may be, and for such persons to break and force open any doors, locks, bars, bolts, fastenings, hinges, gates, fences, houses, buildings, enclosures, and places, for the purposes of takmg possession of and removing the said goods and chattels ; and upon and from and after the taking possession of such goods and chattels as aforesaid, it shall and may be lawful, and the mortgage., his executors, administrators or assigns, and each or any of them is and are hereby authorized and empowered to sell the said goods and chattels, or c-iy of them, or any part thereof, at public auction or private sale as to him, them, I'llATTKI, .\U>IMr..\(,i;: or anv of th proceeds of such sal em may seem meet and from imselt or themselves all i-N in the first place, t id out of tl le ■iuch o pay and reimburse m iiy then be secured bv sums and su m ol' monev as y virtue of tin se presents on the said rected note or any renewal thereof, as aforesaid ; and a tM, expe^isesas may have been incurred bv the mor ^ ^^^ h.s execu ors, administrators, or assigns, in conseuuel-e o he de au t ne^Wect or failure of the mort,..,.., h x cu Uy. admn„strators, or assigns, in payment of ^he said ^^, note, or any renewal thereof, as above mentioned, or in con- -quence of such sale or removal, or otherwise, as al" e ment.one ; and in the next place to pay unto the mort^ a^^r h.s executors, admu.strators, or assi^^ns, all such surplus a sums of'"'" '"''':'■''' ^^"^' ^"^" ■■'''' '^-'^--"-^ oi- an such sums of money and interest thereon as the mort,^a,.ee shall b called upon to pay by reason of indorsing the ^aid p" m ssory note in the said recital and proviso mentioned' I an> future notes to be indorsed by the mort.^a.^ee for the mortga,.or as aforesaid, at the time of such sei'ur; and af payment of t e costs, charges and expenses incurr d bv such seii^ure and sale, or otherwise, as aforesaid • Provided that it shall not be incumbent on the mort-^a- gee. h,s executors, administrators or assi<,ns. to sell a^nd d spose of the said goods and chattels ; but that in case of defaul ,n payment of the said recited note or anv renewal thereof, as aforesaid, it shall and may be lawful for' the mort- gagee, his executors, administrators and assigns, peaceably and quietly to have, hold, use. occupy, possess^and enjo the aid goods and chattels, without the let, molestation, evic'tion hindrance or interruption of him. the mortgagor, his e.ecZ tors, administrators or assigns, or any of then^. or anv o 1 r person or persons, whomsoever; and the mortgager doth hereby for himself, his heirs, executors and administrator further covenant, promise and agree to and with the mortgl: gee. his executors, administrators and assigns, that in case on:7s^° :".r^-;^'^'if ^.^ ""'^^ ^"-^' --' ^■■^'^ - ^^^-e men. not be sufficient to pay the wh ole amount due at 454 FOKMS. the time of such sale, that he, the mortgaLjor, his executors or administrators shall and will forthwith pay, or cause to be paid unto the mortga^^ee, his executors, administrators or assigns, all such sum or sums of money, with interest there- on, as may then be remaining due upon or under the said promissory note or any renewal thereof. And the mortgagor doth put the mortgagee in full posses- sion of the said goods and chattels by delivering to him at the sealing and delivery hereof, this indenture in the name of all the said goods and chattels. And the mortgagor for himself, his executors and adminis- trators covenants with the mortgagee, his executors, adminis- trators and assigns that he wil duriny the continuance of this mortgage, and any and every renewal thereof, insure and keep insured the goods and chattels hereinbefore men- tioned against loss or damage by fire in some insurance company authorized to transact business in Canada, and approved by the mortgagee, his executors, administrators or assigns, in the sum of not less than dollars, [or in a sum of not less than their full insurable value] as security for the moneys secured by this indenture, for the benefit oi the mortgagee, his executors, administrators or assigns, and will pay all premiums and moneys necessary for that purpose three days at least before the same become due : the loss if any to be payable to the mortgagee, his executors, adminis- tratars or assigns ; and the production of this indenture shall be sufficient authority for, and the said insurance company is hereby directed thereupon to pay such loss, if any, to the mortgagee, his executors, administrators or assigns ; and the mortgagor, for himself, his executors and administrators, hereby agrees that he will on demand assign and deliver over to the mortgagee, his executors, administrators and assigns every policy of insurance and the receipts tnereto apper- taining. Provided that if the said insurance is not effected, or not kept duly renewed, and default be made by the mort- gagor, his executors or administrators, in payment of the said premiums or of any sum of money hereby secured, or of I'lMTKI, MOKTCAia-S. 455 administrate, or assi-n " m^.J " 7^'^''^-' '- executors. ofmoneyshallbeadirtrtt'n '"''."'• '''"' ^"'"^'^ ^"'"^ bear interest at the v d 'l ^^ '''■^■'-^' '''''''^' =*-' -^"^'J' a.ui shall berep^;;^; ,^:;;V'-^='>-^^--'M™ent. thereafter under these ..reselns """■'^ '""^ ''^"""^^ ^"^ Provided that until default shnll k„ . • Provided that the mortP-a5rn» i,; trators or ass.Mis mv,v , ^^^'^' '"^ executors, adminis- person for the said moneys or anv of tl ' • "■ or collateral security ^r tl^ ^m r n ^'tTh^^ T''\ may accept reneu-als of the same in w ole or ^Tl' T t.-e to time, and may compound the san" or n of I relmquish the same or anv of them wi h or" n' ' ""' without affecting or prejudicingThe 'h " , d" -^^r^""-^ tbe mortgagee under thete presents ful^^h.h '"' ."' collaterJ tri nil ^^u ■• "'''• I ^^ ""-" ''hall be a secur ty the ;:emisesr "^' '''''' '' ''' '"°^'^-^-^ "' And the mortgagor for himself, his executors and adminis ra O.S covenants with the mortgagee, his executor d.'nis trators and assigns that he ^yill pay the costs, cha ges - d expenses of and mcidental to the taking, preparatio ^ 'xe' ' tion^and registration of these presents and of every 'renew:. In ^yitness whereof the parties hereto have hereunto set their hands and seals. '"^reunto set Si ned. sealed and delivered ] in the presence of t {•^'^''H'f/] A. B. [.SW//] [S/s-ned] E. F. m 'i^i ;;t nil In { •8 ^ Nl I 456 FORMS. AFFIDAVIT OF BONA FIDES. .Uor/^n^c to scctirc indorse r. Ont.ario, Count V of of in the -, the mortgagee ] I, C. D., of the - ,-County of . To wit : jin the foregoing mortgage \or bill of sale by way of mortgage [a)\ named, make oath, and say : (i) The foregoing mortgage truly states the extent of the liability intended to be created and covered by such mortgage ; (2) The said mortgage was executed in good faith andfor the express purpose of securing me, the mortgagee therein named, against my indorsement for the mortgagor therein named of the promissory note for dollars mentioned in the said mortgage, or any renewals of the siid note, as set out in the said mortgage, and against the payment of the amount of such my liability for the said mortgagor as therein set out, and not for the purpose of securing the goods and chattels mentioned therein against the creditors of the said mortgagor, nor to prevent such creditors from recovering any claims which they may have against such mortgagor. Sworn before me, at the 1 of , in the County of| this day of Signed\ C. D. , A.D. 18—. \Signcd\ A. Y., A commissioner, etc. For affidavit of execution see form page 431. I'lATTHI. MoKn;.\r.i:s. AFFIDAVIT OF HOXA FIDES BV AN AGFXT. ^ Mortgn,iiv /„ ,;r/or itnhr.cr. Omakio, County of To wit : I. F. F., of the |- County of j and sav - of — in the matce oath, ^a,e (,,)J uas talic(/] E. F. '■|i' ir i m 458 ll^KMS. AI'I'ID.W 1 r Ol-' BONA I'II)i:S. Mor/<;(ii^v i^ivcii />v II Ciini/^iniy fo stciiir ImihIs or (Icbctitiin Ontario Coimtv oi R. S. O., I So I. I.. M. 14S, oi the — 111 tlie Coiinlv ^^'i — Id) tlie iiiorl- Vo wit: ' i,'a!,'-ce named in tlie iorej,'oin!,' niort!,'a,ijfe |(>r Itill ot' sale by way oi" inorti;aLre| make oath and sa\' : [ I am a trustee for the hoiui iioiiiers oi the conipanv nanieci in the forei,'-oinj,'" morti;a,i^e {or us tliv case niiiy />r) |. Tlie said morti^faije was executeel in t;ood taitii aiul tor tlie express purpose of securitii;- tlie payment of tlie bonds \or debentures] referred to therein, and not for tlie purpose of protectins,'- tlie tj^oods and chattels mentioned therein at,^ainst the creditors of the mortijfagors therein named, or of prevent- ing the creditors of such mortgagors from obtaining payment of any claim ;igaiiist them the said mortgagors. Sworn before ine at the o( in the County of dav of this 18—. \S/ir,ir(/\ X. ^^ A Commissioner, etc. A.D. [.S'/^'-y/(Y/| L. M. {//) See Sect ion 2: Sub-Section (4), p. 343. *'".\1 I 11. MOIMl.Al.KS. 45' • III- dchcii/iiirs. AUTII()klT^■ To AGF.XT To /akr a ,;■>■/<,/>, vhatlcl >,tor/_ir„ir,.. R- S. O.. ,,S,,7, c. ,4,S. ss. 2, 3. Kncnv all men by these presents, that I, C. I)., of the °' in the County of ^ — -_ ,.„ i, u P,,nctU,,f„ .1 • ' """erebv nominate, constitute, authorize aiul appoint !■:. F., oi the - -/- of "1 the Countv of ., . , , ~ , ■ ' • "-^ '"\' true and awful •[■■I'lit an.att.-ne,..rme.anclinm,„a.ne,anc,,ormysole;!s:^^ benefit, to take and receive from one A. H., o( the of ofT7h" "" ^T'- '''' • • '' mor.,,^a^.c \or . hill ^■Udr 1'^ '"'"^"^^' ^^^^'^'"^ '^ - "■-'-'- ^-nls. Chattels and effects of the siid A n tu. . ,1 , , , '*- ■^''"■' •^- l^-. tile sum ot c;on.-s,^payah,e ,.,.. .. ., ,,„ „_ ,,. ,,^, ^^^„^^^^,^^^ ^^^.^^^, And for all and every of the purposes aforesaid I do here- by pve and j,.rant unto my said a.,^e,u and attornev, full power and authority to do, perform and execute all acts deeds anc matters necessary to he done and performed, and all proceed- mgs to take necessary to be taken in and about the premises hereby rat.fyn,. confirmin,^ and allowing., and herebv aii'ii.\ G. H. J \Sigiiai,\ CD. l^(v//.] (a) A copy of this authority, or the authority itself, must be filed with the renewal statement (s. 18.) HI \l III. MOKTl.Al.KS. 461 ny hand and seal, .\L;^}|()klT^■ to m:i:\t To lake a,ul rr„n, mor/_^„,i^rrs ,irc,nni//y. R- S. O., iSq;. c. ,48, ss. 2, 3, 3,. _ Kiunv all men by these presents, that I. C. 0.. oi the " '■" . 'II the County of 1,1, u "!:'"•"'-; -■•■»'i'"^- .iK>ri.:. , ; r i..;'; ':;Z — ot -^ |„ tii^. County of my sole use and beneht, to take and rene^v all and any chattel mortga,.es, and Hills of sale by uay of chattel nn r ! necessary or expedient to be taken or reneued for ,.: uui I '^n^eir " ; 'r '"'' '"^^"" ''' l^— ^ whomsoeye 1 myself could do. And for all and eyery of the purposes aforesaid I hereby give and ^^rant unto my said a.^ent and attorney full power and authoruy to do, perform and execute all acts, deeds nd ma ters necessary to be done and performed, and all proceed- Tr b '^''f. "?'-"^-^^^'--V" be taken in and about the premises. I hereby ra .fymg, confirming- and allouin^s and hereby a^^ree- ."g to ratify, confirm and allovy all and uhatsoeyer my said virtue Iiereof. ' In ^yitness u-hereof I have hereunto set my hand and seal, this day ot A. D. ,8_. Signed, sealed and delivered. | in the presence of / [.sv;,,,,,/, | CD. [S.a/. \ lority itself, must ¥u li>KMS. sT.\ I I'Ml'X r ox Kl.XKWAL (•/ ihltlU'l llllir/irdfrc, R. S. O., iH()7, c. 14S, ss. iS-Ji. Statement exhibiting tiie interest of C. D., {iiitirtiraffff assii^iiciol' iiiiir/ifd^vc, iir f/icir (iirciit\ oi the o\ in the County of , , in the property mentioned in a chattel mortgage dated tiie day of , 18 — , made between A. H., of the of , in the County of , , of tlie one part ; and C. I)., of the of , in the County of of the other part; and filed in the olfice of the Clerk of the | County] Court of the County of , on t'le day of 18—, [if rcnvM'd, add and renewed by statements filed on the day of , 18- , and on the day oi 18 , ns the Citsc niiiy l>c\, and oi the amount due fo; principal and interest thereon, and of all payments made on account thereof. The said C. D. is still the mortgagee of the said property, and has not assigned the said mortgage \or the said E. F. is the assignee of the said mortgaj^e by virtue of an assignment thereof from the said C. I), to him, dated the day of iS — , or (IS the ctisc nuiy he | \o payments have been made on account of the said mort- gage \(>r the following paymonts and no other have been made on iccount of the said mortgag^e. 1886, January i — Cash received $100. J The amount still due for principal and interest on the said mortgage is the sum of dollars, L-omputed as follows ; \Hcrc give the eoinpiitdtioii. | [Signed,] CD. '"^111 I. \ti.i wit : I *-OlllUv of of 4'M 0\ KK- 111 tlio morij^i,,;oe .41 ' ' '''•■' "iortL'';ift'L' Swor,, boforo „,, ,„"tV,e _"",;"■ "">■ l>"'J'ilonl pur,,.., in tlieCountv of- so. this -day of \'^''A'->'<'mmis.sioner, etc. ""^ '-'-'-- '".Kle the ,,,,, ^ ^ ^ _^__^ between C.I)., of the •of -.in the Countvof , hereiiv.fiPr ...n . , - '" me Lountvof ^ "-- '■- .,„e. „„ ,~;;;'"„":„t""'"-'';'" — ■ — • Where-iv; n.. . • "^ '"^ -secoiui part. .schari,^ed, or the said ^rood^ , , '" ''^''^■^^'' '^'' encumbered, or vvherebv tht sVid " , "'' '" '■'">• '''^'^ "f them, have been, or m'v ^ "'"^"''^ '"'^ ^"''^^"'-^'•S or any mentioned in the .said mori..,.'' 'amoved from the premises his executors, or adamnstr:;.;:. '";' ""^^ ''f' ''^^ --^"or, at the cost] of the assignee hi "''"" "" '"'^uest [and assigns do, perform and 'execn't >'"'"""''' ''^'"''"'■'^"•ators or fiTther assuring- the said n,or,.>-..^ ''h' '"'' "'''''''"^y '^'■ chattels, and for enforein.. the nerf "'''"'■'' ^'''''^^ '"'^ and other matters contained i, ''■?"" "' '''' ^'--^"^"ts I" -itness whereof t"^ T '""'^'''^^^• their hands and seals ' ^'"'''" ^''''' hereunto set Signed, sealed and delivered ) 'n the presence of '/ [.sv,,v.v/] CD. (.v,../) AFFIDAVIT OF BONA FIDES Ontario, J i r i^ . , County of County of l^l'^ZZ"' I""-' To wit • I I'l, fi,„ r . ' "' the assipnee mortgage named, mi:: i:;:^:^:;^. '''''""''"' "^ ^'-^el con^Si;;;:;;;::,,;;;:^:^,;;:;::;; ';>-- nde, and ^r good ciollars, as set forth in t e s ' i ' "" ^' ^'"^ ■'^"'" «^ -^ purpose of holding or emlnlg ^ '^h;:T'' ''"' '^ ""^ ^^ ^'- goods mentioned therein a.^.inst 1 ^.'P''"'^"^' ^^ hold the ' assignor therein named. "-'""-^^ ^''^' ^'--^^^htors of C. D., the Sworn before me. at the 1 °^ • in the County of | ■ this j.,^. yf , [SVg-rtef/] E. F ; A.D.. 18—. ' A C ommissioner. etc. 466 Ontario, County of - FORMS. AFFIDAVIT OF EXECUTION Of assignnu'tif of chattel mortgage, I, G. H., of the - the County of ■> - oath and say : of in make To wit : (i) That I was personally present and did see the fore- jroing assionment of chattel mortgage duly signed, sealed and executed by C. D. [one of] the parties thereto ; (2) That I, this deponent, am a subscribing witness to the said assignment ; (3) That the name [luvm' of loitncss] set and subscribed as a witness to the execution thereof is of the proper hand- writing of me, this deponent ; (4) That the said assignment was executed at the of in the County of — , on the day of A. D., 18—. Sworn before me, at the of in the County of this day of , A.D., 18^ [ir/^««/l X. Y. \SigmH{\ G. H. A Commissioner, etc. NOTICE OF ASSIGNMENT OF MORTGAGE Given to mortgagor by assignee of mortgage. To Mr. A. B.; Take notice that I have this day become the purchaser and assignee for value of that certain chattel mortgage made and executed by you to C. D., of the of , m the County of , . whereby you secured to the said C. D., on the goods and chattels therein mentioned the sum of Jl- dollars, payable as therein set out, and which said mortgage was duly registered in pursuance of the statute in (""ATTKI, MORTCAGI-S. [.SV^;/(y/] G. H. ' moi-fp-agc. 467 that behalf on the — 1 me fXa\ of A n ,8 ^r ^..n^^^eoru,eae..ortheCou^;:S-;-t unp':;' !::::: :Z::z ''-' -' -'-- -^ --^ - fe-^e are hereafte" to"' U b"" ''"""'"' °' ''' ^^'^ --^- and assignee, and to no one els^ '"[ '", T "" '""'^ ^"""'^'^''^ whom all further deah'nL^s of •, " '""^ '''^ -"'''■■''°" ^^''^h had of and concert' ^e /ai'"n;"r'" "'"^^°"'^'- ■•''' ^° ^^ Dated at - V "^"'■^y^^e. Witness ' ~~ "^^y °f A.D., i8_. ['V4"-^/c ' " , ana was ni<>■ls;^Aro,l r • S-aS^e has been renewed w.. r. '-:"^^'^^' ['"- '" '■'«'■ ^/'^' '«r;/-/- — day of _ A D r9 tvt '' *^" ^'^e r-Yx, , , ^-iJ., iH — , as No. [ 1 hat such mortP-ao-e ha^ n,^s^ u that such mortgage^:: ':!:;"; ;';:n--^ ^^37 f- and ■ndenture of assignment daLi the -111 V \ '"'' '^ 18-, and registered in the office of the Clerl/of^r ~r ' Court of the County of „„ „ '' ''^ *''^^ <-o»"ty 18- as No .' A , ~ °"*he day of further assigned J ' '"''' mortgage has not been Witness ., „„„ „„.!^'^:;;;'j;:i^'x^^^-_^_^ Sifftiature of witness and state > residence and occupation. ] [Signed] K. p. 468 FORMS. AFFIDAVIT OF EXECUTION. Of dischiirsrv of chaltcl mort}];a}iC. I I, G.H., of the ) in tlie County of — of County of To wit : make oath and say : 1. That I was personally present and did see the within certificate of discharge of chattel mortgage duly signed and executed by C. D., one of the parties thereto. 2. That the said certificate was so executed at the of , in the County of • 3. That I know the said party. 4. That I am a subscribing witness to the said certificate. Sworn before me at the of I {Signcd\ G. H. this - 18—. -, in the County of — day of A.D. \Signcd\ X. V. A Commissioner, etc. DISCHARGE OF CHATTEL MORTGAGE Bv (ISsiir)H'C of f/lC »lOI'fi>llgCC. To the Clerk of the [County] Court of the County of . I, E. F., of the of in the County of . , do hereby certify that [A. B.] of the of in the County of -, has satisfied all money due on, or to grow due on a certain chattel mortgage made by him, the said A. B. [oi- made by one A. B.] to one C. D., of _, which mortgage bears date the day of , A.D., 18—, and was registered in the office of the Clerk of the County Court of the County of on the day of A.D., 18—, as No. , and which said mortgage was, by assignment thereof bearing date the day of A.D. 18—, duly assigned by the said C. D. to me, \if the assigumeut has been ngis/cmUJicu add and which said assi'>-nment was duly registered in the office of the Clerk t'lATTKr. MORTf.ACES. or the said County Court on the '«— , as \o. 1 dav of 469 A.D. le monev That such said mort• , „,. , "^''f-*- '^ ilK-'rctore discharjred VV itr.ess my hand this j,,,. ^,,- ^ rcsA/cmv ami occ„pa/iol. I (.sy^,v/■ •"• -' '■••"'» As witness our crporate seal anil ImaimKerJ „r the said compaav tliis - 1 8 — . [^Vitncss] I ].Vi., fiMaiiajjer.j tlie liaiui nf day of • ) \Cni)ipaiiv [ Sail. ' AUTHOR,TVT<,.U;..:XTP,V.\COM1.AN-Y /■'> tnki' and rcm-.i^ all Mortgages. Know all men by those presents, that we the C 01 ,„ th^, Countv of true and lawful attorney and ajrent for us •,„ /• ' dient fn h« f I , mortg-aj^e, necessary or expe- ana e\ei\ ot the purposes aforesaid, do hereby pIvp ^r a s::;;:i-:t:r™;:r,r::-:;;'-^t~ and other proceedino. u„ich ma be , . "'' '"'" .a^e^ . Lratio;:i:i';tr?:r-- cat:;ir:;:r:-r ,;;:;;;/"—'- "'-^■">' "-' As w,t„ess oar corporate seal a„J the hand „r IM^-Ker] or the said eon,pa,,v, this jj l' ZZI {Signed, ] fM L. M., ■ui :iger. Company i.ii\ ! ' ! 472 FORMS. niSTRICSS WARR.WI' 'i ■•III I'nilci' cluittcl »ior/fr(iffi\ To E. F., my bailiff in liiis behalf : You are hereby authorized and required to seize and take all the ^"-oods and chattels, mentioned in the mort},'-age [a copy whereof isj hereunto annexed, wherever the same may be found, and the same to sell and dispose of as provided bv the said mort}j;-age, so as to realize the sum of dollars, now due and owinj,-- to me, by virtue of the provisions therein contained, and the said sum, or so much thereof as may be realized, to pay over to me, my executors, admiiiistrators or assif^ns, and proceed thereupon to obtain possession of such goods and chattels, and for the recovery of the said sum as the law directs and the said indenture permits, and for your so doing this shall be your sufficient warrant and authority. Witness my hand and seal this day of , i8 — •• Witness ^ \S,[i>iic , . ^' per annum. ^ ~- P"-^"" cent. And whereas the said sum of ^ n ■ of the third part. ^- ^''^ "'"'' P^'^^Y And whereas the trustee hns ct n, parties of the second and t.ir part t 7'""?' ''" ^"'' of dollars u-.« 1. ^ '^ ' - "'''°"'' ^^^ ■'^^'d sum Now ihese present, J, ,1" , ^ ''"'""••'"" ""lained. agreement and'n con i^™, ,''"''" '""'"':'" "' "- -'id hereby declare, ,„„, \^Tl^2j"T°'' "" ""'"' assign. ...„ hencerort,, ..„d;":rd o T,' • '.ir ■ , :;::' t 474 lOKMS. said principal sum of dollars secured hv tlie herein- p before recited indenture of niort<^af,^e, and tlie interest thereon, upon tlie trusts followiu},', that is to say : upon trust out of the moneys which shall be received from time to time under the said mortgaj^e in the first place to pa- thereout all the costs, char-//c^<)7, .-. i4.S. s. ... THlsiXnKXTl-R,,,,,,,,,,,^. — i' ,. . ,. ^ '" - "1 tlie Coiimv iif ^^^^ ^ . l...o,„alu.r c:,lloJ ,1,. l,,,r,-„i„„, „,■ „„, ,,,J„„j Wi.nessell,, ,l,„, i„ „,„,ij„,„i„„ „f »et over unto ,l,c hir : , p • ' "'*■'"■ "'"''" ■"«■< after doscrihoJ, ^a.t'.o' , , .'"'''•°'"'' ""■^■'■■"- ""«-- ever, „„; tltoof " " "'' "'' '" '""' ""' "^ •'- '■'"«'■ «"'i And the baro-ainor doth hereby for himself hi ■ J ■ executors and administrators coven-u, "■'' r^l ni, and every part ll 'ereof: And that ihc b. md eyery of i,'ainor now 476 I OR.MS, lias ill liimseir ^ood ri>,>-lit to asslj,'n Ihe same unto the bar>,'ainee, his executors, aJniinistrators and assi^Mis, in manner aforesaid, and aceordinj; to the true intent and mean- inj,-- o\' these presents : And that tlie |-)ar(,Minee, liis executors, administrators and assijrns, shall and may from time to time and at all times hereafter peaceably and i.|uiefly have, hold, possess and enjov the said hereby assii,'ned j,'-oods anil chattels and every of them and every part thereof, to and for his and their own use and benefit, without any manner of hindrance, interruption, moles- tation, claim or demand whatsoever, of, from, or by the bar^'-ainor, or any other person or persons whomsoever ; and that free and clear, and freely and absolutely released and dischartred, or otherwise |at the costs of the bartjainor], elVectually indenuiilied from and aj^^inst all former and other bargains, sales, t,Mfls, f,n-ants, titles, charj,--es and encumbrances whatsoever; And moreover, that the barg-ainor and all persons riglit- fully claiming,' or to claim any estate, rij^ht, title or interest of, in or to the said hereby assif,nied j,roods, chattels and effects, and every of them, and every part thereof, shall and will, from time to time, and at all times hereafter, upon every reasonable request of the barj,>-ainee, his executors, adminis- trators or assigns, but at the cost and charges of the bargainee, make, do and execute, or cause or procure to be made, done and executed, all such further acts, deeds and assurances of the same, for the more effectually assigning and assuring the said hereby assigned goods and chattels unto the bargainee, his executors, administrators or assigns, in manner aforesaid, and according to the true intent and meaning of these pre- sents, as by the bargainee, his executors, administrators or assigns, or his or their counsel in the law, shall be reasonably advised or required. In witness whereof, the parties hereto have hereunto set their hands and seals. Signed, sealed, and delivered) r„. ,, , „ m the presence ot j l a j ^ j [S/jr„ai\ E. F. I same iitUn tlie and assij^qis, in intent and moan- Jniinistrators and and at all times possess and enjoy md every of them icir own use and erruption, rnoles- fioni, or hy tlie lis w luMiisoever ; itely released and the barj^ainor], former and other nd encumhrances ill persons riglit- , title or interest ds, ehattels and hereof, shall and after, upon every 'cutors, adminis- of the bargainee, o be made, done id assurances of ind assuring- the :o the barj^fainee, lanner aforesaid, ij;- of these pre- idministrators or all be reasonably ive hereunto set A. B. [.SV«/]. Ontario, County of — __ To wit : i'"\i II r, MOHrii.\c,i:.s. Ai'Kin.wn OF no\A |.ini;s 477 '- <-'• I)., of, lie _ in the t'ouniv of - of , the the said conveyance -.,u! I . .""T '"■'• ^'' '^^■' ''^'"^ '"" ^-Ni". nie. ;,;;::,;;:,;•:-: ^^;n-eo^ therein against the creditors o, A h '• "^'"""""' named. " "'^ harJ,^■^mor therein Sworn before nie at the "'^ •' '» the County of this -— any of A.D., iS-. |.V/o7/,y/) C. I). A Commissioner, etc. n.a^:\h'':2:;;:'^ ^'^^ ^--^^ '-'---' -^ -• ''-- -->• AFFIDAVIT OF EXFCl'TION <\f hill ()/ xalc. R. S. O., 1897, c. 148, s. 6. Ontario, County of I- F. F., of the - in the County of make oath and sav : To wit : sa.;dd;:;;r:::;^ pres-r;;;d';;;;/:^;„e within bi,, of parties iherlo . ' """"^"' '^ f-- "H the ^. I am a subscribing, witness to the said bill of sale witiis^f^;;;"" ^'''"■""": ''^'''"''^^ -^ --• -^-ribed as a Id IM ,11 I ! i i i » i M 478 FORMS. 4. The said bill of sale was executed at the •of- in the County of , on the Sworn before me at the of , in the County of , this dav of day of 18—. A.D., 18—. [S/^m'//\ X. Y. A Commissioner, etc. [S/jr,/rt/] E. F. AFFIDAVIT OF BONA FIDES by agent of bargainee. R. S. O., 1897, c. 148, s. 6. Ontakio, County of I, E. F., of the in the County of make oath and sav of To wit : 1. I am the duly authorized agent of C. D., the bargainee in the foregoing bill of sale named, for the purposes of the said bill of sale, and I am aware of all the circumstances con- nected therewith : 2. I am duly authorized in writing to take such said con- veyance or bill of sale, and [a true copy of J such authority is attached to the said conveyance or bill of sale, and is marked with the letter " B." 3. The sale therein made is bona fide, and for good con- sideration, namely, the sum of dollars, as set forth in the said conveyance, and is not for the purpose of holding, or enabling the said bargainee to hold, the goods mentioned therein against the creditors of A. B., the bargainor therein named. Sworn before me at the 1 of , in the County of , this dav of {Signed \ E. F. A.D., 18—. Signed] X. V. A Commissioner, etc. of- 47y i8— . va/] E. F. ES of ., tlie barg-ainee purposes of the umstances con- '■ sucli said con- Lich authority is , and is marked i for gfood con- , as set forth in e of holding, or ods mentioned rgainor therein cd] E. F. I'llATTI-I, MOKTC..\i;i:S. AUTHORITY TO AX AGENT to take a bill of sale. R- S. O., 1897, c. 148, s. 6. _Knovv all men by these presents, that I. C. D., of the in the County of nommate, constitute, authorize and appoint - of , in the County of — > do hereby K. F., of the as mv true a„d lawful at-e,,, „„<, „„„„, f„^ ^^ ' u- ; ~ ' '" 'he Countv of -_ oTt^^Uid A^'lfr' "?••'" '^'""'' P-Perty.'the propert; sa,d A. B tor and m consideration of the sum of 777 n '''' '" ''' P*''''^ '^>' '"^ ^°'- tl'e purchase thereof- and for all and every of the purposes aforesaid I clo Te'et' g.ve and grant unto my said agent and attorney A^, owe and authonty to do, perform and execute all act J, deed' -In d ceed.ngs to take necessary to be taken under and by virtue of any statute ,n that behalf or otherwise howsoever'i , d about the premises ; , hereby ratifying, confirming d all and whatsoever my sa.d agent and attorney shall lawfully do or cause to be done by virtue hereof ^ In witness whereof I have hereunto set n.y hand and seal. this day ot A.D., 18—. Signed, sealed and delivered | in the presence of / \^iffiic(l\ C. D. \Sc(il\. {Signal] G. H. CLERK'S CERTIFICATE Of copy of mortgage, n^lw. goods removed to a„olker- county. R- S. O., 1897, c. 148, s. 17. ~^do^h ^17'' °^'^'" '^°''"'' ^^""--^ "f *'^^ County of — - do hereby cert.fy that the annexed paper writing iirorKea A is a true and rnrr^-f r ■ ^ II uc timi coi rett coDv ot jpy ongmal 48o FORMS. chattel morts^-age from A. B. to C. D., with all endorsements thereon bearing date the day of -, 18—, which was filed in the oflice of tlie said court at o'clock in the noon on the day of- , 18—. \lf the morlgage has been rciiavei/ or nssi^ncif, aiiil and that the paper writings marked " H " hereto attached are true and correct copies of the renewal {or assignment as the case )nay be) of the said mortgage filed as aforesaid, with all endorsements thereon, and of all afiidavits, statements, documents, and instruments relating thereto, which said paper writings marked " B " were respectively filed in the office of the said court as follows {here set out the dates o/Ji/iiig ami tite mivibers aint other speci- Jicatioiis of each i/oeiniieiit)\, and that there are no other affidavits, documents, instruments or other papers relating to the said mortgage filed in the ofiice of the said court. Dated this day of ^ , 18—. [Seal of Court. \ \S/gne(/\ L. \I. c.c.c. CLERK'S CERTIFICATE Of instninieiits /jeiiig reeeived and filcit, ivhen siieh required for evidence in court. R. S. O., 1897, c, 1 48, s. 24. I, L. M., Clerk of the County Court of the County of — , do hereby certify that the annexed paper writing marked "A" is a true and correct copy [of a copy] of the original chattel mortgage from A. B. to C. D. [and of the statement thereto belonging] and of all indorsements on the said original mortgage, which bears date the day of , 18 — , and was filed in the office of the said court at o'clock in the noon on — the day of . 18-. Dated this day of \Seal of Court. | 18—. \Signcd\ L. M. C.C.C. ;li INDEX OP SUBJECTS. ABANDONMENT OF POSSFSSION • ^ p " ABSOr I'Tpr ^. . ^^>i'^-SION : See Possession. ABSOLLTEU NULL AND VOID," ,io ACCEPTANCE: " necessary to compiete cleliverv, .c. 2- ACCESSIONS: See A™ Acc/c.kho 'iChk.v to mortgaged property are subject to ..ortga^e .4 by manufacture or repair ^ , *' '^ ' '"^" substituted articles, 25. increase of animals, 25. ACCIDENT : when a ground for admitting parol evidence, . "ACCOMPANIED BY"; meaning of, 392, 393. " ACCOMPANY " : meaning of, 306. ACCOUNT: mortgage in possession liable to, 69 ACCRETION : See Accessions. ACQUIESCENCE : of mortgagee in sale of mortgaged goods, 63. ACTION : mortgagee with right to possession .^ ■ ■ wrongful detenL, or :rri::,r """''" '^^ mortgag.ee seizing before default, when' liable to, -^ agamst mortgagee selling before default, 60 measure of damages, 60, 68. effect of re-demise clause on right of 6, 482 iM)i:x OF siujiars. ACTION— ( 'oittinucii. if execution creditor taii//)i //a/. non-existing- property may be mortgaged or sold, 17. must be sufficiently described to be identified on acquisi- tion, 17. if not sufficiently described will not pass till appro- priated, 17. when innocent purchaser without notice from mortgagor in possession protected, 18. goods sold in the ordinary course of business, 18. goods in substiHition, 364. not included unless intention clear, 106. priorities regarding, ic6. inclusion of, 364. description, 363-69. application of Act, 385. priorities, 386, 387. contract to assign, 311. AGENT : his own name or his prm- may execute mortgage in cipal's, 52. giving mortgage in his own name, cannot discharge him- self from liability, 53. even if mortgagee has notice of agency, 53. parol authority of, to execute mortgage, 53. authority of, to make mortgage, 53. authority to sell does not confer authority to mort- gage, 53. mortgage to, enforceable'in agent's name, 33. affidavit by, form, 432-441. authority to renew, 359. affidavit of bona fides, requirements of, 238, 257, 258. authority of, original or copy to be filed, 257. knowledge of circumstances necessary, 306. authority to take bill of sale, to be attached, 286. must swear to knowledge of circumstances on making affidavit cf bona fides, 290. IN'DKX OF Sl-BJECTS. 485 authority to mort- •"ortgajre for future advances, ^g, for mortgagee on mortgage to secure guarantor. 299. 'iiift,„ -^ ^ . " indorser, 200. au honty o take a chattel mortgage, form of, 459 au honty to take and renew chattel mortgages, 46, author.ty to, by by-law. form of, 460. ^^ ^ ^ ' ^^'• authority to take a bill of sale, form of, 478. AGREE.MENT: parol agreeme.^ to give a mortgage, enforceable. 3. b^ parol mvahd against persons protected by Act^ to manufacture on joint account, L. ^ ' •" lor sale, 400, 402. for mortgage, 309. for sale, when to be in writing. 313. to make a sale, registration of, 3\o. ALGOMA : filing in district of, 314, 401. ANIMALS : "mortgage of animals usually covers increase, z, conveyance of increase of, 25. APPROPRIATION OF GOODS : rules as to, in sales and mortgages, 26. law as to, discussed, 26. ASCERTAINMENT : See Appkopki.vtio.v op Goons ASSIGNEE: option to register. 353. for creditors, status of, 281, 282. I li 1] I ^g6 imm:x ov sriyixTs, ASSIGNMENT: subject to equities, 354. of mortgage may be registered, 351. of debt transfers, equitable interest in tlie security, 352. of cliattel mortgage, form of, 463. of chattel mortgage, notice of, form, 466. ATTESTATION : witness must subscribe, 254. ATTORNMENT: by land mortgagor, 90. AUCTION : sale by, 83. advertisement, 77,79, 81. sale in parcels or en bloc, 84. adjournment, 79. . AUCTIONEER: selling mortgaged goods, liability of, 286. AUTHORITY : See Agent. BAILOR : name of, attached to article, 401. BANK : mortgage to, of personal property, subject to special legislation, 54. may hold and dispose of mortgages as additional security, 54- BANKRUPTCY : forbearance to seize not good consideration against trustee in, 33. BARGAINEE : See Affidavit of Bona Fides. BILL OF EXCHANGE: may be consideration of mortgage by acceptor, 270. i.vni-x oi- sinjKCTs. 4.S7 tlie security, 352. deration against :ceptor, 270. BILL OF SALE : definition of, need not be under seal i d-st-ncuonbetu-een absolute and condiiiona! sale , absolute in form niav be sheun t , u , • with a condition for redemption i. where condition .nav be ^ ';;:: T ^' ""^^^='^^' "• «' absolute on face, may be a mortice 4 ^a. parol ev.dence admissible to she:. :;ii;i-^- contammj/ contr-i.-f V,, • '"it^ution, 4. -ortiC! 7 "'■ "" '"'""" °'' "'^^^>-- '"^^ - containinf,r stipulation that £rood« to vendee till note n.k tf . '''"''''" P''"I^^''^>' "^ question of intention' Li'. rTf''- - if n.Wn of redemption ncn ri::;;ed f"^ '^ '"^ '^°"^^- ^• not a mort-^a^.e if sale extin,n.ishe; a debt o by blmd person, must be read over to T before signinJ,^ 49. ™ "P"" ''^^uest, in Prince Edward Lsland, 415 w.th contemporaneous rental to vendor, .4. when operative, 275. ~'^-^' requisites of, 286. reirJstration of copy, 292. form of, 474. BLIND PERSON: BONA FIDES : See Akk.o.v.t ok Box. F.„hs. BREACH : effect of breach of condition in mortgage, 2. m 488 INDKX OF SLBJEITS. it: I BRITISH COLUMBIA: statutes of, 1 18, 142. bill of sale defined, 1 18. verbal sales, not included, i iq. personal chattels, meaninji^ of, iig, 120. " formal possession," construed, 120. registration, 121. apparent possession, 124. defeasance to appear, if conditional, 125. conditional bill of sale, 125, 126. bill of sale, filing, 126. district registry, 127, 128. renewal every five years, 129. satisfaction of bill of sale may be entered, 130. afiidavits, vho may take, 130. duties of officer registering, 131, 132. affidavit of execution, 133. forms, 133-135, 141. bills of sale by companies, 140. district of Cassiar, special provisions, 142. BUILDING : may be mortgaged as personal property if erected with understanding that it may be removed, 23. BUILDING MATERIALS : when part of reality, 240. BUSINESS : sales in usual course, 401. BY-LAW : of company, appointing agent, form of, 469. CERTIFICATE OF CLERK. See Evidence. CHANGE OF POSSESSION : actual and continued, 388. delivery of key, 389. Hi if erected with IMMCX OF SIHJKCTS. CHANGK OF POSSKSSION-r...//;,.,./. siimcient to afford puhlic notico, 388. 489 absLMice of, indicalos fraud, 44. presumption of fraud mav be rebutted, 44 question of fraud one of fact for jurv 44 to obviate chan,.e, chattel mortK^a.,.; Acts passed, 44. >' "e.ther registration nor, mortj^aj^e void, 4,. advert.s.pfj important in deciding, sufllciencv-'of, 56. mere demand will „ot constitute 56 ' d.iigence in attemptin.,- to j,et possession will not avail, CHATTEL MORTGAGK : and see Moun.Ar.H. definition of, i. need not be under seal, 50. share in chattel, 387. genera! form, 423. future advances, form of, 433. CHATTELS REAL : definition of, 14. not the subject of chattel mortgages under the Act 14 CHATTELS PERSOXAL: See Chattels. meaning of, 413. CHATTE^LS :^ See Propertv, Akter-Acqcired Pkopertv. definition of, 14. chattels personal, definition of, 14. mortgage of, definition, i. term more comprehensive than "goods " 16 exempt from execution and attachment mav be mort- gaged, 14. equity of redemption in, mav be mortga-ed i- may be mortgaged even after default" in' p'ayment of prior mortgage, 15. may be mortgaged even with having possession, X4, ,5. ( ! ! I -+''" IXDEX OK SlHjia IS. CUATTI-.I.S ( „„/i,nu,/. siihscc|iiemly to be acquired, may bo mort-a-cJ, 17. but must be specifically liescribed, iS. vendor and vendee in conditional sale mav both have rij,'lit to mort{.,^'lge, 15. limited interest in may be mort},Mjred, 15. mortK^a^a^r in possession of stock in trade may sell " in the ordinary course of business." iS. may be mortyajjed while under levy, ^(>. may be followed by mort-aj,a-c if sold by mortfjaj-or. provided mortj,'-a{,a^ ret^istered, 42, not ready for delivery, 3S5. in course of manufacture, 385. CLi: RK OF COUNTY COURT : includes other olFicers, 315. duties of, 314-18. COLLATKR.AL AGRK KMKNT : effect of, 305. COLLUSION. See Fkaud. COMMISSIONER: may take affidavit, 378-80. omission of si|rnature, 380-82. COMPANY. See Corporation. COMPUTATION OF TIME. See Time. CONDITION. See Defeasance. CONDITIONAL SALE : distinj^-uished from absolute sale, i. where right of property does not pass to vendee, 10. where on default of paying instalments vendor may sell and pay surplus to venilee, 10. instances of, 10, 11. both vendor and vendee may mortgage, 15, Pi ! ? niav sell " in by mortj^afcor. 'M»IX Ol srii.IIHTS. ^,., coxniTioNAi. SAij.; r ;.,/,.,,,/ on a.^rcemont thai .i.Io sluH ,H,t p.ss, vendor n,av mort- k'uffe, 15. u-liere vendee may nunu^r,,^, U\s interest. , ^. of personal property, j^q. when excepted, 401. purchaser's creditor, 4nj. bailee's interest only, 40:;. CONFLICT Ol' LAWS : lex domicilii, 75. lex fori, 76. lex loci, 75, ,97. 2^j. lex sitae, 75, i<)7. removal of goods from jurisdiction, 247. CONFUSION. See lNn.:.&>•' agreement not to foreclose mortga-e 32 promise of surrender of lease not sufficient, 33 forbearance of questionable ri<.ht -. any act of mortgagee by which m^r'gagor derives benefit IS sufficient, 23. any labor, detriment or inconvenience sustained by mort- gagee IS sufficient, ^t,. ^ release from illegal arrest not good, 34. If against public policy not good, 34 debt barred by statute of limitation is good, 34 future advances and indorsements, 34 past debt is sufficient, 35. debt of a firm is a goocS consideration for a mortgage bv a partner, 35. '^ "'^ °> mortgage given by a debtor unable to pay in full ^- mortgagee unaware of insolvent circumstances ' -'" debt not yet due is good consideration for mo^ga-e by third party, 35. ^ =• > due or accruing due, 273. where mortgage taken as collateral, 273 pre-existing debt, a valuable, 286. on sale of goods, 286, 287. natural love and afTection, 292. CONSOLIDATION : of security, doctrine of, not applicable, -8^ CONTRACT : ^" place of, 74, 76. executory, within the Act, 242. validity and effect, what law governs, 320 ror sale, 310, 313. when property passes, 312. when to be in writing, 313. to give mortgage, 309. r (! if 111 i il ;'if i! 404 INDEX OF SUBJECTS. CONVEYANCE : apparently conditional may be shewn to be absolute, 4. fraudulent or voluntary, 93. absolute in form may be shewn to be conditional, 99. made with intent to defraud, 1 14. CONTINGENTINTEREST : aijreement for sale of, will be enforced in certain cir- cumstances, 16. COPY : meaning;' of true copy, 250. copy of mortgage may be filed, 250. copy of bill of sale may be filed, 292. CORPORATIONS : inherent right of, to mortgage their property, 54. execution of mortgage by, 54. who should take mortgage to, 54. liquidation of, 94. affidavit of bona fides for, 258, 259. mortgage to secure bonds or debentures, 341. form of affidavit of bona fides on same, 458. with head office out of Ontario giving debenture mort- gage, 343. renewal of debenture mortgage, 344. conveyance to secure debentures, 341-45. receiving debenture mortgage, what officer to make affi- davit, 344. by-law authorizing agent to take and renew investments, 469. COSTS: of seizure, 406, 407. COVENANT : right of mortgagor to possession until default, 56. that mortgagee ma}' enter and take possession if he deems necessary for his safety, 57. Ill li i .1 in certain cir- debenture mort- ■M)i:X OI- SIMJECTS. or if he deems liiinself insecure - 495 or if mortc....j,or atlen.pt to dispose of propertv - 'fstoci< depreciate mort-a-ee nr.v f-.L ' ^ ""'' niort,.a,.ee-s consent to ,^ : do I ' d /'""""°"' '"• - to se„ or dispose of, ;:::;::Xtt-r°^'^"^"'^^- to make mortga-e, ;,o9. ' to make a sale, re-istralion of, 3,0. CREDITORS: conveyance from debtor, property remaining i„ his possession is evidence of fraud 44 "t:^,.c::"'-^'''^^^"^^^'°"^--^-"^"'-^p- and can only invoke law as to deficiency 4. notice of mortgage does not debar, from Attacking for wantof compliance with Act 4. '-'<"ig tor when not affected by sale to third parties bv mortgagee nho takes possession under invalid mortga.>-e 7? but If purchaser again sells to bona fide purc^ase'rs the _ cred: or-s rights are extinguished as to goods 7/ rights and remedies of, 93, 97. ^ ' ^^^ meaning of, 35^8. rigiits against contracts to give mortgages, 309. knowledge of encumbrance immateri^d, tg, CRIMINAL CODE: of Canada, sections applicable, 1 14. 'U 496 INDEX or SUBJECTS. CRIMINAL PROCEEDINGS : defendant in civil action need not answer questions tend- ing to criminate, 43. CROPS : agreement t.iat rent to be paid before crop removed is a mortgage of crop, 8. interest in, although limited, may be mortgaged, 15, future, may be mortgaged, 16, 17. fructus industriales are within act, ig. are goods, within 17th section of statute of frauds, ig. fructus naturales not within act until severance, ig. such are an inti. 'est in land within 4th section of statute of frauds, ig. what is a sufficient description of future, 18. land mortgagee receiving release of equity is postponed to chattel mortgage of crops, ig. fruit or timber sold with a view to immediate severance is a sale of goods, 20. vendee of fructus naturales, if not owner of land, may mortgage same, 20. mortgage of, gi. mortgage of in Manitoba, 151. mortgage of, effect on land mortgagee, 238, 23g. future, 386. DAMAGES : for mortgagee taking possession and selling before his right accrues, 43. for fraudulent concealment of encumbrances or falsifying pedigree, 43. for mortgagee taking possession and selling before de- fault. 43. if mortgagee who is entitled to possession, sell before default, 60. DATE : 'Mncx o\- si-HjEtrs. 497 r questions tend- ty is postponed idiate sexerance sr of land, may of instrument, 107, loS when uitness m,st suoar to date. ,07 affidavit of execution f> 1 DEBENTURE : defined, 342. mort-a-e to secure, 34,. and see Corporatiox. DEBT : esscKe^of a, .ortgage requires there should he a debt, -;;:^or::;:r^^^^^"^^^^^^ payment of, is a yood consideration ^8 past, ,s a good consideration for a mortgage ^- pre-ex.stmg-, as a consideration, ^. " ' ""' of a firm mav he secured hv •. .,,' " . partner,' „ ' " "'°"*-'"i>"-- '^''''"■■il by „ "■'■'; "rr:: t" '" '""■ "■ '-"■ ^-""-- '-- and see Coxsidekatiox. DEED : seal not necessary to a bill of sale i seal not necessary to a mortgage ', and to criminal prosecution, 43. 498 INDEX OK SUBJECTS. lllli DEFAULT : effect of, on non-performance of condition, 2. after default in payment of prior mortga^^e, owner may still mortgage, 15. right of mortgagee to possession though no default, 59. mortgagor's right to possession until, 59. if mortgagee sell goods before, mortgagor has right of action, 60. in absence of redemise clause mortgagee may take pos- session before, 60. mortgagee taking possession before, must take such care as a prudent owner would, (J9. presumption by implication that mortgagor may remain i'" possession until, 66, 72. DEFEASANCE : nature of, 98. omission of date for repayment in clause for, 348. effect of indefinite time for repayment, 348. not necessary to be inserted to constitute a legal mort- giige, 4. subsequently executed, when valid and when void, 4. where defeasance, clause or condition may be written or endorsed, 4. may be contained in a separate instrument, 4. DEFECT : in mortgage may generally be cured by mortgagee tak- ing possession, 55. but not in Ontario, 55, 399. except as regards rights acquired after possession taken, 399- DESCRIPTION : must be such that the property can be ascertained, 26. particulars of, 105, 201. in stock-list form, 158. requirement of, 374. 499 Igor may remain mortgagee tak- possession taken, ascertained, 26. INDEX OK SUBJECTS. DESCRlPTlON-rv..//.,,,/. -sufficiency of, 359-78. epitome of rules, ^76.78. -sufficient and full,' 350. ^60. uiterpretation of, 361. by general words, 362. indefiniteness, 362. after acquired property, 364-69. ot furniture, 369. insufficient, 372. effect of insufficiency, 279. DELIVERV : of possession, effect of 8 whatever is capable of.' is' within the Act 16 .00. ^ ...Is capable Of manual! nLbemort- -medU^te, how affected by nature of p.ope.y. 248, 249. symbolical, 390. words insufficient, 391. immediate, when excused, 394. and see Possession-. DISCH.ARGE OF MORTGAGE : Ontario form, 404, 467. by assignee, 356. by certificate of mortgagee 347 by mortgagee converting g^ods'to his own use ,4c, effect of statute of limitations, 349 ' '^^^• clerk's duties on receiving certihcate. 350, ,„ affidavit of execution on, form, 468. '' by assignee, form, 468. DISCOUNT : of mortgagor's note or acceptance, 270-272. i I m Hi ;if ^oo INDEX OK sriyKCTs. DISTRKSS : rif,--!!! of mortj^;ii,a'e to take possession in case of, 62. by landlord for rent, 86-92. illefj^al, 91. hv land mortgagee, 92. costs, 406, 407. warrant, of under chattel mortf,'-a^a>, form of, 472. DIVISION COURTS : execution binds goods only from time of seizure, 46. DOWER : inchoate, bar of, 307. DRAFT : under discount may be consideration for mortgage, 270. ENCUMBRANCE: necessity for search for, 276. ENDORSEMENT. See Indorsement. EQUITABLE ASSIGNMENT : of mortgage, by transfer of debt secured, 352. EQUITY OF REDEMPTION : may be mortgaged, even after default, 15. after default, and until mortgagee takes possession, mortgagor may sell, 67. ESTATE FOR YEARS: is a chattel real, 14. not within the Act, 14. ESTOPPEL : mortgagee acquiescing in sale of property estopped from requiring written consent, 63. EVIDENCE : parol may be received to shew; that instrument absolute in form is conditional, 4. when parol evidence will be received, 4. mortgage, 270. ikes possession, ty estopped from triiment absolute INIM-X Ol- SlHJl.:i.TS. EVIDHN'CE -r««//«/„v/. 5" I Act rospecting, in P. E, [.^ ^- cerlilied copy of original instrument, orscment hy clerk, ;,45. 11 ot instrument, 346. iiiJ proof ol' execut clerk s certihcate of true cony, ( Hiiestions tenclin'-- t g to crunmale, 'P\-, form of, 346, 480. EXI-:CL'TIO\ : See !•: privilege, 4- in Sup xi:rtTui\ oi. Instkimknt. 'enor^or County Courts li fas hinj from d; in shcrilf's h UKis in Di 46, ite placed sale b\ Aision Courts only from actual -M-ilf un riylits, h; uer, not a waiver bv sei/uro by hailitV, 46 mortgagee of his aiTid \it of, form, 431. of bill of sale in WE. I priority as ag-ainst cbatt EXECUTION- OF IXSTI proof, 409, 410, 411. el mortgage, 276. blind RC.MKXT or illiterate person read o\er before s may require to have instru imcnt person bound to i^'nuii"- 40. execute read over to him, 49. may require inst rument to be msane person not bound by, if vendee |. otherwise if ni msanitv, 50. oney advanced and with knew of insanitv, 49. out knowledge of by corporation, h evidence to provi ■ liow executed, date of, must b ^o. And 'e sworn to on mortgages, 25 see AKi'in.wiT ok Ex .10- KCL'TIOX. EXECLTOR : may make affidavit on renewal, 339, 340. EXEMPTIOXS : may be mortgaged, 14. FEES OF CLERK, 356, 357. f ! I i II !i !) 502 INDKX OF SlUJEl IS. FI. FA : See Execltion. FILING: time expiring on Sunday, 357. meaning of, 358, 317. And see Registration. FIXTURES : mortgagee of, acquisition of title by, 20. rules for ascertaining if any given article is a fixture, 20, 246. intention of parties in dealing with, decides their charac- ter, 21. wrong-doer aflixing, 21. chattels owned by trespasser and affixed by him, 22. contract for sale of, when a contract for sale of chattels, 22. owner of land may sever, and mortgage, 22. land mortgagee, when entitled to priority, 243. machiner\- as, 239. question of physical attachment, 246. FORECLOSURE : owner may mortgage until, even after default, 15. junior mortgagee has right to redeem until, 15. remedy by, 77. of mortgage, 98, 103. FOREIGN LAW : when applicable, 74, 76. FORMS : bill of sale, 474. chattel mortgage to secure against indorsement, 449. chattel mortgage, general, 423. future advances of money, 433. " " goods, 442. affidavits of bona fides, general form, 430. " " by agent, 432. " " " future advances, 441. " " future advances, 440. execution, 431, 466, 477. i( w sement, 449. (< (< i-NHEx ov snijja rs. jq- clerk's certificate of true copy. 346. 479. 4«o. tor use when f,'-oods removed to another county, 322. discharg:e of morts■af,a^ Ontario, 404, 467. by assijjnee, 468. renewal statement affidavit accompanyinf,^ renewal statement. 40s. 463. _^ ot bona fides on mortj,^age to secure indorser, 456. by at,'ent to secure indorser. 457. on bill of sale, 476. by aj,-ent. 477. on mortj,ra<,'-e to secure debentures, 45«- it . " ''^ ''^^'«'"^"e of mortgage, 46;. notice of assignment of mortgage, 466 "^ "^ ' ^ " authority to agent to take a chattel mortgage, 459. ;; to renew " .. ^,-„ to take and renew mortgages, 461. by a company, 470, 471. to take bill of sale, 470 assignment of chattel mortgage, 46^ by law of company appointing a'geni, 469. distress warrant under chattel mortgage, 47. declaration of trust, 472; " FRAUD : a ground for admitting parol evidence, s- person perpetrating can claim no benefit through his own act, 37. statute of Elizabeth, 27. co.n-eyances made with intent to defraud are utterly void, 37. i-'-tii^ statute of Elizabeth requires conveyances to be both bona fide and tor good consideration, ^7 Twynes' case, 28. concurrence of intent to defraud by debtor and creditor. It 5*H INPKX oi' srijjiars. li! I :« :! i FR.\rn CoHfiiiual. pr\'suiiiptioii oU may ho robutloil, 40. conccaluK'iit of dcotls or (.'iiciinibraiicos lenders \ cndor or mort^aj,^or liable in damajjes, 43. aiui to criminal pvmishntent, 43. .'alsifyinfj pedij^ree renders vendor or mortt^aj^or liable in damai,'es, 43. nid to criminal punishment, 43. sale of mortf^ai^^etl property by mortj^af^-or, 43. absence of clianjjfe of possession indicates, 44. presumption c>i, may be rebutted, 44. is a question of tact for jury, 44. morlL;af,''c o\\ consumable property presumed to be fraudulent, 45. badi^e oU for vendor to retain possession, 247. badge of, to include trillini,'- tliinf,'-s to secure dispropor- tionate amount, 268. by secret bills of sale, 408. FRAUDS, STATUTE OF: as lietween parties mort!,''aj,''e may be verbal unless writ- ing required by, 3. FRAUDULENT COWEVAXCE : elTect of statute of Elizabeth, 2S0. injunction to prevent further alienation, 281. FRAUDULENT PREFERENCE : registration not to validate, 316. FRAUDULENT REMOV AL : landlords' rights on, 89. FRUCTUS INDUSTRIALES : definition of, 19. within the Act, 19. FRUCTUS NATU RALES : definition of, 19. not within the Act before severance, 19. are an interest in land unless with a view to severance, 19. dors \ ondor or ya^or liable in .'Slimed to be lal unless writ- IM'i:\ ov Mii.|i;iTs. FfRMTTRE : mort)--af,'e of, deseiiiMion, ;;(„,. '•iTrRj.: Ac\n'iRi;i) i'roim:rt\- K L'TL RK .\I)\A\Ci:s : .■>'J."i See Ai ri-K- 2.14. severance, 19. a iiood consideration, 54. '"''-•t^-a^v to secure such ,0 a (h.n will not coscrsuch made to hrnrs successors alter dissolution ofori-in.il 11 rm, ;,4. made to firm before and alter introduction of neu mem- her, covered, ^5. mortt^jajve, form ot, 4;,^, 442, allidavit of bona ndes", Vecpiis'ites of, 2< |, ,„S atlidavit of bona tides, forms, 440, 441. aj^-reement and mort-ao-e for, j(,,. j,,^. a^neement to be set forth by recital in mortj-aL^' lin.itation of time for repavment. .n,4, .,,8 as distinKniished from .-, present advance, 295. restriction ot purpose of, 295. of either money or j^oods, 296. mortjra^ree must a-ree in uritin.^;- to make '9- to person already in business, 2()5, 297. ' ' departure from agreement, edect'of, 2c,,S. GOODS : See (Jooos am, Chattels. less comprehensive than " chattels," 16. definition of, 16. GOODS A\D CHA'I rKI<;. \ 1 «.-n.\i I ^^^ ; \^■^^^ ^^.^ CriATTiiLs, definition of a mortf,'-a<,'-e of, i. meaning- of under Act, 14. warehoused, 246. GOOD FAITH : actual knowledi,re, consistent with, 282. applies to purchasers and mortt,'ai,-ees, 281. of which party, 291. and see Akitdavit or Bo.va Fides. Ssi 'll • i: if I i5 506 INDEX OF SUBJECTS. GUARANTOR : mortf^-age to secure, 299. mortgag-e must recite the ag^reement, 299. affidavit of bona fides on inortj^ag-e to secure, 299. renewal of g-uarantee may be included, 301. limitation of time for liability, 302, 303. HALIBURTON : filing in, 314. hire-purchasp: agrp:ement : nature of, 240. HIRE-RECEIPT : when excepted, 401. HOLIDAY : expiry on, 357. HUSBAND AND WIFE: ante-nuptial settlement, 146, 288. how possession attributed, 146. sale between, 399. HYPOTHECATION : letters of, 242. IGNORANCE : a ground for admitting parol evidence, 5. ILLITERATE PERSON : execution by, of instrument, insufficient if not read over upon request, 49. IMMEDIATE DELIVERY : when conveyance not accompanied by, 238. notwithstanding interval, 391. INCREASE : See Accessions, A>;mals. INDEBTEDNESS : See Debt. INDEX OF Sl-BJECTS. if not read over INDORSKMEXT 507 mort^rap to secuie a-ainst, 299. form of mortf^-atie, 449. recital of af^reement, 299. errors in recital, effect of, 300. to be past or concurrent not future, ^or l-mrtafon of time for uhich the liabiHtv to continue. 299, 303. J>' renewal of, may be secured, ^01, 30s necessary to specify renewals to h'old securitv. 304. form of affid.uit of bona fides on mort^a^.e s^curin,., 4,6. form of athdavit of bona fides b, agent on mo^^^e securmi^-, 457. * INFANT : conveyance by, i,a'nerallv voidable, 47 until of age to decide questions of benefit or injurv 47 on attammg majority, may affirm or disaffirm contr'act 47 .f contract agreed to by, on attaining majority, heirs cn!^ not avoid, 47. purchases by, which are for his benefit, 47. cannot avoid and affirm a contract, 47 liable on mortgage given for purchase'monev, 48. liable on contract for necessaries, 48 cannot mortgage his share in a partnership, 48 what are acts of disaffirmance, 48. disaffirmance by, must be within reasonable time of com- of age, 49. what is a reasonable time for affirmation bv 40 INJUNCTION : ' Mortgagor may enjoin mortgagee from taking posses- sion before time limited. 61. INSANE PERSON : not bound by execution of instrument if vendee knew of his insanity. 49. insanity no ground for setting instrument aside if money advanced m good faith and without notice of insan'- 'ty, 50. 5o8 IXDKX OK Sl-BJRCrs. 1 IJ II i\soi.\i:\cv : insolvent circumstances per se, will not invalidate a inorti^aije, 40. conveyance durini,', raises presumption of fraud, 40. IXSPECTIOX OV RHCORDS, ;,i,S. 384. INSL'RANXI-: : morti;a,L;ee lias insurable interest, log. morti^'-at^c's interest in not increased by unsecured ad- vances, 109. usual co\enant for, 1 10. assii^-nment of policy to mortgatj'ee, 1 10. co\enant f.ir, as an equitable assii^fnment, iii. subrogalion, when applicable 112. bread", of covenant for, i '.3. mortgage clause, advisability of, no. INTEXTION : parol evidence admissible to show, 4. as to whether mortgage or sale, how gathered, 5. question of fact for jury, 6. of parties in deciding what is a fixture, 21. IXTEREST : act respecting, 115. percentage per annum to be shown, i 16. reco\ery bacl< in certain cases, 117, INTERMINGLING : of mortgaged property, rules as to, and examples, 25, 246. when mortgaged and other property intermingled, mort- gagee may claim both, 25. if intermingled easily distinguisliable, they may be separ- ated, 26. if not particularly distinguishable, mortgagee may select from whole, 26. of property, effect i 376. not invalidate a f fraud, 40. V unsecured ad- 1 1 1. liored, 5. :1 examples, 25, rmuiyled, mort- !y may be separ- atjee mav select iNni-x OK srnjiXTs. INTERPLEADER : remedy of, 95, 96. INTIMIDATION' : a ground for admitting parol evidence, 5. JURAT : error or omission in, j^. omission from, ^.So-Hj. 509 LANDLORD \vl len a purchaser from tenant. illei^aijy distrainini^-, jiabl rijihts of, 80, g2. distress for rent, 86. sale of distress, 90, 92. as such cannot object to non-re 2S4. e to morts,'-aij-ee, 284. accentnij,'- mort^'-a-re, no \va •j^nstration, 91, -ijS. taking- mortg-agor's undertak failure to proceed with sale ver of riglit to dist ram. 91- ui; 91. 91. where a trespasser on distress, 224 illeyallv dist raming, liable to mortg-ai,'-o where landlord entitled to mortL-- purchase by, 398, 399. r, 249 payee's release, 2 LEASE with stipulation that I essor to ha\e lie perty, is a mortgag-e, 8. 49- n on tenant's pro- of property, with right of purchase, not promise of surrender of, not sulH a mortpatri: LEW icient considenition ' jj- goods under, may be mortgaged, but mortgage is sub- ject thereto, 46. mortgagee entitled to surplus after execution satisfied 46 .f made, mortgagee may take possession e^■en before default, 62. ;io INDEX OF SUBJECTS. ■ I lii 1^ I li 'li i LIABILITY: amount of, to be set forth, 305. extent of, meaning, 306. mortgage to secure against, 299. not those to be incurred after mortgage, 301. LICENSE : to take possession as security for a debt, is a mortgage, 8. LIEN : a lease stipulating that lessor to have lien on tenant's pro- perty, is a mortgage, 8. LOCATION : of property, 362, 363, 371. description by, when surplusage, 370. LOCALITY : description by, 372. bonded goods, 373. ' LOGS : mortgage of, 361. delivery of, 391, 392. LUMBER : mortgage of logs, 361. MACHINERY : See Fixtires. leather driving belts pass with realty, 27,. placed on land for purpose of <^r, 'e and manufacture may- pass with freehold, 2;^. but not if contrary to intention of parties, 24. MANITOBA : statutes, 143-64. sale of goods, 144. change of possession, 144-46, 148, 149. mortgage of goods, 148. mortgage effectual from filing, 148, 1.50. INDEX OF SUBJECTS. MANITOBA-<:o«//;,/,,v/. mort^.aj,.ee in good faith, meaning, of, i^o. aftdav.t of bona fides for corporation. To, ,5: mortgage of crops, restrictions upon, :s:-s/ seed gra.n mortgage, 1^2, ,:^.. "^^ future advances, mortgage to' secure, ,=1. ,,4 assignment of mortgage, I :;:; renewal of mortgage. %5, '^'^6. discharge of mortgage, 1 56. '157. discharge of mortgage, form of, iz; discharge of mortgage, clerk's certificate, ,60. description of goods, 158. affidavits, who may take, 159. filing of instrumeus, 159. certified copy, when evidence, 161. fees of clerk, 161. filing in district of, 314, 3,-. MANUFACTURED GOODS : when excepted, 401. MANUFACTURER : name attached, 401. MARRIAGE: See Co.vs.derat.on. MARRIED WOMAN : may convey or mortgage to husband, and vice versa -4 MERCANTILE AGENCIES : searches by, 384, MERCHANDISE : meaning of, 401. MISTAKE : a ground for admitting parol evidence, 5. ;ii I f I i i i ! i 5'- INDEX OK SrUJIiiTS. .MIXI>. .-: See I\ti:k.mi.\c;i,i.\g. .MORIGAGK : See Mokit.agi-i;. derivation of, i. , definition of, i. is a security founded on tlie common law, 2. essence of, is that there must he a debt, j8. IS a transfer of the property as security for a debt, 2. consideration necessary, j, 28. divisible into four chisses, 2. mux be verbal as between pu'iJes, ^. must be in writinj>- as asrainst third" parties, 3. pledi,'-e and mort<,>-aj,>-e distinj^-uished, 3. no particular form requisite, if statute complied whh, 3. parol :ij,;reen-!ent to i^ive, enforceable, 3. absolute tv, iorm, may be conditional, 4. parol evi.kMce admissible (...) shew intention, 4. how intention ot parties gathered, ^. intention of Ori.iies a question of fact, 6. whether niorfi^age or not, a question of law, 6. effect 01 pos.session to determine question, 6. taking- judt^ment for consideration indicates mortf,rage, 7. other circumstances constituting, 7. wiiere provision for redemption in a contract of sale, 8. lease with stipulation for lien on tenant's property, 8. powers of attorney, etc., to take possession as security for debt, 8. where right of redemption nut reserved, not a mortgage, 8. nor where sale extinguishes debt, 9. nor where property does not pass, 10. nor in a lease with a right to purchase, 10. property must be transferred, 10. provision for lien for unpaid purchase money, 11. pledge and mortgage distinguished, 11. sometimes unite in same trans- action, 12. limited interest may be the subject of, 15. 1 law, 2. L'bt, 2H. it\- for a ciobt, 2. arlies, 3. te complied with, 3. 3- 4- ention, 4. , 6. of law, 6. ition, 6. :icates morti^-agt', 7. contract of sale, 8. t's property, 8. isession as security , not a mort{,'-ag-e, 8. 10, noney, 11. in same trans- '^'>l:X OF Sl-BjECTS. MORTG.Unv -r..,/.,,, 5'^ "°^irt;::i"r;rr^''-"--^- consideration. ■ HiitLrate person upon re- m quest before si,.„i„,., ^,^ "i-i} be made to sevenl ,-„.r -veraliy as credit"! 'T"' •'""^'^- '^ — ^^e '•'ffent may execute, 5. ' '''" to the Queen, 54. •>pecialle^i,,,tK,, ^^^ ,^^ j^^^_^ Possess,on under invalid, maki^;^' valid d -f ^ ^• «-aj,-e, 55. -^ ^ '''"•' detective mort- taking- possession under must n ,n, morti^ai,^,r ^^ ' "^' ''^ '''-■""'^t consent of where two mortPayes d..f>.^- possession prJie^d -8 "' '""^^^^'^^^ «-t i„ d'st.nguishedfrompledire''; ,, , .nsurable interest, roy,", I :^" ' niay insure on mortgagor's default r,r provision tor reg-istration, 2,7 ,.« ^secure debt and against I- ;biHtv; ,44 power to, uK-ident to corporation.- 4"-''- to department of Government ^ . - '" g-oods warehoused, 246. ' "' seal not necessarv, 246. when copy may be filed", 2.0 taking off the tiles, to re-r;g;ster .,, acceptance necessary to completJJ^;,,, , to secure endorser, 299. ^'^"^-'O. 254. .--, ag-ainst liabilitv incnrr..,! t\ discharge of, 347. ' ^~^'- I t ': 314 INDEX O" SfHJKlTS. i! t f i\ i MORTGAGE -YVw//;//^,v/. of chattels, discharj^c, 404. " " renewat, 405. g-eneral form, 423. future advance of money, 433. " " goods, 442. MORTGAGEE: sale by, 77, 85. how a trustee for mortj^ajjor, 78. rig-hts of, on breach of condition in mortgag-e, 2. may follow mortgaged property if sold by mortgagor, 42. may not take pcissession till his right to do so accrues, 43. entitled to surplus after execution satisfied when mort- gage made while goods under levy, 46. may make good title to defective mortgage by taking possession, 55. but query if against consent of mortgagor, 55. Ontario law as to mortgagee taking possession, 53. right of, to take possession if no redemise clause, 56. belief of mortgagee that he was insecure at time of taking possession, 57. grounds of belief in insecurity, 57. with right to possession may maintain action against any person for wrongful detention or conversion, 57. entitled to possession if any act done by or against mort- gagor which impairs security, 58. may take possession from pledgee in some cases, 58. under defective mortgage, is postponed to second mort- gagee who takes possession, 58. selling- goods before default, mortgagor has right of action, 60. selling, can convey good title even without having right to sell, 61. may be restrained from taking possession before time limited, 61. effect of consent of, to sale by mortgagor, 63. rt^'age, 2. by mortf^aj^'or, 42. c\o so accrues, 43. tisfied when niort- •, 46. srtgage by taking- Igor, 55. issession, 55. lise clause, 56. e at time of taking- action against any onversion, 57. y or against mort- ime cases, 58. ;d to second mort- gor has right of thout having right ssion before time or, 63. •"ay purchase a. shcrifrs sale 6- c-onsent of, to s-il • f '"•" Pnulon, „„„„ „-„:;;,''',;;"" "•"«• ""<» »'.ol, car. ,„ „ ''^■41'iring property 69 ''"'' '"" ''^ '■■•''•"'='■'1 law in takmg possession, mu;; evidence it bv ■"possession mav re-deliver ^ '^^^'"^^P"'^''"-" act. 69. 6y. - "'"^^'^ f^^ "mortgagor as his agent. '■» possession may brin- trov ^■onversion. 69 " ''' ''-^""■^' ^'^i-'d person for *'"-:::::sh;;:ir'"^"- "-■'-- -.ercise acts '"";;:^r^::r^--'"--i..i.ng ....,.,,, sale under execution against 9- •■eversionary interest. 9^ ^'■'■ when agent mru- be. 24'r MORTGAGOR: '-"'"" ■'^■"^"■'"'^■■'^^ measure of damages if n^orlif' • ^^^^^^sell before defeult, 60 ^ ^ ^'' '"'''''' ^" P^^-^-^-on Po^s^lsi;::^;;'^;;^ -;;;-^^ n^^^^ ^om taking ;i6 IXnKX Ol- Sl'IiJElTS. I :< y I O R TC. A G O R- Contiiui , d. authority to, to sell, tiot authority to, to mortg-.ij^-e or incumber, 63. may sell his intcvst subj.ji tr. mortf^age, 66. sale under execution against, 94. concealment o'i irior charge, 1 15. may maintain action against wrong-doer, 249. creditors of, whom included, 307. MOVABU' PROPHRTV : See Pkrso^al i'Ku;i.KTV. MUSKOKA: filing in district oi, 314. NECESSARIES: See Infants. NEGLIGENXlv : See Action-. NEW BRUNSWICK : statutes of, 165-92. actual and continued change of possession, 167, 174. after-acquired property, 168. conditional sales, 170. affidavit of bona fides, 171. mortgage or conveyance, etlectual from fiiini^r, 172. srile of goods, 174. mortgage for future advances, 175. mortgage to secure ag.iinst endorsement, 175, 176. filing of instruments, 176, 177. renewal of mortgages, 177-70. 1S6. mortgage to secure debentures, 179, 180. discharge of mortgrige, i8i, 188. assignment of mort.: ige, li _. defeasance must be filed with bill of sale, 182, 183. fees of registrar, 183. computation of time r.i iiling, 184. authority to take or renew mortgage, 184. description of property, 184. affidavits, who may take, 185. o, to mortga{,''e or ^c, 66. er. -!49- . i'Kui tKIY. ion, 167, 174. 1 fili'ii,'', 172. It, 175, 176. lo. e, 182, 1H3. 84. '^^"« OF S.HJKCTS. N'iU- HRI'XSWICK r,/ . '»n.i\ f (inliiiiivd. -'battel mort'. t 1 '" ^""""^^"^' <■-- ^^^. '«<> ^f^W C-Ol'XTV: .s.(. N'l'lSSIXG: '•''■"«■ in districf of, ^,^. >^ORT.r.WHSTTKRRrrOR,Hs. •^latutes of, igv-'Kj re^^istration districts, hounclaries of ,. , 'iistrunicnts to tak-.> ..rts ^ *• ' . K '...«- lor (ututv advances ,u8 "istriiment void atr-ilnvf . ^ ■ .'.Vi.nst cortau, parties unless re.Wstered. ^"Oi'-ient and t\,ll description, .0, dut.e of clerk, .02 .0^ '•enev >nm>n,.ao-es. !.o3, ,0- cert.fiec. copies uhen evide i^^l^O '^!- -r,.e „ ,nort,...,.e. .00, ^^ '--'-'r,^ orn,ort,a|,e,formof ,,, ''•"■'^'kninuntofmr ai,.e, .08 ^ '^^ m -ay take n,ortga^e to con.panv ,4 I'ropCTIi, .,,6.406 ■'''■" '" P"«^'ii;,l f'.-Ki.slraliuM, ...„,,, ^_ „8. „ ^1- • " ■"'iireties, 200. authority of ag-ent, ^08. ^^^ affidavit of bona fides, ^08 contrac, for mortgage, 309. removal of goods' to'another countv ^,0 renewal of mortgao-es ,., ,,a ' '' ^" certificate of clerk, 34!; '^'^ ' >"''' ^39- 34'. 3S^. discharge of mortgage,' u" -n assignment of mortgage^ /-V' ' fees of clerk, 3,6. ^ ''-^^'• computation of time, 357. 5"» INDKX OI- SrHJELTS. i I i i i ^ OXTARIO Continued. aiitliority to ai{-eiu to take or renew mortt,'-ai^e, 358. ciescription of chattels, 359. affidavits, who may take, 378. j,'-oous not ready for delivery, provision regarding, 385. creditors, meaning of term, 388. change of possession, 388, 399. agreements where possession passes without ownership, 400. returns liy clerk, 403. discharge of mortgage, statutory form, 404. renewal itement, statutory form, 40:;. statute respecting costs of seizure, 406. OPERATF\'E PARTS: of conveyance, 1 04-106. PAROL AGRERMEXT : to gi\e a mortgage, enforceable, 3, 28 1. PAROL i:\IDE\CE. See Evidknti:. PARTIES: infants, 47-4C), insane persons, 49. illiterate person, 49. blind person, 49. partners, 50. owners in common, -^2. joint mortgagees, 52. agent, -^2. corporations, 34. the Queen, 54. married women, 54. PARTNERS. See Partn-kkshu'. PARTNERSHIP: mortgage lo secure future advances to, will not cover advances made to firm's successors after dissolu- tion ot original firm, 34. ■t^^age, 358. •egarding, 385. thout ownership, .04. will not cover after dissolu- 521 PARTXKRsnii' r- /• "'^ <^ oiitniuai. "" ^'cii:::-,,::'::;:^,:"^! >^*- aa„ „„„. 01, ni,i\ execute mort dobtv "Uitual line bill agency partner ni;] 'k'lgo to secure firm's exists b. eannot bind y pied '-"Iween members '.i^e property of, io' the b o< tradinir. ; ;o. ^^"e partner m, ^•^^-partners by deed. iisiness, ro. not be und 'y execute chattel one part cr seal '"ort,<,raae, as such need 'icr cannot benefit oi cred ■-'^^ccute tleed oi may execut I ton ■dl stock in trade fi or e mort ii'au '"di\ickial e on "nplied autl extends to b representatives oi d partner, 51. inirity o'i part, Iisiness oi. property o^ to 'secure debt oi ler to bind property o^, onix partner. leceased partner bo ""■' '\v act of mortgage taken to PARR r SOUND: on e partner, ^^6. filin 'ir in district o'i PAWX. See 1 PERFORMAXCl.: 514- iicix;!-. a mortm .'.■•■'.ire is defeasible bv tl lit'on, 2. le performance oi th specific, will b e con- perty not tl ai-iuired, ff,. '»-' eompelied, oi len ill eontract t. con\e\- possession but aft. pro- rwards PERSOXAL CHAT PERSOXAL PRor TKLS. SeeC "ATTKI. 'divisible into four cl movable is included ERTV: Seel KOI'l: K Tr- asses, 2, '" '^'■•m ''^oo^ur 16. I.- '! INOKX OF SIHJKCTS. V PLKDGI-: : tlistiiit,niisliecl from mortf,'-a.t;-o, ^, ri. atlribiites of plcdure, ii. delivery only roqiiirod, ii. writiiii,'- not necessary, ii. transfers possession but not title, ii. niort-aire and plodo-e may unite in one transaction, 12. debt essential to, 12. lien of pledi,-e may be destroxed by mort-ai,-e in some cases, 58. distinf,'-iiislied from morti^aj^'-e, 10^. POSSESSION : See Ch.vxoh of Pos. .^ssiox. eflect of in determininj^- whether morli^-ai^e or not, 3. ^n-antor continuinj,-- in possession indicates mortya^^-e, 5. a requisite of a pledi^-e, n. constructive, sometimes suHicient, 12. not essential to a mo^tJ,^'ii,'■e, 14, i ^. does not in itself convey an interest which can be mort- gaged, 15. when bona fide purchaser from person in possession may hold against owner, 15. usually the test of ownership, 45. absence oi' change of, indicates fraud, 44. inider Act mortgagor retaining, is not presumed to be fraud, 44. under invaHd mortgage making good defective mortgage which is good as between parties, 55. effect of taking possession in Ontario, 55, ^gcj. taken by mortgagee against consent of mortgagor, 55. cures all defects in mortgage, ^5. must be actual and physical, 56. it mortgage does not give, to mortgagor, mortgagee may take, at any time, 56. mortgagee entitled to, if any act done which impairs security, 58. effect of abandonment of, to mortgagor, 58. iJSiiii; l!i transaction, 12. nort!^aj4'e in some ON". ^-•c or not, 3. es mortyag-e, 5. licli can be mort- 1 possession may presumed to be fective mortyag-e V i. o99- nort.t,'-agor, 55. gor, mortgagee > wliicli impairs 5«- '^'"^X OK snyKCTS. aclvertisin..- -, . "" '"'i^''^'^'- 5«. on 56: ^"■^"'^-'-- ''-'^^-"inin. sufficiencv '"••'.v be taken from p|,,do-.> stances, ^8 ' "'" ""^'^''' ^'^^'-'"i -'-- two niort^a^es defective, first 'erred, 58. ' ■^' morti>-ap-ee nvn- u . ih,!.,, ;;;■, '" '■""■•"""' '>- '^.iyeof, 144-46,388-99. "- to be actual and continued, -S '^ou- affected by n.-tture of p,-o' ^t, . , -^^"-cssarilypersonal, ,; ' '^■•-^'- i'i It It 5-4 INDEX OF Sl-BJECTS. POSSESSION -Cw//////^(v/. chaiiire of, between members of family, ^,9:;. to morti^ai^-ee after default, 3()4. " requirements, 395. question of fact for jury, 397. if \vron<,>-ful, its eflect, 397. attempt insuflicient, 398. subsequent takins,"- ot\ 399. actual or constructive, 393. i^ootls WJirelioused, 396. POWER OF ATTORXE^' : when a con\eyance, J38, 239. to take possession as security for a debt is a mort- i,'-aj;-e, 8. to take morticaire, 308, 358. to renew morts^-a.^-e, 359. form of, authoriziiii,'- agent to take a mortj,'-as,'-e, 4^9. renew a mortg^age, 460. take and renew mort- ;^a<4-es, 461. POWER OV SALE : morti^age sellin.t,r under, can convey s^ood title even if having no right to sell, 61. PREFERENCE. See Pki-ssikk. Fhaid. PRESSURE : doctrine of, 33, 40, 41. PRINCE Ei:)WARD ISLAND : statutes oi\ 408. Act of 1869, 417. 1878, 419. PRIORITY: mortgage executed prior to actual seizure by bailiff untler Division Court process takes priority,' 46. mortgagee's interest postponed to lien holders' in certain cases, 58. 0-\-) . 39.V 394- debt is a mort- )rtf,'-a.ire, 459. nortga^e, 460. d renew mort- oo(.\ title even if izure by bailiff priority, 46. ciders in certain IM)KX OK Sf,!JKr,S. PRIORITV rw//;...,,/, where two mortya-es ,I.t\ .• ferred. 58. ' "^ '^''''"''^ ''^^ ''" Possession pre inPrinceEdward Jsland, 4,. ''"'^'■^" "Either instrument validh,..- , , PROMISSORY XOTH : discount and sale of. distin^nn-shed ,-, errorn.descriptioni„n,or,;a<, ::"• -'--o^;.a,.esbene,itot^n; ;;;::, ,,^. y > • .See (rooDs AM, '-furn-.v r- AaniRKo Pko,.,.;k,.v. • ^"■■"■•'■'•'^ -^.-TKR. -■an bo mort.ya.yod tliouf,rh owner Iv, -Hire title or possession ,' ""' "'"^'"^'"^ ^•■ exempt from attachment and ov > .• «a.^od. ,4. ''"^' ->xocut>on may bo n,or,- '" an unfinisiied state -.-,,. u, P-chaser has advanced m '""'^"^-'- "-' -vn if which mav be sold nr b "■ '''' -"'''''^'^'' ' S- 'i-ited interest i ,";•' ""^^^"«"'- '^• "- i" existence, m:'be':."r':^"^-'- "• subsequently to bo a;c,,;^l,:.'r"^^'''"'' ''• -cessions to, may be mori:-,'r"^-^>-'-'r. subject matter changed, evamnl f -here changed. ori^^„a "ope ^ "' "T^^^'^^ ''^"- ^4- '"crease of animals ?.onor.r- ?"' ^" ''^''•'"''''^ed, J. sale of inorease m^" b T'""' ^>— "t^ago ot; 4- without notice, ?, '"'"^^ ^^^ '^^^ '-'e purchas^; "--'^■".ofmort,;,od property, rules and examples ascertammont and identity necess-.r,- ^ n^ht to, does not pass til] pro^; .^ ^ '.'■""^'^'- ^^'^ ■^^. passes when appropriation ', ad' V"""' ''• m lU . Si i! ! il' 3-''^ INDEX or- Sl-BJECrs. PROrKRTY~-C;(;////y///,v/. consumable, mon^^ng^ on, presumed to be fraudulent, 45. joint owner or owner in common may mortgage his interest, 52. temporary removal of, from designated limit with inten- tion of returning will not authorize mortgager to take proceedings, 62. PUBLIC POLICY: when mortgage void, on ground of, 45, 280. PL'RCHASLR : from mortgagee selling without right, acquires good title, 61. f.'om mortgagee •■.elling under invalid mortgage acquires no title against creditors, etc., 71. assuming mortgage, cannot object to defects, 284. from p,;rson in possession wrongfully may hold against owner under certain circumstances, 15. PURPOSE OF RESALE : sale* for, 400, 402. QUEEN : mortgage to, made to head of department to which debt due, 54. RAIXV RIVER : filing in district of, 314, 401. RfXITAL; of agreement in mortgage for future advances, 294. of agreement in mortgage to secure indorsement or against liability, 299. of agreement, errors in, effect of, 300. RECORDS : inspection of, 384. o be fraudulent, 45. may mortyajre his ed limit with inten- irize mortf^agec to 5, 280. ht, acquires j;ood mortg-a^^e acquires iefects, 284. may hold aj.ptinst s 15. ent to which debt \ances, 294. ^ indorsement or REDEMISE '>^>^HX OK SVHmrs. o-'7 if clause omitted in morto-ur . ■session anv tin,e, r.u "''"''^'''^''' '"'^.v take pos- advisabilityofomittin-\-i.,„.w- -"^ct of clause in mor;;!;;VT '""^^^'^'^-- REDEMPTIOX : '" '"''''' bill of sale with condition as to is •. "•here ri,,ht to. not reserved n\ '"^^''^^'^^^^e, 7, 8. "•'^'-''■e a bill of sale requ!v;:V "' "'' "'°'''''"^''' ^■ proviso for, cj8. '"«'-t«-a.^.ors equity of, y8, 09. reasonable time for. ,0,. ,0, ng-htof, notuithstandino-termsofin. REGISTRATIOX : ^^'"'^ '^^ '"-^trument, ,03. ''efect in n,ort,.age may be cured bv possession, :;5 - but not in OntariJ if creditors, etc h-iv^ possession taken ;;r " "''^'-^ ™'"e m before where copy filed, proof' that a true - t.me ex-pirino. on .Sunda^• '-l '"P"^' -^^• meaninj,r of, 3-8. ■'-■>:>/■ provisions rel,rarding-, .j , cla»»s benefited W cC^ If^"'' ""■ ";"'»"'""--f»i-posse=,io„,''8' "'^^PJ-ofbillofsale, ^gj ^y 'iiorttrap-pf> f-w.- RELEASE: See Drsc HARGE. ■i • * 5-8 INDEX o\- srnjiicTs. RKMOXAL OF CiOelDS : restriction ajfainst sale and how construed, 59. out of Province, 247. clerk's certificate on removal, form of, 322, 479. transfer of mortf,'-aj,^e to another county, 319, 320, 321. hy wronfc-doer as a<,^ainst morli,'-a,i,>-or, ^,21. by purchaser from mortj,'-a^'-or, 321. RENEWAL : statement on, form of, 405, 462. time for, 7,21,, 330, 331. althouf^h debt has not matured, 7,2^. in case of assij^nment of the mortj^ag-e, •?26. who are subsequent purchasers on default of, 327. unnecess.iry as ajj:ainst trespasser, 327. by ai,'-ent, authority for, 324, 358, 359. second and subsecjuent, 337. one year from iilinj,'-, ^^^6. statement, requisites of, 331-34. statement, should refer to time of filino-, ■>-5^. does not validate invalid mort^'-ai,'-e, ^2^. affidas it, who may make, 334, 339. affidavit, form of, 405, 463. by ayent, knowledj^c of circumstances, 335. statement, computation in, to future day, 3-55. mistake in statement, liow corrected, 336. clerk's fee, on filing, 337. REXT : See Distklss. REPAIR: provisions as to i,nve morti,rag-or rii^ht to possession, 59. REPLEVIN; See Action. if partial interest in property is mortgaged to a stranger the latter cannot replevy from other owner in com- mon, 52. will lie against mortgagor hy mortgagee before default if mortgagor has no right to possession, 68. 5-2y led, 59. 122, 479. 319, 320. 321, 21. ,26. It of, 327. 35- 335- possession, 59. 'tl to a stranger owner in com- nefore default if , 68. iNDHX OF sinjrars. i^Hl'RHSF^NTATlVIv • K.s;ur^'""' '" ■■' '"--■'— .,3. purpose of, 400, ^02. RETURNS : '\v clerk 10 (nnernment, 403. RIGHT OV i;\TR\-: express or implied, 85. ^■\''H: See H,u. OK s,M.,c.PouKK OK SuK "'ay be either absolute or conditional, ," verbid c s"? oZr ^^""" "^ ''^-'^^' '^■^• acquiescenee of mortyajree in >..,1, • , -•" son.e eases. 63. ^^luualent to consent !" ordinary conrse of bt.siness may be nvnl. ,r o-oods, (,(,. '^ "^ '"''^'^^ ^''^ "iortf,rafi-ed •W mortf^a^a.,., 77, 83. meaning,'- of, 77. ■"^iii-pliis proceeds, 78. adjournment of, 79. deficiency on, 79. proper conduct of, 79, 8^. collusion, 80. ' '"*' fraudulent undervalue, 80. advertisement of, 77, 7^, Si. private, 82. notice of, 83. hy auction, 83, -nclusion of »oods of others, 84 "1 parcels or en bloc, 84. purchaser's rij,rht.s, 96. defined, 401. when to be in writiiiir, ,86. f ' ' ' If INDEX OK Sl'IiJIXTS. SHAI.: bill o( sale need not be iiiuler, i. ehattel nioi-tgat,'e need tun be under, 50. SHAkl'; : in (.liattel, sale of, -587. SHERIFF: sale by, not waiver of mortg-agee's rights if mortgagee also a creditor, 65. mortgau-ee may buy at sale by, 65. SUBSFQIFXT PURCHASER:' buyer during currency of valid mortgage, position of, 283. priority of, notwitlT^tanding his failure to register, 28;, 286. on default of renewal, 329. STATUTE OF ELIZABETH : effect of, 93, 280. STATUTE OF LIMITATIONS: debt barred by, is a good consideration, 34. elTecl of, on moitgaged debt, 34(). STATUT1-: Rl-;sPi-:CTIX(; IXTEREST: effect of, I 15-17. STOCK-IX-TRaD' mortgagor in: gaged sidck effect of covenar^ '! in ordinary course of business morl- vilhout consent of mortgagee, 66, 72. not to sell, 66. implied license to sell to a limited extent in ordinary course of business, 66. mortgagor cannot dispose of goods in other ways, 66. cannot be put by mortgagor into a partnership, 66. qualified consent of mortgagee, 66. mortgagee may still be entitled to take possession of, notwithstanding consent, 66. advisability of providing that stock shall not depreciate, 67- conditional sale of, 240. meaning of, 367. renewal, description, 387. [•hts if mortgagee , position of, 283. to register, 285, 34- ■>! business inort- ortgagoo, 66, 72. tent in ordinary til or ways, 66. ership, 66. :e possession of, 11 not depreciate. IM'KX DK si lilKCTS. Sl'UKlHiA rioX : ii^rlil oi' insurers, r i _>. ,,_^^^^_^^_^ ^"S. Soe.\.u.ss,ox.Arr....\.or,u,:„ si\n.\\-: expiry on, ;,57. instrument signed on Sinidav, ^r, Sl'RPI^L'.S: ■ " proceeds of sale, 7.S. Sl'Ri'RI.SF-;: "■' ^■'■^'""^' '''^'' ■•'^Imitting parol idence, 5. THX.WT : .See l.Asuumn. TKXDI-R: mortgagee may be restrained afler. ^.S THU\di:r HAY: filing in district ol, :;,4, ,0,. TIM HI-: R : "'^' ^^;itHi" the act till after severance, ,0.^40 IS an mterest in land, 19 ' withnMth^ection of statute of frauds, as fructusna.ur- ^vhen sold u i,h a vieu- to immediate severance ih > '-- is .hen tor the sale of chattels ';• "'" appropriation of, to contract, 246. delivery of, 391, ^q,,. growing, sale of," „ot underact, ^88 TI.MH : computation of, 2^1. |[ *'-^^'ii date of execution, 2=^2. ", date of instrument not conclusive --, mortg^^e not void although made on Sunda 2 : ~' withm live da^s, 293. '^"" computation oi; on refiling after removal of goods, on renewal of mortpaye 323- 330. ■.'iu ^, IMAGE EVALUATION TEST TARGET (MT-3) h // A f/i y(<5 1.0 I.I 11.25 I^i2.8 ■ 50 '"■■ 2.5 2.2 lit WUu . iig IM =y= niM^^^^s Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. I4S80 (716) 872-4503 # \ <> ^ \^ ^ >^ ^■J^.. "/. ^ .5.V /^^.k^ C distinguished from pledge, ^. words necessary to create - parol agreement to gi^e a'-m^-tgage, when enA^rced , VESSELS : '^" not within scope of this work, 2. excepted from Ontario Act, 2^9.' mortgage of, not included, ^82.' meaning of, 383. VOLUNTARY : conveyance, when invalid, 29, 9.. WAIVER : mortgagee dcn.s not waive his right by consenting to sheriff selhng under execution, 65. WAREHOUSED GOODS : when registration not required, 246. WARRANT : under chattel mortgage, form of, 472. WITNESS : mortgagee incompetent as, 25-5. must subscribe, 254. Act respecting, in P.E.L, 422. who may he, 356. WORDS AND PHRASES: all my future personalty, 18. in the ordinary course of business, 18. sale, 77. formal possession, 120, 227. apparent possession, 124, 227, 231. actual and continued change of possession, .44, ,67 .So mortgagee in good faith, 150. ^ " ^" sufficient and full description, 158. 533 334 iNOEx OK suiyix rs. WORDS AND PHRASES CV>////////(v/. justly and honestly due and owiiii;-, 225, 226. as nearly as may be, 233. true copy, 250. tof,retlier with, 253. consideration, meaninj;- of, 269. due or accruinj^ due, 273. estate and effects, 273. null and void, 276. good faith, 282. subsequent purchaser, 283. every sale, 286, 287. f,'-oods and chattels, 288. writing-, 289. purpose of holding, 292. enter into and carry on business, 29:;. month, 323. creditors, 328. purchasers, 328. true, 335. "lily. 337- debenture, 342. immediate delivery, 248, 249, 394. cease to be valid, 339. vessels, 383. sufficient and full description, 359, 360. WORK AND LABOR : distinguished from sale of chattel, 311. WRITING : required for mortgage, under the Act, 3. WRONG-DOER : when unnecessary to renew as against, 327. 5- 226. 327-